Sagar v Governor of HMP Wakefield [2010] EWHC 1378 (Admin)

Case No CO/1027/2009[2010] EWHC 1378 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Tuesday, 30 th March 2010
West Yorkshire
LS1 3BG
Before
MR JUSTICE LANGSTAFF
Between
SAGARClaimantGOVERNOR OF HMP WAKEFIELDDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr George QC and Mr Dixon appeared for Claimant.Ms Davies appeared for Defendant.
Judgment
[1]This is an application for judicial review made by a tariff-expired life sentence prisoner, who complains that there has been a consistent refusal to consider or effect his transfer from HMP Wakefield to some other prison. The synopsis of the rival cases is this: the claimant maintains that because he has been in consistent denial of the offence of which he was convicted, which led to his imprisonment in 1995 as a life sentence prisoner with a tariff of 14 years, he has been unable at Wakefield Prison to engage in courses which might effectively address what the authorities see as the risk he poses to others. Thus, he has been prevented access, inevitably, to any course which would directly address the circumstances of the offence - which he denies committing. He says, too, that he has been refused access on the same ground to courses which, once the facts are properly understood, do not depend upon his admitting guilt for the offence for which he has been imprisoned. He contends that in 2008, the Parole Board described the situation in these terms, in a letter to him of 2 October:
“Because of your denial a stalemate appears to have developed at HMP Wakefield. There is no offence-related work that is possible and you have completed all the non-offence related work available. There are courses at other establishments, however which have a relevance to your risk areas of anger management and relationships namely CALM and Healthy Relationship Programme. These could specifically address the events in your relationship with the deceased which you readily admit and describe as ‘stormy’ involving both anger and violence. The problem is that there appears to be reluctance on the part of the authorities at Wakefield to recommend your transfer because you are a ‘denier’. Mr Mahoney, the Lifer Manager suggested that there were enough prisoners who were not in denial to fill the places on the courses and they were the more deserving of the opportunities. What is beyond question is that there needs to be some offence-related work before you can be released or recommended for transfer to open conditions.”
[2]The same attitude, complains Mr George QC on behalf of the claimant, has permeated every decision made at Wakefield about the transfer of the claimant.[3]To the contrary, says Miss Sarah-Jane Davies, who appears for the Secretary of State. Properly understood, the claimant was someone who not only denied his offence, but refused to engage in any form of constructive discussion with the authorities which might have progressed his condition, so far as providing evidence of the risk he posed to others was concerned. Perfectly proper decisions, in that light, were taken by Sentence Planning Boards, who had the responsibility of determining transfer or not in 2008, and again in July 2009, and the process is ongoing, with a view to a further Sentence Planning Board in July of this year.[4]The claimant relies now upon two of the several grounds which he asserted in his originating application, which was filed in February 2009, and attacked centrally the most recent relevant decision, that of 2008. Of those grounds, Mr George QC advances now only two. First, he says it was both illogical and unfair to keep Mr Sagar as an inmate of Wakefield Prison, such that the decision not to transfer him is judicially reviewable as irrational. Secondly, he asserts that as a denier, he is in a category of prisoner where the fact of denial confers upon him a status which enables him to complain that he has been discriminated against, contrary to Article 14 of the European Convention, when read together, in this case, with Article 5. He does not take any point now about the failure of the authorities to recategorise the claimant, who is a Category B prisoner, nor does he take any point about the propriety of the decision of the Parole Board not to recommend his release.[5]The background is this: the claimant was convicted of the murder of a younger woman, with whom he had been having an extramarital affair. I was told that the allegation, apparently accepted by the verdict of the jury, was that he drove her in his car to a secluded spot. Their relationship was volatile; he had previously discharged a shotgun through the ceiling of the flat at which she was staying. He had that shotgun in the car. He took it, and at some stage discharged it through her when she was sitting in the back seat. The body was never discovered. The car was later recovered from a scrap yard, with signs of the use of the shotgun, and evidence of a killing.[6]The claimant has come to accept, though it is not apparent to me when he first did so in the course of his sentence, that his relationship with the victim was volatile, or turbulent: both words have been used. He accepts that he regularly drove around with a loaded shotgun in the boot of his car. He accepts that he discharged the shotgun in the “ceiling incident” to which I have referred, but he denies anything to do with the disappearance of the victim. I have to say that he has given at least three accounts which differ, as between themselves, of the precise circumstances of the discharge of the shotgun into the ceiling.[7]He was a man who, having been born on 2 December 1940, was already in his mid-50s at the date of conviction. He is now 69 years of age. He had a criminal record, all of which related to offences earlier in his life, which were all of an acquisitive nature, though there is one act of petty vandalism when he was 15 years old; none suggests a man who has been guilty of any violent matter.[8]He was transferred to HMP Wakefield on 23 April 1997. He has remained there since. A note in the papers summarises the reports of his progress in prison before 2005. It precis’s the effect of four separate sets of reports. It speaks of his level of denial, resulting in a lack of motivation to participate in any form of group work; a refusal to undertake any work in connection with his sentence plan; a refusal to participate in non-offence-focused work, such as ETS (though in 2003 he started ETS, but on the advice of his solicitor discontinued); and that in 2004 he declined to attend the Planning Board. Mr George QC points out, however, that in 2002 the report mentioned that a sideways move to another dispersal prison would test his ability to adapt to change.[9]One may summarise the progress in prison as displayed by the reports as follows: there was a period of some years when it is reported that the claimant did not engage with the Prison Service in any course or any work. He did not engage in discussions of his views as to relationships, violence or the offence. After a period of time, it appears that there was some engagement, but on the whole he maintained a stance of non-engagement. In 2005, he did take the ETS (Enhanced Thinking Skills) course, with success; but reports suggest that thereafter he did not describe himself as having benefited much from it, and that in the comments he made about it he revealed that that he had felt he had not extracted any significant benefit from it, not least because he could not identify events when the skills he had been taught had been of assistance to him. He has expressed throughout a reluctance to move to those targets which were set not just in the short-term, but in the longer-term.[10]That is a broad overview of the position before 2008; it is a broad overview, because this is necessary only as background, but it is relied upon in particular by Ms Davies. I acknowledge, first, that these are reports, and therefore necessarily summary, and do not necessarily give me the full picture. Second, I accept that to an extent, the reports may record a reluctance which stems from the claimant’s denial of his offence, wider than any lack of compliance with his sentence plan; but I do not think that upon a fair reading, that they are all to be explained in that way, and I therefore reject the submission made to me by Mr George QC to that effect.[11]In July 2007 there was a sentence planning meeting, at which the claimant declined to be interviewed. His lack of engagement was noted. At page 90 of the bundle, page 6 of the report of the meeting, Ms Gill, who was responsible for programmes, expressed to Mr Sagar, who was present at the meeting, that it would be good if he could attend interviews, and the Chairman was asking the claimant to use his ETS skills, and to engage with psychology. But despite that invitation, the next appointment with a psychologist appears to have been declined by the conscious decision of the claimant.[12]In the same planning report, long-term and short-term objectives were set. At page 90, the long-term objective was assessment for the most appropriate intervention to address the use of violence; that is CSCP (the Cognitive Self Change Programme) and/or CALM (Controlling Anger and Learning to Manage it course) So it is plain that the Prison Service were not excluding those courses, and indeed envisaged that those courses, or one or other of them, would not only be appropriate but would be taken by the claimant in due course.[13]From the position of non-engagement reflected there, not least by his failure to attend and speak to Ms Gill, as he had been invited to do, the reports suggest the claimant engaged more as the date of the expiry of his tariff loomed. A report from Lucy Richards-Wilde, trainee forensic psychologist, of 6 August 2008 records that he was interviewed by her for 30 minutes, and appeared comfortable with that process. But he now indicated a willingness to complete either CALM or CSCP, but was unable to say how he could benefit from it. The report reads:
“He said that he is willing to do it because he had been asked to and to gain ‘brownie points’.”
That records the claimant’s own view that he had been approached, presumably therefore by someone within the Prison Service, to encourage him to move towards the CALM course. It also suggests that his motivation was not one of someone who would expect to gain personally from the course by any change of attitude or development of thinking, but simply by satisfying others that he had gone through the motions.[14]The sentence planning meeting 2008 had the responsibility, as the Parole Board did not, to determine whether any recommendation should be made as to transfer from one prison establishment to another. In a risk assessment, it reported the claimant’s acknowledgment that his relationship with the victim was turbulent, stormy, with frequent arguments. It also recorded a statement by the claimant that he had no need to use his ETS skills. As for evidence of risk reduction (see page 4 of the report dated 15 July 2008):
“Mr Sagar has not completed any offence focused work. Although he has expressed willingness to engage in such work, this appears to be due to a desire to progress through his sentence rather than a desire to understand his behaviour. Therefore there is no evidence of a reduction in risk.”
[15]The short-term objectives were set out as being to continue to practise and develop skills learned on the ETS programme and, notably for present purposes, to work towards developing personal motivation to undertake offence-focused work. The long-term objectives remained to work towards addressing use of violence by engaging in assessment for the CALM programme, and as part of the assessments, giving consideration to whether the CSCP programme would be more beneficial, or whether both programmes would be appropriate. It was suggested he should work towards addressing previous relationship difficulties, and if appropriate, engaging in assessments for and completing the Healthy Relationship Programme. Of note, in the context of the history as I have summarised it, at page 51, internal page 7, there is a record that the claimant told the Board that he had not completed any of his targets from the previous 12 months because he did not feel he needed them. The Chair told him that it was for that reason that his targets would be set again, and asked him to continue to use the skills he had learnt on ETS.[16]What is criticised, with some force by Mr George QC, is that when the Parole Board conducted their hearing shortly after that Sentence Planning Board, it became apparent to the Parole Board that Wakefield Prison and the claimant were at a stalemate. The reference made in the course of that meeting to Mr Mahoney, and the words that he used, led to Governor Tilley writing to the claimant’s solicitors on 1 December 2008 to explain the difficulties that there were in the claimant’s accessing the CALM programmes, which had been his long-term objectives now for a while. The letter reads, on the first page:
“Participants in all of these courses [that is, CALM, CSCP and HRP] would be required to discuss openly their offending behaviour and in relation to CALM and CSCP, accept responsibility for specific acts of violence which they are willing to discuss in detail. Not only is your client not willing to do this in relation to the current offence, he has no previous offences for violence to which reference could be made and is in fact unwilling to discuss any aspect of his lifestyle or relationships prior to custody. As such, rather than the decision as to your client’s allocation to be one that HMP Wakefield are unwilling to consider transfer to an establishment which could facilitate CALM, CSCP or Healthy Relationships, the fact is that such a transfer would be redundant. Mr Sagar’s position would remain the same, in that he would be in denial of his offending and unable to engage in OBPs to address his violence; the only change would be in his geographical location, not the availability of opportunities to reduce his risk.”
He went on to apologise for what he described as Governor Mahoney’s somewhat clumsy representations, and otherwise ill-thought efforts at candour to the Parole Board, to which the letter from the Board made express reference.[17]But it is plain that the approach which was being taken by Governor Tilley was that, on what he knew about the claimant, he could not access either the CALM or CSCP courses. He did not take into account, as he might have done, first, the fact that although the claimant had no conviction for any previous offence of violence, he was prepared, so it seems, and so I infer at this time, to admit that he had discharged a shotgun into a ceiling; and secondly, was prepared to accept that his relationship with his lover had been violent. And he had, though belatedly, begun to discuss some aspects of his relationships. I say this last with hesitation, because I acknowledge that even after the possibility of the Healthy Relationships Programme had been identified, there is a record which suggests that the claimant was refusing to have anything to do with that programme.[18]The Prison Governor’s approach thus is open to the objection that it does not sit squarely within paragraph 4.14.18 of PSO 4700. That reads, so far as material:
“…although participants on the Controlling Anger and Learning to Manage It (CALM) programme are not expected to talk about their offending during the programme sessions, they must do so during the assessment process. If they are not prepared to admit to their index offence, there could be another offence for which they are prepared to acknowledge responsibility. With the Cognitive Self Change Programme (CSCP), it is within the Treatment Manager’s discretion as to whether a denier should take part, based on their discussions with the individual. Enhanced Thinking Skills (ETS) courses do not require participants to talk about their offences at any point so there is no barrier to deniers taking part.”
[19]For the claimant, Mr George QC complains that Governor Tilley appears not to have recognised that there were matters which would fit within the purpose of 4.14.18 which did not involve the claimant revealing guilt of the index offence. It was no answer either, given what is said, to accessing the CSCP course.[20]Pausing the history at that point it might therefore seem that the Prison Service had taken an unduly restrictive view of the necessary conditions for gaining access to a course which, by that time, the claimant had indicated he wished to access, albeit that his motivation was not yet entirely clear.[21]That letter was written in December 2008. The next occasion when formally the transfer of the claimant came to be considered was in 2009. This has been described to me as the operative decision which at present has resulted in the claimant not in fact being transferred from Wakefield between now and then. It records (page 205) under “Risk Assessment” that it is difficult to give a full assessment of the claimant’s offending and associated risk, due to his continued denial of his offending and historical limited engagement. It goes on, however, to deal with a number of protective factors, the risk of harm and the review of progress. It notes (page 207) that the claimant had engaged with AIC, and discussed the benefits of completing work to address the use of violence. He had not, however, completed any offence-focused work.[22]Under the list of short-term objectives, the comment is made that he was to be assessed for the Thinking Skills programme, which he was to complete if found suitable:
“To include the use of the shotgun in the incident as the basis of one example of a ‘regrettable decision’.”
The long-term objectives remained to address violent offending, to engage with assessment for the CALM programme, and complete if deemed suitable. But then this:
“Dependent on outcome of the CALM programme to be assessed for Health Sexual Relationships Programme. The assessment for HRP will depend on Mr Sagar’s level of openness, self report and demonstration of attitudinal/belief systems underpinning his use of violence within an intimate relationship.”
[23]This board did not meet in a vacuum. Prior to it, the claimant had met another psychologist, Jo Pallas, in this case a registered forensic psychologist. He had spoken to her for much longer than the half an hour which he had spent with the psychologist in 2008. She summarised what he had said, in which he ruminated upon much of the relationship he had enjoyed with his former lover, and at page 6 of her report, thought that it was not currently evident that the claimant had a significant need for the HRP, if it were based on his self-report. On the basis of that report, it was difficult to gauge the existence of attitudes which were supportive of intimate partner violence, although that could not be excluded. Then this:
“It is therefore recommended that Mr Sagar complete the Thinking Skills programme, to further consider ‘regrettable decisions’ he has made in his life, to include consideration of the incident which involved him discharging the shotgun in the home of the victim. This may allow for the exploration of specific attitudinal thinking styles, and emotional precursors, which may better identify a need for the HRP. Mr Sagar has also been previously identified as requiring assessment for the CALM programme. Having spoken with treatment staff involved with the CALM programme, it may be possible for Mr Sagar to complete the CALM programme, based upon the incident involving the discharge of a shotgun in the victim’s home.”
I pause there; the policy does not, on the face of it, deal with violent incidents as opposed to violent offences. It is plain that violenct incidents admitted by a prisoner involve the same considerations as would be involved in an offence, though less perhaps objectively established; and thus might very well be, and plainly are in the claimant’s case, an appropriate basis at least with which to assess a person for access to the programme. Miss Pallas continued:
“It is recommended that a full assessment for the CALM programme is undertaken following completion of TSP.”
By that I infer she means successful completion of the TSP.[24]It was, therefore, precisely her input which informed the view of the 2009 Sentence Planning Board on 30 July 2009. The report of that board, returning to it, shows that Jo Pallas was present, as was the claimant; and that during the course of the discussions, she had explained to him that the HRP was not appropriate, as there was not enough information to work on, and had said that she would like him to complete the Thinking Skills programme first, because:
“…it is more offence-focused and we can look at your thoughts and feelings during the commissioning of the ‘shotgun incident. Following that we can look at recommending you for the CALM course. If you can tell us more about your relationship you might suitable for the Healthy Relationship Programme.”
He was told thereafter that the ball was in his court; he had lots of risks to work on; and was told that he would remain at Wakefield for the next 12 months. The transfer recommendation box contains the word “no”, meaning no transfer, and the words:
“It was recommended Mr Sagar remain at Wakefield as there is suitable work for him to complete here.”
[25]The Thinking Skills programme is a successor to the Enhanced Thinking Skills programme. I infer from the change of name that it is a different programme; though plainly because it is described as the successor, it covers very much the same territory. But it was the experts’ view knowing that the claimant had already completed an ETS course, that he would nonetheless benefit from the Thinking Skills programme. The view expressed at the Board, following from the considerations of the psychologist, Miss Pallas, was effectively that the access to a CALM course or CSCP course, or HRP course, would be dependent on, first, performance by the claimant at his TSP course. The TSP course could be performed in Wakefield, and should be performed in Wakefield, according to the Board.[26]The approach of the authorities since then has been entirely consistent with the recommendations of the Sentence Planning Board. I have been told that the claimant applied for, was assessed for, was accepted on, started, and has completed the TSP course. A full report is not yet available in final form. That will be followed by further documentation and work reviewing at the course over the next six weeks to three months.[27]What the claimant submits is that the Thinking Skills programme is a red herring or smokescreen. In reply, Mr George QC went so far as to suggest that the Prison Service had acted here in bad faith; recognising that there was no useful course that the claimant could do at Wakefield, but not wishing to concede the ground that he should be transferred to another establishment, they required him to engage in a course which was effectively similar to the ETS course he had done five years before, to no good advantage. It is a course which does not directly address risk; it therefore does not help him to achieve release, which as a time-expired lifer he might hope to do sooner rather than later. The failure to give him courses which he can do whilst maintaining his denial of guilt affects his liberty; it is not answered by providing a course which has no direct relevance to that risk. Since he has to move to another establishment to perform the CALM or CSCP courses, which are capable of helping risk, and do not necessarily involve an admission of guilt, he should be transferred for that purpose.

Discussion

[28]There is no disagreement about the relevant law. The view was expressed in R v the Parole Board & SSHD ex p Oyston [2000] Independent 17 April that:
“Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted present the Parole Board [which was the body there against whom the claim was brought] with potentially very difficult decisions. Such prisoners will probably not express contrition or remorse or sympathy for any victim. They will probably not engage in programmes designed to address the causes of their offending behaviour. Since they do not admit having offended they will only undertake not to do in the future what they do not accept having done in the past. Where there is no admission of guilt, it may be feared that a prisoner will lack any motivation to obey the law in future.”
Lord Bingham LCJ went on from the observations which I have made (which derive from paragraph 43 of his judgment) to say, in summary:
“In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole.”
[29]Similarly, in R (Roberts) v SSHD, Elias J explained the difficulties facing prison authorities between paragraphs 39 and 42 of his judgment, and at 45 to 47 made a second point that it was going to be extremely difficult for some prisoners to satisfy the authorities that risk had reduced if they failed to undertake specific offence-directed courses. He observed that in the long-term that would affect their chances of parole, which was not only to their detriment but that of the public, not least because incarceration of prisoners is extremely costly to the public purse. He observed that:
“Good behaviour over a period, and growing maturity, would not in the vast majority of cases be likely to be considered enough to demonstrate reduction of risk.”
He expressed the hope that there might be more one-to-one work with specialist staff than opportunity currently existed for.[30]Both counsel accept that decisions which may affect release on parole cannot be taken such that a denial of guilt is conclusive. But Mr George QC, rightly in my view, conceded in argument that in a case such as the present, if a necessary part of an assessment for a course such as CALM is discussion of some violent incident which a prisoner admits, and a prisoner does not admit any, then it may be effectively impossible for that prisoner to move within the prison estate, because he will not be able to show the necessary reduction in risk. This claimant is not quite in that position. He does have violent matters in his background, which he is now prepared to admit. They are the shotgun incident; a violent and turbulent and disturbed relationship with his lover; and he admits taking a loaded shotgun around in the boot of his car. It is, therefore, evident that there is material in which he accepts being violent, which may form the basis of an assessment. But Mr George QC realistically accepts that everything depends upon those who conduct such an assessment.[31]I accept the submission made to me by Sarah-Jane Davies for the Secretary of State that the decisions as to transfer are, in this case, made by the respective Sentence Planning Boards. I have considerable hesitation about the validity of the 2008 decision, because there is considerable evidence in the summer and autumn of 2008 that the prison was taking the view that the claimant simply could not be assessed for CALM, because he would never be accepted, since he had not committed any violent offence to which he was prepared to admit. That view was too restrictive. Exactly the same matters, logically viewed, fall for consideration in respect of violent incidents as apply in respect of violent offences. But in the event, I have been persuaded that taking into account the reservations that were being expressed prior to that meeting as to the motivation of the claimant, and taking the view, as I do, that the sentence plan objectives in the short-term were not necessarily unreasonable in the view of the history of the claimant up to that date, I am not prepared to hold that that decision was itself unlawful.[32]I have come to the conclusion that the decision made in 2009 was entirely lawful. It seems to me that it sets in train a chain of events which are capable, reasonably, of leading to the claimant demonstrating a reduction in risk, permitting him to reargue for recategorisation, and may ultimately, as part of the chain of processes and events within his sentence, lead to him securing the recommendation of the Parole Board that he should be released.[33]It does not seem to me that the criticism made of the recommendation to engage in the Thinking Skills programme is one which I can accept. It was recommended by a registered psychologist; it was endorsed by the Sentence Planning Board, and not unreasonably so; and it envisaged that the TSP would be completed as a necessary first step in the circumstances of this particular offender to his being given access to the CALM course. Far from it being a red herring, I regard it as being viewed by the prison as a first step in the chain; and applying judicial review principles to that, it does not seem to me to be necessarily illogical or unreasonable that they should take that view. It is not unlawful, and it is not irrational. That has the consequence, or had the consequence, that the claimant did not transfer from Wakefield. Therefore, his current position, it seems to me, is not one in respect of which the claimant can object. The claimant does express views of uncertainty as to the future. Given the history, I understand why those submissions are made.[34]It may help if I say this. The next Sentence Planning Board is due to meet in July 2010. What Mr Mahoney says in his witness statement dated 4 March 2010 is that what happens after the claimant completes the TSP depends in large measure upon the assessment of his performance on that course. A post-programme progress review is to be held approximately six weeks after the course has ended, to discuss progress. Post-programme objectives are then discussed, and three months given to practise the new skills. He goes on to say in paragraph 19:
“If the claimant successfully completes the TSP, I will liaise with those establishments [other identified prison establishments] which offer the CALM course, as Wakefield does not, with a view to arranging for Mr Sagar to be assessed for CALM, and if appropriate to undertake it in a suitable location. I am aware that these courses are generally oversubscribed, and that there is likely to be a waiting list before Mr Sagar could be offered a place.”
He then says at paragraph 22 that once the claimant has completed the course, and a report on his performance is available, he, Mr Mahoney, will consider whether it would be appropriate to bring the Sentence Planning Review Board forward.[35]What Mr George QC is concerned about are the several uncertainties which are expressed. Before me, on instructions which came directly from Mr Mahoney, who sits in court, Ms Davies told me that the criteria which he will apply in his consideration of whether it would be appropriate to bring forward the Sentence Planning Board, upon whose decision transfer depends, would be a combination of the success of the claimant on the course, the completion of relevant documentation, and the question of practicability; that is, the question of whether a place on such a course would be available in one of the prison establishments which he mentions.[36]I do not see how Mr Mahoney could be more specific than that in present circumstances, because it is possible, as the claimant has had to accept in argument, that upon a proper assessment of his performance upon the course, he would not be eligible for the assessment for CALM, although it seems likely that he may be. I should also say this, with particular reference to the observations made by Mr Mahoney as to the waiting list for such courses: a prisoner who is tariff-expired must suffer no disadvantage in being assessed for the CALM course which arises out of the fact that he is in denial, provided that of course he meets the necessary essential requirements of the person who assesses him, and that is, as I understand it, that he admits to some significant violence in his past. The fact that he is time-expired may even mean that a prison would wish to consider him a priority, as compared to those who are not tariff-expired. Plainly, there are a number of people who are eligible for such courses. It is a matter for the Prison Service to determine precisely how allocation to such courses should be given. But naturally, one would expect that prisoners who could be released sooner to take priority over those who might be released later; and the relevance of the expiry of a tariff is obvious.[37]I have ultimately concluded that this is not a claim which I should resolve by reference to either the 2008 or the 2009 assessments on its own, because I recognise that the attack is made upon a situation which is necessarily dynamic. I note that transfer has not been excluded by the defendant; I note that the defendant, now at any rate, recognises that a CALM course may be available to someone who is in denial of the offence for which he is imprisoned; and I am reassured by what has been told to me, to the effect that there has in the claimant’s case been no policy to refuse him transfer because he is in denial.[38]It follows that, so far as the claim relates to a transfer, I must dismiss it.[39]I turn now to the second ground, which is whether there has in the treatment of the claimant by the Prison Service been discrimination contrary to Article 14 of the European Convention on Fundamental Human Rights and Freedoms. The way in which this is advanced is to say that the claimant has been discriminated against, that is treated differently, because he is singled out for different treatment because he belongs to a group of prisoners who deny their offence; that such a group are capable of coming within the term “other status” as set out in Article 14. Article 14, so far as is relevant, says:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
[40]It is argued for the claimant that the Strasbourg Court has explained in Kjeldsen [1976] 1 EHRR 711 at paragraph 56, that Article 14 prohibits discriminatory treatment which has as its basis a personal characteristic by which persons or groups of persons are distinguishable from each other. It places some reliance upon the House of Lords’ decision in the case of Clift [2007] 1 AC 484. As to that, there were three cases considered in that appeal; one of those is material. It is that of Mr Clift himself. In his case, none of the Lordships’ House felt able to hold that Mr Clift had the necessary status within Article 14. They did so because he was a prisoner sentenced to a determinate term of 18 years, who claimed comparison with a life-sentenced prisoner. With some reluctance, both Lord Bingham of Cornhill and Lord Hope of Craighead felt unable to resolve the issue in Mr Clift’s favour. Baroness Hale of Richmond pointed out that it is possible to regard a prisoner in such circumstances as incurring the difference of treatment he did because of what he done, rather than who or what he was.[41]The Clift case emphasises that status involves more than simply placing an individual within a group or a category. It is more than a label derived from factual circumstances might suggest. It looks rather to protect aspects of individuality which are inherent to the integrity of the person as an individual, matters which are effectively intrinsic to personality. What makes an individual an individual is reflected by his status. Some statuses are obvious, such as those which are mentioned in what is not a comprehensive list in Article 14. Undoubtedly, as society changes, so too may that which is regarded as a status; for instance, sexual orientation would not necessarily have been on a list of statuses had the list been definitively compiled in 1948.[42]I am unable to think, however, that the act of deciding that a person will not admit that which the law has to assume, namely his guilt, is something so central to a person’s individuality as to bear proper relationship with the statuses which are otherwise plainly within Article 14. I therefore do not think that the claimant can succeed on this basis.[43]In any event, in the argument for the defendant, my attention was drawn not just to this aspect of Article 14, but to the question whether Article 5 was engaged at all; Article 14 having to be necessarily read with Article 5 if it is to bite in the case of a prisoner. I have considerable doubts whether it does: it is unnecessary for me for present purposes to resolve this. Whereas, in the case of a life-sentenced prisoner such as Stafford, the question engaged was one of release, the central issue here, simply described, is one of transfer from one prison to another. That does not, on the face of it, appear to engage Article 5. It undoubtedly has an impact on Article 5 considerations, but they are tangential, eventual, and at the end of a chain of circumstances. I would incline to think that Article 5 was not here engaged, but I do not have to resolve that particular question, and do not do so.[44]It follows, therefore, that on both the grounds upon which the claim has been advanced, I dismiss it. I should add this: had the claim succeeded, I would have to consider what relief would be appropriate. The relief which is sought by the claimant was first a declaration that the ongoing refusal of the defendant to transfer the claimant was unlawful; whether one reads that as refusal or failure, the word “refusal” is tendentious. In the circumstances in which it appears steps are soon to be taken to consider transfer, in the context of what are undoubtedly developments in the claimant’s position within the prison estate during this past year, I would have thought that little practical purpose would have been served by such a declaration. Some might have been served by the words of a favourable judgment, but I hope I may have said sufficient in this judgment to meet what has seemed to me to be the justice of the case, though dismissing the claim.[45]Had I found in his favour, I would have been invited to make an order requiring the defendant to give proper consideration to the transfer of the claimant. I have no reason to suppose that in July, or earlier if Mr Mahoney can secure it, and I hope that he does, the defendant will not give proper consideration to this; that is, take into account the material parts of this judgment. I would not have made the other two declarations I was invited to make, those at (5) and (6) in the claim form, because it seems to me that no point sensibly arises in respect of Article 5 read with Article 14.[46]For those reasons, this claim is dismissed. MS DAVIES: Thank you, my Lord. Can I just make one point of clarification? Your Lordship summarised what I said to you on instructions from Mr Mahoney about his consideration of bringing forward the Sentence Planning Board. I hope I made it clear when I mentioned practicability, that one element of that was not merely whether a place on a course would be available, but also the practicability of actually convening the Sentence Planning Board. Those were my instructions; I think I said that, but my Lord, if I did not -- for the avoidance of doubt. Mr Justice Langstaff: Can you take it that that would be understood by anyone who reads this judgment? This exchange will be recorded, and the judgment should be read subject to that. MS DAVIES: I am grateful, my Lord. And I also have an application to make for costs. My Lord, a summary -- a schedule of costs has not been served in this case, and so I am unable to invite your Lordship to make a summary assessment. So I would ask your -- Mr Justice Langstaff: Well, is the claimant publicly assisted? Mr George: Yes. Mr Justice Langstaff: So you want an order for costs to be paid, to be assessed but not to be paid without leave? MS DAVIES: My Lord, yes. Mr Justice Langstaff: Okay. What do you say about that? Mr George: I cannot really, I suppose, argue against that, although I am bound to say that it is not particularly often that I have come across an application of that sort. Ordinarily, in cases of these sorts, where the claimant is inevitably publicly-funded, my experience has been that the Secretary of State realises the practicalities of the situation and accepts that he is going to pay his own costs; and so ordinarily, no order for costs is made, as far as where the Secretary of State is successful, as he has been here. Mr Justice Langstaff: Well, it rather presupposes that Mr Sagar may win the pools at some stage. Mr George: Well, I suppose that is the only basis on which such an order would be enforceable. My submission to your Lordship is that the appropriate order in a case of this sort is no order for costs. Mr Justice Langstaff: Yes. Ms Davies, when you made the request for costs, did you have in mind that the claimant was publicly-funded. MS DAVIES: I did, my Lord. My instructions are that it is the policy of those who instruct me to seek an order for costs. Mr Justice Langstaff: Yes, the order for costs will follow. The fact that a claimant is publicly-funded is no reason for not making what would otherwise be the usual award for costs, save that the costs award will not be enforced without the leave of the court. There will be an assessment of the publicly-funded costs -- Mr George: Thank you, my Lord. Mr Justice Langstaff: -- pursuant to section 11. Mr George: Thank you. Mr Justice Langstaff: And may I make it plain that I have been assisted by leading counsel. Mr George: Thank you very much, my Lord, I am grateful for that. Mr Justice Langstaff: Thank you both.