R (on the application of Mark Harrison) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Heather Williams |
| Judgment Date | 26 November 2019 |
| Neutral Citation | [2019] EWHC 3214 (Admin) |
| Date | 26 November 2019 |
| Docket Number | Case No: CO/1558/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3214 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Heather Williams QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/1558/2019
Jude Bunting (instructed by Bhatia Best) for the Claimant
David Manknell (instructed by Government Legal Department) for the Defendant
Hearing date: 5 November 2019
Approved Judgment
Heather Williams QC:
Introduction
The Claimant, Mark Harrison, is a serving prisoner at HMP Full Sutton. In these proceedings he challenges the decision made on 11 December 2018 by the Deputy Director of Custody High Security (“the Director”) not to hold an oral hearing when deciding whether to downgrade his prison security classification from Category A. The Claimant was informed by letter dated 14 January 2019 that the Director had decided to maintain his Category A status.
Permission to apply for judicial review was granted on 21 June 2019 on consideration of the papers by David Pittaway QC, sitting as a Deputy High Court Judge. It is accepted that this decision resolved a time limits issue raised by the Defendant in the Claimant's favour.
The Grounds accompanying the Claim Form contended: (1) the decision to maintain the Claimant's Category A status was unlawful as the Director had applied the wrong test (“Ground 1”); (2) common law procedural fairness required the provision of an oral hearing (“Ground 2”); and (3) in declining to hold an oral hearing, the Director had failed to follow the Defendant's published policy in Prison Service Instruction 08/2013 (“Ground 3”). At the outset of the hearing, Mr Bunting indicated that Ground 1 was no longer pursued. Accordingly, the parties' submissions focused on the absence of an oral hearing.
The facts
The offences
On 21 December 1999 the Claimant was sentenced to life imprisonment with a tariff of 10 years for offences of rape and wounding with intent (“the main offences”). The circumstances involved extreme violence and degradation of the victim, who was grabbed during the early hours of 5 December 1998 when making her way home. The Judge who passed sentence described the rape as being “ most horrendous”, “ brutal” and “ appalling”. The Claimant was also convicted of affray in relation to a 1997 pub fight, for which he received a 12 months concurrent sentence. He was on bail in relation to this earlier offence at the time of the main offences. Eighteen months earlier he had been released from a 14 year sentence imposed in 1988 for offences that involved attacking two women in their home using a screwdriver and craft knife. The Claimant has earlier convictions for offences of assault occasioning actual bodily harm, robbery, burglary and theft, amongst others.
The Claimant in custody
The Claimant was aged 34 at the time of the main offences and is now 54 years old. His tariff expired on 21 December 2009. He has spent nearly ten years in prison post-tariff. He has been classified as a Category A prisoner throughout his sentence. When decisions to maintain his Category A status have been made he has not had an oral hearing.
It is accepted that the Claimant has behaved well in custody. He is an ‘enhanced’ level prisoner (the highest level) on the incentives and earned privileges scheme. He has been employed in the DHL workshop for many years. He has no recent behavioural warnings or disciplinary findings. He has no substance misuse problems.
The Claimant has consistently denied that he committed the main offences. Those assessing his risk (and the Court) must proceed on the basis that he is guilty, as convicted. I return to the significance of his denial of guilt for those assessing his risk below.
The Claimant has undertaken the offending behaviour courses offered to him, including the Enhanced Thinking Skills (“ETS”) programme in 2004; the A to Z programme in 2009; the Thinking Skills Programme in 2012 and RESOLVE, a group based programme aimed at reducing violent re-offending, in 2017.
Earlier assessments
Between 2009 and 2013 the Claimant was assessed by a number of experts instructed by his solicitors. In a report dated 18 September 2009, Barry Conlin, a forensic psychologist, opined that: (1) his risk of recidivism had probably decreased since imprisonment, but remained significant; (2) he was a low risk of sexual recidivism and a medium risk of violent recidivism; and (3) he did not need maximum security conditions or Category A status. In a report dated 17 July 2012, forensic psychologist, Louise Coughlin, concluded that: (1) he had some understanding of his areas of risk and his emotional management had improved; (2) if he remained in prison his risk of violence was low; (3) he posed a moderate risk of sexual violence; and (4) he did not present a high risk of either violence or sexual violence and he should be considered for re-categorisation to Category B. On 13 August 2013, Lisa Davies, a chartered and registered psychologist, concluded that: (1) he posed a moderate risk of future violence if released into the community; (2) he was a low risk of violence in prison; (3) he did not present as a high risk for violence or sexual violence; and (4) his risk could be effectively managed in Category B conditions.
In November 2013 the Defendant's Category A Team decided to retain the Claimant in Category A conditions. The Claimant brought a judicial review challenging this decision (CO/897/2014). His claim was stayed pending the outcome of an appeal to the Supreme Court in R (Mackay) v Secretary of State for Justice from the Court of Appeal's judgment at [2011] EWCA Civ 522. In the event, the Defendant resolved matters by introducing a new policy, Prison Service Instruction 08/2013 (“PSI 08/2013”). In October 2014 the decision that the Claimant should remain in Category A, was reviewed and maintained. The Claimant was refused permission to amend his Grounds to add a judicial review challenge to this determination on the basis that it was a fresh decision. By this point, more than three months had passed since the October 2014 decision and no new application for judicial review was made.
In the meantime, in January 2014, the Claimant's case was considered by the Parole Board. The decision made by the single member panel on the papers, included the following observation: “ the panel member shared your legal representations [sic] concerns that you remain a Category A prisoner despite your positive prison behaviour and time spent in custody and considered that the next panel would benefit from some clarification from the prison for the reasons for this should you not have been re-categorised by then”.
An oral hearing before the Parole Board in November 2016 was adjourned for completion of a psychological assessment and provision of proposals to identify a treatment pathway to address the Claimant's use of violence. This led to the recommendation that he undertake RESOLVE, which he completed in June 2017 demonstrating a high level of motivation.
In January 2018 the Claimant's Category A security classification was reviewed and maintained. The Claimant places particular emphasis upon two developments since that decision was made. The first is the assessments undertaken by Rachael Sales, trainee psychologist at HMP Full Sutton (under the supervision of Catherine Wordie, registered psychologist). The second is the recommendation for his downgrading made by the Local Advisory Panel (“LAP”) in October 2019.
The Programme Needs Assessment
In February 2018 Ms Sales completed a Programme Needs Assessment (“PNA”) to “ identify areas of treatment need, to assist with the identification of future intervention pathways for Mr Harrison and to fulfil directions issued by the Parole Board”. She assessed the extent to which he had progressed in relation to specified risk factors. In so doing, Ms Sales referred to earlier risk assessments, the Claimant's participation in RESOLVE and her interview with him on 5 February 2018. She determined that the Claimant did not need to undergo Kaizen, a programme for high and very high risk sex offenders. She concluded he was evidencing ‘new me’ skills in all domains of the success wheel (a tool used in the PNA). She observed that “ whilst the maintaining of his innocence made the assessment of attitudes which support sexual offending difficult, the fact that he only has one conviction relating to sexual offending meant that items linked to ‘sexual interests’ were not considered relevant to Mr Harrison's offending”.
Ms Sales' August 2018 assessments
In August 2018 Ms Sales prepared her report for the forthcoming Category A review, Psychological Contribution to the Category A Review (“the Category A Review report”). She explained that her assessment should be read in conjunction with her psychological assessment for the Parole Board and her earlier PNA. She indicted the purpose of the report was to consider, in accordance with PSI 08/2013, whether “ there is convincing evidence the prisoner's risk of re-offending if unlawfully at large has significantly reduced”. She said that in accordance with the PSI, she would not be making specific recommendations regarding re-categorisation (para 2.1). Ms Sales summarised her fuller assessment for the Parole Board (paras 4.1 – 4.2). This included that the Historical, Clinical, Risk Management-20 (HCR-20) assessment indicated the Claimant presented a low risk of violence if he remained in closed conditions, whereas if he were to be progressed to open conditions or released within the following 12 months, his risk of future violence would increase to ‘moderate’. Further, the Risk for Sexual Violence Protocol (RSVP) assessment indicated that his risk of...
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