Nelson, R (on the application of) v Secretary of State for Justice [2009] EWHC 1124 (Admin)

[2009] EWHC 1124 (Admin)Case No CO/201/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 1st May 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF NELSONClaimantv
Between
SECRETARY OF STATE FOR JUSTICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS P KAUFMANN (instructed by Prisoner Advice Service) appeared for ClaimantMr T Buley (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T

MR JUSTICE MITTING: The claimant is a 39-year-old prisoner.

[2]He has an extensive history of convictions for serious criminal offences. Beginning with the three most recent: in August 1995, aged 24, he was sentenced to a total of 8 years' imprisonment for firearms offences; in 2003, he was sentenced to life imprisonment for a second firearms offence which involved the possession of a semi-automatic handgun complete with silencer, laser sighting equipment and ammunition. In February 2006, while serving that sentence, he was convicted at Woolwich Crown Court of the murder of Police Constable Dunne and a Mr Danso in October 1993, that is to say when he was aged 22 or 23. The sentencing judge, Wilkie J, described the killings as being as callous, as they were brutal and senseless. He recommended a minimum term of 35 years.[3]Unsurprisingly given that record, throughout his time in the prison estate since 1995, the claimant has been a category A prisoner.[4]On 29th April 2008, at HMP Whitemoor an incident occurred in the gymnasium, witnessed by a member of staff. It is undisputed that the claimant struck a fellow prisoner, at least twice around the head, with a triceps bar. The prison officer believed that he had taken the bar from the weights room. The blows caused two deep cuts to the other prisoner's head, a fractured finger and wounds requiring stitching. As it happens that incident was not the subject of prosecution or internal prison adjudication but it features large in the events that I am about to describe.[5]In the course of making representations about it to the governor of the prison where he was then serving, HMP Long Lartin, the Prisoner's Advice Service on 29th July 2008 asserted that the fellow prisoner was the aggressor, had armed himself with a knife and that the claimant had merely acted in self-defence.[6]There is within the prison estate a set of units called Close Supervision Centres. As I understand it, all are located within category A prisons. Their purpose can briefly be stated from a sentence taken from the referral manual:
"The role of the CSC is to remove the most seriously disruptive prisoners from main location prisons and contain them instead in a small, highly-supervised units."
[7]I understand that the number of places within such units is small, that considerable resources of money and staff have to be devoted to their management and accordingly admission to them is achieved only by the decision of a Committee, known as the Close Supervision Centres Committee, which is advised by the Secretary of State to apply strict criteria to the selection of those to be admitted.[8]The claimant was considered for admission to the Close Supervision Centre at HMP Woodhill to which he had been transferred on 25th June 2008. Reports were prepared by the close supervision assessment unit manager, who expressed the opinion that he was not suitable for selection to the CSC at that time, in part because since arriving at HMP Woodhill his conduct had been relatively good. A forensic nurse specialist reached a similar conclusion in a report also submitted to the Committee.[9]The Committee's conclusion were and notified to the claimant's advisors by a letter dated 19th September 2008:
"Following the meeting of the CSC management Committee on Wednesday I can confirm the decision that Mr Nelson has not been selected into the CSC. He will be moved CSC conditions as soon as operationally possible."
[10]The reasons why the Committee reached that decision were only disclosed to the claimant and the court when the Secretary of State's skeleton argument, prepared by Mr Buley, was filed. The reasons were:
"1. The reports from the assessment process did not support selection. 2. Since arriving at Woodhill and throughout the assessment process his conduct has been appropriate and he has responded appropriately to challenge. 3. There is no indication of mental illness. 4. Mr Nelson did not fully engage with the psychological assessment therefore a full risk assessment could not been completed. 5. The incident at Whitemoor was not pursued by the police or referred to the CPS, although the CSCSC have now insisted that the incident be referred back to police. Consequently the adjudication was opened and adjourned pending police investigation and has not been completed. 6. The SIR [Security and Intelligence Report] information from Whitemoor was insignificant as a basis to select. 7. The referral documents did not indicate Mr Nelson had been challenged on normal location. 8. A recent category 'A' review undermined the intelligence based report by stating that Mr Nelson had not been bought to the attention of the Security department during the past 12 months. Despite all of this it was recognised that Mr Nelson presents a real problem on normal location therefore the recommendation of the CSC Management Committee was that Mr Nelson be transferred to normal location at Long Lartin with a very structured and intensive management plan, with a tight contact, and systems put in order that he can be very closely monitored, and evidence of his behaviour gathered."
[11]The Director of High Security, Mr Wagstaffe, took an interest in the decision. The operational manager of the CSC unit, Claire Hodson, sent an email to the claimant's advisers of 2nd October 2008:
"Just to let you know the Director will be reviewing the recommendation of the CSC Committee and as such Mr Nelson will not be moving from Woodhill at this point."
[12]In a three-page reasoned letter dated 13th October 2008, Mr Wagstaffe notified the claimant's advisors that he would not be removed immediately from the unit. He first of all noted the terms of Prison Rule 46, to which I will refer later, and set out a summary of the history and his conclusions:
"Mr Nelson case was considered by the Committee on 17th September and I have not endorsed the decision, made at the meeting, not to select Mr Nelson fully into the CSC. As such he will remain under Prison Rule 46 until the next review formally which will formally take place at the Committee meeting scheduled for 15th October 2008. The primary reason for the initial referral was the serious assault that that took place at Whitemoor, in which your client was allegedly involved. As you were aware, the initial decision by the Police was that no further action would be taken as the victim did not wish to take any action. Given the circumstances of the incident and the injuries sustained by the victim, the CSC Committee and I were not content with the decision Cambridgeshire Police and as such have formally requested that the case be reviewed as a matter of urgency to establish whether a criminal offence took place. The CSC Committee concluded the non-selection of Mr Nelson as the outcome of the Police review is as yet unknown. However, until I receive further correspondence from Cambridgeshire Police regarding this incident I am not prepared to endorse the decision of the Committee. Equally, until I receive details of the review by Cambridgeshire Police I unable to furnish you with any additional information."
He noted that the internal adjudications had been opened but not determined and:
"The decision to refer Mr Nelson to the CSC was taken due to the severity of the alleged incident that took place at Whitemoor. It would be negligent to ignore the potential risk that Mr Nelson may present to others. Equally, the decision to request that the Police review their decision not to investigate an alleged criminal offence within HMP Whitemoor is also appropriate. The decision of the CSC committee require ratification by myself and therefore do not come into effect until they have gained my signature."
[13]On 27th October 2008 Mr Hodson wrote to the claimant's advisers notifying them that he would continue to be held under Prison Rule 46, pending the outcome of the decision by the police on whether they intend taking any action and that until a final decision is received the director was not in a position to make a final decision regarding his selection. On 28th October 2008 Mr Wagstaffe notified the claimant's advisers that although the Cambridgeshire police would not be taking any action, the prison had referred the matter back to the Chief Crown Prosecutor for them to investigate. That was a fruitless exercise because the Crown Prosecution Service wrote back, saying they had no obligation to investigate. More significantly, he said the following: "I am still unprepared to endorse the CSC Management Committee's decision not to select Mr Nelson fully into the CSC until both the final outcome is achieved regarding whether or not to pursue a criminal prosecution and the results of the internal investigation are known." (my emphasise)[14]On 6th November 2008 the deputy governor of Whitemoor notified the claimant's advisers that he had commissioned an investigation into the matter which he expected would be completed by December 2008. The internal investigation was completed and although the report of the investigator has not been disclosed its conclusions have been summarised in a letter from Miss Hodson to the claimant's advisers dated 24th March 2009. They were:
"· It is clear that Mr Nelson had an altercation with Mr Thwaites whilst they played football in the sports hall. He [Mr Nelson] left the sports hall, entered the weights room and got a triceps bar. He returned to the sports hall and attacked Mr Thwaites by hitting him around the head. The attack was stopped when other prisoners intervened. · The assault was sufficiently serious for a member staff to believe Mr Nelson could have murdered Mr Thwaites. · The testimony that Mr Nelson went to another room to get the triceps bar which was used as a weapon indicates the assault was premeditated. · Mr Nelson did seriously assault Mr Thwaites by striking him about the head several times with a triceps bar. If prisoners had not intervened then any further blows by Mr Nelson may have resulted in the serious injury or death of Mr Thwaites. · There is no evidence to suggest that Mr Thwaites had a weapon, or planned to attack Mr Nelson."
[15]The Committee met on 17th February 2009 and decided to reverse its previous decision and to admit the claimant to the closed supervision centre. On 24th February 2009 Miss Hodson gave a brief summary of the reasons to the claimant's representatives:
"The decision was reached on the basis of the findings of the internal investigation report which concluded that: An incident took place during which Mr Thwaites received serious injuries as a result of an provoked attack by Mr Nelson, during which he was hit at least three times with a triceps bar. In view of the extreme level of violence shown and Mr Nelson's constant denials and minimisation of his responsibility for the attack the recommendation is made that he is placed CSC system under Prison Rule 46."
[16]In the letter of 24th March 2009 to the claimant's representatives in which Miss Hodson gave the summary of the investigation which I have already cited, she noted the Committee's conclusion:
"Mr Nelson should be selected to remain within the Close Supervision Centre System where he can receive the help he needs until his dangerousness and risk to others has reduced sufficiently for him to be safely returned to normal location."
[17]The only other evidence disclosed about the reasoning of the Committee is in extract from its minutes cited in the Secretary of State's skeleton argument, which reads as follows:
"Gary Nelson - there has been no change in Mr Nelson's behaviour. He continues to challenge his placement under Rule 46, his adjudications have not been proceeded with and he is still in consultation with his legal time over the judicial review. Mr Nelson has asked to go onto normal location at Whitemoor. Following the internal investigation a recommendation has been made to select Mr Nelson into the CSC. A recommendation on the most suitable location will be forwarded to the Director for his approval."
[18]Ms Kaufmann, for the claimant, submits that the original decision of the Committee was unimpeachable, that the director had no power, or at least no power which he should have exercised, to overturn it and that the decision of the Committee when it reconvened on 17th February 2009 was irrational and so open to challenge by the judicial review.[19]Her submissions are founded on the guidance given to those operating the CSC system by the Secretary of State. The statutory background can be briefly considered. Section 47 of the Prison Act 1952 empowers the Secretary of State to make rules for the regulation and management of prisons. The relevant prison rules are the Prison Rules 1999 enacted by statutory instrument approved by Parliament. Rule 45, provides for temporary removal from association, for the maintenance of good order or discipline or in the interests of the prison. Rule 46 is the rule under which the Committee's decisions were made:
"1. Where it appears desirable, for the maintenance of good order or discipline or to ensure the safety of officers, prisoners or any other person, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Secretary of State may direct the prisoner's removal from association accordingly and his placement in a close supervision centre of a prison."
[20]Sub-rule 2 provides that a direction given under paragraph 1 shall be for a period not exceeding 1 month renewable in practice. I am told and accept when a decision has been made to refer a prisoner to a CSC unit he is likely to spend a considerable number of months in the unit while attempts are made to address his dangerous behaviour.[21]The guidance given to those operating the system is contained in the CSC referral manual of March 2005 and the CSC operating standards of April 2005. The guidance is given to those who would actually make the decisions - because, for obvious reasons, the decision whether or not to place a prisoner within a CSC unit is not normally taken personally by the Secretary of State.[22]I have already cited the principal function of the CSC but because it is of such importance, I begin again by reciting the same paragraph:
"The role of the CSC is to remove the most seriously disruptive prisoners from main location prisons and contain them instead in small, highly-supervised units."
Paragraph 1.2 of the referral manual identifies under the heading "Who is a potential CSC candidate?" the types of prisoner who are likely to be considered for admission to a CSC unit. The examples or characteristics given are:
"A CSC candidate is a prisoner who is causing day to day management, safety and control problems for those who detain him and/or those with whom he resides. Several attempts to manage him have already been initiated before you consider the CSC. An individual who is suitable for placement in a CSC is currently demonstrating or threatening to demonstrate behaviours that are dangerous to others (and in some circumstances to himself), and he is no longer considered safe to be managed on normal location or in a segregation environment. Previously, he has demonstrated violence and/or control problems and has failed to respond to alternative methods of control such as segregation. In doing so, he has fulfilled the movement requirements as listed in I.G.28/93."
That guidance 28/93 has been revoked although it appears to survive for limited purposes and is referred to in the operating standards guidance.[23]The CSC is not the only unit into which a dangerous or disruptive prisoner can be placed. There are units known as "Dangerous and Severe Personality Disorder Units" into which those who may display dangerous characteristics may be placed, where those characteristics derive from personality disorder. In the guidance given as to which of the two types of unit may be appropriate, under the heading "institutional behaviour" in the column headed "CSC the following is stated:
"Must have displayed a range of disruptive behaviour or extreme violence resulting in a further sentence or lengthy adjudications history."
Paragraph 3 of the referral manual notes that I.G28/93 still applies to cases in which it is contemplated that a prisoner will be referred to the CSC unit and sets out in similar language the characteristics already referred to under the heading "Who is a potential CSC candidate?" It goes onto state:
"In order for the CSC referral to be taken forward, it is necessary to demonstrate the individual has met the above criteria. The CSC Initial Referral form must demonstrate the following... [there are then two circumstances set out] 1. Certain internal methods of dealing with the prisoner have been applied and/or transfers within the prisoner state have occurred. 2. A number of specific instances including the prisoner has been violent to inmates have occurred."
The guidance suggests that the two requirements are not alternatives but that each must be fulfilled.[24]The operating standards guidance sets out by whom and by what means a prisoner is to be selected for referral to a CSC unit:
"3.1: For the purpose of Rule 46, the CSC Selection Committee (CSCSC) will act in the place of the Secretary of State... 3.9 The Deputy Director General [now the Director of High Security prisons] will ratify all decisions made by the CSCSC."
The criteria for selection are set out in Annex 1:
"Entry to the CSC system will be restricted to those prisoners who have a history of disruptive and aggressive behaviour and (my emphasis) who meet one or more of the following criteria: been violent to... prisoners,"
And other circumstances.[25]Again, the guidance requires two conditions to be fulfilled: first, a history of disruptive and aggressive behaviour; secondly, fulfilment of one or more of the following criteria including violence to prisoners.[26]Miss Kaufmann's fundamental propositions can perhaps at the risk of oversimplification be reduced to two: first, given this claimant's history, it could not rationally be concluded that he had a history of disruptive and aggressive behaviour so that only one of the two essential criteria for admission to a CSC unit was fulfilled; secondly, once the CSC Committee had reached an unimpeachable conclusion, it was not open to the Director to do anything other than to ratify it.[27]That proposition contains a number of elements, the first of which requires the nature of the Director's power to be considered. It is clear that the guidance envisages that the Committee will, in the ordinary case, make a decision which will be ratified by the Director. However, the express power given to him in paragraph 3.9 of the operating standards guidance to ratify decisions necessarily contains within it the implied power not to ratify a decision but to invite the Committee to reconsider or, in the case of rooted disagreement between himself and the Committee, to refer the matter to the Secretary of State for him to make the decision.[28]I am satisfied, therefore, that any suggestion that the Director is merely a rubber stamp is untenable. No purpose would be served by guidance which required him to rubber stamp a decision always to be taken by the Committee alone.[29]The next point, encompassed within Miss Kaufmann's proposition, is whether or not the Director was entitled on the facts to exercise that power so as to decline to ratify the Committee's original decision. The basis which he gave for doing so was that until he received further information, either from the police, the Crown Prosecution Service or the internal investigation about the incident in April 2008, he was unwilling to make a final decision or to ratify a final decision by the Committee about whether or not the claimant should be referred to the unit. That, in my view, was an unimpeachable exercise of his power. On any view, the incident in April was potentially very serious. Even discounting the view of the member of the prison staff, this was potentially a murderous attack. It was a grave assault, which put the safety of another prisoner at great risk and indicated a level of dangerousness on the part of the claimant which had to be addressed within the prison estate. Miss Kaufmann suggests that segregation under rule 45 was the appropriate step to take. The difficulty with that suggestion is that segregation under rule 45 was in principle a short-term measure and would involve placing the claimant with other prisoners who were being segregated not because they were dangerous but because of the risk posed by other prisoners to them, typically perhaps these convicted of certain sexual offences. Furthermore, segregation under rule 45 would not begin to address the root causes of the claimant's dangerous conduct. It is not suggested that he should have been referred to the dangerousness and severe personality disorder unit. Accordingly, the only alternative available to the Director was the CSC unit.[30]The third element of Miss Kaufmann's challenge is the proposition that the claimant did not have a history of disruptive and aggressive behaviour, so that the director should not have declined to ratify the decision of the Committee, whatever view he formed about the claimant's responsibility for the incident of April 2008, or the level of danger that it revealed.[31]The premise of that submission is in part that the Committee had not formed a view adverse to the claimant about that element of the criteria. But from the notes of its reasons which I have cited, it is far from clear that it reached any view favourable to the claimant about that matter. It certainly recited, as was the fact that his conduct had been appropriate within Woodhill and that the intelligence provided to it from Whitemoor was "insignificant" as a basis to select for referral. But it did go onto note that "it was recognised that Mr Nelson presents a real problem on normal location" such as to require "a very structured and intensive management plan with a typed compact and systems put in order that he can be very closely monitored" - a view which suggests that the Committee did think that he had a history of disruptive and aggressive behaviour.[32]Once, therefore, the internal investigation produced the conclusions that it did - that he had been seriously violent to a fellow prisoner, it seems to me that the Committee could properly have concluded that the criteria were fulfilled.[33]Although it is not spelt out in the decision documents which I have recited, it must, have reached a similar conclusion on 17th February 2009. But even if it did not and its conclusion was based only upon the incident of April 2008 then, following the decision of the director not to ratify the earlier decision, it was perfectly entitled to conclude that referral should occur. That would have been, arguably at least, an exception to the normal criteria, but it would have been an exception that fulfilled the basic purpose of the CSC units:
"to remove the most serious prisoners from main location prisons and contain them instead in small highly supervised units."
As such, departure from the strict wording of the policy would nonetheless have fulfilled its ultimate aim.[34]Accordingly it does not seem to me to matter whether when it took its decision of 17th February 2009 the Committee applied or departed from the policy. Miss Kaufmann submits that having done so, the least that the claimant was entitled to was a statement by the Committee that it had addressed and departed from the policy. That seems to me to be an over refinement of a process that resulted in a perfectly clear and understandable decision. Accordingly, on the two basic grounds of challenge, I reject the claim. I decide that the director was entitled to refuse to ratify and to require the Committee to reconsider its decision and that, having done so, it reached a rational defensible conclusion. For those reasons I reject this claim.[35]MR JUSTICE MITTING: Mr Buley, I am going to raise with you the question. It is not very satisfactory that only at the 59th minute of the 11th hour that the Secretary of State's position should be properly deployed.[36]MR BULEY: My Lord, frankly it is not very satisfactory. I do not pretend otherwise nor would the Secretary of State ask me to do so. Your Lordship is quite right. I mean, in so far as I can give your Lordship an explanation for it, I can only go so far I am afraid, what I am told -- I was instructed last week, the middle of last week, well, for what it is worth I think perhaps an element of criticism of myself is that I had not immediately appreciated the urgency of my doing something so I did not give it the immediate -- I realise a relative let me deal.[37]MR JUSTICE MITTING: You have absolutely no cause to blame yourself, you were not instructed until the middle of last week. You have produced an extensive and helpful document from a mass of papers in perfectly quick time.[38]MR BULEY: Your Lordship is kind to say so. I thought I should at least put that on the record, as it were. It may have been possible to prioritise this case more but there it is.[39]The other aspect in terms of explanation I can give you is that I am told that attempts were made to instruct alternative counsel or rather Mr Lawrence who instructs me had thought he made such attempts. He had telephoned the clerks of another barrister.[40]MR JUSTICE MITTING: This is not the root cause of the problem. The root cause of the problem is that no evidence was put in, not necessarily to file an acknowledgement of service with summary grounds, that is not a requirement to participate in the main hearing. Where a decision-making process is being analysed and a claim is that you had departed from a policy and it is plausible, because it required quite detailed examination to determine that either the policy had been applied or it did not matter it was departed from, but some witness statement or explanation of the reasoning process from within the prison system is the minimum required.[41]MR BULEY: I appreciate that. I fully appreciate that. I was going to come on -- first of all, I was going to deal with such explanations as I could for the circumstances in which to obtain which is to say I can deal with it very briefly. The attempts were made to instruct another barrister. It seems that the papers did not reach her, she did not realise she was instructed. That caused some period of time. This was at the beginning of April, so end of March. So that caused significant delay. Of course the lines of communication were properly established and so mistakes were made. My Lord it should not have got to that stage because attempts should have been made sooner and, of course, advice taken sooner about what evidence should be obtained. All I can tell your Lordship about it, and I realise this is not terribly satisfactory but it is all I can say, is that I think a mistake was made and, as it were, this particular case slipped off the radar slightly. That is plainly unacceptable and unsatisfactory.[42]MR JUSTICE MITTING: From what you say it does not sound as though it is a systemic problem, not the Prison Service or the Secretary of State refusing to participate in litigation until the last minute.[43]MR HAYNES: Not in this case. As I say, therefore I cannot do much more than say that the Secretary of State is extremely sorry and understands that it is not appropriate.[44]MR JUSTICE MITTING: You cannot say any more than that. Are there any other applications?[45]MISS KAUFMANN: The claimant is legally aided.

MR JUSTICE MITTING: Public funding assessment.

[47]MISS KAUFMANN: Yes please. The only other application, which I make very briefly, is an application for leave to appeal. We obviously have just heard your Lordship's thinking upon this, and would submit that there is a question of general interest and one which we submit there is an arguable case upon which is as to what the real meaning of this policy is and as to whether or not your Lordships view of this policy is indeed correct, such that the circumstance of this particular case either fall within its term or become, or falling within an exception and, in our submission, that is an important consideration obviously for all those prisoners who may now in the future be considered and, of course, for Mr Nelson himself, who is facing a long future.

MR JUSTICE MITTING: I am afraid you must ask the Court of Appeal.

[49]MISS KAUFMANN: I thought your Lordship might say that.

MR JUSTICE MITTING: Thank you both for an interesting argument.