R Lynch v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 19 June 2012 |
| Neutral Citation | [2012] EWHC 1597 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6307/2011 |
| Date | 19 June 2012 |
[2012] EWHC 1597 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West,
Manchester
M60 9DJ
Mr Justice King
Case No: CO/6307/2011
Ms. Farrhat Arshad (instructed by Forbes Solicitors) for the Claimant
Mr. Matthew Slater (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 16th January 2012
The claimant is a serving prisoner. His date of birth is the 7 February 1989. He is now 23 years of age. On the 23 June 2006 at the Central Criminal Court he was sentenced to detention at her Majesty's Pleasure for one offence of Murder to which he had pleaded guilty. The minimum term to be served before being eligible for consideration by the parole board for conditional release was fixed at 15 years less the days spend on remand. The tariff expiry date is the 11 December 2020. He also received a concurrent sentence of 5 years for an offence of Wounding with Intent to which he also pleaded guilty. At the date of the offences the claimant was 16. At the date of sentence he was 17.
The facts of the offence
The offences occurred late at night on the 8 July 2005 in a deserted car park in Romford town centre. The claimant had been drinking and taking drugs earlier in the evening. The two victims were approached and attacked by the claimant and two others without any provocation. The victims who had been waiting for a lift were strangers to the claimant. The claimant punched and stabbed the victims with a folding knife he had taken from his pocket. One of the victims died as a result of the knife penetrating his heart. The other victim was stabbed in the chest and back. According to the prison reports, after pleading guilty to the offence, the claimant although expressing remorse and accepting responsibility for his actions, stated he could not remember what had happened, claiming his recollection of events was only from what he viewed on the CCTV.
The claimant had a number of previous convictions dating back to 2003 including, motor offences; theft; possession of a firearm with intent to cause fear of violence and racially aggravated assault. These offences had resulted in the claimant serving several periods in a Young Offenders Institution.
The decisions under challenge
By this claim for judicial review, the claimant seeks to challenge two decisions of the defendant's Category A Review Team (CART). The first is that of 31 March 2011 made upon the annual review of the claimant's security category pursuant to Chapter 4 of the applicable Prison Service Instruction (PS1 03/2010) ('the PSI'), the decision being that he was to remain in Category A (Standard Escape Risk). The second is that of the 11 April 2011 refusing the request made by the claimant's solicitors for an oral hearing. That request had been made in a letter of the 4 April in which it was said that they were instructed to appeal the decision not to downgrade the claimant.
The claimant was originally categorised as a 'restricted status prisoner' whilst in the juvenile estate. A restricted status prisoner is defined in the PSI as 'any female, young person or young adult prisoner convicted or on remand whose risk would present a serious risk to the public and who are required to be held in designated security accommodation' ( PSI chapter 1, section 3). On the 8 th April 2010, having turned 21 the previous February, he was transferred to the adult estate at HMP Full Sutton as a Category A prisoner (Standard escape Risk). He had been confirmed in that status on the 22 March 2010. A Category A prisoner is defined in the PSI as 'a prisoner whose escape would be highly dangerous to the public, or the police or the security of the State and for whom the aim must be to make escape impossible' (chapter 1, section 2).
The claimant was thereafter entitled to annual reviews of his security category, such reviews being governed by chapter 4 of the PSI referred to. As at the time of the review under challenge in March 2011 he had been on the adult estate at HMP Full Sutton for nearly 12 months. Under the PSI, only the Director of High Security can approve a downgrade although initially the Category A team – as in the present case – conduct the review. If as in this case CART decide to maintain category A status that completes the review. They only refer it on to the Director if their decision is other than that the category A status should remain.
As was emphasised by the Court of Appeal in Mackay v Secretary of State for Justice [2011] EWCA Civ 522 (at paragraph 25) categorisation of a category A prisoner has serious consequences for the prisoner, in that not only is he subject to a more restrictive regime and higher conditions of security than prisoners in lower categories but so long as he remains as such, his prospects of being released on parole are nil. Accordingly the decision as to continued classification of a prisoner as Category A has a direct impact on the liberty of the subject and hence calls for a high degree of procedural fairness.
The criteria applicable upon such a review are set out in the PSI section 1 of chapter 4, which is in these terms:
"Before approving a confirmed category A or Restricted Status prisoner's downgrading the Director must have convincing evidence the prisoner's risk of reoffending if unlawfully at large has significantly reduced. This may be evidence from the prisoner's contact with others or participation in offending
behaviour work that shows that the prisoner has significantly changed their attitudes towards their offending or has developed skills to prevent similar offending".
The important feature to be emphasised is that the decision on categorisation to be made by CART is dependent upon the assessment of risk to the public in the event of an escape (not with the likelihood of escape) and the criteria applicable to the review is concerned with whether there has been a significant reduction of risk. If there is to be a downgrade, there has to be 'convincing evidence' that the prisoner's risk of re-offending if unlawfully at large 'has significantly reduced'. The PSI guidance is that this 'may be evidenced' by custodial behaviour in relation to others ('evidence from the prisoner's contact with others') or the positive outcome of the prisoner's offending behaviour work showing a change of attitude towards his offending ('the prisoner has significantly changed their attitudes towards re-offending') or the development of skills to help prevent similar offending ('has developed skills to help prevent similar offending'). The use of the 'may' in the guidance shows that this is not the only way in which a significant reduction of risk can be demonstrated or evidenced and equally that positive behaviour reports or positive outcome of offending behaviour work may not necessarily be determinative of the question to be decided.
It is common ground that it is for CART as the initial primary decision maker, to determine the weight to be given to the considerations relevant to the determination of whether there has been any significant reduction in risk. This court will not interfere with any such determination – subject to any challenge based on procedural unfairness – unless it can be shown that the decision maker has acted unreasonably in the Wednesbury sense either by taking into account that which was irrelevant or ignoring the relevant (the question of relevance being a matter for the court) or coming to a wholly irrational conclusion on the material before it. See Tesco Stores Ltd v Secretary of State for the Environment and Others [1995] 1 WLR 759, 764 G-H, per Lord Keith of Kinkel).
Subject to any request for an oral hearing, the procedure on a review, is as follows:
i) Reports are prepared upon the prisoner by the prison staff in the form appended to the PSI which should (see section 6 of chapter 4) 'produce a comprehensive summary of the prisoner's behaviour and progress to date' which 'will enable an assessment of any reduction in the prisoner's level of risk', although individual report writers are not required to make a recommendation on the prisoner's suitability for CAT A status.
ii) These reports are then disclosed to the prisoner to allow representations to be made. Such written representations were made in this case by the claimant's solicitors dated 2 March 2011. In part they emphasised that the claimant had now completed all the offending behaviour work that had been outlined to him and which was available in category A conditions and continued detention in a category A prison without further recourse to the further intervention required would have a deleterious effect on his progress.
iii) These reports and representations are next submitted to the prison's local advisory panel (LAP) who make their own recommendation on whether the prisoner's categorisation should remain. The LAP includes (see section 8) the prison Governor or Deputy Governor and 'a range of appropriate report-writing staff'. In the present case for example the LAP included the Deputy Governor, Heads of Security, Residence, Decency, Projects, Business Change, Public Protection Unit, Psychology, the deputy head of Offender Management Unit, and a Lifer Governor. The LAP recommendation in this case was that the claimant remain a category A prisoner.
iv) The Category A Team who are centrally based then conduct the Review, considering the reports, the representations and the LAP recommendation from the...
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