Lynch, R (on the application of) v Secretary of State for Justice [2008] EWHC 2697 (Admin)

Claim No. CO/4947/2007[2008] EWHC 2697 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 7 th November 2008
Before
Mr JOHN RANDALL QC
Between
THE QUEENClaimanton the application of VINCENT LYNCHClaimant
B E T W E E N
- and –
Between
THE SECRETARY OF STATE FOR JUSTICEDefendant
Mr Arthur Blake of Counsel, instructed by Messrs Levys, Solicitors of Manchester, appeared for ClaimantMr Mark Vinall of Counsel, instructed by the Treasury Solicitor, appeared for DefendantHearing Hearing date : 30 th October 2008
JUDGMENTThe Deputy Judge :Introduction
[35]One of the major factors in this case was Mr. Lynch’s initial denial of his planned involvement in the death of Mr. Peters. His denial is of some concern to the Prison Service, in that he was not taking responsibility for his actions. However, an alternative explanation is that he was unable to cope with the enormity of what he had done and has adopted a defence mechanism to cope with the distress caused by his action. It is anticipated that members of the Category A Review Board are likely to be concerned by the apparent different accounts of his offence.[36]… Nevertheless the writer has serious reservations about the lack of input Mr. Lynch has received from the prison system. The lack of psychologists is a well known and totally unacceptable argument put forward on numerous occasions by the Prison Service. It is beholden on the service to provide a psychologist to undertake the recommended one to one offence focussed work within a reasonable timescale. The longer the time period between offence and discussion about it, the more likely it will be difficult to obtain a realistic functional analysis of the offence…[38]… If his offence was considered that of an under-controlled individual, there appears to be sufficient evidence to argue that he is no longer under-controlled and therefore with maturation is unlikely to commit the offence again. However, if he is regarded as being over-controlled then there may be risk of him losing control in an explosive manner; once again there is no evidence of that in prison. While it can be argued that prison is not the same as the community, there are nevertheless many stimuli to provoke aggression and violence towards others in the prison system. Life in a Cat B prison in many ways would actually expose him to more potentially risky situations, which he would have to overcome or return to Cat A … Risk Assessment …[43]After nine years in the prison system, most prisoners require some form of rehabilitation to reintegrate into society. Mr. Lynch is no different. If transferred to either the Cat B within Full Sutton or a lower category prison, he would benefit from being exposed to more stressful life situations where he could practise his social and relationship skills while being closely monitored by staff. Mr. Lynch has stated that he is willing to engage in some psychological therapy if provided although the writer has some reservations about Mr. Lynch’s motivation level and he may well need some motivational interviewing at a later date. He may well be more motivated when actually on a lower category status.[44]It could be argued that it is unethical for the Prison Service to make demands in terms of input to reduce a prisoner’s risk, and then not to provide the identified required intervention whilst still detaining the prisoners. A number of unsubstantiated statements by unnamed individuals make it difficult to challenge or support their comments. Nevertheless, it is of note that HM Prison Full Sutton was not currently running appropriate programme, and is once again an indication of the lack of provision for prisoners.

Opinion

[45]It could be argued, based upon the prison service’s own data, Mr. Lynch does not pose an obvious risk within the prison system and his behaviour has been appropriate over the last nine years or so after some problems in the earlier stages of the Life Sentence. There is a low risk of Mr. Lynch becoming a career criminal within the prison system because of his attitude to crime, his lack of a history of previous convictions, his age, his vocational skills and his perception of what is defined culturally as moral…[47]Mr. Lynch’s problems centre on his denial of his responsibility for the death of Mr. Peters. It is unlikely that Mr. Lynch will repeat his index offence. Mr. Lynch should be regarded as likely to benefit from transfer to a lower secure prison with the intentions of rehabilitating to the community within ten years or so. He would benefit from input in the prison system with clearly defined attendance requirements to reduce any problems he could pose in the prison system…” Risk Assessment … Opinion (30). The dossier again included detailed reports inserted into the prescribed form ‘Annex C’. A number of passages from the same are worthy of note:(a) “Section 2 – Prison History (Casework Officer) … Mr Lynch is able to work well with minimum supervision and does not pose any control problems. Mr. Lynch co-operates and fully complies with the sentence plan process. Mr. Lynch has maintained a consistently good attitude over the reporting period (Observed behaviour. Oct 2005 - present date [19/10/2006]). Mr Lynch gets on well with his fellow prisoners on the wing and appears to be well-liked within his closer circle of friends. There is no apparent change in Mr Lynch’s relationship with his fellow prisoners and there is no evidence to suggest any threatening, bullying, manipulative or domineering behaviour. Mr. Lynch sets a good example to his fellow peers with his mature and responsible attitude toward his sentence.” (p52)(b) “Section 3 – Sentence Plan Mr Lynch has been fully compliant with all the targets laid out in his most recent sentence plan.” (p54)(c) “Section 3 – Offence related work Mr. Lynch completed the Enhanced Thinking Skills programmes at HMP Whitemoor in 1999, he received positive post-programme reports. He has been assessed as not requiring Anger Management course and would not be suitable for the Cognitive Self-Change Programme (CSCP).” (p60)(d) “Psychological Risk Assessment”[prepared by a trainee forensic psychologist and dated 17th October 2006] 1.4 Mr Lynch has demonstrated motivation to address his offending behaviour through participation in one-to-one work, and has applied to be assessed for this. However, as this is not available at HMP Full Sutton, Mr Lynch has been unable to actively engage in this work. He has previously completed the Enhanced Thinking Skills programme (in August 1999). He has also previously been assessed for the CALM programme, but was found unsuitable due to lack of evidence of poor emotional control. Similarly, assessment for CSCP determined that given his lack of violent history, this programme would not meet his needs. Therefore to date, Mr. Lynch has been unable to address his risk factors relating to violence.” (p62)(e) “Section 6 – Governor’s Recommendation… Assessment for CALM and CSCP has noted that it would be unlikely to meet his needs, due to a lack of evidence of a violent history of behaviour and there are no offending behaviour programmes available that will specifically meet his needs… A number of treatment targets remain outstanding including exploring: - The responsibility that he takes for the offence - Attitudes that condone acquisitive offending - Attitudes that support the use of violence and the use of weapons - The influence of anti-social peers The best way forward for Mr. Lynch at this stage would be to provide evidence of a sustained period of pro-social behaviour and provide evidence of his insight into why he behaved violently.” (pp50-51) (31). The outcome of this review was again continuation of Mr Lynch’s category A status. CART’s decision letter, dated 13 March 2007, referred to the reports that had been received, and noted that the claimant had submitted representations and an independent psychology report. It continued:
“The reports noted that you are polite and courteous in your dealings with prison staff, and you comply fully with wing and prison regimes. It noted that you had good relationships within your chosen circle of friends. It noted that you received no adjudications during the reporting period. It noted no substance or alcohol misuse during the reporting period. However the Review Team considered your custodial behaviour in a controlled environment of a high-security prison should not by itself have undue influence on the determination of your level of risk, and that other factors should be taken into account. … The Review Team noted that you are fully compliant with sentence planning process. It noted that you worked part-time in PICTA and have undertaken part-time education, and that reports from your tutors were positive. It noted that you completed the ETS programme in 1999 and received a positive report. However, it noted this programme was not offence-focussed and would not have addressed issues directly relating to the present offences. It considered that your progress on the ETS programme could not on its own provide sufficient evidence of risk reduction. It noted you have applied to be assessed for participation in one-to-one work. However this work was not available at HMP Full Sutton. It noted that you had been assessed unsuitable for both the CALM and CSCP programmes. It noted that you have not completed any offence related work to date, in order to identify and address the risk factors related to your violent offending. … The Review Team considered that your offending behaviour evidenced a high level of potential dangerousness. The Review Team considered that downgrading of your security category could not be justified until there was convincing evidence of a significant reduction of risk in your offending in a similar way if unlawfully at large. On the information available the Review Team concluded that there are at present no grounds on which downgrading of your security category could be justified …” (pp26a-b) (32). It seems that the claimant responded by making an immediate application to be considered for psychology work to enable him to address his treatment targets. However the response which he received on 19 March 2007 signed by a ‘Psychological Assistant’ at HMP Full Sutton (bundle p27) was not encouraging: “In response to your recent application, there are no courses run by the psychology department at Full Sutton that seek to address acquisitive offending, violent offending or the influence of anti-social peers. Furthermore, there is not a programme designed specifically to increase the responsibility individuals take for their offending, although all courses are likely to help people do this. From your application, it is clear that you need to address the violence in your offence. The CSCP and CALM are the only accredited courses within the Prison Service that would facilitate you reducing your risk of violence. However, file information suggests that you have been assessed as unsuitable for both of these programmes at previous establishments. Other ways of addressing risk outside of accredited interventions, include engaging in one to one work. Unfortunately, this facility is not available through the psychology department at Full Sutton, but may be an avenue for you to pursue at some point in the future, in order to address the areas of risk that remain treatment targets for you…”
It may be noted that this letter dealt with what was not available to Mr Lynch, but suggested nothing which was available to him. (33). It also seems that the claimant sought to follow up the past suggestion of an ‘ETS Booster course’ by applying to undertake the ETS programme again as a refresher, but when he did so the ETS team decided that he need not repeat that programme for the time being. He was advised to be assessed for the short Cognitive Skills Booster Programme, but the rub was that such programmes are only run at lower category prisons (bundle p177). So here again, the response to the claimant’s constructive enquiry was advice as to what would not be made available to him, which suggested nothing which was available to him (while he remained in category A). (34). Notwithstanding these discouragements, we now know (see para (10) above) that the claimant spent much of 2007 undertaking additional work set for him by the Lifer Governor, a Mr Marley, and overseen by his Offender Supervisor, Officer Davies, which looked into why he became involved with the index offence, his use of weapons and the contributing factors that brought him to prison. The OASys assessment completed in August this year recorded that the claimant “produced some good work that evidenced that he had developed a good insight into the factors for his offending” (p18 of 38), which may well have included the “comprehensive report which identifies contributory factors to his offending and .. has shown that he has developed a good and clear insight into the attitudes and beliefs that led to his offending” (bundle p177, cited below). The probable explanation is that Messrs Marley and Davies recognised the dilemma facing the claimant, and took the trouble themselves to offer him a constructive way forward in the absence of funding for professionally run alternatives such as one to one psychology sessions. Whilst it is more obvious that prisoners may be restricted in what they can do to address their risk status when appropriate and desirable offence-related work is not funded by the Prison Service, it should be appreciated that this may also cast additional burdens on conscientious prison officers, anxious to encourage and build on positive motivation demonstrated by prisoners to address their offending behaviour rather than see it wither in the face of lack of funding of opportunities to do so, discouragement and frustration. (35). The claimant’s most recent review was conducted between October 2007 and March 2008 (bundle pp168-214). On this occasion the claimant gained a recommendation from the LAP and Governor in favour of downgrading to category B, although in the event CART decided not to accept that recommendation (which, as Mr Vinall rightly submitted, it was not bound to accept) and decided that Mr Lynch should remain a category A prisoner. (36). The various reports incorporated into the prescribed form ‘Annex C’ included the following: (a) “Section 2 – Prison History (Casework Officer) Mr Lynch has been on [a specified wing] for approximately 2½ years and in that time he never comes to the attention of the prison staff. Mr Lynch has continually demonstrated a good working attitude towards staff and has shown that he can be co-operative and helpful over a sustained period of time. He has built up good working relationships with his personal officer and with his offender supervisor during the reporting period and a two-way process has now been clearly identified. Mr Lynch has been keen to address his offending behaviour during the reporting period and has worked closely with myself (Officer Davies – his Offender Supervisor) and with the Lifer Governor (Mr K. Marley) in order to reduce his risk, working towards re-categorisation with a view to progressing through the system for his eventual release. Mr. Lynch works part time in PICTA and part time in education, attending as required and working to a good and consistent standard. Mr Lynch has recently applied and been accepted as wing Race-Relations representative and has been able to develop his pro-social skills by acting as a positive role model for his contemporaries. Mr. Lynch has continually shown high levels of motivation through his willingness to comply with the sentence planning process and in his adherence of [sic] the wing rules and regimes. In the past couple of years it is to his credit that Mr Lynch has been committed to fully engaging with staff with regards to achieving his identified goals in order to reduce his risk. He has undertaken work above and beyond the normal sentence planning targets which he should receive recognition for. Mr Lynch is not a control problem within the prison and he is generally seen as representing a good role model to others. As a result of Mr Lynch’s high standard of behaviour and overall compliance he fully justifies his ENHANCED Status I.E.P. level.” (p175) (b) “Section 3 – Sentence Plan Mr Lynch has been fully compliant with all the targets laid out in his most recent sentence plan. Mr Lynch’s targets were set on 15/08/2007 and were as follows: ◦ Remain employed – Mr Lynch has remained employed throughout the reporting period. ◦ Remain in education – he has attended and maintains a good standard. ◦ Seek a progressive move – Mr Lynch is working towards his targets. Additional work carried out (please see Attachment 1) Mr. Lynch has undertaken and is continuing to undertake much of the work that was set out for him contained in these additional targets.[1]Mr Lynch has provided a comprehensive report which identifies contributory factors to his offending and it has shown that he has developed a good and clear insight into the attitudes and beliefs that led to his offending.[2]Through this report and his custodial behaviour he has been able to demonstrate that his attitude/beliefs support non-violent behaviour when dealing with areas of conflict.[3]Mr Lynch has been able to show good pro-social attitudes by acting as a positive role model throughout the reporting period. He has also recently applied for and been accepted as a wing Race Relations representative.[4]Mr Lynch recently applied to undertake the ETS programme again as a refresher, but it was decided that by the ETS team that Mr. Lynch need not repeat this programme at present. He has however been advised to be assessed for Cognitive Skills Booster Programme which is a short programme run at lower category prisons (See attachment 2).[5]The final additional target was for Mr. Lynch to apply for the Victim Awareness course (Sycamore Tree). He has applied for this and he completed the programme in February 2007, receiving good reports. The areas highlighted in last year’s Categorisation recommendations were as follows:- A number of treatment targets remain outstanding including exploring: ◦ The responsibility that he takes for the offence. ◦ Attitudes that condone acquisitive offending. ◦ Attitudes that support the use of violence and use of weapons. ◦ The influence of anti-social peers. ◦ A sustained period of demonstrating pro-social behaviour and providing evidence of his insight into offending and his previous violent behaviour. It is my opinion that Mr Lynch has been able to address all these outstanding areas through his participation with the Sentence planning process and by his commitment and motivation towards his undertaking of any additional work that has been devised for him. Mr Lynch has demonstrated a reduction of risk in the reporting period and is willing to undertake any other necessary identifiable interventions for a sustainable period of time in order to continue with this progress and work towards re-categorisation. Mr Lynch has achieved several qualifications in the PICTA/Education workshops including ECDL Levels 1 and 2, IT Essential 1 and 2, CCNA level 1 and he states that he is the only person to gain Microsoft spreadsheet Excel level 3 qualification. He has used his time in education and employment constructively and positively.” (pp177-8) (c) “Attachment 1 – Short 7 Medium term objectives to demonstrate modified behaviour & evidence pro-social behaviour Vincent Lynch – Short & Medium term objectives to demonstrate modified behaviour & evidence pro-social behaviour No Target, Area [OBP, Work Education etc] and date to be achieved by: What will completion of the target achieve? How will progress or achievement be measured? 1 Mr. Lynch to provide a report identifying the five most important factors that he believes contributed to his imprisonment for the index offence. Develop an insight into the attitudes and beliefs that led to the index offence Report to be submitted to his Offender Supervisor (Officer J. Davies) & Lifer Governor. (Evaluation by psychology dept ??) 2 To reflect upon his index offence, in particular the use of violence/use of weapons and to provide evidence that does not condone the use of violence by identifying alternative strategies. Attitudes & beliefs that support non-violent behaviour when dealing with conflict[2]Custodial behaviour /Wing associates monitored by Offender Supervisor 3 Mr. Lynch to consolidate & maintain positive reports by demonstrating pro-social beliefs and engagement in constructive activity. Sustained period of pro-social behaviour, positive role model & Mr. Lynch to consider involvement in the consultative committees. Achievement of educational & vocational training awards.[1]Quarterly review meetings involving Mr . Lynch, the Lifer Governor & Offender Supervisor[4]In the absence of an ETS booster programme – Mr. Lynch to apply to be assessed for the ETS programme Mr. Lynch has previously completed the ETS programme in 1999 with positive reports received. The ETS programme will consolidate skills learnt from the ETS undertaken in 1999 & demonstrate motivation to change/engage in interventions. ETS assessment will determine any cognitive deficits. 5 Apply for the Victim Awareness course (Sycamore Tree) Completed February 2007 Develop victim empathy, insight on how his offending impacts on others. Victim Awareness post course review (p179) (d) “Attachment 2 - Memorandum from Officer Daine, R: Enhanced Thinking Skills Programme (ETS): HMP Full Sutton 31st August 2007 Thank you for your application for the ETS programme. Having reviewed your previous post programme report and conducted a risk assessment I can confirm that it has been decided that we will not be referring you to repeat the ETS programme. This is due to you presenting as a very low priority for the programme based on an actuarial risk assessment. Your motivation to refresh your skills has been noted and should you require any assistance from the ETS team regarding practising the skills then please do not hesitate to contact us again. In the future it may be beneficial for you to apply to be assessed for the Cognitive Skills Booster Programme which is a short programme run at lower category prisons …” (p180) (e) “Section 3 – Offence related work Mr Lynch completed ETS in 1999. He was found unsuitable for the Anger Management programme @ HMP Whitemoor. He has also completed a Drug and Alcohol programme in 2000 and the Sycamore Tree programme in 2007. In 2006 the psychology dept wrote to Mr Lynch to inform him that one to one work is not available at Full Sutton and as such is not a suitable sentence plan target.” (p184) (f) “Psychological Risk Assessment... Date of Report 20th November 2007. Author Emma Watson, Trainee Forensic Psychologist. … I have not interviewed Mr Lynch for this report as there has been little change regarding completion of intervention work and wing behaviour … since his last Category A review in 2006…2.1 Mr Lynch does not have an OASys assessment, therefore his areas of risk outlined below have been based primarily on clinical judgement. Whilst clinical judgement is based on research findings and allows for a variety of risk factors to be identified, more structured and semi-structured assessments of risk (such as the OAsys) would be beneficial in that they would gather information about risk using other methods, which have been researched to be reliable and valid …2.2 … The completion of additional actuarial risk assessments such as the OAsys and HCR-20 may help identify further areas of risk… 3.2 Security information suggests that over the last 12 months Mr Lynch has continued to be involved with criminal peers and illegal activities. In my opinion this suggests a possible lack of motivation to change his offending behaviour and infers that risk factors such as criminal peers and attitudes that support offending behaviour continue to manifest in his prison behaviour. The information also suggests that Mr Lynch may not be applying the skills he has learnt from the ETS programme. However Mr. Lynch has not had any adjudications in the last 12 months suggesting that he follows prison regime well.” (pp186-7) (g) “Casework Officer Report … No evidence of behaviour linked to index offence… Mr Lynch completed ETS in 1999 at another establishment. It has been suggested he do 1-1 work with psychology but this is not available at Full Sutton. He has recently completed Sycamore Tree course, reports from this were very positive saying he was committed to the course and he gained a lot from it.” (p194) (h) “Seconded Probation Officer’s Report … Progress in reducing risk Mr Lynch has completed all available work, he has been recommended to be assessed for one to one work with psychology department at HMP Full Sutton although such work is not available at this time. Any additional comments At last years sentence planning board Mr Lynch was recommended to complete assessment for a refresher of the ETS programme as a long term target. At the moment Mr Lynch is not able to make progress with his sentence. He has completed available programmes and cannot access one to one work with psychology unless he transfers to an establishment where such work is available. In the meantime I would encourage him to continue with his personal targets in education/employment.” (p195) “Review Board Summary … Mr Lynch fully co-operated with the sentence plan process. Mr Lynch was informed by the board that they felt that he had performed well over the last 12 months and his achievements in his work and his academic improvement was significant. It was commented by the education Dept. that he had been put forward for the learner of the year. Mr Lynch has also completed the Sycamore program with good success. He stated that he had gained a lot from the program and would be willing to inform others on the wing of its benefits, if requested to. Mr. Lynch stated that he felt that he was in a catch 22 situation; Full Sutton no longer had anything to offer him in order for him to demonstrate his reduction in risk and he was unable to progress forward to a prison that would allow him to progress due to his seen level of risk. This was noted by the board. In general his behaviour since arriving at Full Sutton has been very good, not coming to the attention of staff on the wing. He has engaged in work related activities and has so far attempted to engage with all self-improvement work required of him. I believe that Mr Lynch should be looking at a progressive move out of HMP Full Sutton as it would seem that he has demonstrated a period of stability and he has addressed his behaviour and has entered into an area of self-change.” (p197) (i) “Lifer Manager’s Report I fully agree with the recommendations made by the board except a progressive transfer. He is not suitable for progression as a Cata. A. All areas of Mr Lynch’s sentence planning appear to have been covered by the Board… Mr Lynch will not be considered for progressive transfer until he has been downgraded to Cat B prisoner and proved himself at that level. It is very encouraging to see the progress he has made with his education and the positive feedback from his tutors. It is important for him to remain positive during this process and continue working towards improving his education.” (p198) (j) “Section 6 – Governor’s Recommendation … Mr. Lynch has made significant progress during his time in custody addressing many areas of his offending behaviour… The panel concluded there had been a reduction in risk factors and this is evidenced by the work completed in the reporting period: ◦ Addressing attitudes that support acquisitive offending ◦ Positive engagement in prison community ◦ Personal development by the work in PICTA and Education ◦ Addressed cognitive deficits This coupled with his motivation to gain a clearer insight into his offending behaviour leads the panel to recommend downgrading.” (p 202) (37). The phraseology of the decision letter dated 11 March 2008 suggests that this, like that in 2004, came to be considered by the Director of High Security personally. Given its importance to this case I must set out most of its content: Present Circumstances Reports noted that Mr Lynch has demonstrated a good working relationship with prison staff. He is Enhanced IEP level and poses no control problems. He has positive relationships with other prisoners. He is the wing Race Relations representative. He has received no adjudications in the last 6½ years. He has achieved several qualifications in the PICTA/education workshops and uses his time constructively. He accepts full responsibility for the death of the victim. He states that he withdrew his gun with intention of scaring the victim and the gun was discharged accidentally. He refutes that at the time of the offence a robbery was in progress. There is no OASys assessment therefore his areas of risk have been based on clinical judgement, and therefore may not capture the full extent of Mr Lynch’s risk. The completion of additional actuarial risk assessments such as OASys and HCR-20 may help to identify further areas of risk. Since his last review he has not completed any further intervention work to help address areas of risk. It noted that the CALM and CSCP programmes have not been deemed suitable interventions for him due to lack of evidence of poor emotional control and previous violent history. He completed the ETS programme in 1999. He was found unsuitable for the Anger Management Programme at Whitemoor. He completed a drug and alcohol programme in 2000. He continues to show high levels of motivation through his willingness to comply with his sentence planning targets. He applied to re visit the ETS programme as a refresher but the ETS team decided that he need not repeat the programme at present. He has been advised to be assessed for the Cognitive Skills Booster Programme which is run in lower category prison. He has completed the Sycamore Tree course (victim awareness) in February 2007 and received good reports. It noted that he has addressed all outstanding recommendations targets from his last review through his participation with the sentence planning process. It noted that there is security information to suggest a continued manifestation of risk factors pertaining to his offending behaviour. Reports recorded intelligence to suggest he has been involved in the prison drug sub culture. Representations Prepared by Levy solicitors. It noted that his last review is subject to Judicial Review proceedings and is currently awaiting permission hearing at the High Court. Mr Lynch has always complied with his sentence plans undertaking all identified work. The only outstanding work is not available at his present location. He is compliant with prison regimes. One to one work is not available to him at Full Sutton. He was not interviewed for the purpose of the psychological report and the author relies on copying previous reports, which is no longer current information. It noted that Mr Lynch had indeed completed further intervention work by completion of the Sycamore Tree course and re-applying for the ETS programme… It noted that Mr Lynch has been placed into an environment which means he cannot progress as the courses recommended have not been made available to him. If downgrading is refused the decision will be subject to Judicial Review. LAP Recommendation The Local Panel recommends downgrading as there is evidence of a reduction in his risk, through his positive engagement in prison community, Personal development addressing attitudes that support acquisitive offending and addressing his cognitive deficits. Reasons for the decision The Director noted that Mr Lynch continues to maintain satisfactory custodial behaviour. The Director noted that Mr Lynch received no adjudications and that there was no evidence of substance or alcohol misuse during the reporting period. However, the Director considered that his satisfactory good custodial behaviour in the controlled environment of a high security prison should not by itself determine his level of risk, and that other factors should be taken into account. The Director noted that Mr Lynch accepts responsibility for the death of his victim, but disputes that at the time of the offence a robbery was taking place. The Director noted that Mr Lynch had utilised his time in custody by undertaking a variety of educational courses. He noted that Mr Lynch complied with his sentence planning target and showed good level of motivation towards addressing his offending behaviour. The Director noted that Mr Lynch completed the Sycamore Tree victim awareness programme in February 2007 and that he received good reports. The Director noted that Mr Lynch had applied to revisit the ETS programme and that it was decided that he need not repeat the programme. The Director also noted the recommendation for him to undertake a Cognitive Skills booster programme in the future. The Director considered that it remained impossible to accurately assess whether Mr Lynch had achieved the necessary insight or made progress on key issues underlying his offending. He also considered that certain aspects of Mr Lynch’s custodial behaviour suggested some risk factors associated with his present offence remained active. The Director noted discrepancies between Mr Lynch’s account and the official records that may suggest some minimisation and poor insight into his offending behaviour. The Director considered that Mr Lynch should work with prison staff to find a way forward to clarify his account of his offending behaviour and why it differs from the official account, and he should participate in an OASys and a HCR-20 assessment in order to help provide clearer evidence of risk reduction. While the Director accepted that mainstream programmes such as the CSCP and the CALM, had been found unsuitable for Mr Lynch, but he did not consider this provided evidence of the necessary risk reduction. He was satisfied there continued to be evidence that Mr Lynch had not yet faced up to or achieved appropriate insight into his capacity for extreme violence. The Director considered that Mr Lynch’s offending behaviour evidenced a high level of potential dangerousness. He considered that a downgrading of Mr Lynch’s secure category could not be justified until there was convincing evidence of a significant reduction in his risk of re-offending in a similar way if unlawfully at large. The Director was satisfied that no such evidence was yet available and that Mr Lynch should remain in Category A at this time. (38). The claimant responded to this decision letter by lodging formal written applications dated 15 April 2008 asking that an OASys risk assessment and an HCR-20 risk assessment be completed in respect of him. The former has now been carried out (see para (10) above). As to the latter, the response recorded that “… A note has been placed in your file in order to direct the future psychologist to engage in this process when another full assessment is requested”. Ms Watson’s evidence (discussed below) is that the latter form of assessment is not available to prisoners on request, but would be completed as part of a Lifer review or the category A process “if deemed appropriate by the Psychologist and Supervisor or the Chartered Psychologist”. (39). In summary, therefore: a. in CART’s decisions on annual reviews of the claimant’s category A status in 2000, 2001, 2003 and 2004, the one means of providing the requisite cogent evidence of significant diminution in the claimant’s risk which was identified was “through offence related work”, although the possibility of other means was not ruled out (given the addition of the phrase “or otherwise”). In the 2006 decision letter the one phrase used which identified any such means was “the possibility that you could address outstanding offence-related issues through one-to-one work remained a recommendation”, though the accompanying reports had stated that such work was “on hold” at HMP Full Sutton. The 2007 decision letter, having noted that the ETS programme was “not offence-focussed”, went on to note that the claimant had “not completed any offence related work to date …”. However the only such work to which any reference was made (other than that suggested in Mr Berry’s report, which is only provided in less secure conditions) was the reference to the claimant’s application to be assessed for participation in one to one work, which the letter itself recorded “was not available at HMP Full Sutton” (and as the response dated 19 March 2007 to his prompt application for the same – for which see para (32) above – duly demonstrated);b. the last three reports all indicated under the specifically prescribed heading “offence-related work” that there were no current opportunities for the claimant to undertake any further relevant coursework or other accredited activities of this nature (25/10/2005, bundle p82, quoted in para (27)(c) above; 25/10/2006, bundle p60, quoted in para (30)(c) above; 12/10/2007, bundle p184, quoted in para (36)(e) above);c. various suggestions as to means by which the claimant might be able to address his offending behaviour and (hence) risk factors were made in the accompanying reports which formed part of the review dossiers, but in each case it transpired that they were not available to the claimant while a category A prisoner (e.g. one to one psychology work, an ETS booster course, a Cognitive Skills booster course/programme);d. over this period, it had plainly appeared to a number of those charged with looking after and/or preparing reports on the claimant in prison that the absence of any provision for suitable courses or treatment (including one to one psychology sessions) had left the claimant in a position where he was unable to address his offending behaviour and (hence) risk factors: see e.g. his Lifer Manager’s report dated 10th March 2005 (bundle p89, quoted in para (27)(e) above), the Psychological Risk Assessment of 17th October 2006 (bundle p62, quoted in para (30)(d) above), and the Seconded Probation Officer’s report of 11th June 2007 (bundle p195, quoted in para (36)(h) above). It is noteworthy that these were all documents which the claimant was entitled to see (see para (17) above), and, it appears, did in due course duly see;e. for the first time, the 2008 decision letter identified specific steps, other than the unavailable one to one psychology sessions, which (by implication) might afford means of providing the requisite evidence, namely (numbering added by me) “Mr Lynch should [i] work with prison staff to find a way forward to clarify his account of his offending behaviour and why it differs from the official account, and he should participate in [ii] an OASys and [iii] a HCR-20 assessment in order to help provide clearer evidence of risk reduction”. Unfortunately, ◦ as will appear more fully below, suggestion [i] overlooked the fact that important work with prison staff had been undertaken through much of 2007, ◦ suggestion [ii] had been raised in his Lifer Manager’s report as long ago as March 2005 (bundle p89, quoted in para (27)(e) above) but (subject to the following point) not acted on, ◦ there is evidence that some form of actuarial risk assessment had been carried out by the end of August 2007, the results of which had indicated that the claimant was a very low priority for the ETS programme (Memorandum from Officer Daine dated 31st August 2007, quoted in para (36)(d) above), and ◦ in any event the demands which suggestions [ii] and [iii] would place on the claimant appear from Ms Watson’s evidence to be quite limited – for both he would need to discuss openly his life history and offending behaviour, and for [iii] he would need to participate in a one hour interview. Otherwise they required prison staff to complete largely statistical or ‘actuarial’ pro-forma reports about the claimant, a file review, and the HCR-20 interview. Suggestions [ii] and [iii] are not (contrary to the defendant’s Detailed Grounds of Resistance at para 21) properly to be characterised as “courses”, as Mr Vinall accepted. The 2008 decision – material factors not taken into account (40). Though on paper it appeared that the focus of this case was likely to be the ‘catch-22’ challenge to both decisions, as the hearing progressed it became clear that this head of challenge to the 2008 decision was of considerable significance. In the event, it is convenient to take it first. (41). In considering the materiality of the factors in question, and whether it is clear that they have been taken into account properly or at all, the context is provided by the history which I have recounted in some detail, and have sought to summarise in para (39). In particular, it is significant to note the importance which CART has repeatedly indicated to Mr Lynch will be attached to offence related work, and the difficulties which Mr Lynch has experienced in finding any coursework or other opportunities to address his offending behaviour and (hence) risk factors, despite having demonstrated good motivation to do so. (42). While it is trite, in assessing whether decision making has been conducted rationally within the Wednesbury principles, that the matter of how much weight is to be attributed to any given factor is prima facie a matter for the decision maker, subject to whether the outcome reached is perverse, a context such as that mentioned above may be relevant to determining whether there is sufficient mention of or reference to a particular material factor to satisfy the Court that the decision maker has properly taken a material factor into account. (43). The starting point here is the fact of the Claimant’s 2007 Work (as to which see para (10) above). In the context, this was a matter of considerable significance. The only phrase in the 2008 decision letter to which Mr Vinall could point as constituting a possible indication that this work had been taken into account was the second limb of the sentence “[The Director] noted that Mr Lynch had complied with his sentence planning target and showed good level of motivation towards addressing his offending behaviour.” a. I am not satisfied that those words, construed in their context, referred to work which had actually been undertaken by reason of good underlying motivation, as opposed to simply good motivation which had been evinced (e.g. by applying for courses, one to one psychology etc). There had been favourable comments about the claimant’s motivation in that regard in previous years, when no offence related work was then made available to him (e.g. Psychology report dated 10/11/2005 at bundle p84, quoted in para (27)(d) above; Psychological Risk Assessment dated 17/10/2006 at bundle p62, quoted in para (30)(d) above). b. The decision letter contains no express reference to the highly relevant programme of work set for the claimant by the Lifer Governor and his Offender Supervisor, as set out in the table marked “attachment 1” which I have quoted in full in para (36)(c) above. c. Nor does it contain any express reference to the important material set out in Section 2 – Prison History (Casework Officer) and Section 3 – Sentence Plan (both completed by the claimant’s Offender Supervisor, Officer Davies, and quoted in paras (36)(a) and (36)(b) above). d. Other passages in the decision letter indicate to the contrary: for example, if the Director/CART had consciously evaluated the Claimant’s 2007 Work, it is most improbable that he/they would have written “Since his last review he has not completed any further intervention work to help address areas of risk”, (later in the letter) “The Director considered that it remained impossible to accurately assess whether Mr Lynch had achieved the necessary insight or made progress on key issues underlying his offending”, and that “Mr Lynch should work with prison staff to find a way forward to clarify his account of his offending behaviour and why it differs from the official account.” I conclude that the Claimant’s 2007 Work was not taken into account when the decision was made on his 2008 security categorisation review. (44). Furthermore, even if (contrary to my reading of the decision letter) some account was taken of it, in my judgment any rational decision maker faced with such material in the context I have identified should and would have given it far more extensive and careful consideration than anything reflected by the inclusion of the few words on which the defendant now relies. It should and would have been central to his consideration of whether the claimant had now provided the one piece of cogent evidence the past absence of which had been repeatedly identified as the factor precluding a decision to downgrade. (45). Had the Director/CART decided to base their decision on a different assessment of that programme of work and the claimant’s performance of it than that reported by the officers who had devised and supervised it (which, for the reasons indicated above, I find to be an unlikely hypothesis), rational decision making would have required them first to undertake their own appraisal of the same and then to include at least a summary of their resultant assessment of it in the decision letter. There is no indication whatever that any such appraisal was undertaken, and Mr Vinall accepted that it does not appear that the Director/CART ever saw the claimant’s “comprehensive report” spoken of in the Sentence Plan report, in which he apparently (from that and the terms of Attachment 1) identified the five most important factors which he believes contributed to his imprisonment for the offence, and reflected upon his index offence (the murder of Mr Peters) and in particular the use of violence/use of weapons. There is certainly no summary of any resultant fresh assessment (whether contrasting with that of Officer Davies, Lifer Governor Marley and the LAP chaired by Deputy Governor Cornmell, or at all) to be found in the decision letter. (46). Linked to the foregoing is a matter which I raised with Mr Vinall, namely that where, as here, it has repeatedly been indicated to a prisoner in decision letters on his annual categorisation reviews that one particular type of work (in this case, offence related work) has been identified as a means by which he might be able to provide the requisite cogent evidence of significant reduction in his risk, the very fact that this has repeatedly been said in past decision letters is itself likely to become a material fact to be taken into account. Mr Vinall did not dissent from that proposition. However no reference to this appears in the 2008 decision letter. On the present facts that is an important omission, because during the year since the previous review the claimant had, for the first time, been set and had performed such work. This, of course, is not to say that what a CART has said in one or more past decisions is in any sense binding upon future reviews. To take a simple example, there may be a change in what is recognised as the best way of assessing risk between one review and the next, which renders the reasoning of a past decision out-dated (compare paras 43-44 of the judgment of Elias J in Roberts,cited in para (20) above). However in the context of periodic reviews of the same question, rational decision making will generally involve taking some account of indications of continuing relevance which have been given when making previous decisions, particularly if those indications have been given repeatedly. It should be noted that this is a separate and distinct matter from whether statements made in the course of such past decisions may have given rise to any relevant ‘legitimate expectation’ on the reviewed prisoner’s part, as to which see para (74) below. (47). I therefore conclude that CART’s decision of 11th March 2008 was materially flawed by failure to take into account, properly or at all, a number of material factors, contrary to both the general law, as embodied in the Wednesbury principles, and the indication given in PSO 1010, Annex A, para 10 (quoted in para (19) above). (48). Mr Arthur Blake, appearing for the claimant, also relied on the report of Mr Berry as a further material matter which had not been taken into account. Mr Vinall, on instructions, confirmed that it had not formed part of the dossier for the 2008 review, though it had been considered by CART in its 2007 review. It is not, of course, the case that every document which has been thought appropriate for consideration in past annual reviews must for evermore be solemnly re-read and re-considered annually. Whether a document which was in ‘the dossier’ last year constitutes a material factor for consideration on a future review will almost always be a fact sensitive question, only capable of determination on a case by case basis, and seldom likely to be susceptible of challenge on a Wednesbury basis. However on the present facts, although it is not central to my decision, I am persuaded that Mr Berry’s report was such a factor for the purposes of the review carried out in March 2008. It was then only 15 months old, which in the present context is not long, it was the most recent (and, it appears, only) independent psychological report on the claimant, and it was the only such report of which the author was a fully qualified professional (as opposed to a trainee). As such it was a document of obvious importance. It may be that parts of it, considered separately, would not have helped the claimant’s cause, as Mr Vinall submitted. Nevertheless, I cannot exclude the possibility that this report, read as a whole, would have made a material difference to the outcome of a rational consideration of the 2008 review. Whilst it is true, as Mr Vinall pointed out, that the claimant’s own solicitors did not make any express reference to it in their written representations for the 2008 review (as they had done the previous year), that at the end of the day is simply a forensic point which is by no means determinative of the report’s materiality. (49). In all the circumstances, and in particular those mentioned in para 39(e) above, it is to be hoped that, on the defendant’s reconsideration of the 2008 review, he will have available to him any HCR-20 risk assessment which he requires, as well as the OASys assessment which has now been completed. Being ‘in denial’ (50). Mr Vinall, in his forceful submissions for the defendant, laid emphasis on the fact that the claimant appears still not to accept the ‘full’ version of the facts of his offences which the jury must have accepted to convict him of the three offences they did, and which Poole J – having presided over his trial – recounted when passing sentence (see para (2) above), and sought to justify CART’s decision to continue his category A status on the grounds that this defendant remained in denial. Given what I have held as to the materially flawed nature of CART’s decision of 11th March 2008, the potential relevance of these submissions is that they could found an argument that it would be pointless and therefore wrong for me, as a matter of discretion, to grant any relief to the claimant. (51). The claimant’s account has for many years been (and, by inference, may well have been at the trial) along the lines that he was only given the gun to look after by his co-defendant while at the night-club, and that he pulled it out in order to frighten off his victim after he had attacked him (the claimant), striking him in the face with a glass. The gun discharged accidentally. There was no robbery in progress when this occurred. (See e.g. Mr Berry’s report at para 32 and the OASys risk assessment completed in August 2008 at p7 of 38). (52). The case of Roberts, cited in para (20) above, was one where the prisoner was wholly in denial of the two killings of which he had been convicted. His case had remained throughout that he had had no contact with the elderly victims, and played no part whatsoever in their deaths. In that factual context Elias J noted (judgment para 14) that Roberts “continued to deny guilt for the offences and as a consequence refused to participate in any offence-related work”. When he came to consider the question of whether CART’s decision in that case was unreasonably reliant on the claimant’s denial of guilt and consequent failure or inability to participate in offence focussed courses, Elias J said: “30… the report of the review team recognises that the lack of participation in offence related work did not itself bar downgrading. Indeed, it stated so in terms. The team also left open the possibility that the prisoner would be able to demonstrate a sufficiently significant diminution of risk, not only through offence based work, but also in other ways… 32… I accept, that looking at these various reports [from members of the prison staff] they virtually all conclude either that his failure to participate in specific offence focused work means that there can be no proper assessment of the extent to which risk is being diminished or, alternatively, that the fact of non-participation demonstrates that it has not significantly diminished…[33]Mr Kovats, for the Secretary of State, recognises and accepts that as far as the Parole Board is concerned, when it is exercising its functions, it may not refuse parole simply because the prisoner denies his guilt. That is established by the decision of the Court of Appeal in R v The Parole Board and Secretary of State for the Home Department ex p Oyston, (unreported, 1st March 2000). At paragraph 43 of that decision Lord Bingham of Cornhill, then the Lord Chief Justice, summarised the difficulties faced by the Parole Board when dealing with prisoners in denial. He said this:
‘Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted present the Parole Board with potentially very difficult decisions. Such prisoners will probably not express contrition or remorse or sympathy for any victim. They will probably not engage in programmes designed to address the causes of their offending behaviour. Since they do not admit having offended they will only undertake not to do in the future what they do not accept having done in the past. Where there is no admission of guilt, it may be feared that a prisoner will lack any motivation to obey the law in future. Even in such cases, however, the task of the Parole Board is the same as in any other case: to assess the risk that the particular prisoner if released on parole, will offend again. In making this assessment the Parole Board must assume the correctness of any conviction. It can give no credence to the prisoner's denial. Such denial will always be a factor and may be a very significant factor in the Board's assessment of risk, but it will only be one factor and must be considered in the light of all other relevant factors. In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole.’
[34]The court also approved the following principles enunciated by Laws J, as he was, in an unreported decision in 1997, R v Secretary of State for the Home Department, ex p Hepworth and Others. The four propositions were these:
‘(1) The Parole Board must assume the prisoner's guilt of the offence or offences of which he has been convicted. (2)The Board's first duty is to assess the risk to the public that the prisoner might commit further offences if he is paroled. (3) It is therefore unlawful for the Board to deny a recommendation for parole on the ground only that the prisoner continues to deny his guilt. (4) That in some cases, particularly cases of serious persistent violent or sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation.’
[35]Mr Kovats accepts that these principles apply equally to categorisation. That seems to me to be correct given that both decisions are concerned with the assessment of risk. That is not to say, however, that identical considerations operate in each case. As the Court of Appeal noted in R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498, [2002] 1 W.L.R. 2264, the Parole Board is concerned with assessing risk in the context of someone who is lawfully released and subject to continuing monitoring and control. Furthermore, there are incentives to behave, since in the event of non-compliance the licence is revocable.[36]By contrast, those determining whether a prisoner should remain in category A are concerned with risks posed to the public by someone who, they must anticipate, may unlawfully be at large. Plainly such persons would not be supervised or monitored. Although both decisions address public safety, they perforce do so in different ways and for different purposes. Even so, as the parole cases show, it is not the denial itself which is relevant, but the effect which this has on the ability of the prisoner to come to terms with his offending behaviour and to demonstrate the necessary reduction in risk. This must equally be so in the categorisation process.[37]Mr Kovats says that it is wrong to say that the review team has made the error attributed to it by the claimant. It would be unjust to assume that it has merely paid lip service to the possibility that there may be other ways of demonstrating a reduction of risk. He referred me to a statement in these proceedings from Clare Lewis, who is the Operations Manager and Director of High Security Operations Unit and the current temporary head of the Category A Review Team. She gave examples of the way in which the diminution of risk may be established without doing courses focused on the specific offence, such as by one-to-one work with specialist staff, increasing maturity and other evidence of a sustained and material change in attitude towards offending behaviour gathered by staff through regular contact.[38]Moreover, in this case Mr Kovats submits that the team was placed in a particularly difficult dilemma. In some cases it may be possible to identify relatively easily what has motivated the prisoner to commit the crime and to assess risk even for those in denial. Here, however, it is not clear whether the motive was sexual, financial, the fact that the prisoner was in drink, or perhaps is inherently violent, or even a combination of some of these. Without a recognition of guilt and some understanding as to why the crime was committed, it is difficult to be satisfied that there is a sufficient reduction in the risk that it might occur again. He submits that this is effectively one of those cases which is identified in the fourth proposition set out by Laws J, where without participation it may be extremely difficult objectively to assess the risk.[39]I accept Mr Kovats' submissions. There is a very real difficulty facing the review team in cases of this nature. The guilt of the prisoner must be assumed. That is what the review team properly did here. The review team must then assess the nature of the risk in the event of an escape. Where the index offences are so grave, as they will inevitably be in category A cases, the review team can justifiably require cogent evidence that that risk has diminished.[40]That evidence will, in the normal way, be most cogently demonstrated by the prisoner participating in courses and programmes which are directed to the specific offences, so that there can be some self-awareness into the gravity and consequences of his conduct. However, it is a condition of a number of these courses that the prisoner must admit his guilt. That is so, I am informed, for the Sex Offences Treatment course, the CALM course (controlling anger and learning to manage), and the CSCP course (cognitive self change programme). By not participating in such courses or programmes the prisoner inevitably makes the task of the review team more difficult, and in some cases practically impossible.[41]It must be recognised that this compounds the injustice for anyone who has suffered the grave misfortune to be wrongly committed of such terrible crimes, and there will inevitably be such people. It puts pressure on the innocent to admit guilt in order to facilitate release, or, alternatively, to serve a longer sentence than they would have had to do had they committed the crime and felt properly able to admit guilt. But that seems to me to be inevitable, the system cannot operate unless the verdict of the jury is respected.[42]Moreover, on very, very, many more occasions defendants deny guilt for offences which they have in fact committed, for a whole variety of reasons. Given that the danger must be presumed from the nature of the index offence, it is plainly a proper requirement that there should be cogent evidence in the diminution of risk if the safety of the public is to be secured. No doubt to those in denial the recitation by a review team that being in denial does not of itself preclude re-categorisation may appear to have something like a mantra-like quality. There is no doubt that if they disqualify themselves from the courses which address their specific offending, it will be considerably more difficult than to be able to satisfy the review team that re-categorisation is justified. This is not, however, a punishment meted out to them because they have not admitted the offences, but it is because by being in denial they limit — and in many cases severely limit — the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates that they have not accepted that the risk was ever present. In the circumstances, therefore, I do not consider that the review team can be criticised on this ground.” ‘Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted present the Parole Board with potentially very difficult decisions. Such prisoners will probably not express contrition or remorse or sympathy for any victim. They will probably not engage in programmes designed to address the causes of their offending behaviour. Since they do not admit having offended they will only undertake not to do in the future what they do not accept having done in the past. Where there is no admission of guilt, it may be feared that a prisoner will lack any motivation to obey the law in future. Even in such cases, however, the task of the Parole Board is the same as in any other case: to assess the risk that the particular prisoner if released on parole, will offend again. In making this assessment the Parole Board must assume the correctness of any conviction. It can give no credence to the prisoner's denial. Such denial will always be a factor and may be a very significant factor in the Board's assessment of risk, but it will only be one factor and must be considered in the light of all other relevant factors. In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole.’ ‘(1) The Parole Board must assume the prisoner's guilt of the offence or offences of which he has been convicted. (2)The Board's first duty is to assess the risk to the public that the prisoner might commit further offences if he is paroled. (3) It is therefore unlawful for the Board to deny a recommendation for parole on the ground only that the prisoner continues to deny his guilt. (4) That in some cases, particularly cases of serious persistent violent or sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation.’ (53). As Mr Vinall correctly acknowledged, Roberts was a far more extreme case on the facts than the present. It has repeatedly been noted in the present case that the claimant accepts full responsibility for the death of Mr Peters. Far from refusing offence related work (as Mr Roberts did), the claimant has demonstrated good motivation, and repeatedly sought, to undertake it. The claimant has been permitted to undertake, and has successfully undertaken, the ETS programme, and the reasons why he was assessed unsuitable for the CALM and CSCP courses were (in contrast to Mr Roberts’ position) unrelated to failure to admit guilt. He has not disqualified himself from any relevant courses, treatment programmes or the like. The distinction may be brought out by describing the claimant’s position as ‘minimisation of culpability’, rather than being (as Roberts clearly was) ‘in denial’. (54). It follows a fortiori from the above passages in Roberts, and the passages from earlier authority there cited by Elias J, that, in assessing the risk posed by a claimant who continues to minimise his culpability, the fact of such minimisation will only be one factor, which must be considered in the light of all other relevant factors. Such continuing minimisation of culpability will most probably be a relevant factor to be taken into consideration by CART when reviewing the claimant’s appropriate security status (and it has been repeatedly noted in the reports which have been before CART for its consideration), but it will be by no means conclusive against a possible down-grading to category B. The evidence of Clare Lewis, then temporary head of CART, mentioned in the judgment of Elias J (para 37) indicated (by way of example) that diminution of risk may be established by means other than offence related work, such as “one-to-one work with specialist staff, increasing maturity and other evidence of a sustained and material change in attitude towards offending behaviour gathered by staff through regular contact”. Given the material concerning the claimant which I have recited above, including in particular, but not limited to, the Claimant’s 2007 Work, this is plainly not a case in which it would be pointless or wrong for me, as a matter of discretion, to grant any relief to the claimant. The ‘Catch-22’ challenge (55). Picking up on a phrase used by the claimant when interviewed by the review board in August 2007 (see bundle at p197), Mr Blake submitted that the combination of decisions made in 2007 and 2008 both to refuse to downgrade the claimant’s security categorisation for want of cogent evidence of a reduction in his risk, and not to provide the claimant with any treatment or courses allowing him to address that risk, placed the claimant in a ‘catch-22’ position, which was irrational. The allusion to Joseph Heller’s eponymous satirical novel will be sufficiently well understood to require no explanation. (56). He relied, by parity of reasoning, on the concession made on behalf of the Home Secretary in R (Cawser) v SSHD [2003] EWCA Civ 1522, [2004] UKHRR 101, recorded at para 30 of the leading judgment given by Simon Brown LJ (as he then was) that “it would be irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such courses…” (57). It is to be noted straightaway that the Cawser case concerned decision making as to whether or not prisoners should be given their liberty, as did the more recent and well known cases of Walker and James (cited in para (22) above). Hence Mr Blake wisely eschewed basing any of his submissions on article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (see also R (Gunn) v SSHD [2000] Prison LR 62, Buxton LJ). (58). Mr Vinall accepted that the concession in Cawser was rightly made, and that it is in principle applicable to decisions on security classification as well as decisions on release. However he submitted that it was of no application to the present facts, as the defendant had not limited the means by which the requisite cogent evidence could be provided to undertaking one to one psychology sessions, nor made a policy decision which entirely ruled out the possibility of one to one psychology work being made available to a category A prisoner, and was in any event entitled to make his own decisions as to the prioritisation of use of finite resources, in particular as between courses and treatment courses on which a prisoner’s release might be dependent on the one hand, and those on which the down-grading of a prisoner’s security classification might be dependent on the other. (59). Given the conclusion I have already reached as to the 2008 decision, I have considered whether I need say anything at all about the ‘catch-22’ head of challenge. However it appears right that I should do so, given that the ‘failure to take material considerations into account’ ground on which I have found for the claimant affects only the 2008 decision, that in giving permission to apply for judicial review in relation to the 2007 decision Munby J observed that there would be “advantage in having a clear decision” on what appeared to him to be “an important point of principle”, and that doing so may be of assistance to the defendant when giving fresh consideration to the 2008 review of the claimant’s security categorisation. (60). It would be harsh to criticise the claimant and his advisers for, upon receipt and consideration of the decision letter on the 2007 review, having seen him as faced by a ‘catch-22’ position, particularly given the terms of the reports summarised in paras 39(b)(c)(d) above. That view can only have been exacerbated by the absence from the 2007 decision letter of any indication of how (if the claimant’s risk was indeed substantially reduced) the requisite cogent evidence of such reduction could ever be obtained, particularly given that this was coupled with express recording of the non-availability of one-to-one work, and non-suitability (for reasons carrying no ill-reflection on the claimant or the risk he posed) of those programmes which were funded and available. A reasonable reader of that decision letter would have been left wholly unaware that the defendant recognised that although the requisite cogent evidence “will typically be demonstrated by a prisoner participating in courses and programmes directed to his offending behaviour, there are other ways of demonstrating a reduction in risk” (defendant’s Detailed Grounds of Resistance, para 9.2). Particularly if written in a context such as that which I have recorded in detail earlier in this judgment, in my view such a decision letter positively invited a challenge on ‘catch-22’ grounds. Such challenges, if unjustified, are best avoided altogether by the inclusion of an appropriate sentence or two in the decision letter, rather than being answered by means of additional information provided in a witness statement only after an application for judicial review has been commenced. (61). However, given that another annual review has now occurred, and that the 2008 decision letter did (albeit belatedly) include some express reference to possible means by which the requisite cogent evidence might be obtained notwithstanding the continuing absence of funding for one to one psychology sessions at category A prisons in all but “rare situations”, my provisional view is that I would not be minded now to grant any substantive relief in respect of the 2007 decision letter in any event. I simply note that it is something of an irony that the very passage in the 2008 decision letter which belatedly provided at least some indication of how the requisite cogent evidence might be obtained is one of those which demonstrates the failure to take into account the Claimant’s 2007 Work which Officer Davies and Lifer Governor Marley took the trouble first to devise for him and then to supervise. The ‘mantra’ (62). There were two other particular points made during Mr Blake’s submissions with which I should deal. Firstly, he sought to damn the defendant’s repeated statements that ‘acceptable custodial behaviour within the controlled environment of a maximum security prison could not, by itself, be conclusive in determining a prisoner’s level of dangerousness’ by labelling it a ‘mantra’, and thereby implicitly if not explicitly suggesting that it was repeated without thought as to its application to the particular case and/or lacked substance. I reject such criticisms. That statement may well be one which is applied to many decisions on security categorisation of prisoners every year, and may indeed be one which falls to be included in many decision letters every year, but that does not make it irrational, nor inapplicable to the generality of cases. The logic is sound, particularly given that the very definition of a category A prisoner is based upon his dangerousness upon a hypothetical escape (see paras (14) and (19) above). I note that the same statement was quoted without criticism by Elias J in Roberts (judgment para 16). There is nothing in Mr Blake’s criticisms of the supposed ‘mantra’. One to one psychology sessions (63). Secondly, Mr Blake complained of the defendant’s “failure” to provide such sessions for the claimant. Documentary evidence which I have already quoted records that, at least for category A prisoners, they have not been available at HMP Full Sutton for some time. Such sessions have been variously referred to in Prison Service reports on the claimant as being “on hold”, “not available” and so on. In some reports express reference has been made to Mr Lynch being re-considered for such sessions if and when they become available, something which, while not to be equated with a formal psychologist’s assessment of suitability, can fairly be taken as indicating that Prison Service officers and professionals have taken the view that the claimant would benefit from such sessions. (64). The trainee psychologist Emma Watson, who works in the psychology department at HMP Full Sutton and who completed the Psychological Risk Assessment of Mr Lynch for the purposes of his 2007-8 review (quoted in para (36)(f) above), provided a witness statement on behalf of the defendant which was relied on at the hearing. Whilst in part her statement deals with case specific information from the establishment at which she works, which she is no doubt well placed to provide, Mr Vinall was anxious to emphasise that the latter part of her statement (paras 14-20) comprised statements of the general policy position. Intending no disrespect to Ms Watson, she would appear to be a somewhat improbable mouthpiece for the giving of evidence of national policy on behalf of the Secretary of State for Justice (contrast the evidence of policy filed in the Roberts case, which came from the temporary head of CART). (65). Ms Watson states that one to one psychology is not “routinely” offered at either HMP Full Sutton or in category A prisons generally. She offers three reasons for that: first, that the application of resources is prioritised in favour of accredited programmes whose efficacy is supported by evidence (the only accredited programme for one to one work being a programme for the treatment of sexual preoccupation); second, that individually tailored one to one programmes are not only resource intensive but also ex hypothesi cannot be supported by evidence of efficacy; and third, that group work is generally thought to be more beneficial for the participants due to the power of peer suggestion and the reduced risk of manipulation of the therapist. (66). Ms Watson’s witness statement then acknowledges that properly structured and conducted individual work based on established principles can be beneficial in addressing a prisoner’s offending behaviour, and that there have been “rare situations” in which one to one work has been offered in cases thought to be “particularly complex”. (67). The difficulty in applying Ms Watson’s evidence of general policy to the present case is that it is not altogether easy to square with the fact that numbers of persons working within the Prison Service have over several years, and in documents which have come to be seen by the claimant:a. clearly identified one to one, offence related, psychology sessions as an appropriate, if not necessarily the only possible, way forward for the claimant (a suggestion which, I note, tied in with the first of the examples given in evidence to Elias J in 2003-4 by Clare Lewis, the then temporary head of CART – see Roberts at judgment para 37), andb. assessed none of the group work which was available from the psychology department at HMP Full Sutton to be suitable for Mr Lynch. (68). If, as now appears to be the case, not least from the 2008 decision letter and from para 9.2 of the Detailed Grounds of Resistance, the defendant accepts that the claimant may provide (if his risk is indeed substantially reduced) the requisite cogent evidence of such reduction through means other than one to one psychology work, the basis for a ‘catch-22’ challenge founded on the apparent non-availability to Mr Lynch of one to one psychology sessions at HMP Full Sutton is fatally undermined. (69). However I would not leave the topic of one to one psychology without reverting once more to the judgment of Elias J in Roberts. Picking his words with obvious care, and speaking “with considerable diffidence”, Elias J expressed himself thus : “45… It is plainly going to be extremely difficult for some prisoners to satisfy the authorities that the risk has reduced if they fail to do the specific offence directed courses. In the long term this affects their chances of parole, which is not only to their detriment but also that of the public, not least because any incarceration of category A prisoners is extremely costly to the public purse.[46]Of the three ways identified by Miss Lewis to demonstrate reduction in risk (and I am not suggesting she intended these to be exhaustive), it seems that good behaviour over a period and growing maturity would not, in the vast majority of cases, be likely to be considered enough to demonstrate reduction of risk for understandable reasons…[47]Whether there is scope for more one-to-one work with specialist staff than currently exist, and whether this is a satisfactory alternative, I do not know; but the tenor of the reports I have seen in this case suggests to me, maybe mistakenly, that this possibility may not be widely appreciated by some staff in the prisons. I do no more than raise the question whether it is explored as an alternative as often as it might be.” (70). The circumstances giving rise to this case, and the evidence of Ms Watson, suggest that the position may have worsened rather than improved since that judgment was given. Whilst the material in this case does evidence a perhaps wider appreciation of the potential value of one to one psychology sessions by prison staff (at least at HMP Full Sutton), national policy appears concurrently to have rendered it less rather than more available, restricting it to what Ms Watson categorises as “rare situations” (her para 18). Regrettable as this may appear, it is not for the Court to set about directly or indirectly deciding what resources should be made available for courses, treatment programmes or the like within the prison system, nor how the inevitably finite resources made available for such purposes by government should be prioritised between different courses and programmes, or between different groups of prisoners (see e.g. Cawser cited in para (56) above, at paras 34 (Simon Brown LJ), 43-44 (Laws LJ) and 52 (Arden LJ), and Walker and James, cited in para (22) above, at para 40 (report p117e-f) per Lord Phillips CJ giving the judgment of the Court of Appeal). However the consequences of rational executive decisions as to the amount and application of limited resources must then be taken into account by the defendant’s decision makers such as CART, if their decisions are to pass the Wednesbury tests of rationality. Failure to provide treatment or courses allowing the claimant to address his risk of offending (71). This brings me, finally, to Mr Blake’s submissions mentioned in paras (8)-(9) above, by which he relied on the defendant’s asserted failure to provide the treatment or courses which would allow the claimant to address his risk of offending. (72). This argument as presented to me could be viewed as simply a different way of putting the ‘catch-22’ argument I have just considered. To that extent the short answer is that it would fail, at least in relation to the 2008 decision, for like reasons. (73). However when I asked Mr Blake whether it was his case that the recommendations of prison service staff such as psychologists, officers acting as offender supervisors, and the like that the claimant should undertake a specific course or treatment could lead to an obligation on the defendant to provide the same, he did not shrink from answering in the affirmative, subject, he said, to the resultant duty being qualified by the unavailability of resources. (74). There are at least two answers to this bold submission. First, there is no clear source of any such legally recognised duty on the defendant. No statutory duty has been put forward as specifically requiring the defendant to provide such courses or treatment. That being so, in a public law context one would perhaps expect circumstances to be identified which are sufficient to give rise to a ‘legitimate expectation’ on the claimant’s part that the course or treatment in question would be provided. I detect no such circumstances in this case. (75). Second, a duty subject to a general qualification as to the unavailability of resources would in the present context be illusory. Directly or indirectly, many, if not most, decisions as to the provision of courses or treatment within the Prison Service are affected, if not driven, by constraints in resources. Just as I have accepted that Mr Blake should be entitled to raise this point notwithstanding that it was not clearly raised by amendment of the claim form (paras (8)-(9) above), I equally accept that the defendant should be entitled to rely on Ms Watson’s witness statement in response to it. The defendant’s reasons for heavily restricting the availability of one to one psychology spoken to by Ms Watson (see paras (65)-(66) above) may or may not be greeted by a reader with enthusiasm, but cannot in my judgment be characterised as irrational or perverse. Such matters are very much for executive judgment (see again Cawser at paras 34 (Simon Brown LJ), 43-44 (Laws LJ) and 52 (Arden LJ) and Walker and James at para 40 (report p117e-f) per Lord Phillips CJ giving the judgment of the Court of Appeal). (76). A further gloss on the wide range of discretion available to the executive in allocating finite resources, and in then prioritising their application between competing calls on them, is provided by the point which I have accepted as arguable (see para (22) above), namely that the corollary of the public law duty recognised in Walker and James in relation to those life sentence / IPP prisoners who are approaching tariff expiry is that such prisoners must (or at least lawfully may) be prioritised, in terms of access to courses, over prisoners such as the claimant who are further from tariff expiry. (77). What a category A prisoner is legally entitled to on the annual review of his security status is a decision which complies both with the requirements of the general law as to rational decision making embodied in the Wednesbury principles, and with the express provisions of PSO 1010, and does not truly place him in a ‘catch-22’ position. Subject to the latter point, he is unlikely, save perhaps in an exceptional case, to be legally entitled to insist on being provided with any particular course or treatment. Conclusion (78). I have found that, on the facts of this particular case, CART’s decision on the 2008 review of the claimant’s category A security status was materially flawed by failure to take into account, properly or at all, a number of material factors, contrary to both the general law, as embodied in the Wednesbury principles, and the indication given in PSO 1010, Annex A, para 10. I will give both counsel the opportunity of addressing me further as to the question of relief in the light of my judgment before I reach any final decision in that regard, but for their assistance my provisional views are:a. that relief in respect of the 2007-8 review should at least include a quashing order in respect of the 11th March 2008 decision letter, butb. that I am not minded now to grant any substantive relief in respect of the 2006-7 review. [END]

Cited in 1 later judgment