R (Gill) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 26 February 2010 |
| Neutral Citation | [2010] EWHC 364 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10088/2009 |
| Date | 26 February 2010 |
[2010] EWHC 364 (Admin)
Before: Mr Justice Cranston
Case No: CO/10088/2009
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Straw (instructed by Bindmans) for the Claimant
Steven Kovats (instructed by The Treasury Solicitors) for the Defendant
Hearing dates: 11 February 2010
Mr Justice Cranston:
INTRODUCTION
1. The claimant is a life sentence prisoner who suffers from a learning disability. He has served well over twice his tariff. By reason of his intellectual disability he has not been able to undertake offending behaviour programmes. In essence his case is that this has greatly impeded his ability to reduce his risk and progress towards release, and that this constitutes not only a breach of the Disability Discrimination Act 1995 (“the 1995 Act”) but also a breach by the Secretary of State for Justice (“the Secretary of State”) of the public law duties imposed on him.
BACKGROUND
The claimant's imprisonment
2. The claimant's offending began in 1988. Violent behaviour soon emerged as a feature of that. There was an assault occasioning actual bodily harm in 1990. In 1995 he was imprisoned for three years for wounding with intent following his stabbing a person in the abdomen with a kitchen knife. In 1997 he committed the offence of grievous bodily harm. During an argument he struck his father with a three foot length of wood, causing a broken left arm. The following year the claimant was convicted for assault occasioning actual bodily harm. That occurred while he was in prison. Apparently he had been informed by staff that he was moving to a different part of the prison and as a result became violent, smashed furniture in his cell, and then used a table leg to assault prison staff and smash windows. The index offence, wounding with intent to do grievous bodily harm, occurred in 2001. The claimant assaulted a prison officer by throwing boiling water into his face. He was given an automatic life sentence for section 18 wounding and the tariff was set at four years. That tariff period expired in May 2005. In 2002 he was given concurrent twelve month sentences for actual bodily harm and affray.
3. Following his sentencing for the index offence, the claimant was transferred, in September 2001, to high security conditions at HMP Frankland. Subsequently he was moved to HMP Whitemoor in March the following year. In October 2003 he was transferred to HMP Long Lartin and remained there for the following six years. He was subject to some sixteen adjudications in the initial phase of his imprisonment but the last of his adjudications was in December of 2004. In October 2009 the claimant was transferred to HMP Lindholme, a category C prison.
4. The claimant's first Parole Board review was at HMP Whitemoor in May 2003. The reports prepared for that noted that the claimant had participated in little offence related work since his arrival at the prison and had completed no accredited programmes. His main areas of risk were identified as use of violence, criminal lifestyle, a lack of victim empathy, drug misuse and a lack of responsibility for offending behaviour. The board said this:
“Offence related programmes recommended to address his identified areas of risk were for him to be assessed for the Enhanced Thinking Skills (ETS) Programme in order to explore his thinking style, assessed for the FOCUS course in order to assess whether there was a link between drug misuse and offending and the Cognitive Self-Change Programme (CSCP) or Controlling Anger and Learning to Manage it (CALM) regarding his violent offending.”
5. The Parole Board considered the claimant's case again in February 2006. It decided not to direct his release or recommend that he be transferred to open conditions. It said that there was no support among the report writers either for his release, or for his categorisation to open conditions.
“5 … The consensus is that your literacy problems make your participation in accredited offending behaviour programmes impossible, yet without such participation your risk reduction cannot be measured. In the absence of such evidence the Panel can make no positive recommendation.”
6. The panel is extremely concerned that unless means are found to address your offending behaviour without exclusive reliance upon improving your literacy and involvement in offending behaviour programmes your constructive progress through the prison system will be impeded.
A further Parole Board hearing in December 2008 again decided not to direct the claimant's release or to recommend his transfer to open conditions.
6. The most recent Parole Board decision was in October 2009. The claimant accepted that it would not be appropriate for it to order his release or to recommend a move to open conditions. The board did not do so. However, it considered the evidence of the claimant's change during the course of his sentence. It said this:
“In the absence of evidence of a reduction in risks through the completion of programmes aimed at addressing your offending behaviour the Panel must look elsewhere for evidence of change. Other signs are favourable. You have not been involved in violence of any sort since 2004 and [the Probation Officer] reports a dramatic improvement in your behaviour since then. You have consistently provided negative drugs tests and have received neither adverse adjudications nor warnings for five years. You are now an enhanced prisoner with a job in the kitchen where you have access to hot water or knives that you could easily misuse. This means that you are now regarded as safe and trustworthy. You are to be congratulated on this progress and as a result you are being moved to a lower category prison where you will meet new people and new challenges. If you cope with these challenges without losing your temper or using violence you will provide more evidence that the risk you posed in the past has been sufficiently reduced to test you in open conditions with a view to eventual release.”
The board went on to note that if the claimant demonstrated that he could behave properly in the less controlled environment of HMP Lindholme – where it had been proposed that he be sent – consideration could then be given to the next stage of his rehabilitation. In HMP Lindholme he would have more contact with his family, which was important in the longer term. The future remained uncertain but the claimant now had the opportunity to demonstrate that he had changed and could be trusted in the community. A further period of testing his behaviour at HMP Lindholme was required before consideration could be given to any further moves.
The claimant's disability
7. The Secretary of State accepts that the claimant can be considered to have a disability for the purposes of the 1995 Act. Section 1 of that legislation identifies a disabled person as someone who has a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities. The effect of an impairment is a long term effect if, amongst other things, it has lasted at least twelve months: Schedule 1, paragraph 2(1)(a).
8. An accepted definition of learning disability is set out in the White Paper, Valuing People: a new strategy for learning disability for the 21 st century, Cm. 5086, 2001 – an impaired intelligence with an impaired social functioning, which started before adulthood, with a lasting effect on development. The British Institute of Learning Disabilities notes that a common tool used to measure general intellectual functioning for the adult population is the Weschler Adult Intelligence Scale. An IQ of 70 or less on that scale suggests the presence of learning disability. The International Classification of Diseases, Vol 10, produced by the World Health Organisation defines mild mental retardation as an IQ being in the range of 50 to 69, with likely learning difficulties in school. However, it seems that a low IQ is not sufficient of itself to diagnose a learning disability, and the degree of impairment of social functioning for each individual must be considered.
9. The claimant was assessed in 2004 using the Weschler abbreviated scale of intelligence. The assessment concluded: “[H]is full scale IQ was below the level required for the majority of offending behaviour programmes and fell within the “borderline” range”. A more detailed assessment using the Weschler adult intelligence scale, in 2007, reported a full scale IQ of 65. In July 2008 an assessment for Newton Lodge, a regional forensic psychiatry secure unit operated by the NHS, concluded that what the claimant would most benefit from is “more one to one support by a skilled tutor who was trained in managing and teaching individuals with [his] limitation and abilities”. In early March 2009 there was an assessment conducted by a Dr Singh for Rampton Hospital, a high-secure NHS hospital. Dr Singh stated that the claimant's IQ score was more likely to be a reflection of a lack of educational attainment or a specific reading retardation, such as dyslexia, rather than a learning disability. Methods for his progress, opined Dr Singh, were access to specialist education sessions which were appropriate for his level of abilities, and to address learning difficulty (dyslexia) in order to improve his literacy skills “so that he can access prison offender behaviour programmes or adapted behaviour programmes”.
10. In September last year the...
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