R (Leon Anderson Sobers) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart |
| Judgment Date | 01 April 2011 |
| Neutral Citation | [2011] EWHC 817 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7639/2010,Case No: CO/7639/2010 |
| Date | 01 April 2011 |
[2011] EWHC 817 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: MR JUSTICE EDWARDS-STUART
Case No: CO/7639/2010
Hugh Southey QC (instructed by Bhatt Murphy Solicitors) for the Claimant
Simon Murray (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 23 rd March 2011
Mr Justice Edwards-Stuart:
The applicant is a prisoner serving a life sentence for murder. He and another man agreed to rob the landlord of a public house. It was clear that the robbery would involve violence, and violence —indeed gratuitous violence —was used on the landlord. However, shortly afterwards the applicant's co-defendant brutally murdered a barmaid who happened to return to the scene during the course of the incident.
On 29 August 2001 Moses J passed a life sentence with a minimum tariff of 12 years. The tariff period expires in February 2012, although the applicant has no right to be released at that point unless and until the Parole Board is satisfied that it is safe for him to be released.
The applicant, by his claim form, sought permission to apply for judicial review for the following relief:
(1) A mandatory order requiring the completion of a Cognitive Self Change Programme (CSCP) assessment within 56 days.
(2) Further or alternatively, a declaration that the failure to assess the applicant for the CSCP and/or to transfer him to a category C prison is unlawful.
In the Detailed Statement of Facts and Grounds that was filed with the claim form it was stated that the issue raised by this claim is "whether the Secretary of State is in breach of a public law duty to ensure that the Claimant has a reasonable opportunity to demonstrate that his risk no longer justifies continued detention at a time when his minimum term expires or reasonably soon thereafter".
The applicant also seeks to argue that the formula for calculating a prisoner's place on the waiting list for CSCP is unlawful. So far as this basis of claim is concerned, I consider that it is not open to the applicant to raise it at this hearing. It is a matter that has arisen since the claim was made and it raises fairly complex issues that would have to be investigated, if at all, on an application that was properly directed to the determination of those issues, rather than by late addition to a claim that has been differently formulated. It was not strongly pressed before me.
The single judge refused permission on the ground that the court was being invited, in effect, to manage resources and the allocation of prisoners in respect of those resources. In reality the court was being asked to order or change the priorities as between prisoners on the waiting list. He said that there was no evidence that the Secretary of State had abdicated his responsibilities in relation to the facilities available to prisoners and the management of resources.
The facts
The applicant was sentenced on 29 October 2001. By 2009, having changed prison more than once, the applicant was at HMP Swaleside, where he had been since April 200That was a prison that offered the CSCP. A Sentence Planning and Review carried out in January 2009 noted that the applicant was cooperative and had been making good progress, attracting positive course feedback. It said that the patterns evident in his previous offending reinforced the need for work to address his propensity towards violence, which is why he had been referred for the CSCP. It noted also that the applicant had a poor disciplinary record in that he had 18 proven Adjudications between 2001 and November 2007, although the pattern appeared to be reducing (the great majority of these having arisen out of incidents during his first two years in prison). However, he did have two Adjudications in 2006, one arising out of an assault on a member of staff, and one in 200So it is clear that, after a difficult start, the applicant's behaviour has improved significantly, particularly during the last two years or so.
At a Parole Board pre-tariff expiry review carried out in August 2009 the applicant was not recommend for transfer to open prison conditions but it was accepted that he should undertake the CSCP and do so in time to enable a further review to take place shortly before his tariff date was reached. Another report written at about the same time noted that to his credit the applicant had successfully completed ETS and a number of other relevant courses at Swaleside and had achieved enhanced status. However, the writer of the report was not able to support a move to open conditions.
Whilst the applicant was at Swaleside an assessment for CSCP was started, but unfortunately it was never completed because the facility was withdrawn in late 2008 for funding reasons before the applicant was able to complete it. In May 2009 the applicant applied to be transferred to HMP Channings Wood, a prison where the CSCP was offered. The following month he applied to be transferred to HMP Highpoint. A little later it emerged that the application to Channings Wood had never been received and so a further request was sent. During the last three months of 2009 further applications were made to three other prisons in the absence of any satisfactory action by Channings Wood. In fact Channings Wood subsequently put the applicant on the list and backdated his application to mid 2009.
It seems that the application to Channings Wood followed a meeting with a Forensic Psychologist, Hannah Callum, in January 2009. She told him that there were two psychological assessments which remained outstanding which she recommended should be completed before the assessment for the CSCP. These were an assessment known as HCR-20 and the Violence Risk Scale (VRS). She noted that his assessment for CSCP would have to be completed at an establishment where the CSCP was still running. In her note following the...
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R Faisal Kaiyam v Secretary of State for Justice
...do not assist the Claimant. 29 Mr Weisselberg referred to the decisions at first instance and in the Court of Appeal in Sobers v Secretary of State for Justice [2011] EWHC 817 (Admin), [2011 ] EWCA Civ 1363, which, whilst only concerned with a permission application, nevertheless support t......