R (on the application of Weddle) v Secretary of State for Justice

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Cranston
Judgment Date30 July 2013
Neutral Citation[2013] EWHC 2323 (Admin)
Date30 July 2013
Docket NumberCase No: CO/1671/2012

[2013] EWHC 2323 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Cranston

Case No: CO/1671/2012

Between:
R (on the application of Weddle)
Claimant
and
Secretary of State for Justice
Defendant

Leonie Hirst (instructed by Michael Purdon) for the Claimant

Tom Weisselberg (instructed by Treasury Solicitors) for the Defendant

Mr Justice Cranston

Introduction

1

The claimant is serving a life sentence. He seeks judicial review of what he alleges is the continuing failure of the Secretary of State for Justice ("the Secretary of State") to provide him with the means to demonstrate reduced risk so that he can progress to a lower security category while in prison. Ultimately this has a bearing on his release into the community on licence. At one point the claimant was challenging the decision to refuse to recategorise him within the prison system, but that aspect of the judicial review is no longer pursued.

Background

2

The claimant was sentenced to life imprisonment in February 1994 for the murder of a police officer. The officer had attended a domestic incident when the claimant attacked him with a fence paling and then repeatedly stabbed him. Although the claimant had a relatively large number of previous convictions for theft and motoring offences, he had only one offence for violence, an assault in 1988, for which he received a community service order. At the time of the murder he was under the influence of alcohol and other substances including temazepam. On his account he has never been able to recall either the murder itself or the events immediately surrounding it. However, he has accepted responsibility for the murder. The minimum term he must serve before he can be considered for parole was set by Irwin J at 25 years, less the 333 days he had spent on remand: [2009] EWHC 2800 (QB). That period is due to expire on 24 March 2018 at which point he becomes eligible for parole. He has spent a substantial period of his sentence at HMP Frankland but in March this year was transferred to HMP Full Sutton.

3

The claimant has remained a Category A prisoner throughout his time in prison. He currently has a "standard" escape risk. Category A is the highest category and is based on a prisoner's risk of harm. Prison Service Instruction ("PSI") 03/2010 defines that category as follows:

"Prisoners whose escape would be highly dangerous to the public or the police or the security of the state, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible."

All Category A prisoners are placed in one of three escape risk classifications: standard, high or exceptional.

4

In his time in custody, the claimant has completed a number of rehabilitative ("offending behaviour") programmes. He completed the Enhanced Thinking Skills programme in 2000. When attending the sessions for that programme he displayed a negative attitude but his out of session work was more positive. When he spoke to a prison psychologist about the programme in 2004 he could not recall its content.

5

To address his substance abuse, the claimant has worked with CARATs, a drug treatment programme in prisons. The CARAT team consider that he has completed all available work on drug abuse. He has also followed the FOCUS substance abuse programme. Since his imprisonment he has been subject to mandatory drug testing and no concerns have been raised about his consumption of alcohol while in custody. In addition, the claimant has completed courses in literacy, numeracy, healthy living, art and design, money management, physical education and life and social skills.

6

In January 2009 the claimant was examined by a forensic psychologist. Initially he said that he "does not do psychology" but later he saw her for two hours. He expressed the view that it was unfair that his Category A status was attributable to his having murdered a police officer when in his view there were far more serious offenders with Category C status. Consequently, the psychologist thought that he had a limited insight into his offending and its impact. She also concluded that as long as he had that view the extent to which he could demonstrate a reduction of risk was limited. As regards the Enhanced Thinking Skills programme she gave thought to whether he might benefit by revisiting the course. However, he did not have the required level of need to qualify and thus she concluded that it was not necessary for him to undertake the programme again. During the interview the claimant appeared to see the potential benefits of the Controlling Anger and Learning to Manage It ("CALM") course but to some extent he did not seem committed to understanding the factors which contributed to his offending. She recommended that he remain a Category A prisoner.

7

The claimant was assessed for the CALM course in late July 2009. In August he was informed that he was unsuitable because of "an absence of reported emotional precursors, a lack of previous violent offences and a lack of recollection about the index offence." Thus, he was told, the CALM course would be removed as a sentence planning target. The following year he was told that the course would be suitable in the future if he were to remember more about his commission of the murder.

8

In 2009 the claimant was assessed as well for the Cognitive Self-Change Programme ("CSCP"), a programme designed to address violent offending. Again he was found to be unsuitable. The explanation was that he did not meet the criteria for the programme because he did not have a history of violent offending and his score on an OASys assessment was too low. OASys is a widely-used risk assessment tool for defendants and prisoners. Further assessment for the CSCP programme was not recommended.

9

The Parole Board considered the claimant's suitability for open conditions in May 2010. The panel member commented that since both CSCP and CALM were unavailable following assessments "it is not clear from the dossier as to what direction [the claimant] should now take". The Board concluded that outstanding areas of risk needed to be addressed before the claimant could be moved to open conditions. His lack of recollection of the events surrounding the index offence had prevented him from fully engaging in rehabilitative programmes.

10

There was a sentence planning review two months later, in July 2010. The claimant declined to attend. The meeting noted that he was on the enhanced regime under the incentives and earned privilege scheme operating in prisons. The meeting considered a number of matters, including the claimant's risk of reconviction on the basis of his OASys scores. On each of the three measures used, he ranked as being of medium risk. In reviewing the claimant's progress, the meeting noted that the CALM programme was deemed unsuitable because he could not recall the offence: the situation would be monitored by the CALM team, "and should [he] recall the index offence, it has been recommended that he contact the Psychology department." The meeting had received a report from the Psychology department that they would be making an annual check on whether the claimant's recollection had changed. That department was examining the possibility of acquiring assessment tools which might help to improve his recollection so that an accurate assessment of his treatment needs could be completed. The Psychology department had concluded that the Thinking Skills Programme was suitable for the claimant's needs, albeit that he had undertaken the ETS course in 2000. The meeting recommended that he participate in the programme, in order to address risk factors that he was currently unable to address through CALM.

11

The following year, on 22 March 2011, the Psychology and Programmes section of HMP Franklin explained, for the purposes of the claimant's annual Category A review, that:

"The [CALM] programme has been identified as unsuitable for [the appellant's] treatment needs at this time due to [his] current stance of his index offence, as he does not admit significant aspects of it. However if [he] changes his stance at any time he is encouraged to contact the psychology department for assessment."

12

In June that year, a Local Advisory Panel considered the claimant's case and identified drugs, lifestyle and associates, and anger and violence as outstanding risks. It recommended that he complete the Thinking Skills Programme, CALM and CARATs.

13

The next month, on 22 July 2011, the Category A Team refused to downgrade the claimant's security category from Category A. It reasoned that he still posed a high risk, although his behaviour in prison was generally acceptable and he had completed some rehabilitative courses. Its reasoning continued:

"[Y]our lack of progress examining and addressing your use of extreme violence still prevented a determination of a significant change in your risk. The Category A Team considered there was no evidence you had achieved substantial further progress since that time, either by addressing core risk factors relating to your offending through intervention work or participation in assessments or interviews that might show advances in insight and personal development … The Category A Team understood that you remained unable to recall your offence, and had remained unable to discuss issues that might shed light on a change in your risk, such as the sources of your extreme violence, and skills to prevent similar reoffending."

The letter continued that there were several courses to help show the...

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