A.S., R (on the application of) v Secretary of State for Justice [2009] EWHC 1315 (Admin)

Case No CO/3374/2009

[2009] EWHC 1315 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue MANCHESTER CIVIL JUSTICE CENTRE,, MANCHESTER

Date 8th June 2009

M60 9DJ

Before

HIS HONOUR JUDGE GILBART QC, HONORARY RECORDER OF MANCHESTER, (sitting as a deputy High Court Judge)

Between

THE QUEEN (ON THE APPLICATION OF A.S )Claimant

THE SECRETARY OF STATE FOR JUSTICEDefendant

Melanie Plimmer (instructed by Swain and Co, Solicitors of Liverpool) for Claimant

Sam Karim (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing dates: 2 nd June 2009

JUDGEMENT

[1]For reasons that will become apparent, this judgement refers to the Claimant by the initials AS. The Claimant, who is now 55, is detained in HM Prison Leeds, otherwise known as Armley. He has a long history of sexual offending. On 2nd August 2006 he appeared before the Crown Court, when for an offence of engaging in sexual activity with a child under the age of 13, he was sentenced (after a trial in which he had represented himself) to a sentence of imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003, with a minimum term of 239 days. On 29th November 2007 the Parole Board decided not to direct his release for reasons which I set out later, but which referred to the fact that he needed to take part in work directed at his sexual preference for children, and at his being asked to address the long term consequences of his behaviour, which work is only available in closed conditions.

[2]Unhappily the Prison Service has been unable to make the relevant programmes available to him. As is well known from the judgements and speeches in the Walker litigation Secretary of State for Justice v Walker

[2008] EWCA Civ 30

and

[2009] UKHL 22

(sub nom) Secretary of State for Justice v James the original legislation was carried through without any real thought being given to how prisoners made the subject of an IPP could be brought to a point at which release was possible. Lord Brown of Eaton under Heywood summarised the position at paragraph 24 of his speech in James:

“ Indeterminate sentences for public protection ("IPPs") were introduced with effect from 4 April 2005 by section 225 of the Criminal Justice Act 2003. Essentially they were a new form of mandatory life sentence to be imposed upon conviction of any one of 153 specified categories of violent or sexual offences punishable by imprisonment for ten years or more if the court thought there to be a significant risk of serious harm to members of the public by the commission of further specified offences. Rapidly IPPs swamped the prison system with increasing numbers of life sentence prisoners (up from 5,807 on 31 March 2005 to 10,911 on 31 March 2008), many with comparatively short tariffs, all of which took the Ministry of Justice's National Offender Management Service (NOMS) by surprise. In the result, for much if not all of the time until 14 July 2008 when section 225 came to be amended by section 13 of the Criminal Justice and Immigration Act 2008, NOMS were quite unable to give effect to the Secretary of State's published policy in Prison Service Order 4700: to give all life sentence prisoners "every opportunity to demonstrate their safety for release at tariff expiry."”

[3]I would refer also to his entirely appropriate strictures at paragraph 65 on the way in which the legislation was brought forward, and also how it was then operated by the relevant Secretaries of State in breach of their public law duty. This case aptly demonstrates the deficiencies, which still persist for prisoners sentenced before the amending legislation took effect. Here, although the 239 day period expired on 29th March 2007, yet two years later as at 6th March 2009, it was reported by the offender supervisor at HMP Leeds that “ At present there no accredited programmes available at HMP Leeds, and (AS) is awaiting a transfer to a suitable establishment in order to begin his offending behaviour (sic) work…………(AS) has not yet had the opportunity or desire to begin the offending behaviour work required of him, and therefore in my opinion his risk of reoffending remains high. If (AS) were to be released from custody into the community now, without having completed any offending behaviour work, I would say that there would be no change to the serious harm to the public he would pose.”

[4]Sadly, AS is now gravely ill with a form of cancer whose details do not require full repetition here, although aspects of his prognosis will do so. He has sought compassionate release pursuant to section 30 of the Crime (Sentences) Act 1997, which has been refused. This claim challenges that decision on the grounds that the Defendant, when making the decision, failed to take into account relevant material considerations relating to his medical condition, including the effect of that condition on his ability to commit further sexual offences. An application has also been made to me that the arrangements under which he is incarcerated, and the regime applying, offends

Article 3 of the ECHR

. I heard argument on the latter issue. I shall deal with the grant of permission to amend within this judgement.

The Statutory Context

[5]Compassionate release of those treated as “ life prisoners” is dealt with under Part II of the Crime (Sentences) Act 1997 (as amended). By section 34(1) and (2) (d) a “life prisoner” means a person serving one or more life sentences, which includes a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003. By section 30 “ 30 Power to release life prisoners on compassionate grounds(1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds.

(2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable.” (1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds. (2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable.”

[6]The relevant policies of the Defendant are found in “The Lifer Manual” PSO 4700 published on 15th May 2006. Although there are references in the documents to PSO 6000, it does not deal with “lifers” still detained after the elapse of the minimum term. In the section of PSO 4700 entitled “Life sentence prisoners compassionate release on medical grounds” it reads ( all italics, underlining and bold emphasis as per the document) “12. Life sentence prisoners compassionate release on medical grounds 12.1 General 12.1.1 Under section 30 of the Crime (Sentences) Act 1997, the Secretary of State may at any time release a prisoner on licence if he or she is satisfied that exceptional circumstances exist which justify early release on compassionate grounds. Before exercising this power, the Secretary of State is required to consult the Parole Board, unless the circumstances make such consultation impracticable. Each case is considered on its own individual merits. Criteria for release on compassionate grounds12.2.1 The criteria for compassionate release on medical grounds for those prisoners serving a life or IPP sentence are as follows: -

• the prisoner is suffering from a terminal illness and death is likely to occur very shortly (although there are no set time limits 3 months may be considered to be an appropriate period for an application to be made to Lifer Review & Recall Section), or the lifer is bedridden or similarly incapacitated, for example, those paralysed or suffering from a severe stroke; and

• The risk of re-offending (particularly of a sexual or violent nature) is minimal; and

• further imprisonment would reduce the prisoner’s life expectancy; and

• there are adequate arrangements for the prisoner’s care and treatment outside prison; and

• early release will bring some significant benefit to the prisoner or his/her family.

12.2.2 However, the resource and cost implications of maintaining staff on bed-watch duties at an outside hospital/hospice are not grounds to justify release on compassionate grounds if the criteria set out above are not met. Other examples of cases not meeting the criteria are where conditions are self-induced, for example following a hunger strike or where a prisoner refuses treatment. Criteria for release on compassionate grounds

• The risk of re-offending (particularly of a sexual or violent nature) is minimal; and

• further imprisonment would reduce the prisoner’s life expectancy; and

• there are adequate arrangements for the prisoner’s care and treatment outside prison; and

• early release will bring some significant benefit to the prisoner or his/her family.

[7]The document then goes on to prescribe the application process to be followed Application process12.3.1 The Governor must refer any case to LRRS, where it is considered that compassionate release may be appropriate using the form at Annex A to this Chapter. The assessments set out at section 3 must be provided with each application. The form should be completed as follows:

• Sections 1, 2 and 6 must be completed by the Lifer Manager.

• Section 4 must be completed by the registered medical practitioner with full details of the medical condition. Any other reports which are available, for example from hospital consultants, must also be forwarded. It is essential that an indication of likely life expectancy is included in the report.

• Section 5 must be completed by the seconded probation officer who should attach details of the proposed release plan (prepared by the external probation officer) including details of the arrangements for the prisoner’s care and treatment in the community.

• Section 7 must be completed by Governor/Controller.

12.3.2 In cases meeting the criteria set out above, LRRS are responsible for liaising with Prison Health for advice and the Parole Board, unless the circumstances are such as to render consultation with the Board impracticable. A decision will be made as soon as possible following consultation with Ministers. If there is an application for the compassionate release of a prisoner with a very short life expectancy, LRRS must be alerted by telephone at an early stage.

12.3.3 A decision to reject an application for compassionate release does not mean that it may not be re-considered if appropriate. Often, LRRS will ask that a case be kept under review. In those cases, the decision will be reviewed when, for example, there is a clearer prognosis or the life expectancy is further reduced. It is important that Governors keep LRRS advised of developments in such cases.

12.3.4 If release is approved, LRRS will send a licence to the holding establishment. This will be similar to the standard life licence, although some of the conditions may not be relevant. The licence will remain in force for the rest of the prisoner’s life (but see Chapter 1 for guidance about the termination of the licence for those prisoners serving and Indeterminate Sentence of Imprisonment for Public Protection). There is no question of a prisoner being recalled simply because of a recovery from the medical condition that resulted in his or her release on compassionate grounds. However, recall action would be appropriate if there is a risk to public safety. The document then concludes with a series for forms which are to be completed. The first “the compassionate medical condition report” requires inclusion of assessments from the Registered Medical Practitioner seconded Probation Officer, Lifer manager, and Governor/Controller. It also has a section for completion by the Registered Medical Practitioner, which identifies

(a) the dates of examination

(b) the consultants who are involved,

(d) the prognosis on life expectancy. It then has two sections directed to the Registered Medical Practitioner which read (lettered as per the document, which omits sections (e) and (f)) (d) Early Release should be considered for the following reasons…………….

(g) If released medical care would be available from………………”

[8]It concludes by asking whether there would be any public or media interest if a compassionate release occurred, and then “is there a political interest to be considered ? ”.

[9]I take that document to be the Secretary of State’s declared policy on how he will deal with applications under section 30 of the Act. I express no view on whether the last two questions are relevant under section 30.

[10]Ms Plimmer also asks me to consider

Article 3 of ECHR

, and draws to my attention the leading authority of Mouisel v France

[2004] 38 EHRR 34

. Article 3 states that “Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

[11]In Mouisel v France the European Court of Human Rights held that “37. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers, cited above, § 74).38. The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under

Article 3 of the Convention

(see Chartier v. Italy, no. 9044/80, Commission's report of 8 December 1982, Decisions and Reports (DR) 33, p. 41; De Varga-Hirsch v. France, no. 9559/81, Commission decision of 9 May 1983, DR 33, p. 158; and B. v. Germany, no. 13047/87, Commission decision of 10 March 1988, DR 55, p. 271). In the case of a prisoner suffering from disorders associated with hereditary obesity, the Commission expressed the opinion that there had been no violation of

Article 3 of the Convention

because the applicant had been provided with care appropriate to his state of health. It considered, however, that detention per se inevitably affected prisoners suffering from serious disorders. It took care to point out that “in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies to be taken in the form of humanitarian measures” and stated in conclusion that it would “appreciate any measures the Italian authorities could take vis-à-vis the applicant in order to alleviate the effects of his detention or to terminate it as soon as circumstances require” (see Chartier, Commission's report cited above, pp. 57-58). The Court recently observed that the detention of an elderly sick person over a lengthy period could fall within the scope of Article 3, although in the decision in question it held that the applicant's complaint under that Article was manifestly ill-founded (see Papon (no. 1), cited above). Health, age and severe physical disability are now among the factors to be taken into account under

Article 3 of the Convention

in France and the other member States of the Council of Europe in assessing a person's suitability for detention (see paragraphs 26, 27, 29 and 30 above).

39. Thus, in assessing a prisoner's state of health and the effects of detention on its development, the Court has held that certain types of treatment may infringe Article 3 on account of the fact that the person being subjected to them is suffering from mental disorders (see Keenan v. the United Kingdom, no. 27229/95, §§ 111-15, ECHR 2001-III). In Price v. the United Kingdom the Court held that detaining the applicant, who was four-limb deficient, in conditions inappropriate to her state of health amounted to degrading treatment (no. 33394/96, § 30, ECHR 2001-VII).

40. Although

Article 3 of the Convention

cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79). The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment (see Kudła, cited above, § 94).”

[12]The application of that authority to decision making by the Secretary of State was considered by the Court of Appeal in R(Spinks) v SSHD

[2005] EWCA Civ 275

. I shall consider that authority below.

The Facts

[13]As noted already the Claimant is a sexual offender. Indeed he is a prolific one. Among his many previous convictions (and sentences), which run from 1970, are convictions for “indecency” in 1979 (presumably gross indecency with a child) (6 months imprisonment), two offences of indecent assault on a male child under 14 in 1984 (6 months imprisonment), three similar offences in 1986 (6 months imprisonment and 12 months consecutive making 18 months imprisonment in all), soliciting in 1996 (9 months imprisonment) , two offences of indecent assault on a male child under 14 (concurrent probation orders) , three offences of indecent assault on a male child under 14 in 1993 (5 years’ imprisonment) and two offences of indecent assault on a male child under 14 in 1999 (6 years imprisonment).

[14]In the instant case he pleaded not guilty to an allegation that he had masturbated in front of a child in a public park, having met him by chance and bought him cigarettes. Given his history it is thus unsurprising that the sentencing judge concluded that he presented a significant risk of causing serious harm to members of the public (i.e. children) through his committing further sexual offences specified in Schedule 15 of that Act the test in section 225 ff of Criminal Justice Act 2003 for the imposition of a sentence of imprisonment for public protection .

[15]When assessed by the Probation Service for the purpose of the Parole Board hearing, he was assessed as posing a high risk of harm to children. The Board’s report records thata. he had an entrenched view that he had been wrongly convicted

b. he showed no remorse or victim empathy, and had little or no insight into his offending behaviour

c. he had stated in interview to the external probation officer that he was “proud to be a paedophile”

d. he refused to be interviewed by the psychologist

e. he was assessed under a tool called Matrix 2000 as falling within the category of a very high risk of future sexual offending.

[16]His case to the Board (as at his trial, representing himself) was that he was wrongly convicted, and that the similar encounters he had experienced in his childhood had done him no physical or emotional harm. The Board’s conclusions were (in summary) thata. he posed a substantial risk to children when in the community. The harm in question would be psychological and could have severe and enduring effects;

b. the level of risk was too high to permit release at that time;

c. the Board was satisfied that he needed to undertake work directed at his sexual preference for children, and at his being asked to address the long terms consequences of his behaviour, which work is only available in close conditions.

[17]On 15th September 2008 the Medical Officer at HMP Leeds wrote to the governor, noting that the Claimant was suffering from a serious medical condition which was not amenable to curative treatment. He suggested “ ROTL” – i.e. release on temporary licence – to enable treatment in hospital. His prognosis then was that the Claimant would survive for months rather than years. On 23rd September 2008 the Claimant’s solicitor wrote to the Governor of the prison, contending that he was suffering from a terminal illness, could die within 3 months, but was unlikely to live for more than 12 months. The letter argued that the risk of reoffending was minimal, that his continue detention would further reduce his life expectancy, that release would bring benefit to him or his family, and that arrangements for his care and treatment outside prison could be made.

[18]By now treatment had started at St James Infirmary in Leeds under Professor Seymour, who is Professor of Gastrointestinal Cancer Medicine, and Honorary Consultant in Medical Oncology. A surgical intervention took place in August (the insertion of a stent) after which the Claimant attended as a day patient. Professor Seymour had advised that the condition was inoperable and incurable. He was put on a course of chemotherapy treatment.

[19]On 1st October 2008 the solicitor forwarded what he described as “ a memo from Leeds Primary Care Trust and a copy of a report from the Oncology Department of St James University Hospital.” That letter, which was a handwritten letter from an M Braun, referred to the Claimant as having a cancer, which he described as incurable and surgically inoperable. It was a cancer of a kind resistant to chemotherapy. He said that some patients lived for more than 12 months while others lived for only 2-3 months from diagnosis. He put the average survival time as approximately 6 months.

[20]After some chasing letters he received a decision on 4th November 2008. On that date the officer responsible for dealing with the application for compassionate leave wrote to the Lifer manager at HMP Leeds. He noted that the Claimant was suffering from cancer, was receiving chemotherapy, and noted that the then opinion of the registered Medical Practitioner Dr Brew was that he would survive for 3 to 6 months. The officer noted the absence of a report from the specialist consultant who was treating him. He went on “ The Secretary of State also notes from the reports by the Lifer manager and the Governor that (AS) still poses a risk of reoffending and do not recommend compassionate release. He also notes with concern that there are no firm release plans and that (AS) envisages being released to go alone to a bed and breakfast accommodation in……..to trace his estranged family. Against this background and having received advice from the Department of Health, the Secretary of State has concluded that (AS) does not meet the criteria for compassionate release at this time. Although AS does not meet the criteria at this stage, the Secretary of State is willing to consider any future applications for compassionate release should his health deteriorate and his life expectancy reduce. However in order to consider this, a report from (AS)’s specialist would be required “ (My italics)

[21]On 18th November 2008, the Claimant’s solicitor asked for a reconsideration, complaining that there had been a report from the specialist consultant, and enclosing a letter from an oncologist which he contended had been in the possession of HMP Leeds. This appears to be the document referred to in the letter of 1st October 2008. It does not in fact appear to be a report from the specialist consultant.

[22]On 18th November 2008 the Claimant’s solicitor invited the Defendant to reconsider the application, pointing out that On 18th November 2008 Professor Seymour advised HMP Leeds’ medical officer that while the condition was advanced, and the chemotherapy was palliative, “treatment has been reasonably well tolerated other than some episodes of peripheral oedema”. On 16th December 2008 he told the medical officer that his cancer had been reduced in volume by the chemotherapy. He described him as “tolerating the treatment quite well” but was more tired and had swollen ankles, which are both recognised side effects of his medication. He was therefore going to have a break from chemotherapy for at least 6 weeks and hopefully longer. A CT scan was proposed for 12 week’s time. Chemotherapy would be resumed if there was evidence of progression in the cancer. The then prognosis was as follows “ the fact that he has had a favourable response to chemotherapy does mean that his median survival expectancy is now longer than three months. ”

[23]On 22nd December 2008 the solicitors wrote again, asserting that Professor Seymour had sent them a letter which now put the expectancy at no longer than three months. That, as was pointed out in correspondence by the Secretary of State, was the opposite of what he had in fact said. The solicitor continued pressing for a decision. While I admire his commitment to his client’s cause, some of the letters took points of irrelevance. For example on 21st January 2009 he contended that “given (AS)’s tariff under the current guidelines he would not have received an indeterminate IPP sentence for the offences of which he was convicted.” I take this to be a reference to the amendment of the Criminal Justice Act 2003 by the Criminal Justice and Immigration 2008 which had come into being since AS was sentenced. Whether true or not, to raise that was to expect the Secretary of State to treat the sentence as excessive, which cannot be a relevant matter under section 30 of the Act.

[24]On 27th January 2009 the Secretary of State reiterated his willingness to consider any future applications should (AS)’s health rapidly deteriorate and his life expectancy reduce. The solicitor now threatened judicial review proceedings, describing the refusal to order compassionate release as unreasonable.

[25]Professor Seymour wrote to the solicitor on 5th March 2009, stating that the Claimant’s cancer had progressed since the chemotherapy had stopped, but that he was optimistic that his cancer could be brought back under control with a stent procedure and retreatment by chemotherapy.. He went on “Assessment of median life expectancy for patients with advanced cancer can never be precise, but given the overall circumstances I would say that (AS)’s median life expectancy is still substantially longer than three months.” He also expressed the view that his pain and suffering were not “particularly exceptional” and that he was receiving “good symptomatic care” from Dr Brew, the prison medical officer.

[26]On 18th March 2009, in response to a fax from the solicitor, Professor Seymour now reported that his condition had deteriorated. The stent procedure had not worked as well as had been hoped, and there had been deterioration and increased pain. The cancer had progressed further, and he remained an inpatient. While his condition might improve with palliative chemotherapy, it was “increasingly possible that it will not.” He now put the median life expectancy (his phrase but my italics) as around three months or less.

[27]On 18th March 2009 the Claimant’s solicitor wrote again, enclosing further evidence from Professor Seymour, which he asserted now put the life expectancy at around three months or less (but omitted the Professor’s important word “median”), and contending that he was an inpatient and doubting whether he would “ever be well enough to return to the vigours of prison life.” He contended also that his sister was willing to provide accommodation, and could provide more care than the Prison Service could. It said that in hospital he was chained to his bed. It sought a decision within 7 days. I assume that he had received Professor Seymour’s letter of the 18th March 2009 when he wrote that. It is again unfortunate that the Professor’s words were not quoted accurately on the issue of life expectancy.

[28]On 3rd April 2009 Professor Seymour wrote to the Claimant’s solicitor referring to his previous reports and to his discussions with Dr Howells. He referred to his continuing supervision by the prison medical officer Dr Brew in prison (so that he can no longer have been an inpatient) and stated (my italics) “ the “prognosis” (i.e. median life expectancy) remains uncertain. …………the median expectancy was now around three months or less. It is important to understand that this is a median life expectancy, and not a maximum life expectancy, since the “ best case scenario” for (AS) is that he could recover sufficiently to receive palliative chemotherapy, respond again, and live for very much longer than three months. I hope that the Ministry of Justice are familiar with the concept of median life expectancy in making decisions around compassionate release.”

[29]The solicitor pressed for a decision, but when one had not been made by 6th April 2009, an application for judicial review was lodged, challenging the failure to make a decision.

[30]The Defendant contended that a decision was awaited. Meanwhile, on 8th April 2009, the Treasury Solicitor (for the Defendant) wrote to the Claimant and the Court, referring to Professor Seymour’s report (and also omitting the important word “median”) but then referring to a discussion between the Professor and Dr Howells who is Senior Medical Adviser on Offender Health in the Department of Health, as a result of which Professor Seymour would be monitoring the Claimant’s condition over the next two weeks. It then said “the outcome of the Claimant’s application for compassionate release would depend on that prognosis.” (my italics) The letter opposed the abridgement of time for service because “ the Court could not reach a satisfactory conclusion in the absence of the latest opinion from Professor Seymour, which I am currently seeking”

[31]On 9th April 2009 the Treasury Solicitor wrote again, stating that “ …of relevance to a decision will be the life expectancy of your client, his degree of mobility and in particular, the risk he would present being a repeated sex offender against children.” In a letter to the Court, he stated that Professor Seymour was on leave to 15th April, and reiterated that the Claimant should not be released before Professor Seymour had advised again following his return from holiday. A second latter on that date addressed the Claimant’s solicitor’s proposal for a rolled up hearing on 16th April. He pointed out that any further report from the Professor would require consideration and recommendation by the Senior Medical Adviser on Offender Health in the Department of Health, a risk assessment from the prison, a referral to the Parole Board and then ministerial approval. The letter referred again to the consideration of the extent of risk posed by the Claimant in respect of sexual offending.

[32]On 15th April 2009 Nicol J ordered that the Acknowledgement of Service be filed by 4.00 pm on 17th April 2009, and the papers then be put before a judge to consider whether permission should be granted.

[33]On 22nd April 2009, the Secretary of State rejected the application for early release in the following terms “ After very careful consideration it has been decided to reject the application at this stage. Although it is clear that (AS)’s prognosis is likely to be three months or less, there is no evidence to indicate that the risk of reoffending has reduced or suggest that the proposed release address is suitable. However the application will be reconsidered following receipt of further reports/assessments from HMP Leeds on the risk of reoffending and on the proposed release plan. I have asked HMP Leeds to provide these as soon as possible…….”

[34]On 23rd April, in response to a request from the solicitor asking for reconsideration, the Defendant agreed that “one of the issues is whether Mr (AS)’s condition has deteriorated to such an extent that there is no or very little possibility of him reoffending” and stating that further reports had been sought from HMP Leeds. When received the matter would be reconsidered as a matter of urgency.

[35]On 24th April 2009 Nicol J ordered that that the Defendant should respond to the further representations of the Claimant , and do so “in the light of such further reports/assessments as can be obtained regarding the risk of reoffending and the proposed release plan” by Friday 8th May 2009. In doing so, Nicol J noted that the Defendant did not appear to dispute the prognosis of Professor Seymour that the life expectancy was “three months or less.”. Nicol J relied on the correspondence put before him. As noted above neither party had cited his opinion accurately, and it appears that at that stage Nicol J had not been shown the important letter from Professor Seymour of 3rd April 2009. Nicol J also gave directions relating to any application for amendment made by the Claimant.

[36]The Defendant moved with some alacrity. He received the followinga. Offender Supervisor: a detailed report of 6th May 2009

b. Probation Service: a Home Circumstances Report of 8th May 2009

[37]I shall refer to their terms below. A decision was issued on 8th May 2009, whose terms I recite below. It makes no reference to any medical opinion at all. However it is right to say that on 8th May 2009 Dr Brew had examined AS. One knows that from the fact that on 13th May 2009 he completed a medical report of the type referred to in paragraph 8 above pursuant to PSO 4700. It described AS’s life expectancy as “<3 months”. He also dealt with his deteriorating ability to walk (25 yards before stopping), his limited diet and his need for high doses of morphine for pain relief. It continued “ His risk of reoffending must be reduced by weakness and immobility. He requires assistance with all but the most basic self care.” Dr Brew was unable to offer a view on the availability of medical care should he be released, but also wrote a note referring to the use of the local MacMillan Nursing Team.

[38]The reports from the Offender Supervisor and the Probation Service revealed the followinga. Offender Supervisor: AS was yet to undergo Victim Awareness Counselling, the Sex Offender Treatment Programme (SOTP) and the Alcohol Advocacy Course. None of those programmes were available at Leeds, and his deteriorating health could prove problematic in terms of finding an establishment suitable to him. The Claimant had expressed the view that he did not need the SOTP course as there was no victim in his case, and he also denied having a drink problem. He was noted to have been estranged from his family for 10 years, but had recently reestablished contact with his sister. He had previously been noted by a nurse “never to demonstrate a change in his attitude and talks only about revenge.” The supervisor concluded that in the absence of an opportunity or desire to begin the offending behaviour work his risk of reoffending remained high. He considered that if her were released into the community now “ there would be no change to the serious harm to the public he would pose.” It described him as having lost weight but still “ quite mobile and manages to walk to collect his medication on a daily basis.”

b. Probation Service : the circumstances proposed for his release were that he would live with his sister who would care for him, and who did not think that she needed support from a charity like Macmillan nurses. She would comply with any restrictions imposed if he lived there. There is a local authority children’s home directly opposite her house containing children and young persons aged between 16 and 19. The officer described him as “an entrenched paedophile with numerous previous convictions for offences against young males and one for an offence against a young female.” It described his modus operandi of offending as being to groom vulnerable children and take them to where he was staying prior to assaulting them. On occasions he would give them alcohol or drugs before assaulting them, and had claimed to be under the influence of alcohol when committing assaults. He went on “ Given (his) attitude, his entrenched views, his offending history together with his inability to participate in any constructive release plans, I would have concurred with previous assessments and reports, that the risk presented could not in normal circumstances be managed in the community.” It concluded that the address proposed was suitable “in practical terms” but that the proximity of the children’s’ home for vulnerable children was a real cause for concern. It went on “ This concern could be assuaged dependant (sic) upon (AS)’s physical conditionand the level of his mobility (my italics). If (AS) is confined to bed with limited mobility then the risk he presents would be reduced. To manage the risk presented by (AS) in these circumstances , I would suggest a 24 hour curfew electronically monitored………stringent conditions prohibiting any contact with children……………….”

[39]The decision of 8th May 2009 stated “ The Secretary of State after careful consideration of the recent reports from the prison and the Offender Manager has decided that (AS) does not meet the criteria for compassionate release at this stage. The Secretary of State notes that both the OASys and Risk Matrix assessments consider (AS)’s risk as being very high. He also notes that the Offender Supervisor considers (AS)’s risk to be high and did not support release at this stage. He further notes that (AS) is an entrenched paedophile with numerous previous convictions for offences against young males and a female and that he has not undertaking any treatment programmes to reduce (the) risk of sexual offending since he was convicted for the index offence. (AS)’ s pattern of crime was by grooming vulnerable children, take them to a place where he was staying and then sexually assaulted them. The Secretary of State is therefore concerned about the release address which is (in) close proximity to Local Authority accommodation for vulnerable children. Given (AS)’s attitude to the index offence, his entrenched views, his offending history, lack of offending behaviour work and the recent risk assessments, the Secretary of State is not convinced that (AS)’s risk has been reduced or could be managed at the release address provided.”

[40]On 11th May 2009 the Claimant sought permission to amend the claim to challenge the decision of 8th May 2009 as well. The Defendant filed amended grounds for resisting the claim. He accepted that the medical prognosis was for “a life expectancy of three months or less” thereby repeating the error both parties had made, but relying on the reports to conclude that he would not agree to the release of the Claimant as long as he remained mobile.

[41]On 15th May the solicitor for the Claimant sought to argue that the decision of 8th May 2009 was flawed because it made no mention of Dr Brew’s report of 13th May 2009. Given the dates involved, that claim was patently illogical. What it should have said was that the report was written without having the benefit of a report from the Medical Officer.

[42]On 15th May 2009, Nicol J ordered that the application for permission be adjourned to a rolled up hearing for the first available date after 2nd June 2009, and transferred the case to Manchester.

[43]On 29th May 2009 Dr Brew reported to the Lifer manager that, as at that date, AS had deteriorated further, was showing typical signs of terminal deterioration in a cancer patient, and had a prognosis of “ six weeks or less.” Dr Brew had decided to increase his dosage of morphine to combat abdominal pain. He was being cared for as well as they could with the prison setting. The Claimant had declined the offer of admission to the Healthcare centre for nursing care. If he were to be released, it should be arranged immediately so that the stress of the journey home and rebuilding of family ties would be likely to affect him as well.

Discussion

[44]Section 30 gives the Defendant Secretary of State a general discretion. He has elected to adopt a policy on how he deals with applications, and there must be a procedural legitimate expectation that he will comply with it, unless he has reasons not to do so, which he must state. Further, given the significance to a prisoner the Secretary of State is under a duty to give reasons for his decision. He must also take into account material considerations, and not immaterial considerations.

[45]It is clear from the terms of PSO 4700 and the series of exchanges, that both Claimant and Defendant conducted themselves on the basis thata. the life expectancy was a relevant matter. The shorter it got, the greater the weight it could carry. Both parties accepted that it had little weight if it exceeded three months. But plainly, the shorter it got below that level, the greater the weight which it might have, and no doubt the more the degree of compassion. The degree of weight is of course for the decision maker, namely the Defendant;

b. the effect of the Defendant’s condition on his mobility and generally was relevant to his ability to be able to commit offences.

[46]Plainly whatever views were held on the life expectancy and on his condition, it was a matter for the Defendant to weigh them against the level of risk which he found existed. I emphatically reject the Claimant’s submission that the decision to refuse release was irrational. Given the very significant risks which he has presented for so long to children in the eyes of the courts, the Parole Board, his offender supervisor and the Probation Service, and the proximity of a children’s home to his intended address, a decision that the risks outweighed the other considerations would be entirely rational. On the other side of the coin, I do not discount as irrational a decision which accepted that the other considerations relating to his condition and life expectancy outweighed the risks.

[47]However what the Defendant did not have when he made his decision was an up to date medical report, even though all parties had recognised the importance of having one, and despite the procedure under PSO 4700 requiring that one be provided by the Medical Officer. There was nothing in the earlier reports which could have been relied on to show that he would be sufficiently incapacitated to show that the risk had been vitiated to the degree where it was no longer of significance, but the report of Dr Brew, based on an examination of the 8th May shows that there was reason to think that the effects of his illness had reduced it. Whether it had done so to the degree that the Secretary of State was able to consider releasing him was a matter for him, but it was plainly material.

[48]In any event, the Secretary of State was also bound to deal with his conclusions on the medical issues based on such material as he had before him. The fact is that in his decision of 8th May 2009 he never addressed the medical issues at all.

[49]It follows inexorably that the decision of 8th May 2009 was flawed by the failure of the Secretary of State toa. give adequate reasons for his decision;

b. have regard to the medical evidence which was before him;

c. fulfil the procedural legitimate expectation that he would obtain an up to date medical report addressing the issues raised, and in particular the question raised in the PSO 4700 form “ Does the condition of health render the prisoner incapable of reoffending, particularly of a sexual or violent nature, where there would be a risk to life or limb. ?”

[50]I therefore grant permission for the proposed amendment and grant permission in relation to the decision of 8th May 2009. It follows that the application for compassionate release must be reconsidered.

[51]I decline to express a view on the right outcome of any reconsideration . I adopt the words of May LJ in St Helens BC v Manchester PCT

[2008] EWCA Civ 931

@ 13 “Judicial review is a flexible, but not entirely unfenced jurisdiction. This stems from certain intrinsic features. The court's relevant function is to review decisions of statutory and other public authorities to see that they are lawful, rational and reached by a fair and due process. The public authority is normally the primary decision maker with a duty to apprehend the facts underlying the decision by a fair procedure which takes properly into account all relevant facts and circumstances. If the public authority does this, the court will not normally examine the merits of the factual determination. …………………..The normal limit of the court's enquiry into the facts is if the primary decision maker is said to have reached perverse factual conclusions or to have decided the facts without taking relevant material into consideration, or to have considered and been influenced by irrelevant material. If factual decisions of the primary decision maker are shown to have been materially flawed in this way, the normal result is to quash the decision and remit the matter for reconsideration. The court does not often itself make a factual decision which the primary decision maker has not made.” I refer also to Collins J in R(A) v LB Croydon and SSHD

[2009] EWHC 939 (Admin)

at paragraph 8 “ Parliament has made clear that the decision is that of the relevant authority. Judges have frequently warned against the judicialisation of matters which have been left to be decided by an authority. It is for them to decide the facts which lead to a decision. It is only if they reach a conclusion of fact which is unreasonable (as Lord Brightman put it in Puhlhofer v Hillingdon LBC

(1986) 84 LGR 385

at 413 – 414 in a different context “verging on absurdity”) or they fail to have regard to a material consideration that their decision can be impugned. The decision is not for the court but is for the Secretary of State or the local authority

[52]For completeness, I should add that I do not accept the Secretary of State’s approach in his counsel’s skeleton (included on instructions) that he “is prepared to reconsider the application if and when the risk is minimal.” He may if he wishes choose not to exercise the power to release a prisoner unless that test is satisfied, but he cannot decide that he will not reconsider an application.

[53]Given the fact that I am quashing the decision of 8th May 2009, and the application will be considered on the entirety of its merits, there is no point in my considering whether to quash the earlier decision of 22nd April 2009.

Article 3

[54]The Claimant contends that his continued detention amounts to a breach of Article 3. Reference was made to R(Spinks) v SSHD

[2005] EWCA Civ 275

. I have therefore considered whether there is a breach of Article 3. I grant permission for the amendment of the application. It is my task to address that issue - see Secretary of State for Home Dept v Naseeri

[2009] UKHL 23

at paragraph 12 per Lord Hoffman, and Spinks at paragraph 33 per Buxton LJ.

[55]The starting point must be that, as a matter of principle, detention of a prisoner in a prison is not of itself a breach of Article 3. Nor is continued detention of a prisoner who becomes unwell or suffers injury, provided of course that he can call on proper medical attention, care and treatment. I have reminded myself of paragraph 40 of the Mouisel judgement, set out above. Whether incarceration is degrading or inhumane depends on the circumstances. I reach the following conclusions;a. His physical condition is not attributable to the fact of his incarceration but to his illness. There is no evidence at all that he is unable to receive all necessary medical treatment;

b. There is no evidence at all that his detention has exacerbated his condition

c. He is in enduring pain, and his morphine dosage has been increased. There is no evidence that his pain is any better or worse for his being in prison;

d. A better of quality of care within the healthcare centre of the prison has been offered to him , but has been declined;

e. The latest medical report (of 6 days ago) does not suggest that his being detained has any adverse effect on his condition;

f. The fact that he is dying in prison does not make his incarceration inhumane. Article 3 is not to be read as preventing a refusal of release under section 30. If the evidence were to be that his condition had rendered him incapable of repeat offending, that might be a different matter, but I decline to express any concluded view in the absence of such evidence.

[56]In my judgement this case gets nowhere near the standards required before a breach of Article 3 can be shown. In my view it is unarguable in its current form, and permission to apply for judicial review is refused.

Conclusion

[57]I therefore quash the decision of 8th May 2009. I direct the Defendant to reconsider the application under section 30, such decision to be made by 5.00 pm on Monday 8th June 2009.

[58]Any submissions on costs are to be made by E mail to the court office by 12 noon on Monday 8th June 2009.