The Queen (on the application of Robert Gourlay) v The Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Belcher |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] EWHC 1957 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2016 |
| Docket Number | Case No: CO/1858/2015 |
[2016] EWHC 1957 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds District Registry
1 Oxford Row
Leeds LS1 3BG
Her Honour Judge Belcher
Case No: CO/1858/2015
Mr Philip Rule and Miss Rachel Thomas (instructed by Chivers Solicitors) for the Claimant
Mr David Pievsky (instructed by The Government Legal Department) for the First Defendant
Mr Jamas Hodivala and Mr David Patience (instructed by Devonshires Solicitors) for the Second Defendant
Hearing dates: 12 and 13 May 2016
This is an application for Judicial Review made pursuant to permission granted by HHJ Jeremy Richardson QC on 22 July 2015. There was a dispute before me as to whether that permission was limited to the First Defendant. In my judgment it plainly was so limited, but I have no hesitation in extending that permission to cover the Second Defendant. The issues are plainly arguable in relation to both Defendants.
The Claimant is a post-tariff life sentence prisoner at HMP Northumberland which, since 1 December 2013 has been managed as a private prison by the Second Defendant under contract to the First Defendant. The Claimant challenges the "on-going" failure of the Defendants to make appropriate rehabilitation provision for him such that he would have the means to demonstrate the necessary risk reduction for a move to open conditions which, in a case such as this, is a necessary precondition to his ultimate release. The hearing bundles in this case comprise 4 lever arch files, plus 2 further lever arch files containing the authorities relied upon. References in this Judgment to the hearing bundles will be by reference to the File (A-D as appropriate) with the Tab number where there is a Tab, and the page number, for example: A:184 (no Tab) or B:2/31 (where 2 is the tab number, and 31 the page number).
The Facts
In 1991 the Claimant, then aged 24, was convicted after trial and sentenced to 9 years imprisonment for three offences of rape. The Claimant continues to maintain his innocence in respect of those matters although he admits consensual sexual intercourse with one of the complainants who was 15 at the time of the offence. The Claimant asserts that he believed that Complainant to have been over 16 at the time.
In 2000, the Claimant was convicted after trial of a further offence of rape, an offence committed approximately 2 years after his release from prison in relation to the 1991 rapes (C/15: paragraph 4.3). He was sentenced to life imprisonment with a tariff set at five years two months (as varied by the Court of Appeal). His tariff expired early in August 2005, either 1 August or 4 August. The precise date is unclear, but is not material for the purposes of this judgment, and therefore I shall use the 4 August date. The Claimant is now almost 11 years over tariff, and into his 16 th year of imprisonment, shortly to commence his seventeenth year of imprisonment. That equates to a determinate term of 32 years. The Claimant continues to maintain his innocence in relation to this conviction also.
In a progress report in February 2002, the Claimant's offender supervisor concluded that unless and until the Claimant changed his position of denial of both the index offence and previous convictions, "….there will be no offending behaviour programmes completed and no evidence to suggest reduction of risk" (C:4/2). In July 2002 the Claimant signed a compact agreement confirming his willingness to participate fully in all courses, but always on the basis that he maintained his innocence (D:119/7–8).
On 18 September 2002 the Claimant completed an Alcohol Education Programme (C:12/1). In September 2003 the pre-tariff Parole Board did not recommend release or transfer to an open prison due to a failure to demonstrate risk reduction (C:16/2). In May 2005 the on-tariff Parole Board decided that the Claimant should not be released on licence or be transferred to open conditions (C:34/5). No coursework of any type had been undertaken between the two Parole Boards. Shortly after this, on 5 August 2005, the Claimant's tariff expired. Accordingly, the punitive term was completed and the Claimant became eligible for release provided the Parole Board was satisfied that the reduction of risk was such as to make that appropriate.
In February 2006 a pre-transfer report was completed giving the reason for a transfer to HMP Albany as "…..progressive move to continue offending behaviour work, initially ETS" (D:119/21). In September 2006 the Claimant completed the Enhanced Thinking Skills course ("ETS"). In February 2006 the offender supervisor's report for the Sentence Planning Board noted that no offending behaviour programmes had been undertaken and that the previous board had set the objective to complete SOTP (Sex Offenders Treatment Programme). It was proposed that the same objective be set and that was indeed done at the Sentence Planning Board meeting in March 2006. The Sentence Planning Board noted that the Claimant appeared motivated to undertake offence related coursework. The same objective was set again at the Sentence Planning Meeting in March 2007 where it was noted that the Claimant was in denial and no offending behaviour programme work had been undertaken. That is plainly intended as a reference to no sexual offending work having been done, since ETS had been done in September 2006.
On 4 June 2007 the Parole Board did not direct release stating that, despite completing the ETS, "Your continued denials have prevented you taking part in a SOTP and thus matters seem to have arrived at an impasse. It should be noted that despite the lack of offence focused work your behaviour in prison is described as exemplary" (C:42/1–2). In June 2008 completion of the SOTP remained a sentence objective for the Claimant (D:119/131–132).
In September 2008 the Claimant was transferred to HMP Acklington (now HMP Northumberland). A record of contact dated 5 November 2008 shows that the Claimant had put himself forward for the Healthy Relationships Programme but was considered not suitable as he maintained he was not abusive towards his partner and that there was nothing in his behaviour that he wanted to change (B:2/121).
After his transfer to HMP Acklington the Claimant also applied to be assessed for SOTP. When interviewed for that assessment in December 2008 it was noted that he did not admit his guilt (B:2/123). However, a file note from January 2009 states that the Claimant should be interviewed again as the only possible inroad appeared to be the admission of sexual intercourse with an underage girl incapable of lawful consent (B:2/123). In February 2009 the Claimant was interviewed again regarding his suitability for SOTP. The record of contact states that "…he [the Claimant] noted that he could not envisage any benefits of completing SOTP. He stated he does not admit guilt to his offences and he was not willing to explore an offence that occurred 15 years previous…….. Due to Mr Gourlay's current stance on his sexual convictions it is deemed that SOTP is not suitable for his needs at the present time" (B:2/124).
In March 2009 a further Sentence Planning and Review meeting maintained the objective of completion of SOTP for the Claimant (C:53/3,8 and 10). A report prepared for the Parole Board by the offender manager in April 2009 noted that the Claimant's sexual offending needed to be addressed but that because of his continued denial he remained unsuitable to undertake the SOTP, and that in the circumstances it was not possible for him to progress through the prison system (C:55/9 and 13).
In June 2009 the Parole Board again decided not to direct the Claimant's release or recommend a transfer to open conditions, and said that the Claimant needed to reduce his risk and start to accept responsibility for his sexual offending and to engage in the SOTP work identified. The Board expressly noted that the "impasse regarding offence focused work is likely to continue" (C:58/3–4).
In July 2009 the Claimant's solicitor wrote to the governor of HMP Acklington asking for confirmation as to how the Claimant was expected to reduce his risk and suggesting that the prison service must look beyond the standard mainstream "offence based" courses as the Claimant had either completed the appropriate courses or was not suitable due to his stance (D:119/128).
In December 2009 the Claimant was assessed as suitable for a Thinking Skills Programme ("TSP") and was found to be suitable for a "denier's group" course. He was willing to participate (B:2/136). In January 2010 a Sentence Planning Board meeting identified the Claimant's need to do TSP, after which it was hoped he would be more willing to engage in a meaningful way with the SOTP process, including accepting responsibility for the previous rape against a victim who was under the age of sexual consent, and be willing to explore his thoughts and feelings to enable him to develop insight into his risk factors and better manage his behaviours in the future ( C:64/12). In January 2010 and again in May 2010, the Claimant was assessed as not suitable for SOTP (D:65/1 and D:67/1). Completion of SOTP was a sentencing plan target again in June 2010. (D:69/41).
In September 2010 the Claimant completed the TSP (D:76). This was not in fact a deniers group as that course was not run, and he took part in the main stream programme. The Post Programme Report states that the Facilitators did not feel that the Claimant has gained any new skills from the TSP as the Claimant had stated "I don't feel I've gained nothing new, the course put headings to skills I already knew". Whilst it is clear in that...
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