Wayne Truter v Ministry of Justice

Hearing dates: 12 and 13 June 2024

Introduction

These are two of five claims which were issued between mid and late 2023 in the Birmingham District Registry by serving prisoners at HMP Littlehey. The claims raise an issue as to the reliance by His Majesty's Prison and Probation Service (“HMPPS”), in the OASys Sexual Reoffending Predictor (“OSP”), on convictions which are “spent” for the purposes of the Rehabilitation of Offenders Act 1974. The OSP, as the name suggests, is an actuarial risk assessment tool which is designed to assist HMPPS in determining the likely risk of further sexual offending by adult male prisoners who have been convicted of sexual or sexually motivated offences. An offender's OSP risk level is therefore part of the information which will affect, amongst other things, decisions about their management within the prison system and about release and recall to prison.

On 12 January 2024, in the context of an application by the Defendant to strike out the claims, District Judge Rich ordered that there be a preliminary issue of law in Mr Amponsah's case. That issue is fundamentally whether it is contrary to section 4(2) of the 1974 Act for an offender's OSP score to take into account spent convictions, but it was framed by reference to the guidance given by the Defendant to HMPPS staff as to how the OSP should be operated, and therefore as follows:

“Whether it is lawful for the Defendant Ministry of Justice's policy framework document, ‘OASys Sexual reoffending Predictor (OSP) Guidance for Practitioners, Version 3.0, July 2023’, to provide at section 4, p.8 thereof, that ‘it is irrelevant whether the conviction is considered spent under the Rehabilitation of Offenders Act 1974'?”

Version 3.0 of the Guidance has since been updated, so that the current version is version 4.0, dated March 2024. But the position in relation to spent convictions remains as stated in version 3.0.

The four other claims were stayed. However, on 4 June 2024 I granted Mr Truter's application to lift the stay on his claim. My reasons for doing so were essentially that he was the driving force behind the claims and he had been intended by the other Claimants to be the lead Claimant. I was also under the impression that Mr Amponsah had not attended the hearing on 4 June, which had been conducted by CVP with me in open court, and I was concerned that he may not attend the hearing of the preliminary issue given that he had been released from custody (in fact, he had been linked into the hearing by CVP but this was not drawn to my attention). Mr Truter and Mr St Omer, who is the claimant in case number KB-2023-BHM-000292 and had also applied for the stay to be lifted in his case, said that a resolution of their claims was urgent from their point of view and I did not want to run the risk of the hearing of the preliminary issue being ineffective. I also directed that the other Claimants should be produced so that they could attend the hearing by CVP if they wished to.

In the event all five Claimants attended the hearing of the preliminary issues by CVP, as did Mr Knight for the Defendant, pursuant to permission which had been given before I became involved in the proceedings. I sat in open court at Birmingham. Mr Truter and Mr Amponsah confirmed that they did not wish to cross-examine the witnesses for the Defendant but Mr Truter submitted that I should exclude their evidence as being irrelevant to the preliminary issue. I did not agree that their evidence was irrelevant and therefore declined to do so.

In addition to his written submissions, Mr Truter then made helpful, clear and brief oral submissions which were adopted by Mr Amponsah who said that he did not wish to add to them. Mr Knight's submissions were longer, partly because his arguments were tested by the court, but they were also helpful. He upheld the finest traditions of the Bar by making concessions where appropriate and seeking to ensure that any points which might have been taken on behalf of the Claimants, had they been professionally represented, were drawn to my attention.

At the beginning and the conclusion of the hearing I asked the parties for their submissions on whether Mr Truter and Mr Amponsah should be anonymised, or steps should be taken to restrict publication of information about their spent convictions. Mr Truter and Mr Amponsah did not ask for any formal order which restricted reporting of these proceedings or otherwise derogated from the principle of open justice, but they suggested that I need not include details of their offending in this judgment. I have respected their wishes to the extent that this information is not relevant to the issue which I have to decide.

The facts

The Claimants/claims

Mr Truter is currently serving an extended determinate sentence which was imposed in 2014 for various sexual offences. He was released on licence in September 2019 but subsequently recalled to prison on 19 May 2020. He has one other conviction, in the Magistrates' Court in March 2008, for a non-sexual offence. It is common ground that that conviction is “spent” for the purposes of the 1974 Act.

Mr Amponsah was sentenced for a sexual offence in May 2022. He was released on licence on 2 May 2024 and his sentence end date is 5 May 2026. He has 7 other convictions in the Magistrates' Court for non-sexual offences. The Defendant accepts that, by the time of his claim, all of his other convictions were spent for the purposes of the 1974 Act, save for a conviction on 17 October 2022 for two motoring offences.

On 3 June 2023, Mr Truter issued a claim under CPR Part 8 raising what he characterised as a question of law. In effect, this question was whether the Defendant was acting contrary to the Rehabilitation of Offenders Act 1974 in taking into account spent convictions as part of the OSP calculation. In a “Substituted Particulars of Claim” dated 10 August 2023, which was provided pursuant orders of court that he clarify his cause of action, he stated that his claim is “a private law action for misfeasance in public office”.

Mr Amponsah's claim was brought under CPR Part 7 and was issued on 9 October 2023. The amended version of his Claim Form, dated 17 October 2023, also states that the claim is a private law action for misfeasance in public office and his Particulars of Claim, dated 20 September 2023, are in very similar terms to Mr Truter's.

The preliminary issue which I have to decide will therefore be determinative of the question whether the practice of HMPPS is unlawful for the purposes of the claims of misfeasance in public office. If it is not, the claims fall to be dismissed as targeted malice is not, and could not realistically be, alleged. If it is unlawful, the Claimants will need to satisfy the other elements of the tort including knowledge that there is no power to do the act complained of and that the act will probably injure the claimant: see e.g. Halsbury's Laws Volume 97A at [394].

The OSP

The OSP is a validated actuarial risk assessment tool which applies to male offenders. It predicts the likelihood that a man who has been convicted and/or received a caution or similar out of court disposal for a sexual or sexually- motivated offence will go on to commit a further offence of this nature. With effect from 1 March 2021 the OSP replaced a previous actuarial tool known as Risk Matrix 2000 (“RM 2000”). The introduction of the OSP was accompanied by an OSP Policy Framework and the “OASys Sexual Reoffending Guidance for Practitioners” (“the Guidance”) which, amongst other things, set out how the OSP is to be operated.

Actuarial tools such as the OSP are the first step in the four-step risk assessment process used by HMPPS to determine an offender's overall “risk of serious harm”. In her witness statement dated 1 May 2024, Ms Helen Walton (Head of the Assessment and Management of Sex Offending Policy Team at HMPPS) describes the four steps as follows:

“a. Step one – Actuarial assessment: Risk predictors should be used as a starting point to aid judgement in determining the risk of serious harm level an individual poses. (emphasis in the original)

b. Step two – Risk and protective factors: Step two supports us to identify the factors that impact likelihood of offending and harm.

c. Step three – Immediacy: Explores opportunities to offend and current situations to identify how soon and under what circumstances further offending is most likely.

d. Step four – Assign the level of risk: This step encourages staff to draw together the former 3 steps to assign a level of risk of harm Low, Medium, High or Very High. This will support staff to determine the amount of contact and intervention that may be required to address the factors raised that will reduce harmful offending.”

The OSP has two risk scales, which were updated in March 2024. One predicts the likelihood of commission of further contact sexual offences (“OSP/C” – “OSP/DC” since March 2024) and the other the likelihood of an offence related to the possession or downloading of indecent images or, since March 2024, an indirect child contact offence (“OSP/I” – “OSP/IIC” since March 2024).

In his statement dated 1 May 2024 Mr Philip Howard (Head of Risk Assessment Data Science at the Ministry of Justice) explains that a substantial international evidence base demonstrates that actuarial methods have superior predictive accuracy compared with...