R (Nicholls) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 2009 |
| Neutral Citation | [2009] EWHC 2091 (Admin) |
| Docket Number | CO/10320/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 June 2009 |
[2009] EWHC 2091 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr C M G Ockelton
CO/10320/2008
Miss F Krause appeared on behalf of the Claimant
Mr S Murray appeared on behalf of the Defendant
DEPUTY JUDGE: The girl was 12 years old when Erin Nicholls killed her. He was 17, and he called her his girlfriend. They were in an isolated area. He threw lighter fluid at her or near her; then he threw lighted matches at her or near her. She burned to death. That was on 31 May 1998. He was convicted of her murder on 10 February 1999. He was then just 18. Because he was under 18 when the offence was committed, the sentence was detention during Her Majesty's pleasure. That is equivalent in all important respects to a life sentence. There was a tariff fixed of 12 years.
In March 2001 he was back in court. He was sentenced to a term of 2 years' imprisonment concurrent for an offence of inflicting grievous bodily harm. That was because whilst he had been in custody he threw scalding water over another prisoner. Before the offence of murder he had other convictions: one for arson —setting a fire, not it appears a very serious fire —on the top deck of a bus that was in service; one for assault occasioning actual bodily harm (spraying CS Gas in the face of a girl in the street); one for possession of a prohibited weapon (that was the CS Gas); and one for handling stolen goods. But he had not been to prison before.
The reports on him show an extremely troubled childhood, in care, with an enormously long succession of homes in which he lived. Since his most recent convictions he has been in custody as a category A prisoner, the most secure regime generally available in the prison estate. His categorisation is reviewed regularly, usually, in accordance with published practice, at yearly intervals. The question is always whether his category should be reduced to category B.
The review that is the subject of these proceedings took place during last summer. The local assessment panel recommended re-categorisation to category B, but the category A review team did not accept that recommendation. In a decision sent to the claimant on 9 September 2008 the Director of High Security concluded that he should remain category A.
That is the decision he challenges in these proceedings. He says that in making that decision the Director, who acts on behalf of the defendant, the Secretary of State for Justice, did not give enough credit for the progress he has made in erasing offending behaviour and responding to authority. It did not take sufficient account of a full psychologist's report prepared a few months earlier in connection with an application for parole. (There was a suggestion in that report that he might benefit from work that he cannot do while he remains a category A prisoner.) Further it is said that the decision failed to take account of the fact that he was a minor when he committed the index offence and, above all, it failed to take account of the fact that he suffers from cystic fibrosis: he may himself have only a relatively short time to live. In the mean time, he cannot undertake strenuous activity. It is said on his behalf that that fact of itself reduces considerably the risk of escape.
This claim was issued on 27 October 2008. Permission was given by Mrs Justice Black on 10 December 2008. At the time she gave permission there was still no acknowledgement of service from the defendant or summary grounds of defence. They were eventually filed on 6 February 2009.
As time has passed, the date of the next review of the claimant's re-categorisation comes nearer. The 10th anniversary of his detention following sentence has now passed. I am nevertheless concerned with the last review and the last decision. Mr Murray, on behalf of the defendant, has argued that because the next review is so close anyway and will supersede the result of the review under challenge, I should regard the present challenge as academic. I am unwilling to rule the claimant out on that basis. The claim was made a considerable time ago and whatever this court says in response to the challenge may have an impact on the next review.
The decision under challenge was made under the provisions of Prison Service Order 1010 (PSO 1010) which deals, in general, with reviews of security category of category A prisoners. Category A prisoners are defined at the beginning of that order in a short paragraph with an important commentary:
“1.2 A category A prisoner is 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.
1.3 A High Court judgment in the case of ex p Pate required that in deciding whether category A is necessary, consideration may also need to be given to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security, and that the prisoner is categorised accordingly. However this will only arise in exceptional circumstances since escape potential will not normally affect the categorisation as it is rarely possible to foresee all the circumstances in which escape may occur.”
I will read out also a passage from the annexe to PSO 1010 which is the form in which the guidance in that Order is communicated to prisoners. Paragraph 10 of the annexe is as follows:
“10 The Director (or, if appropriate, the Head of the Category A Review Team) will consider all available information, including any representations, relevant to the determination of your security category and escape risk classification. Account will be taken of all matters including the nature and circumstances of the present offence(s), any relevant offending history, participation in and progress made with offence-related work, custodial behaviour and maturation. Before making a decision for downgrading from Category A the Director will need to be satisfied that a prisoner's level of dangerousness has diminished, in particular that there has been a significant reduction in the risk of re-offending in a similar way if unlawfully at large.”
I pause to note that the terms of the paragraph of annexe A that I have read out do not specifically incorporate the terms of paragraph 1.3. But I refer to them to indicate the role of the need to show change when establishing the risk of further offending or escape.
It is accepted by both parties to this claim that the appropriate process is therefore to decide, first of all, what is the risk of serious offending if the prisoner should escape. If the risk is such that category A is, in principle, still likely to be applicable then there would be consideration of whether there are exceptional circumstances showing that in the individual case a lower level of security will be adequate to achieve the aim of making escape impossible.
Standard of challenge
Miss Krause, who appears for the claimant, has submitted that the ordinary Wednesbury approach to challenge to the defendant's decision is not sufficient in a case such as the present. She referred to the well-known observations of Lord Cooke of Thorndon in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, 32. She accepted that those observations were made with relation to cases sounding under the European Convention on Human Rights and the Human Rights Act 1998. She accepted also that those observations do not indicate a proportionality approach to the decision I have to make. That was a point she conceded before Clare Montgomery QC, sitting as a Deputy Judge of this court, in R (Application of Hall) v First Secretary of State [2005] EWHC 3165 Admin. In my view she was right to do so. She nevertheless asserted that in reviewing a matter of categorisation, because of the importance of the interests both of the claimant and of the public, a deeper investigation was appropriate than Wednesbury itself would require.
Miss Krause asserted further that I should bring the court's own approach to weighing the various factors taken into account in making the decision. In support of that argument, she cited R v Secretary of State for the Home Department ex p Benson (available to me only in a report from The Times, November 21, 1988). That is a decision of a Queen's Bench Division, Divisional Court, (Lord Justice Lloyd and Mr Justice Nolan). In that case the defendant, the Secretary of State, had taken into account —in deciding whether a discretionary life-sentence prisoner should be released on parole —two matters which, in the court's view, were of such little importance as to be entirely irrelevant. The court is reported as having said this:
“The weight to be given to such matters was a matter for the Secretary of State and not the court. But if in the court's view the matter was so small it ought to have been disregarded altogether it should say so, and such was the present case.”
That decision is authority for the proposition that the court may determine that a matter taken into account in making a review of a decision was an irrelevant matter, irrelevant because properly understood it had no importance to the decision-making process. It is not authority for a proposition that the court is entitled to review the weight given to a matter which was not irrelevant.
I accept therefore the submission of Mr Murray that this decision has to be scrutinised according to established public...
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