R Sams v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 01 March 2012 |
| Neutral Citation | [2012] EWHC 562 (Admin) |
| Date | 01 March 2012 |
| Docket Number | CO/8017/2010 |
| Court | Queen's Bench Division (Administrative Court) |
[2012] EWHC 562 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/8017/2010
The Claimant appeared in person
Mr B Watson (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
( )
Mr Sams brings these judicial review proceedings by permission of Mr Stuart Isaacs QC, sitting as a Deputy High Court Judge. Mr Sams is a category A prisoner in HMP Whitemoor, serving life sentences for murder, kidnapping, false imprisonment, as well as a determinate sentence of ten years for blackmail and a determinate sentence of eight years for false imprisonment. He was convicted in 1993 of the offences that led to the life sentences and in 1997 of the offence of false imprisonment, which led to an eight-year sentence. That offence involved an attack on a female probation officer in Wakefield Prison and the holding of her as a prisoner.
Mr Sams is not tariff expired and will not become tariff expired until 2018. He seeks, and has done on a number of occasions, to have his category A status downgraded to category B. The proceedings with which the court is concerned relate to the decision in June 2010 that he should not be downgraded. This claim in turn is related to a challenge to a decision in November 2009 that he should not be downgraded, which was the subject matter of an earlier and successful claim for judicial review. It was successful in that it led to a withdrawal of the proceedings by consent on the basis that the decision would be taken again. It was the decision in June 2010 that was the fulfilment of the promise that the decision would be taken again.
Since the challenged decision of June 2010 there has been a further review of his category A status in June 2011, at which his category A status was maintained. There will be a further review of his category A status in approximately June 2012, the procedures leading up to which will be started soon.
The procedures for downgrading a category A prisoner to a category B status are summarised by Miss Cleary in her second witness statement. She says that when the review is due reports are compiled in respect of the prisoner's offending history, prison history, sentence plan, healthcare, security information, and any non-disclosable information. This is then provided to the prisoner, who has four weeks in which to make representations about that.
There is then a Local Advisory Panel, chaired by the Governor or Deputy Governor of the holding establishment, which considers the reports, any representations made to the Panel and a recommendation is made. The recommendation reports and representations are then sent to the category A Review Team (CART). If there is a recommendation for downgrading the decision is then made by the Director of High Security Prisons at CART following his consideration of the dossier and the prisoner's representations. If the recommendation from the Local Advisory Panel is that the prisoner should not be downgraded, then CART considers the position and makes a recommendation to the Director. The prisoner then receives the decision.
A process has developed whereby the intelligence material, which is held by a prison, some of which will be sensitive, is gisted or summarised to the prisoner, although a fuller version is relied on by the Local Advisory Panel CART and the governors. The process whereby that happens, and the legal basis for it, is described by Rafferty J in R v (on the application Ferguson) v Secretary of State for Justice [2011] EWHC 5 (Admin) at paragraphs 25 and 26.
What happened in relation to the November 2009 decision involved the concern by Mr Sams that the Deputy Governor had told the Local Advisory Panel that there was intelligence information by implication adverse to Mr Sams, which the Local Advisory Panel would not be allowed to see. The basis for Mr Sams' understanding of such a conversation was a memo from the Clinical Director, who provided information that some such comment was made. It was not resolved whether any such conversation had taken place or not, but the Secretary of State for Justice, recognising that if it had taken place it ought not have taken place, decided to re-take the categorisation decision.
The judicial review was withdrawn, as I have said, and the decision was retaken in June 2010. One fear raised by Mr Sams was that the starting point for the 2010 decision, and indeed the 2011 decision, would have been the November 2009 decision. In my judgment where a decision has to be retaken because it has been arguably flawed, neither as a matter of law nor as a matter of common sense, would the body taking the decision again use, as its starting point, the actual or potentially flawed decision which had led to them now taking that decision again. It would have been effectively expunged from their mind.
The concern raised directly in relation to the June 2010 decision concerned the intelligence information that was then available on Mr Sams' file. There are a number of allegations which he is concerned about. They are exemplified by an allegation that he was a weapon maker and key maker and that he had assisted another prisoner to assault and to attempt to kill an officer, and an allegation that he had made threats to have the houses of prison staff firebombed.
His concern about these allegations is twofold. The first is that they appear to relate to events fairly recent in 2005. The concern that he had is demonstrated by a document available to the LAP in November 2009 in these terms:
"Mr Sams involved in an escape plot (May 2005 comments: key maker, known hostage taker, extreme threat to females both staff and otherwise. Has continued to evidence offending behaviour whilst in custody."
It was not until December 2011 that a note was added by the category A manager that those comments referred to incidents in 1995 to 1998.
It is accepted that the way in which the information was presented to the LAP could have been misleading as to how recent the events referred to in it were. However, Mr Watson, on behalf of the Secretary of State, submits that whether potentially misleading or not they were not actually misleading to the LAP as the relevant reports show. The report describes the present circumstances of the claimant referring to his maintenance of a high standard of behaviour and an absence of adjudications since 2002. The section 7 security report, which is the one I have just referred to, refers to an escape plot in 2005 and that he has continued to evidence offending behaviour while in custody. The recommendation of Dr Murphy from the Dangerous and Severe Personality Disorder Unit was, the Panel conclude, misdescribed by the claimant's legal representatives.
The director's reasons for his decision were that there were no reasons to depart from the original decision. Great strides had been made by Mr Sams. The Director accepted that the security intelligence relating to escape plotting was historical and that there was no current evidence that Mr Sams posed an enhanced escape risk. Mr Watson puts significant weight on the reference to the escape plotting being historical.
The...
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