R Francis Dixon v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 30 September 2015 |
| Neutral Citation | [2015] EWHC 2712 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No. CO/3231/2015 |
| Date | 30 September 2015 |
[2015] EWHC 2712 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Case No. CO/3231/2015
Adam Wagner (instructed by Duncan Lewis Solicitors) for the Claimant
Colin Thomann (instructed by Government Legal Department) for the Defendant
Hearing date: 3 September 2015
Draft judgment circulated: 8 September 2015
JUDGMENT APPROVED
SUMMARY
In this case the claimant, a former prisoner at HMP Manchester, complains of what he says was unacceptable delay by the prison service in 2013–2014 in providing a psychological assessment and report which the parole board had recommended should be obtained in respect of him. He contends that the unacceptable delay was of the order of 5 1/2 months, alternatively 4 months, and that but for that delay he would have been released from prison on licence earlier by an equivalent period. He seeks: (a) a declaration that the defendant, as the minister responsible for the prison service, acted in breach of duty under public law and/or article 5.4 of the European Convention on Human Rights; and (b) damages for breach of those duties.
The defendant has accepted that there was what it describes as "resource related delay in the assessment of the claimant measured in months". It contends however that when the case is viewed in the round, rather than focusing narrowly on that delay in assessment, there was no unacceptable delay overall in the performance of its duty to the claimant.
Permission having been refused on the papers His Honour Judge Raynor QC granted permission at the oral renewal hearing in relation to ground one, being the claim summarised at [1] above, on the basis that it was reasonably arguable.
Accompanying its detailed grounds of defence the defendant served witness statements from: (1) Georgina Vince, the prison service lead psychologist for three prisons, including Manchester; and (2) Louise Jackson, the prison service psychologist who produced the psychological assessment report in this case.
I am greatly indebted to both counsel for their extremely helpful written skeleton arguments and able oral submissions.
In summary, I dismiss the claim, for the reasons which follow.
THE RELEVANT FACTS
On 10 July 2000 the claimant, then aged 25 years, was sentenced to life imprisonment for an offence of conspiracy to commit robbery and to 15 years' imprisonment for offences of possession of firearms with intent to commit robbery. He had agreed to participate in a planned armed robbery, which was foiled by police intervention, during which there was an extensive car chase involving the kidnapping of a member of the public and multiple discharges of firearms, both at police officers and at members of the public. Because he was not centrally involved in the planned robbery, and because he was not personally involved in the kidnapping or discharges of firearms, the minimum tariff which he was required to serve under the sentence of life imprisonment was set (on appeal) at only 5 years.
Whilst in prison he successfully engaged in a number of offending behaviour programmes and, in July 2009, was transferred to open conditions. In February 2011 he was released on licence, having persuaded the parole board of his genuine intention to sever all contact with his previous criminal associates. However he was unable to keep that promise and, in October 2012, he was recalled to prison following his arrest on charges of involvement in offences of murder, attempted murder and causing an explosion. These arose out of his involvement with the notorious Manchester criminal, Dale Cregan, in the months between Cregan having murdered one of his rivals and his proceeding to murder two serving police officers. Following a trial lasting some five months he was acquitted of those charges but remained in custody.
On 16 September 2013 there was an oral hearing before a panel of the parole board to consider whether it was appropriate to direct his release from custody or, if not, to consider advising on his suitability for transfer to open conditions. The parole board panel determined that it was not appropriate to direct his release from custody or to recommend his transfer to open conditions because of its conclusion that his level of risk of re-offending and of serious harm to the public was high. The panel was satisfied that even on the claimant's version of events it was clear that he had not gained as much as had been thought from his previous offending behaviour work, that he was still seeking to minimise his involvement and potential for harm through his actions, and that there remained core risk factors which had not been addressed.
Significantly, they also considered the question of "whether there is any further work which can be done to help you to avoid making the same sort of mistakes in the future". Their answer was that "you should now undergo the psychological assessment which was proposed prior to your release on life licence, with a view to determining what further work should be completed in closed conditions to reduce your levels of risk of reoffending and serious harm before you can be considered for release or progressive transfer to open conditions".
It is not clear what proposals for assessment had been made before his previous release. However what is clear in my view is that the panel was proposing a sequential process involving:
(a) The claimant undergoing a psychological assessment, resulting in the production of a report which would identify what further intervention work needed to be completed in closed conditions to reduce his risk.
(b) Consideration of that report by the defendant, with a view to deciding what if any further intervention work the claimant should undertake.
(c) The claimant undertaking the appropriate further intervention work, with the production of a post intervention work report on completion in order to demonstrate that it had been positive.
(c) The production of an addendum psychological report, perhaps after a period of consolidation if recommended, to confirm that his risk levels had reduced sufficient to justify the psychologist recommending his release or transfer to open conditions.
(d) The convening of a further parole board review at which the question of release or transfer could be considered in the light of the updated dossier, including the above reports and the usual updated reports from the probation and prison services.
Although I accept Mr Wagner's submission that the panel did not state in terms that further intervention work would be required, so that it was at least theoretically feasible that a psychological assessment report might recommend his release or transfer to open conditions without any such work being first undertaken, I am satisfied on the balance of probabilities, having regard to all of the circumstances and particularly the parole board determination together with the evidence of the subsequent psychological reports and parole board determination, that there was no realistic prospect either of that being recommended or of any further parole board panel accepting such recommendation, if made.
It is not in dispute that at the oral hearing the seconded probation officer present informed the parole board panel that it normally took "6 to 8 weeks plus 3 to 4 weeks" for a psychological assessment and report to be obtained. Although there is no further evidence about this, other than Georgina Vince's evidence that "a psychological assessment normally takes about 37 hours including the interview and the report", I consider that it is reasonable to infer, and I find, that at that stage the expectation was that in normal circumstances it would take around 6 to 8 weeks to schedule and undertake the assessment, and a further 3 to 4 weeks to produce the report, giving a likely timescale of between 9 to 12 weeks.
There is no suggestion that the parole board panel was informed that HMP Manchester was experiencing delays in the production of psychological assessments and reports. Indeed there is no evidence that as at September 2013 delays were being experienced. However it is also plain from the contemporaneous internal records now disclosed that when, on 1 October 2013, the probation officer requested the relevant prison service officer to arrange for a psychological assessment to be made, he was told that "the psychology department has stated that they will not be able to complete his report for approximately 12 months and therefore I have requested that his next parole review is in 18 months".
Georgina Vince does not address this directly in her witness statement, but it can reasonably be inferred from the above evidence and from what she does say, and I find, that as at October 2013 it was anticipated that there would be significant delays in producing such reports over the next few months. The principal problem was that 2 of the 4 full-time or equivalent psychologists in the department were on maternity leave and not expected to return until January 2014, the third was due to go on maternity leave in December 2013 and could not undertake any assessments before that time, and the fourth, Louise Jackson, had a full month's leave planned for January 2014. The ancillary problem was that the trainee psychologists who might otherwise have been involved were all either too busy on other assignments or — in one case — also on maternity leave.
I accept Mr Wagner's submission that if, as I find was the case, it was known by October 2013 that the...
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