R (Williams) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice JUDGE |
| Judgment Date | 17 April 2002 |
| Neutral Citation | [2002] EWCA Civ 498 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 April 2002 |
| Docket Number | Case No:C/2201/1546 QBACF |
[2002] EWCA Civ 498
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon. Mr Justice Harrison
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Phillips Master of the Rolls
Lord Justice Judge and
Lord Justice Carnwath
Case No:C/2201/1546 QBACF
Tim Owen Q.C and Phillippa Kaufmann (instructed by Hodge Jones & Allen) for the Appellant
Philip Sales and Karen Steyn (instructed by The Treasury Solicitor) for the Respondent
This is the judgment of the Court.
This is an appeal by Matthew Williams, a post tariff discretionary life sentence prisoner, from the dismissal by Mr Justice Harrison on 27 th June 2001 of his application for judicial review of the decision that he should continue to be categorised as a Category A (high escape risk) prisoner.
Matthew Williams was born in April 1969. In August 1988 he was remanded in custody and charged with extremely grave offences. They included conspiracy to cause explosions, possession of explosive substances, arson and criminal damage with intent to endanger life, and administering poisons. Apart from a few days when he escaped from prison in 1995, he has been detained ever since.
In April 1989, apart from a number of determinate custodial sentences, and taking account of orders subsequently made on appeal by the Court of Appeal Criminal Division, five discretionary sentences of custody for life were imposed. They were imposed on well-established principles relating to the seriousness of the offences and the grave risk the appellant represented to public safety if he were released. Although rehabilitation was no doubt an aspiration, we can find nothing to suggest that the sentences were imposed with that objective in view. The essential consideration was the long-term protection of the public.
The contemporaneous medical report from a consultant forensic psychiatrist described the appellant as an unusually intelligent young man who had unfortunately been exposed to his father's extreme political views. His personality was 'very complex'. He required to be contained in secure conditions for a considerable period. At the end of the report, the psychiatrist observed, with considerable caution, that there was 'some hope' that the appellant might mature. Therefore, although inevitably extremely guarded, the prognosis was not utterly hopeless.
In due course, the period specified for the purposes of Section 28(2) of the Crime (Sentencing) Act 1997 as the punitive element of the sentence (correctly described as the 'relevant part', colloquially summarised as 'the tariff') was set at 6 1/2 years. Although the process was not completed until December 1997, the tariff period formally expired in February 1995.
Throughout his sentence, the appellant was categorised as a Category A prisoner, initially an 'exceptional risk', but from 1996, a 'high risk' prisoner. His "escape would be highly dangerous to the public, the police or the security of the State, no matter how unlikely that escape may be."
Shortly after his arrival at an adult prison, in September/October 1991, the appellant was found to have made an explosive device and equipment capable of receiving radio transmissions and jamming prison radio services. He was also implicated in a conspiracy to organise a major outbreak of prison indiscipline. In 1993, while being transferred between prisons, the appellant attempted to escape. In 1995, a second attempt was successful. With others, the appellant escaped from HMP Parkhurst. He was at large for a few days. This escape was highly publicised. It led to the Learmont Report, which was devastatingly critical of the Prison Service. In July 1996, the appellant was tried and convicted and sentenced to two years' imprisonment for this offence.
Between October 1997 and June 1999, the appellant was detained in HMP Whitemoor. Since then he has been confined in HMP Frankland, as a post tariff discretionary life prisoner. His continued detention does not reflect any continuing punitive considerations. That element of sentence has been completed. Once the process of deciding the tariff was completed in December 1997, in accordance with the rights granted to him under S28(7) of the 1997 Act, the appellant was entitled to require the Secretary of State to refer his case to the Discretionary Lifer Panel of the Parole Board (DLP). He may indeed continue to require a further reference every two years after the conclusion of a previous reference.
The appellant's possible release was first considered by the DLP in March 1998. At that time the appellant had done little to address the causes of his offence, or their effects, actual or potential. The risk of re-offending remained unacceptably high. The DLP expressed concern that no life sentence plan had yet been formulated. It thought that some progress could be made if the appellant were given 'the opportunity of undertaking offending behaviour work, in particular courses in reasoning and rehabilitation, enhanced thinking skills and anger management'. The final recommendation was that the next DLP review should take place two years later.
The process which culminated in the appellant's next DLP in March 2000 began in October 1999. In the meantime, from November 1999, the categorisation review was also in preparation. At that time, in accordance with the decision in R v Secretary of State for the Home Department, ex parte Duggan [1994] 3 All ER 277, the appellant was provided with the 'gist' of the reports to be considered by the categorisation committee.
Before analysing this document however, we must identify a number of disquieting features about these separate but linked, virtually simultaneous, processes. Although there were some favourable reports from HMP Whitemoor, much of the material eventually considered by the DLP was HMP Frankland based. Even by the date of the hearing itself in March 2000, the appellant had only been detained in HMP Frankland for about nine months. On the other hand the source of the material produced for the Category A review team, and the basis of the 'gist' document, was largely, but not exclusively, produced from HMP Whitemoor. In November 1999, when the process began, the appellant had only recently been transferred away from HMP Whitemoor. In the result the categorisation decision was delayed until September 2000. In these circumstances, if the two bodies had been addressing the same rather than a different question, they might well have come to different conclusions, each properly reflecting the sources of the material put before it. In the case of the DLP, the information could arguably have been regarded as too fresh, and untested: as to the review team, although the views of the DLP were drawn to its attention, the core material was arguably too stale. In both cases the information was incomplete.
Dealing with the issues chronologically, the first relevant document is the 'gist' served on the appellant in November 1999. It concluded by recommending that the appellant remain Category A, 'high escape risk'. The impression conveyed by the text as a whole, while not uncritical, was not wholly damning. During the relevant period there had been no adjudications. The appellant's recent behaviour in prison had caused no problems. He had started to communicate properly with staff. He acknowledged his personal responsibility for his crimes. The significant passages come towards the end of the document. 'Reports' are said to draw attention to the absence of any evidence that the risk of re-offending had 'significantly diminished'. 'Reports' are also said to suggest that the appellant 'must still be regarded as potentially highly dangerous to the public'.
An oral hearing was convened before the DLP on 15 th March 2000. The appellant, who was present throughout the hearing, was represented by counsel. He gave evidence. Representations were made on behalf of the Secretary of State by the Governor of HMP Frankland. The written statement from the Secretary of State read:
"The Secretary of State's view based on the material in the dossier is that Mr Williams is not suitable for release or transfer to open conditions.
The Secretary of State notes that Mr Williams' behaviour is good and that he is beginning to address his offending behaviour.
The Secretary of State also notes that further work is still required and, in particular, psychological assessment. The Secretary of States notes that Mr Williams remains a Category A prisoner and therefore the outstanding work should completed in closed prison conditions".
Governor Robson agreed that the appellant's categorisation was stopping his progress. He pointed out that 'this Catch 22 situation' was 'unique to Category A prisoners', adding, 'there is nothing he can do here'. Judge Pugsley, the Chairman, recognised that there was a 'terrible impasse'. 'The problem', he said, 'is that because we cannot re-write…categorisation, if we feel the categorisation is essentially marring a realistic prospect, it is our duty to say so'.
The DLP's decision letter is dated 17 March 2000. The appellant continued to represent a risk to the public, sufficient to require his continued detention. The DLP recorded that the appellant 'had made such progress as had been possible in addressing (his) offending behaviour in Category A conditions, ……. a move to conditions of lower security was justified both in terms of acceptable risk and the need for (him) to access further opportunities' to...
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