R v The Secretary of State for the Home Department ex parte Duggan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE McKINNON |
| Judgment Date | 03 December 1993 |
| Judgment citation (vLex) | [1993] EWHC J1203-3 |
| Date | 03 December 1993 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/507/93 |
[1993] EWHC J1203-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Rose and Mr Justice McKinnon
CO/507/93
Mr T OWEN (instructed by Messrs. Birnberg, London SE1) appeared on behalf of the Applicant
Mr S RICHARDS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
Friday, 3rd December 1993
The applicant is a Category A prisoner classified as a standard escape risk. He seeks by way of Judicial Review (i) disclosure of the gist of reports and (ii) the reasons which have lead, most recently in February this year, to the decision that he should continue to be classed as Category A.
He is serving a mandatory life sentence imposed in December 1984 when he pleaded guilty to the murder of a woman with whom he was living. He has many previous convictions for violence and dishonesty. In particular, in 1977 he was sentenced to 5 years imprisonment for rape, buggery and indecent assault of an 18 year old girl, and in 1981 to 5 years for wounding a woman, with a hammer, with intent. The offence of murder was committed shortly after his release from the 1981 sentence. Since his reception into prison in May 1984 after being charged with the murder, he has, for the first time and continuously since, been categorised as Category A. In 1986/7 for 9 months, and in 1988/90 for 19 months, he spent periods on transfer to Park Lane Special Hospital where his conditions of confinement were less restrictive and controlled than those applicable to a Category A prisoner. He has a good disciplinary record and has never attempted to escape. Since 1988, as I have indicated, he has been classified as a standard escape risk.
The statutory basis for security categorisation is section 47(1) of the Prison Act 1952 which empowers the Secretary of State to make rules for, among other things, "classification … discipline and control" of prisoners. Rule 3 of the Prison Rules 1964 provides for classification of prisoners "in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order."
The current criteria for categorisation are derived from the Mountbatten Report in 1966, as amended by the Advice to Governors (AG 13/1993) issued on 22nd July 1993.
The categories are:
Category APrisoners whose escape would be highly dangerous to the public or the police or to the security of the State;
Category B prisoners for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult;
Category C prisoners who cannot be trusted in open conditions, but who do not have the ability or the resources to make a determined escape attempt;
Category D prisoners who can be trusted in open conditions.
The July 1993 amendment added to Category A the words, "no matter how unlikely that escape might be; and for whom the aim must be to make escape impossible."
Since 1988 all Category A prisoners have been sub-classified in relation to the escape risk which they pose. Those likely to command external resources to support a determined escape attempt are classified as high or exceptional and additional security measures are applied to them. The remainder are classified as standard.
It is common ground that a prisoner in Category A endures a more restrictive regime and higher conditions of security than those in other categories. Movement within prison and communications with the outside world are closely monitored; strip searches are routine; visiting is likely to be more difficult for reasons of geography, in that there are comparatively few high security prisons; educational and employment opportunities are limited. And as, by definition, a Category A prisoner is regarded as highly dangerous if at large, he cannot properly be regarded by the Parole Board as suitable for release on licence.
A review of Category A prisoners is normally carried out annually. Prior to January 1993 this was done by the Category A Committee, and since that time it has been done by the Category A Section which refers to the Category A Committee:
"only the following cases:-
(a) new cases (i.e. cases which have not previously come before the Committee);
(b) cases where recommendations for a change to security categorisation have been made by the holding prison or by the Category A Section;
(c) cases where no such recommendations have been made for five years.
If the Category A Section decides that there are no grounds for referral to the Committee, the prisoner will remain as Category A."
The affidavit of Mr Roger Smith for the respondent says, at page 42 of the bundle, omitting immaterial matters:
"The Category A Committee is chaired by an official of the Prison Service Directorate of Custody and its membership includes the Head of the Category A Section of the Directorate of Custody, the Prison Service Police Adviser, a governing Governor of a maximum security prison, other invited governor grades from maximum security prisons or major local prisons (where appropriate), a governor grade from the Headquarters Division of the Prison Service with policy responsibility for young offenders and women, and other invited senior prison staff. The Committee assists the Director General of the Prison Service in exercising, on behalf of the Secretary of State, a general power to determine conditions of custody and a general duty in relation to public safety. It meets monthly to consider the cases mentioned in (a) —(c) above and to make recommendations to the Director General as to categorisation and escape risk classification in those cases.
"To assist the Category A Section in arriving at its decisions whether or not to refer the matter to the Committee, and, where such a referral takes place, the Category A Committee arriving at its recommendations, they are provided with information about the circumstances of the offence in respect of which the offender is serving his current sentence and the offender's history; reports from the holding prison, usually including reports from the Governor or Head of Custody, the Medical Officer, the Psychologist, the Security Department, Wing Management and Wing Officers, Instructional Officers, the Probation Officer and the Chaplain; information from the arresting police force; police intelligence and, in some cases, intelligence from other agencies; and, where appropriate, information on operational incidents and security implications which have come to the notice of the Category A Section at Headquarters in the normal course of its operational management role. Most of the information provided to the Category A Section and (where appropriate) to the Committee is submitted in the form of written reports, generally referred to as "Category A reports". Some is communicated orally (and in particular by the Police Adviser). The Category A Section's conclusions are noted down and, where a case is before the Committee, whether in writing or orally, may also be referred to in those notes or minutes.
"Security assessment remains a continuous responsibility of Prison Service staff both at establishments and at Headquarters. Accordingly the Category A Section at Headquarters is in continuous receipt of security information about prisoners from establishments and from the police and other agencies. This can result in Category A status being awarded or withdrawn on a provisional basis, or in a change to a prisoner's escape risk classification. The information upon which these provisional decisions are made is made available, where appropriate, to a review undertaken by the Category A Committee."
In addition to Category A reports, F75 reports are prepared on life prisoners to check progress and to help in the preparation of a career plan, and also (though not in the applicant's case) for presentation to the Parole Board when a "lifer" is being considered for release on licence. F75 reports are not submitted to the Category A Section or to the Category A Committee and any comments they may contain on categorisation are incidental to the purpose of such reports. As a result of the Secretary of State's parliamentary answer on 16th December 1992, papers before the Parole Board on reviews since 1st April 1993 have, subject to certain exceptions where disclosure would be against the public interest, been made available to all life sentence prisoners in advance of the Board's consideration, and reasons for Parole Board recommendations and ministerial decisions have been provided. Such papers include F75 reports made since 1st April 1993 but not Category A reports.
Category A prisoners are permitted to make representations which will be considered by the Category A Section and, on reference to it, by the Category A Committee. Prison Rules 7 and 8 provide for prisoners to be given information about, and as to the proper method for making, requests or complaints to the Governor or Board of Visitors.
It is common ground that all decisions taken in pursuance of the Prison Act and Rules are susceptible to judicial review (see per Lord Bridge in R -v- Deputy Governor of Parkhurst ex parte Hague [1992] 1 AC 58 at 155 E).
The Secretary of State, by his Certificate dated 18th November 1993, asserts that it is necessary in the public interest to withhold from production the reports which were before the Category A Committee when its most recent decision was taken. In addition to referring to the categorisation of prisoners, the Category A Section...
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