R (John Taylor) v Secretary of State for Justice (First Defendant) National Probation Service North West Division (Second Defendant) Wakefield Council (First Interested Party) The Parole Board (Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 16 November 2015 |
| Neutral Citation | [2015] EWHC 3245 (Admin) |
| Docket Number | Case No: CO/1301/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2015 |
And
And
And
[2015] EWHC 3245 (Admin)
Mr Justice Leggatt
Case No: CO/1301/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Amanda Weston and Felicity Williams (instructed by Tuckers Solicitors) for the Claimant
Hugh Flanagan (instructed by Treasury Solicitors) for the Defendants
Hearing dates: 22 & 23 October 2015
Introduction
In September 1974 the claimant murdered a 14 year old girl by strangling her and then had sexual intercourse with her body. In December 1974 he pleaded guilty to the offence and was sentenced to life imprisonment with a minimum custodial term of 18 years. He completed that term in 1992 but has not yet been released. The claimant has now spent over 40 years in prison. He is 77 years old and has physical disabilities having had a heart attack and a stroke. His disabilities include deafness in both ears, inability to walk unaided for any distance and incontinence.
On 9 May 2014 the Parole Board directed the claimant's release under section 28 of the Crime (Sentences) Act 1997 to a hostel for adult male offenders in Wakefield known as "Ashdene" once funding was in place to meet his adult care needs in the community. The Parole Board also recommended that on his release the claimant's licence should include conditions requiring him (among other things) to reside permanently at Ashdene and not to leave Ashdene otherwise than in the company of a member of staff.
The claimant was not released to Ashdene because funding was not put in place for his care needs. Some 18 months after the Parole Board gave a direction for his release, he still remains in custody. It is the claimant's case that his continued detention is a result of breach by the defendants of statutory and other public law duties. It is important background to the legal issues to determine how as a matter of fact it has come about that the claimant's release to Ashdene did not take place, and I will address this question first.
The failure to secure funding
The National Offender Management Service ("NOMS") is an executive agency of the Ministry of Justice responsible for commissioning and delivering prison and probation services in England and Wales on behalf of the Secretary of State. Through NOMS, the Secretary of State provides accommodation for the supervision and rehabilitation of offenders in the community in two relevant ways. First, the National Probation Service, which is part of NOMS, operates an estate of premises which have been approved under section 13 of the Offender Management Act 2007. These premises provide a relatively high level of security and supervision in order to manage the offender's risk. Second, in addition to these "approved premises", NOMS funds accommodation in projects operated by a private organisation called the Langley House Trust ("LHT"). Most though not all of these projects are designed for offenders who require less supervision, and are focused more on offenders' housing and therapeutic needs. The funding provided by NOMS covers the basic cost of accommodating an offender in a LHT property, but it does not extend to social care that is specific to an individual offender.
The duties of local authorities to assess an adult's needs for social care and to provide care and support for those who meet eligibility criteria are now set out in the Care Act 2014. As explained in an instruction issued by NOMS on 30 March 2015 to prisons and providers of probation services regarding adult social care:
"The Care Act 2014 reforms social care provision in England from April 2015 and clarifies the responsibility of local authorities to provide assessments and care and support services for adults in prisons and approved premises on the basis of equivalence to people living in the community."
Before an offender who has disabilities can be released either to approved premises or to a LHT project it is necessary to find accommodation which provides a physical environment suitable for the individual concerned. In each case NOMS also requires as a matter of policy that any social care needs have been assessed by the relevant local authority and that arrangements have been made to meet those needs.
Ashdene is a hostel run by the LHT which has a higher level of security than most of its projects. The security and supervision provided includes 24 hour staffing, with at least two staff on duty at all times, a staff-controlled single entry point, CCTV, drug and alcohol testing, room searches and internet filtering. Ashdene was identified as suitable for the claimant because it had a ground floor room available and could cater for his mobility issues whilst also providing appropriate supervision. The decision of the Parole Board dated 9 May 2014 directing the claimant's release to Ashdene stated that a placement in LHT accommodation had been considered "as it is apparent that no open prison or probation approved premises has the facilities to cater for your health needs".
The LHT has set out in an email dated 23 May 2015 from Cath Magee, its Head of Referrals — Care and Complex Needs, the accommodation and services which were available for the claimant at Ashdene. The LHT considered that, in addition to the security and supervision provided for all residents, the claimant required extra support consisting initially of 6 hours of dedicated staff support each day and weekly meetings with a psychologist. The total cost of providing this "extra care" (and the associated management time involved) was £1,116.50 a week. The essential reason why the claimant's release to Ashdene did not take place was that no one agreed to pay this charge.
NOMS would not agree to pay the extra charge, maintaining that it related to social care. The local authority responsible for assessing the social care needs of persons resident at Ashdene and for making provision for their eligible needs is Wakefield Council. Wakefield Council has made three assessments of the claimant's social care needs — in July 2014, October 2014 and again in July 2015. In July and October 2014 the Council concluded that the claimant was not eligible for social care funding. In July 2015 it concluded that the claimant had eligible needs but that these could be met without funding. The Council was therefore not willing to pay any part of the extra charge.
Without agreement to pay the extra weekly charge, the LHT declined to accept the claimant at Ashdene.
Attempts to arrange an alternative placement
Since July 2015 attempts have been made by NOMS to arrange an alternative placement for the claimant, this time in approved premises. By the end of August a place appeared to have been found at an approved premises facility called Wilton Place. However, on 11 September 2015 it was learnt that this place would not after all be available in the near future because the plan to move on the individual whose place the claimant could then take had fallen through. A place was then found for the claimant at another approved premises facility called St Joseph's with effect from 12 October 2015. The relevant local authority, Salford, was contacted and asked to assess the claimant's social care needs. To allow the claimant's release to St Joseph's, it was also necessary to obtain the approval of the Parole Board since the Board had only authorised his release to Ashdene. On 25 September 2015 a request was made to the Parole Board to vary its direction for release as a matter of urgency so that the place available at St Joseph's could be taken up. However, the Parole Board required a further oral hearing before making a decision in view of the extent of the proposed changes to the claimant's release and risk management plan, the length of time since the last oral hearing and his age. The Board directed that the hearing should be expedited but I was informed that no date for the hearing has yet been set.
Because the claimant could not be released on 12 October 2015, the place at St Joseph's which had been reserved for him from that date was lost. According to a witness statement dated 16 October 2015 made by Sean Langley, Head of Approved Premises Policy at NOMS, NOMS has now asked the Parole Board to consider varying its direction to enable the claimant to be released to any approved premises at which a suitable place becomes available rather than specifying a particular address. NOMS has also asked the Board to consider making this decision on paper or, if an oral hearing is still required, holding a telephone conference at which arrangements can be discussed before the hearing. It does not appear that there has yet been any response to this request.
These proceedings
Following pre-action correspondence, these proceedings were begun on 18 March 2015 claiming judicial review on four grounds. Ground 1 alleged that the claimant's continued detention is unlawful and in breach of article 5 of the European Convention on Human Rights (ECHR). Ground 2 alleged that the defendants are in breach of statutory and other public law duties which require them to provide for the resettlement of the claimant. Ground 3 alleged that the claimant's continued detention is a result of discrimination on account of his disabilities and/or age. Ground 4 sought to challenge the decision of Wakefield Council made in October...
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