Walker v Secretary of State for Justice [2009] EWHC 3292 (Admin)

[2009] EWHC 3292 (Admin)Case No CO/9918/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/12/2009
Before
THE HON. MR. JUSTICE LLOYD JONES
Between
Denzil WalkerClaimantSecretary of State for JusticeDefendant
Ms. Flo Krause (instructed by VHS Fletchers Nottingham) for ClaimantMs. Eleanor Grey (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 1 st December 2009
JudgmentThe Hon. Mr. Justice Lloyd Jones :
[1]This is the trial of issues on an application for judicial review by the Claimant Mr. Denzil Walker, a Category B prisoner serving a life sentence and currently held at HMP Wakefield.[2]The issues agreed by the parties are as follows:(1) Whether the Claimant’s placement at HMP Wakefield is unreasonable or otherwise unlawful, in so far as a) The allocation and/or risk assessment decision took no or no sufficient account of the level of physical disability from which the Claimant suffers and his advancing age (Updated grounds, para. 3, para. 9); b) The allocation and/or risk assessment decision took into account only the static risk presented by the Claimant (Updated grounds, paragraph 6); c) The allocation and/or risk assessment decision failed to take into account the fact that the Claimant is incapable of mounting an escape (Updated grounds, paragraph 7).(2) Whether, in light of the above, the failure to move the Claimant out of the high security estate is unlawful.[3]Mr. Walker was born on the 22nd February 1948 and is now 61 years of age. Between August 1962 and November 1995 he was convicted on 21 occasions of a total of 42 offences. The great majority of these were offences of theft, vehicle taking or motoring offences but three were violent offences. In July 1994 he picked up a female hitchhiker whom he subsequently drugged and killed. There was a sexual element to the killing. On the 23rd November 1995 he was sentenced to life imprisonment for murder with a minimum term of 14 years.[4]He was initially a Category A prisoner. However, on the 9th March 2006 he was downgraded from Category A to Category B because of issues relating to his health. A report by a consultant physician dated 18th August 2006 indicates that he has advanced kidney failure. A further report by a consultant ophthalmic surgeon dated 6th September 2006 states that, while registered blind, the Claimant has sufficient vision to count fingers in the right eye and hand movements in the left. According to a Dangerous and Severe Personality Disorder (DSPD) assessment carried out in October 2008 he suffers from insulin dependent type II diabetes, chronic renal failure and ophthalmological problems. He is described in that assessment as “shuffling slowly and walking with the aid of a stick to orientate him in space and to help him negotiate obstacles”. (paragraphs 2.5.5, 2.5.6).[5]Following his downgrade to Category B the Claimant remained at HMP Full Sutton.[6]On 11th September 2006 the Claimant was informed he was not suitable for the HMP Frankland DSPD Unit.[7]On 31st October 2006 the Claimant issued an application for permission to apply for judicial review. In the claim as originally constituted, the Claimant sought to challenge the failure of the Defendant to remove him from HMP Full Sutton to a prison better suited to meet his medical needs, appropriate to his new Category B status and in a location which would permit visits from his sole visitor, an elderly lady resident in Somerset, who was unable to travel long distances. The Claimant also relied on Articles 3 and 8 ECHR and sought damages pursuant to section 8, Human Rights Act 1998.[8]A week later on 7th November 2006 the Claimant was transferred from HMP Full Sutton to HMP Wakefield. HMP Wakefield is within the High Security Estate. It holds a maximum of 140 Category A prisoners; the remainder, from an operational capacity of 752 men, are Category B prisoners and are housed in separate wings from the Category A prisoners.[9]On 15th December 2006 Toulson J. adjourned the application for permission to apply for judicial review to an oral hearing. That hearing took place on 7th February 2007 before Gibbs J. On that occasion the court was told that the Claimant maintained his original complaints notwithstanding his transfer to HMP Wakefield. The court was also told that the Defendant was proposing to hold a Risk and Assessment Management (RAM) Board in the near future which would make a decision as to the next 12 months in the Claimant’s prison life. Accordingly Gibbs J. adjourned the application pending the recommendations of the RAM Board.[10]The RAM Board sat on 29th March 2007 to consider the Claimant’s case. On 9th May 2007 it delivered its report which was received by the Claimant on 4th June 2007. The report of the RAM Board found the Claimant had a PCL–R (Psychopathy Checklist – Revised) score which placed him within a range indicative of “very high psychopathy” and, as such, mainstream cognitive behaviour programs offered by the prison service, such as the Sexual Offender Treatment Programme (SOTP), were not considered appropriate.[11]The Board did not recommend the transfer of the Claimant. However it confirmed that there was no appropriate offending behaviour work available for the Claimant at HMP Wakefield. The Chairman reported that the DSPD Unit at HMP Frankland had rejected the Claimant. He decided that the Claimant should be re-referred to the DSPD Unit at HMP Frankland.[12]On the 15th July 2007 the Claimant lodged amended grounds of claim. On 27th February 2008 Collins J. granted permission to apply for judicial review.[13]On 26th February 2008 the Defendant lodged amended summary grounds of defence. These explained that the transfer to HMP Wakefield was the product of three factors: a need to house the Claimant in the high security estate, the need to make provision for his disabilities (in respect of which HMP Wakefield was considered particularly suitable) and the need to enable the Claimant to take part in the SOTP. This third matter had been overtaken by the recommendation of the RAM Board that the SOTP would not be suitable and the Claimant should be transferred to a DSPD Unit. As a result the Defendant was now making further enquiries as to whether there was a space available at a prison with a DSPD Unit (which included HMP Whitemoor). The possibility of an adjournment of the permission application had been raised by the Treasury Solicitor but the Claimant’s solicitor strongly opposed such an adjournment on the grounds, inter alia, that it would not be appropriate to transfer the Claimant to a DSPD Unit.[14]On 3rd June 2008 the Claimant was informed that he was not suitable for the DSPD Unit at HMP Whitemoor.[15]The substantive hearing of the application for judicial review was due to take place on 2nd October 2008. However, the Defendant sought an adjournment. On 8th October 2008 Mr. Edwards-Stuart QC, sitting as a Deputy Judge in the Administrative Court, gave directions which included the preparation of schedules setting out the respective cases on the alleged infringements of Articles 3 and 8 ECHR.[16]Following the recommendation of the RAM Board that the SOTP would not be suitable in the case of the Claimant and that he should be transferred to a DSPD Unit, a DSPD assessment was carried out at HMP Wakefield between the 12th and 14th November 2008. Mr .Walker was judged to meet the DSPD criteria. It will be necessary to refer to the results of this assessment in greater detail later in this judgment.[17]However, the Defendant maintains that it has not been possible for the Claimant to be transferred to a prison which runs a DSPD Unit. I was told that there are three reasons for that. First, neither of the DSPD Units within the prison estate is able to provide appropriate accommodation for the Claimant’s needs given his disabilities. Secondly, his visual impairment prevents him from participating in a course with a high visual element. Thirdly, he requires a carer and it would not be appropriate for a carer to be allocated to a DSPD Unit where the other prisoners would be of high psychopathy.[18]On 11th March 2009 the substantive hearing was due to take place before Cranston J. He made an order that the Defendant by midday on 6th April 2009 inform the Claimant of the suitability for the Claimant of HMP Dorchester, HMP Exeter, HMP Bristol and HMP Gloucester and provide confirmation that he was on the waiting list for transfer to any of these prisons considered suitable for him. He further directed that the case be listed before him on 7th April 2009 for further directions with a time estimate of one hour.[19]On 7th April 2009 the matter came before Silber J. who granted permission to the Claimant to amend his grounds of claim to include a challenge to his security categorization. The Defendant lodged a witness statement indicating that the Claimant would not be transferred to any of the previously identified prisons. On the contrary the Defendant maintained that Mr. Walker was suitably located at HMP Wakefield. In these circumstances Silber J. ordered that the parties lodge an agreed list of issues by 11th May 2009. The case was to be listed for a substantive hearing on the first open date after 10th July 2009 with a time estimate of two days.[20]On 9th April 2009 the Claimant lodged further updated grounds of claim. On 19th May 2009 the Defendant lodged detailed grounds of resistance. The parties agreed the list of issues set out above.[21]On 29th July 2009 a substantive hearing was due to take place in the Administrative Court at Leeds. However the listing was lost.[22]The substantive hearing was then re-listed before me in London on 1st December 2009. In view of the fact that previous attempts to secure the participation of the Claimant by video link from HMP Wakefield had proved unsuccessful, a production order was made for the Claimant to attend. However, the Defendant informed the court that on the morning of the 30th November 2009, as the Claimant was being transferred from the healthcare unit at HMP Wakefield to a taxi to be moved to London, the Claimant threw himself on the ground in front of prison staff and said he was too weak to be moved. The medical team at HMP Wakefield considered him unfit to travel. It did not prove possible to set up a video link with HMP Wakefield because their facilities were already in use for other matters.

Legislative Structure

[23]Section 12, Prison Act 1952 provides:
“12. Place of confinement of prisoners. (1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison. (2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.” (1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison. (2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.”
[24]Section 47 (1) Prison Act 1952 provides:
“(1) The Secretary of State may make rules for the regulation and management of prisons, …, and for the classification, treatment, employment, discipline and control of persons required to be detained there.”
[25]The Prison Rules 1999, made pursuant to section 47 of the 1952 Act, provide in relevant part:
“Purpose of prison training and treatment 3. The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life. Outside contacts 4 (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both. (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the Governor, best promote the interests of his family and his own social rehabilitation. … Maintenance or order and discipline 6 (1) Order and discipline shall be maintained with firmness, but with no more restriction than is required for safe custody and well ordered community life. … Classification of prisoners 7 (1) Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 3.”
Outside contacts (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the Governor, best promote the interests of his family and his own social rehabilitation. Maintenance or order and discipline

Classification of prisoners

[26]The Secretary of State has also issued a Prison Service Order (PSO 0900) which provides instructions to prison governors in the management of their establishments. Categorization of adult male prisoners is dealt with in Chapter 1.[27]The principles of categorization are set out in paragraph 1.2. “1.2.1 Prisoners must be categorized objectively according to the likelihood that they will seek to escape and the risk that hey would pose should they do so. In the majority of cases, consideration of these two factors alone would be sufficient to determine the prisoner’s security category. However, a small number of prisoners while presenting little risk of escape or risk to the public, and who would ordinarily be assigned to a low security category will, because of their custodial behaviour, require a higher category so that they may be sent to a prison with levels of supervision commensurate with the risk they pose to control. The categorization Forms therefore permit consideration of control to influence the final security category. The security category must take account of the above considerations alone… 1.2.2 Although consideration of control factors is permitted, factors such as ability to mix with other prisoners, educational, training or medical needs, and the availability of vacancies in suitable establishments must not be taken into account at this stage. They are for consideration during allocation. The allocation process may immediately follow, but will be distinct from security categorization. 1.2.3 Every prisoner must be placed in the lowest security category consistent with the needs of security and control. A prisoner must be assigned to the correct security category even if it is clear that it will not be possible to allocate them to a particular establishment for prisoners in that category. … 1.2.6 Consideration of the factors above will determine provisionally in which security category the prisoner should be placed. The facility to override this provisional categorization as a result of control factors must be used only where there is clear evidence that the prisoner will require higher levels of supervision than available in prisons for which the initial criteria have indicated here suitable. 1.2.7 The criteria explained above must not be seen as either exhaustive or inflexible. There will be cases where a higher or lower security category will be right for an individual prisoner. However, every instance of departure from the prescribed criteria must be justified and documented, on security and, in rare cases, on control grounds alone…”[28]The security categories are defined as follows in paragraph 1.1.1:
“Category A. Prisoners whose escape would be highly dangerous to the public or the police or the security of the state, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible. Category B. For whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult. Category C. Prisoners who cannot be trusted in open conditions but who do not have the resources and will to make a determined escape attempt. Category D. Prisoners who can be reasonably trusted in open conditions.”
Prisoners who can be reasonably trusted in open conditions.”[29]Allocation is dealt with by paragraphs 1.6.1 and following. “1.6.4 While the main factor to be considered in determining a prisoner’s allocation must always be his security category, and a prisoner who has been assigned to a particular security category should initially be considered for allocation to a prison designed for that category, account must also be taken of - his suitability for particular types of accommodation (factors such as vulnerability, age, etc) - his medical and/or psychiatric needs that may require a particular type or level of care; - need for identified offence related behavioural programs to confront assessed risk; - his home area, or that of his likely visitors; - his educational training needs or potential; - the published allocation criteria for individual establishments resettlement needs [in line with procedures set out in PSO 2300]. 1.6.5 The allocation of a prisoner must be decided carefully, bearing in mind the considerations above. The decision reached must be justifiable and must be recorded, along with the reasons for it, on section 6.21 of the Prisoner’s ICA1…” - his suitability for particular types of accommodation (factors such as vulnerability, age, etc) - his medical and/or psychiatric needs that may require a particular type or level of care; - need for identified offence related behavioural programs to confront assessed risk; - his home area, or that of his likely visitors; - his educational training needs or potential; - the published allocation criteria for individual establishments resettlement needs [in line with procedures set out in PSO 2300]. The parties’ submissions.[30]The Claimant maintains that there is a continuing failure to move him to an appropriate penal establishment. Since 2006 he has sought to be moved to a prison which can cater for his pressing medical needs and his need to maintain contact with the outside world. His transfer to HMP Wakefield from HMP Full Sutton did not constitute an improvement in terms of his ability to receive social visits. Furthermore he submits that HMP Wakefield is ill equipped to deal with his failing health and serious medical complaints. In addition, it is not an appropriate placement for his offending behaviour work needs as it is now acknowledged that there is no appropriate offending behaviour work which the Claimant could undertake at HMP Wakefield. The Claimant submits that, save for ascertaining in theory that he has a high psychopathy score, the Defendant has been unable to justify his placement in the high security estate as required by the Prison Service Order 0900. The Claimant complains of logistical difficulties arising out of his placement in a high security prison where security and good order take precedence over individual needs.[31]Furthermore, the Claimant maintains that his placement at HMP Wakefield and the deficiencies in the care and medical treatment he receives there are sufficiently serious to engage his rights under Article 3 ECHR. Alternatively, he maintains that his Article 8 rights have been infringed because of the interference with his well being and because of the failure to transfer him to an establishment closer to his only visitor.[32]The Defendant submits that of the three reasons originally given for the transfer of the Claimant to HMP Wakefield, two remain valid. There is still a need to house the Claimant in the high security estate. Furthermore HMP Wakefield is particularly suitable because of the provision which can be made there for the Claimant’s disabilities. The Defendant accepts that it is no longer considered appropriate for the Claimant to take part in the Sex Offender Treatment Programme available at HMP Wakefield. Nevertheless, it is submitted on behalf of the Secretary of State that the placement at HMP Wakefield was and remains appropriate for the Claimant having regard to his needs and his risk assessment.[33]In this regard, the Defendant points to the fact that there is no challenge in these proceedings to the categorization of the Claimant as a Category B prisoner. Moreover, the Defendant maintains that all Category B prisoners must be kept in Category B conditions which are very similar so far as the regime is concerned, whether or not they are contained in the high security estate. The evidence of Mr. Mahoney, the Head of Reducing Re-Offending at HMP Wakefield, is that the level of supervision and security Mr Walker experiences as a Category B prisoner in the high security estate is the same as he would experience in any Category B establishment, except in terms of physical security of the building which is higher in order to accommodate Category A prisoners as well.[34]The Defendant submits that this was and remains an appropriate placement for the Claimant having regard to his needs. In particular, HMP Wakefield has a staff team which has the necessary experience with offenders of Mr Walker’s psychological profile. Although the Claimant could, in terms of his security classification, be accommodated within any Category B prison, the necessary expertise to manage an offender with his psychological profile is to found within the high security estate in general and in HMP Wakefield in particular. It is not accepted by the Defendant that the Claimant can establish his assertion that there are “logistical difficulties arising out of his placement in the dispersal estate [i.e. the high security estate] where security and good order take precedence over any individual needs”. Furthermore, the Defendant maintains that a particular advantage of HMP Wakefield from the Claimant’s point of view is, as a vulnerable prisoner, he does not need to be housed in a separate vulnerable prisoner unit.[35]The Defendant accepts that the prison is remote for Mr Walker’s only visitor who is elderly. However the Defendant has suggested temporary transfers so that a block of accumulated visits could be used at a prison more convenient for the visitor. The Defendant has also drawn attention to the assisted visitor scheme.[36]It is important to record that the Claimant does not advance any case on the basis on the failure on the Defendant to make arrangements for him to be transferred to a DSPD Unit or on the basis of discrimination against him in that regard on grounds of disability. As Ms Krause, on behalf of the Claimant, accepted in the course of argument, that it would be inconsistent with her case that the Claimant does not need to be in a high security prison at all.[37]Furthermore, the claims founded on Articles 3 and 8 ECHR have not been argued before me. The parties are agreed that the resolution of these claims would require a detailed factual investigation including the cross examination of witnesses. Accordingly, the parties have asked me to give directions for that element of the case to be transferred for trial in the County Court. Failure to take account of the level of physical disability from which the Claimant suffers and his advancing age.[38]The Claimant maintains that the allocation to HMP Wakefield and his risk assessment took no account or no sufficient account of the level of physical disability from which he now suffers and his advancing age.[39]The re-categorization of the Claimant on the 9th March 2006 from Category A to Category B reflected both his offender profile and his disabilities. It was expressly stated to have been brought about by the recent deterioration in his health. Indeed, he was informed that he would be reconsidered for Category A status if there were significant improvements in his condition. Ms. Krause does not seek to challenge the categorization of the Claimant as a Category B prisoner. I note that Mr Mahoney states that Mr Walker’s physical limitations by reason of his disabilities and their impact on his ability and likelihood to re-offend were considered in his categorization assessment. However he goes on to state that it was the opinion of the clinicians at that time that, whilst it was clear that his disability had some impact on his ability to re-offend and the likelihood of his re-offending, the limitations did not restrict his ability to such an extent to make escape impossible or unlikely.[40]Thereafter the Defendant had to take and to keep under review decisions on allocation. In doing so he was required to take account of the matters set out in paragraph 1.6.4 of PSO 0900. In addition to a prisoner’s security category, the Defendant was required to take account of the suitability of particular types of accommodation given the Claimant’s disabilities, his medical and care needs, the availability of appropriate behavioural programmes and the location of likely visitors.[41]The various risk assessment tools which have been employed at different stages are considered in more detail later in this judgment. However at this point it is convenient to record that the Claimant was assessed under the Risk Matrix 2000 as a medium risk of future sexual reconviction, a high risk of future violent reconviction and a high risk of future combined sexual and violent reconviction. The overall conclusion was that he was at a medium to high risk of future violent and sexual re-offending. (DSPD criteria assessment, October 2008).[42]Furthermore, the evidence of Jane Reed, Director of Psychological Services at HMP Wakefield, is that there were in the case of Mr Walker significant concerns with regard to his risk and personality functioning which led to an assessment of psychopathy. Ms. Reed explains that the concept of psychopathy is characterized by the callous and remorseless use of others and a chronically unstable and antisocial lifestyle. It has a robust association with the risk of harm to others and is considered a factor which exacerbates risk. The first of these assessments was conducted in 2004 and found that Mr Walker’s overall rating on the PCL-R placed him around the 99th percentile in relation to the male prison population in the United Kingdom. The assessment was repeated as part of the DSPD assessment conducted in October 2008. This placed Mr Walker around the 98th percentile in relation to the male prison population in the United Kingdom. Accordingly, only approximately 1% to 2% of the male prison population of the United Kingdom would be likely to score higher on this measure than Mr Walker. He is considered a very complex individual with psychopathy as a highly pertinent element of the risk.[43]The evidence of the Claimant’s disabilities had to be taken into account against this background. There is clear evidence that it was.[44]The RAM Board report published on the 29th March 2007 expressly refers to some of these matters under the heading “Factors that lessen risk”:
“It is of note that Mr. Walker’s vision has deteriorated during his time in custody, particularly over the last year. He self-reports to be blind in his left eye and his right eye is severely limited due to glaucoma. Furthermore, Mr. Walker is currently 59 years of age and research into sexual recidivism with regard to age suggests that risk begins to decline at the age of 60. Mr. Walker’s age and his failing sight could possibly lessen his risk. However, this needs to be taken into consideration with his PCL-R scores and the fact that he has not engaged in any offence focused treatment to date.”
[45]Similarly, the DSPD criteria report of October 2008 (at paragraphs 2.5.5, 2.5.6) sets out a full account of the Claimant’s physical disabilities. It records insulin dependent type II diabetes, chronic renal failure and ophthalmological problems. “It is my understanding that Mr. Walker is expected to require dialysis treatment in the near future and that he is provided with an escort to help him move round the prison at all times. My own observations during assessment are that when moving he shuffled slowly and walked with the aid of a stick to orientate himself in space and to help him negotiate obstacles. He said that when sitting he could not see his interviewers who were sat approximately 5 feet away from him.” These details are repeated later in the Report (at p. 408) in the context of a discussion as to the adaptations that would be necessary at the Westgate Unit in order to enable the Claimant to benefit from DSPD treatment. It identifies a possible solution of Mr. Walker being provided with an individual therapist to work with him for the duration of any treatment plan.[46]Accordingly, the authors of the DSPD criteria report took appropriate account of the Claimant’s disabilities. Nevertheless, they still concluded that he met the DSPD criteria. In coming to that conclusion they expressly addressed the significance of his disabilities:
“Mr. Walker appears to accept that some of the risk factors identified for him following DSPD Criteria Assessment as having been relevant to his offending. (sic) However, it is my assessment while he verbalises an intention to participate in therapeutic work, Mr. Walker is of the opinion that he no longer represents a risk to others. To back up his statement, he referred to his medical condition (see Medical History). While it is my understanding that Mr. Walker has been downgraded from a category A to category B prisoner partly on the basis of the perceived impact of his failing health on his risk, it is not my contention that the risk factors identified as part of his DSPD Assessment are no longer relevant.”
[47]Account was taken of the Claimant’s disabilities in arriving at the conclusion that he satisfied DSPD criteria. The report was prepared by experts including a chartered forensic psychologist, a trainee forensic psychologist, a registered nurse, a senior officer and a therapist. It was the result of expert consideration of Mr. Walker’s case following his assessment during three days of interviews.[48]Similarly, the report by Jo Pallas, chartered forensic psychologist, prepared for the Claimant’s Single Sentence Plan Review in February 2009 expressly addresses the impact of the Claimant’s disabilities on his risk assessment. Ms. Pallas records that in being found to meet the criteria for DSPD services Mr. Walker represents a high level of risk of re-offending. She then goes on to state:
“In preparation of this risk assessment update report, I gained Mr. Walker’s consent to discuss “Medical in Confidence” information with Managers in HMP Wakefield’s Health Care Department. It is the view of these managers that Mr. Walker’s physical and medical complaints do not offset his level of risk in terms of risk of re-offending.”
She concluded that Mr. Walker had not yet addressed his offence specific risk of re-offending and his level of risk remained unchanged. The resulting report states under the heading “Evidence of risk reduction”:
“Being found to meet the criteria for the DSPD unite and being judged as representing a high level of risk of re-offending supports the assessment that there is no risk reduction. Specific consideration has been given as to whether Mr. Walker’s disabilities have any direct impact upon his risk and it is the opinion of medical professionals within the HCC department that they in no way reduce his risk of re-offending.”
[49]For these reasons I am satisfied that, at all stages, full account has been taken of the possible impact of the Claimant’s disabilities on his allocation and risk assessment. The precise weight which is given to the Claimant’s disabilities is a matter for the decision maker. However, I note that at every stage reliance was placed upon expert opinion. I am entirely satisfied that proper account has been taken of Mr. Walker’s disabilities. Failure to consider dynamic as opposed to static risk.[50]The Claimant submits that the allocation and/or risk assessment decision took into account only the static risk presented by the Claimant. Mr. Mahoney explains that static risk is essentially an offender’s criminal history and is, as such, unchanging. This is likely to include such matters as age at first arrest, the history of violent or sexual convictions, the severity of the index crime, the number and severity of prior convictions and prior behaviour during custody. Dynamic risk, on the other hand, relates to issues associated with future behaviour that can change over time, for example antisocial attitudes, substance abuse, educational deficiencies, mental health problems, social skill deficiencies and employment status. Because they can be improved with treatment, dynamic risk factors correspond to service and treatment needs that must be met in order for an individual to avoid recidivism.[51]Ms. Krause submits that the risk assessments have been “theoretical” and have not taken account of realities. I am entirely satisfied that this criticism is not justified. On the contrary, there is clear evidence that the assessment has been carried out both on a static and a dynamic basis.[52]At the RAM Board in March 2007 assessments were carried out on the basis of static and dynamic criteria. The report expressly records the static risk assessment:
“Medium risk of sexual reconviction, high risk of reconviction of a non-sexual violent offence and high risk of reconviction for a sexual and violent offence.”
Dynamic risk is then considered. Here cognitive deficits, poor emotional control and offence supportive attitudes are identified as areas of concern. The report then goes on to identify factors that heighten risk including very high psychopathy and factors that lessen risk, under which heading appear the observations in relation to the Claimant’s disabilities which have been considered earlier in this judgment.[53]A Psychological Case Report prepared for this RAM Board in March 2007 demonstrates a similar approach. It is clear from the report that the author has conducted an interview with Mr. Walker. Under the heading “Dynamic risk” it identifies the following areas of concern for Mr. Walker: sexual offending, cognitive deficits, poor emotional control and offence supportive attitudes.[54]The Psychological Contribution to a Single Sentence Plan Review prepared in early 2008 builds on that earlier report. It records that Mr. Walker did not wish to be interviewed prior to this Sentence Planning Review Board. It considered that the recommendations in the previous report remained appropriate.[55]The focused reconsideration of apparent risk, from a treatment–orientated perspective, is contained in the DSPD criteria report of October 2008. It expressly addresses both static and dynamic criteria. Thus at para. 3.3.3 there is a discussion of ongoing offence paralleling behaviour including sexual preoccupation and attitudes towards women. Specific instances are referred to. The report then goes on to consider other current behaviour. The risk assessment results are set out in a separate section. The results from Risk Matrix 2000 are qualified by a statement that caution should be exercised when interpreting the levels of risk identified by this assessment because it is entirely based on static criteria and cannot take into account the progress that someone may have made in treatment. It warns that such findings should, therefore, be considered in conjunction with broader measures of risk that consider dynamic factors which are amenable to treatment. It then turns to the HCR-20 Historical/Clinical/Risk scale. On this assessment, which addresses both static and dynamic criteria, the Claimant was found to be a medium to high risk of committing future violence. The third assessment tool employed was the Violence Risk Scale (VRS) which again measures a variety of static and dynamic risk factors relating to violence. Definite evidence was found for 3 out of 20 dynamic factors and some evidence was found for 10 out of 20 dynamic factors on the VRS scale. The conclusion on the VRS scale was that there was evidence to suggest that Mr. Walker is a medium to high risk of harm to others. In a later section the report expressly addresses the Claimant’s lack of awareness of his continuing risk, his difficulty in accepting responsibility for the index offence and an earlier offence of violence and his attempts to minimise his behaviour. It also found there was clear evidence of his having experienced problems with emotional and behavioural control within the custodial setting. The report went on to address social and interpersonal competencies and concluded, inter alia, that there was clear evidence of Mr. Walker being “conning and manipulative”.[56]Accordingly there can be no doubt that this report paid the fullest attention to both dynamic and static criteria in the assessment of risk.[57]Finally in this regard, the Sentence Planning Meeting Report of 24th February 2009 reflects the same approach and expressly addresses both static risk and dynamic risk.[58]Accordingly there is clear evidence of a process of expert analysis and assessment of the Claimant’s case which takes full account of both static and dynamic criteria. Failure to take account of the fact that the Claimant is incapable of mounting an escape.[59]The Claimant submits that his allocation and/or risk assessment decisions have failed to take into account the fact that he is incapable of mounting an escape. However the Defendant does not accept the assertion that the Claimant is incapable of mounting an escape.[60]Account was taken of the Claimant’s physical limitations when re-categorising him as a Category B prisoner. However, he remains a Category B prisoner and there is no challenge to that categorization. Reference has previously been made to the evidence of Mr. Mahoney that, at that stage, it was the opinion of qualified clinicians that, whilst his disability had some impact on his ability and likelihood of re-offending, they did not restrict his ability to such an extent as to make escape impossible or unlikely.[61]In his second witness statement Mr. Mahoney develops at length the reasons why the Defendant is unwilling to accept that the Claimant is incapable of mounting an escape. He explains that in considering Mr. Walker’s risk of escape account is taken not only of his motivation to do so but also the likelihood that he would have the resources available to facilitate an escape. So far as motivation is concerned he accepts that there is no specific evidence of a concerted desire to escape. Nevertheless, clinical consideration of the Claimant’s high level psychopathy indicates that such an aspiration may exist. However, so far as opportunity is concerned, Mr. Mahoney considers that while Mr. Walker’s disabilities to some extent reduce his opportunity to escape, the associated medical appointments he frequently attends in the community increase his opportunities.[62]Mr. Mahoney also draws attention to the fact that it is a characteristic of Mr. Walker’s psychopathy that he is able effectively to manipulate situations and those around him. Staff at HMP Wakefield are familiar with his behaviour and condition and are able to mitigate and reduce the risk of his escaping. However, it is the opinion of Mr. Mahoney that at another establishment where staff do not have the same expertise it is likely that Mr. Walker’s risk of escaping through manipulation would increase greatly.[63]There is no evidence lodged on behalf on the Claimant to contradict this approach by the Defendant. The Claimant’s case on this point is simply based on an assertion that his physical limitations make escape impossible. I consider that the Defendant was clearly entitled to come to his conclusions as to the escape risk posed by the Claimant, in particular when his frequent medical appointments in the community are taken into account. Accordingly this third ground also fails. Further considerations.[64]More generally, the Defendant has sought to justify the continuing allocation of the Claimant to HMP Wakefield on the basis that the conditions and facilities available there are most suitable to the Claimant’s needs, in particular having regard to his physical disabilities and his offender profile.[65]There is substantial factual dispute between the parties as to the suitability of HMP Wakefield for a prisoner suffering from the Claimant’s disabilities. This factual dispute will have to be resolved in a later phase of these proceedings.[66]However I should record that it is the Defendant’s case that Category B establishments have different specialisations. While Category B establishments within the high security estate tend to specialise in delivering interventions in response to high risk offending with a focus on long term rehabilitation, local prisons tend to take prisoners directly from the courts and, as such, their resources will be targeted towards serial recidivists serving short sentences. It is the Defendant’s case that whilst the establishments considered pursuant to the order of Cranston J. dated 11th March 2009 (HMP Dorchester, HMP Exeter, HMP Bristol and HMP Gloucester), would be able to meet both Mr. Walker’s medical needs and provide the necessary levels of security commensurate with his categorization, none of these establishments nor any Category B establishment outside the high security estate would be able to provide the expertise and services to accommodate a prisoner with his high levels of psychopathy. Furthermore, it is the Defendant’s case that HMP Wakefield was the most appropriate establishment for the Claimant because of its specialisation in the assessment, treatment and management of sexual offenders and individuals with emotive offending histories. However, these issues have not fallen within the scope of the issues which I am asked to decide. Conclusions.[67]For the reasons set out above I conclude as follows:(1) The Claimant’s placement at HMP Wakefield is not unreasonable or otherwise unlawful by reason of a failure to take account of any of the three specified matters.(2) The failure to move the Claimant out of the high security estate cannot be considered unlawful on these grounds.[70]Following the hand down of this judgment I will give directions for the disposal of the remaining issues.[71]Finally, I wish to record my concern that the Claimant, who has now completed the minimum term element of his life sentence, is placed in a position where no provision is being made for him to undertake work which would enable him to address his offending behaviour and to progress through the prison system. However, I emphasise that that is not the basis on which Ms. Krause has put the Claimant’s case nor is it a matter which falls within the scope of the limited issues which I have been asked to decide.