The Queen (on the application of Paul Flinders) v The Director of High Security (First Defendant) Secretary of State for Justice (Second Defendant) The Parole Board (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 30 June 2011 |
| Neutral Citation | [2011] EWHC 1630 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 June 2011 |
| Docket Number | Case No: CO/2728/2010 |
[2011] EWHC 1630 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/2728/2010
and
and
Philip Rule (instructed by Wilkins Solicitors) for the Claimant
David Manknell (instructed by Treasury Solicitor) for the First & Second Defendants
Matthew Slater (instructed by Treasury Solicitor) for the Third Defendant
Hearing dates: 13 – 14 April 2011
Introduction
The Claimant is a prisoner. On 19 May 2003 he was sentenced to life imprisonment for the manslaughter of his neighbour, Ms Wendy Holmes. The Claimant stabbed Ms Holmes repeatedly; when her body was discovered she was seen lying in a crucifix position with a large number of wounds to her chest and abdomen and one wound to her lower face.
The Claimant has always said that he has no memory of the events immediately before and at the time of the killing. He accepts that some time before the killing he heard voices ordering him to kill the victim. He also accepts that some time before the killing he consumed a significant amount of alcohol. Otherwise, to repeat, he has no memory of the relevant events.
The Claimant was originally charged with murder. However, either upon the day that the Claimant was sentenced or shortly before that date the prosecution accepted his plea to manslaughter on the ground of diminished responsibility.
The Sentencing Judge was under an obligation to fix a minimum term that the Claimant should serve prior to being considered for release on parole. The judge fixed the term as 5 years less the time which had been spent on remand. The Claimant's minimum term expired on 17 May 2007.
Following his conviction the Claimant was categorized as a Category A prisoner. Between about July 2003 and 21 July 2009 the Claimant was held at HMP Frankland. During that period a number of categorisation reviews took place but throughout the whole of the period the Claimant remained a Category A prisoner.
In August 2005 the Third Defendant undertook its first review of the Claimant's case. That review took place before the minimum term imposed upon the Claimant had expired. On 14 May 2007 a further review by the Third Defendant was scheduled to take place. It is common ground that this review was deferred at the request of the Claimant. On 20 November 2007 the deferred review took place. The review took the form of an oral hearing and the Claimant was represented by Counsel. The Third Defendant issued its decision on 4 January 2008; it concluded that it was unable to assess the risk which the Claimant then posed because it had not been provided with a relevant report by the Second Defendant.
As a consequence of this unsatisfactory state of affairs, the Claimant commenced proceedings by way of judicial review against the Second Defendant. The Third Defendant was named as an Interested Party. Those proceedings came on for hearing before Blair J on 28 November 2008. The Learned Judge upheld some of the Claimant's complaints. The relief granted took two forms. First, the judge granted a declaration in these terms:-
"The Defendant's failure to provide the report requested by the Parole Board for its hearing on 20 November 2007 prevented the Board from assessing whether it continued to be necessary for the protection of the public that the Claimant should be confined and thereby breached the Claimant's rights under Article 5 (4) ECHR".
Second, Blair J ordered the Defendant within a period of 3 months from the date of his order to prepare all such documents and reports as were necessary for a reference of the Claimant's case to the Third Defendant for an oral hearing.
On 21 July 2009 the Claimant was transferred from HMP Frankland to HMP Long Lartin. On 28 October 2009 the First Defendant reviewed the Claimant's categorisation. By letter dated 25 November 2009 the First Defendant notified the Claimant that he would remain a Category A prisoner.
On 16 December 2009 the Third Defendant reviewed the Claimant's case. The review was by way of oral hearing. The panel of the Third Defendant which conducted the review decided that the Claimant should not be released and it did not advise the Second Defendant to transfer the Claimant to open conditions. It communicated its decision by letter dated 31 December 2009.
These proceedings were issued on 24 February 2010. They raise a number of issues. First, the Claimant asserts that the First Defendant's decision of 28 October 2009 to retain the Claimant as a Category A prisoner (communicated by the letter of 25 November 2009) was unlawful; a number of grounds are advanced to support that submission. Second, the Claimant submits that the Third Defendant acted unlawfully in failing to convene a review of his case by way of oral hearing prior to 16 December 2009. Third, the Claimant alleges an unlawful failure on the part of the Second Defendant to provide appropriate material to the Third Defendant to enable the Third Defendant to conduct a lawful review of the Claimant's case prior to 16 December 2009. Fourth, the Claimant submits that the Third Defendant unlawfully failed to ensure that the Second Defendant provided such material so as to enable a hearing to take place prior to 16 December 2009. On 23 August 2010 HH Judge Michael Kaye QC, sitting as a Deputy High Court Judge, ordered a "rolled-up" hearing.
Such a hearing was shortly to take place when the First Defendant reviewed the Claimant's categorisation again. The review took place on 20 December 2010 and the First Defendant issued a decision upon the review by letter dated 21 January 2011. The First Defendant decided that the Claimant was to remain as a Category A prisoner.
On 8 February 2011 there was a hearing before Lindblom J. He permitted the Claimant to amend the claim so as to mount a challenge to that categorisation decision. A number of other directions were made by the Learned Judge. In due course the claim was amended and the Claimant now relies upon a number of grounds in support of his contention that the most recent categorisation decision should be quashed.
As will become apparent the claim as now constituted raises many wide ranging issues. As with all cases of this type, however, the relevant facts are crucial to at least some of the grounds of challenge. Accordingly, the next section of my judgment is a chronological recital of the important facts and events in this case.
As I have said, this claim has proceeded upon the basis of a "rolled-up" hearing. In relation to all grounds of claim I grant permission unless I indicate to the contrary during the course of this judgment.
For the sake of clarity all decisions which are subject to challenge in this case and which were communicated in writing to the Claimant or his representatives are referred to by the date of the document which communicated the decision in question.
The relevant facts
The Claimant had been an inmate at HMP Frankland for no more than a few months when he made the first of a number of applications to participate in courses known as ETS and CALM (the precise date was 19 October 2003). The acronym ETS stands for "Enhanced Thinking Skills". CALM is the acronym for "Controlling Anger and Learning to Manage it". No decision was made upon the Claimant's applications.
On 4 April 2004 the Claimant made another ETS application to no avail. He applied again on 18 October 2004. On this occasion an assessment was undertaken on or about 27 October 2004; it was concluded that the Claimant was unsuitable for ETS by reason of his schizophrenia. That view prevailed over the following months.
On 28 July 2005 the Claimant applied again for ETS. The documentary evidence suggests that an assessment of his suitability was to be undertaken; however, there is no evidence that his suitability was assessed before 30 January 2006 when the Claimant made yet another application for the course. Meanwhile, in August 2005 the Claimant's first parole review took place.
It was also on 30 January 2006 that the Claimant first applied to participate in a course known as FOCUS. This course is concerned with offenders whose dependence upon alcohol is linked to their risk of re-offending. Shortly after this application was made the Claimant underwent some kind of assessment designed to detect substance misuse and then a CSMA (Comprehensive Substance Misuse Assessment).
During 2006 the Claimant was involved with the CARATs Team. CARATs stands for "Counselling, Assessment, Referral, Advice and Through care Service". He began one-to-one work with a member of the Team and the Claimant showed great motivation.
On 26 June 2006 the Claimant applied for ETS once again. That same month he was referred for assessment for FOCUS. Initially he was assessed as being suitable for a detailed assessment for FOCUS in 2007 but subsequently the Claimant was assessed as being unsuitable. Apparently this was because the FOCUS programme was not suitable for his treatment needs.
In December 2006 the Claimant was assessed as unsuitable for ETS and the view was taken that since the completion of this course was a pre-requisite for participation in CALM, the Claimant was also unable to participate in that course.
Undeterred, the Claimant applied again for ETS; he was assessed as unsuitable on 1 February 2007 and again assessed...
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