The Queen (in the Application of Michael Cain) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stadlen |
| Judgment Date | 19 April 2013 |
| Neutral Citation | [2013] EWHC 900 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 April 2013 |
| Docket Number | Case No: CO/6925/2011 |
[2013] EWHC 900 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stadlen
Case No: CO/6925/2011
Tim Buley (instructed by Bhatt Murphy) for the Claimant
Matthew Slater (instructed by Treasury Solicitor) for the Defendant
In this claim for judicial review the Claimant, a serving prisoner convicted of two murders on separate occasions challenges the Defendant's decision not to downgrade him from category A ("Cat A") security classification within the prison estate. The decision was taken on behalf of the Secretary of State by the Director of High Security Prisons ("the Director") on 18 April 2011, albeit reasons were only provided to the Claimant on 20 May 2011 and to his solicitors Bhatt Murphy ("BM") on 1 June 2011.
The claim is advanced on two grounds. First procedural unfairness: it is alleged that the Director's decision was procedurally unfair, for lack of disclosure of the report prepared by the local advisory panel ("LAP"), and because it raised a new issue as a basis for refusing re-categorisation not raised, or even hinted at, in the Cat A review reports which were made available to the Claimant. Second the lack of an oral hearing: it is alleged that the circumstances of this case were such that an oral hearing was necessary as a matter of fairness and natural justice.
FACTUAL BACKGROUND
The Claimant, who was born in 1968, is a serving prisoner who has been convicted of two murders, one in the community and one in prison, for both of which he was sentenced to life in prison. In respect of the first offence, which occurred in the course of a robbery, he was given a penal tariff of 15 years. As recorded in a Cat A report, the circumstances of that offence were that the Claimant distracted the victim, a shopkeeper, by talking to him in the backroom of his shop while the co-defendant looped a length of cable around his neck, pulled him to the floor and strangled him. The Claimant watched while the co-defendant continued to throttle the victim until all signs of life were absent, then punched and stamped on the solar plexus area of his body to ensure that all of the air had been expelled from his body. The Claimant and the co defendant then stole the victim's wallet and cheque book and items of hi fi equipment from the shop. The sentencing judge said that the motive for the killing appeared to be one of avoiding identification, that the co-defendant was the prime mover in the offence and that the Claimant, who was aged 19 at the time of the offence went along with it partly no doubt due to the co-defendant's dominant personality. The murder was described by Mitchell J, the sentencing judge in the second murder, in his report to the Home Secretary, as horrific. The Claimant was sentenced for that offence in 1987 so that the penal tariff expired in 2002.
In respect of the second offence, which occurred in 1993, whilst the Claimant was in prison, and for which he was sentenced on 5 July 1995, the Claimant was given a minimum tariff of 25 years by the Home Secretary which was revised to 15 years by MacDuff J on a review in April 2010. The victim in the second murder was serving a long prison sentence in HM Prison Whitemoor for sexually abusing and killing boys. He was murdered by the Claimant and another prisoner, John Brooks, who were inmates in the same prison. The victim was strangled by Brooks who was said by Macduff J to have been found by the trial judge to have taken the leading role and whose initial sentence and revised sentence were significantly higher than those of the Claimant, reflecting what Macduff J said had been acknowledged to be his greater degree of moral culpability. Macduff J's reasons are recorded at [2010] EWHC 885 (QB).
In his report to the Home Secretary dated 4 August 1995 the sentencing judge Mitchell J described the Claimant as an exceptionally dangerous man and said that the likelihood of further grave offences was in his judgment high. In his view the length of detention needed to meet the requirements of retribution and deterrence was 25 years. In his written comments dated 26 August 1995 Taylor LCJ described it as a very nasty killing and said that, although he thought that strictly for punishment and deterrence the recommendation of 25 years was too long and recommended 14 years instead, he had no doubt that the trial judge was right in suggesting that the Claimant was dangerous and that risk might be the critical factor in considering possible release. As a result of Macduff J's decision, which was communicated to the Claimant on 6 May 2010, the Claimant's tariff in respect of the second offence expired on 15 July 2010. The Claimant had thus been in prison for some 24 years when the decision under challenge was taken.
In a Cat A report dated 12 August 2008 Ms Edmonson, a forensic psychologist in training, referred to a 2006 Cat A report which had noted very little manifestation of risk in the previous 12 years, but had been unable to ascertain whether that was due to a reduction in risk or to the fact of the Claimant having been at Full Sutton for 12 years and being settled. She had also noted that some negative attitudes towards sex offenders were still apparent. Ms Edmonson conducted an HCR-20 assessment for risk of violence. Based on that assessment she said that the Claimant did not demonstrate the vast majority of risk factors which had been shown to predict future violent offending. He did indicate a few items of concern but they were mainly historical in nature and would not change. Although the assessment indicated that the Claimant's risk was likely to be manageable in a Category B establishment, that finding had to be balanced against the possible consequences of making a wrong decision, in terms of the severity of his past violence. In another passage in the report she expressed the risk more equivocally: "consideration could be given to the Claimant being managed in Category B establishment." (Emphasis added).
As to the HCR-20 findings, Ms Edmonson said that four factors were found to be protective, with only one being of some concern. As with the clinical factors the risk management items seemed to indicate that the Claimant's risk of future violence was not high and could be managed in less secure conditions. She noted that the Claimant had been exposed to sex offenders in Full Sutton and had not been noted to have involved himself in any bullying or violence. He had applied to work with vulnerable prisoners, including sex offenders, in the gym and had been cleared to complete that work. However she said that, although the clinical and risk management items seemed to be overwhelmingly protective for the Claimant, he demonstrated some historical factors associated with a risk of future violence and there were some caveats to consider when reviewing his case.
In particular she noted that the second murder had not been explored with the Claimant due to his continuing denial, which made it difficult to identify risk factors specific to his individual case. It was difficult to ascertain whether his risk had reduced or was simply not manifesting itself in a way that might be expected. Due to the difficulty which that presented when considering the Claimant's risk, coupled with the fact that he had committed such a serious offence in high security conditions, professionals involved in his assessment seemed to have erred on the side of caution thus far in not recommending a downgrade. The Claimant seemed to be an unknown quantity. There was conflicting information: he had killed while in prison and yet his behaviour was excellent and he had not received an adjudication since 1996.
A complicating factor was that there were no ways for him to address his offending behaviour, which had precluded him the opportunity of demonstrating any reduction in risk that he might have made autonomously. In particular, and of relevance to the Claimant's grounds of challenge, Ms Edmonson recorded that the Claimant had been found unsuitable for the Controlling Anger and Learning to Manage it ("CALM") which he had applied for. He had also been found unsuitable for the Cognitive Self Change Programme ("CSCP") by a Chartered Psychologist at the Offending Behaviour Programmes Unit due to there being an absence of interpersonal violence in the first murder since he was not the main protagonist and a denial in the second murder.
Ms Edmonson concluded that the consequences of making a false negative assessment of risk were severe considering the Claimant's offending history. However the HCR-20 assessment indicated that he did not require high security conditions to manage his risk.
The Claimant was first recommended for downgrading from Category A status whilst at Full Sutton prison in 2008. That recommendation was not accepted by the Director at the time, and the Claimant remained in Cat A. However the Director did recommend that the Claimant be moved within the Cat A estate "to assess his response in a new environment including vulnerable prisoners" (as it was later put in the decision under challenge). The Claimant was moved to Frankland in January 2009.
During the course of 2009, some 16 years after the second murder, the Claimant was recorded as having come to accept his involvement in and culpability for it, something which he had hitherto denied, although he had admitted his involvement in the first murder long before...
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