Krstic, R (on the application of) v Secretary of State for Justice [2010] EWHC 2125 (Admin)

Case No CO/4878/2010

[2010] EWHC 2125 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Civil Justice Centre

Venue Manchester

Date Draft Circulation Date: 11/08/2010

Date Hand Down Date: 13/08/2010

Before

HIS HONOUR JUDGE PELLING QC

SITTING AS A JUDGE OF THE HIGH COURT

Between

The QUEENClaimant

On the application ofClaimant

RADISLAV KRSTICClaimant

SECRETARY OF STATE FOR JUSTICEDefendant

Mr Pete Weatherby (instructed by Howells) for Claimant

Ms Sarah-Jane Davies (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing dates: 9 th August 2010

Judgment

HH Judge Pelling QC:

Introduction

[1]This is the hearing of an application by the Claimant for judicial review of a decision by the Defendant contained in a letter dated 20th October 2009 that the Claimant should remain categorised as a Category A (Standard Escape Risk) prisoner. The application was issued on 22nd April 2010 and I granted permission and extended time for bringing the application on paper on 27th May 2010. I had directed that this application was not suitable for hearing by a Deputy High Court Judge but this case was released by Langstaff J. for hearing by me.

The Facts

[2]The Claimant is now aged 62 years. He was the Deputy Commander and, from 13th July 1995, the Commander of the Drina Corps of the Army of the Serb Republic of Bosnia-Herzegovina (“the VRS”) commanded by General Ratko Mladic, holding the rank of Major-General. Aside from the matters to which I am about to turn the Claimant was apparently a man of entirely good character.

[3]On 6th July 1995, the UN safe haven of Srebrenica was attacked under the direction of the VRS. This process involved three stages – first the shelling of Srebrenica so as to drive the Bosnian Muslim population to Potocari followed by the subjection of the refugees in Potocari to a terror campaign between 10th – 13th July 1995 consisting of beatings, rapes and murders by the Serb forces and culminated in the systematic murder between 13th-16th July 1995 of between 7,000 and 8,000 men and boys of military age.

[4]On 2nd December 1998 the Claimant was arrested by SFOR and arraigned before the International Criminal Tribunal for the Former Yugoslavia (“the Tribunal”) on charges that included genocide, crimes against humanity and violations of the laws and customs of war. On 2nd August 2001 the Claimant was convicted by the Tribunal Trial Chamber and sentenced to 46 years imprisonment. The Claimant appealed from that decision to the Appeals Chamber of the Tribunal. The appeal was determined on 19th April 2004.

[5]The Trial Chamber of the Tribunal had concluded that the Claimant was aware from 15th July 1995 at the latest of the intent to commit genocide on the part of some members of the VRS Main Staff and that he had participated in both the ethnic cleansing of the Srebrenica enclave of all Muslim civilians and the murder that followed of those of military age. The conclusion of the Appeals Chamber of the Tribunal was that the evidence established only that the Claimant knew that the murders were occurring and that he permitted the main staff of the VRS to use personnel and resources under his command to facilitate them and on that basis upheld his conviction but as an aider and abettor rather than as a principal co-perpetrator of the murders and persecutions.

[6]The Trial and Appeals Chambers both concluded that the Claimant’s guilt was aggravated by the fact that he occupied the highest rank of a VRS Corps Commander but the Appeals Chamber recognised four mitigating factors being(a) the nature of the Claimant’s provision of his Corps assets and resources

(b) the fact that he had only recently assumed command of the Corps during combat operations

(d) his efforts to ensure the safety of Bosnian Muslim civilians transported out of Potocari. This last factor was a reference to the conclusion of the Trials Chamber that the Claimant “… was heard ordering his subordinate that no harm should befall the Bosnian Muslim civilians who were being transported out of Potocari.” In the result the Claimant’s sentence was reduced by the Appeals Chamber to 35 years imprisonment.

[7]On 20th December 2004, the Claimant was transferred to the UK to serve the remainder of his sentence pursuant to an Agreement between the UK Government and the United Nations on the enforcement of sentences of the Tribunal (“the Agreement”). In accordance with Article 8(1) of the agreement, the Claimant will become eligible for release on 1st June 2016 although whether in fact the Claimant will be released on that date depends on a decision of the President of the Tribunal acting in consultation with the other judges of the Tribunal – see Article 8(2). The Parole Board has no role to play in this decision making as would be the case in respect of prisoners sentenced by the Courts of England and Wales.

[8]At the time of the decision with which these proceedings are concerned, the Claimant was detained at HMP Wakefield. Since then he has suffered what was said to be a life threatening attack at that prison which led to him being transferred to another high security prison. The Claimant has been categorised as a Category A prisoner at all times since his arrival in the UK. Prior to the challenge which is the subject of these proceedings there has been no challenge to the decision to categorise the Claimant as a Category A prisoner or the decisions to maintain that categorisation.

[9]As already mentioned, the Claimant’s status as a Category A prisoner was last reviewed on 20th October 2009. In so far as is material the decision letter said:

“The Category A team noted your present offence involved you aiding and abetting the unlawful killing of around 7000 men and boys. It is considered that the high level of potential dangerousness of your actions is self evident. The Category A team considered that there was no evidence of a significant change in your circumstances, and therefore your high level of risk, since your last review was completed. While it accepted that you continue to pose staff no disciplinary problems, it had no information that you had yet fully acknowledged responsibility for your actions or begun the process of changing the attitudes underlying them. The Category A team noted that you had previously expressed some remorse while minimising your direct responsibility. It is considered this was in itself insufficient to show a significant change in your potential risk. It was also satisfied that your good behaviour could not alone show a significant change in your risk, and that evidence of an enhanced escape potential was not required to justify your continued placement in Category A. The Category A team noted your representations both state you deny your guilt of the present offence and minimise your immediate risk on the basis that you committed the offence in a specific context. It did not accept that either provided convincing grounds for your downgrading. The Category A team accepted that it had a duty to consider any exceptional circumstances that suggested your escape could be made impossible in less secure conditions. It was however satisfied that your current health problems did not warrant such a consideration. It also noted that you had recently moved from Frankland prison which may assist your visits and therefore your current depression. The Category A team consider your offending showed you would pose a high level of potential risk if unlawfully at large and that there must be clear evidence of a significant reduction in this risk before your downgrading from Category A could be justified. The Category A team were satisfied that no such evidence was yet available, and that you should remain in Category A at this time. ”

[10]Following the delivery of the 20th October decision letter, a pre-action protocol letter was sent by the solicitors acting for the Claimant to the Defendant’s Category A Review Team. In that letter, the Claimant’s advisors maintained that the decision under challenge was irrational in the public law sense because:

“The policy relating to Category A is contained in PS0 1010 and such decisions are taken by the Directorate of High Security. Paragraph 1.2.1 provides "A Category A prisoner is a prisoner whose escape would be highly dangerous to the public or the police or the security of the state and for whom the aim must be to make escape impossible" Upon consideration of the facts concerning the claimant it would appear that the Directorate of High Security has acted irrationally, making an unreasonable disproportionate decision. There is a constant denial of any escape plot concerning the claimant. The claimant has no intention or indeed resources in any event to make good any such escape. The offence for which the claimant has been convicted is very specific. It could be said that there is no wider risk to the public. The claimant is infirm and his crimes were committed in the context of communal conflict in a country far away, which is now over. The claimant suffers from continual health concerns. His mobility is affected given the amputation of his leg. Furthermore, the claimant has completed every course available to him despite the language barriers and the psychological effects of solitary confinement given his continual allocation behind his cell door. The prison service offer no further courses available to the claimant to demonstrate risk reduction. The offending behavioural programs do not address the offence for which the claimant is sentenced. There is nothing further to achieve by way of coursework. The claimant has served over 10 years as a Category A prisoner and has a release date of 2016. Within this time no security concerns [or] concerns relating to behaviour or compliance have been raised by the prison service or any other authority. The decision taken by the board is irrational. ”

In his letter of reply the Defendant addressed these points by repeating that there was insufficient evidence of diminished risk to justify downgrading. In relation to the specific points made on behalf of the Claimant, the Defendant’s response was:

“... the Category A team noted that the nature of your client’s index offence were unusual in the fact that he was convicted of being involved in genocide and an act of ethnic cleansing which indicated a certain risk to sections of the public should he be unlawfully at large. The Category A Team accepted that given the nature of your client's offending and the language difficulties he had not been able to progress or undertake offending behaviour work. However, the fact that your client’s situation has remained static was not in itself sufficient to show a significant change in his potential risk. ... ... In deciding whether Category A is a necessary condition, the Category A Team accept that consideration may also need to be given to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security ... The Category A Team noted that you have cited your client's ill-health and limited mobility, given the amputation of a leg, however the Category A Team did not consider that these in themselves amounted to exceptional circumstances. ”

The decision taken by the board is irrational. ”

The legal Framework

[11]Category A has been consistently defined in the terms already noted namely:

“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. ” - see PSO 0900, Chapter 1, Paragraph 1.1.1. In deciding which Category a prisoner is to be placed in it is a fundamental policy that: “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 him to a particular establishment of prisoners in that Category.” - see PSO 0900, Chapter 1, Paragraph 1.2.3. The relevant principles applicable to the conduct of Category A reviews are set out in Paragraph 10 of Annex A of PSO 1010 which is to the following effect: “The director (or, if appropriate, the head of the Category A Review Team) will consider all available information, including any representations, relevant to the determination of your security Category and escape risk classification. Account will be taken of all matters including the nature and circumstances of the present offence, any relevant offending history, participation in and progress made with offences related work, custodial behaviour and maturation. Before making a decision for downgrading from Category A the Director will need to be satisfied that the prisoner’s level of dangerousness has diminished, in particular that there has been a significant reduction in the risk of re-offending in a similar way if unlawfully at large. ”

[12]It has long been recognised that a prisoner in Category A is subject to a more restrictive regime and higher conditions of security than those in other categories. Movement within prison and communications with the outside world are closely monitored; strip searches are routine; visiting is likely to be more difficult due to reasons of geography in that there are comparatively few high security prisons and education and employment opportunities are limited – see R v. SSHD ex P. Duggan [1994] 3 All E.R. 277 per Rose LJ at 280H-I. The effect of this in relation to the Claimant is reflected in the sentence planning meeting report dated 12th January 2010 which noted his complaint that:

“When evening checks are being done, some officers are courteous and just switch on the light and make sure I respond. Other officers keep switching the light on and off until I'm fully awake. This is a problem as I sleep badly anyway. ”

The effect on visits so far as the Claimant is concerned is as already described with the added disadvantage that his main visitor is his daughter who has to travel from Belgrade to visit him. In addition, the prospects for parole of any prisoner who is subject to English sentencing law and who remains in Category A are in practice nil -- see Duggan (ante) at 288D. It remains to be seen how this will apply to prisoners held here pursuant to the Agreement.

[13]It is the Claimant’s case that lack of participation in offence related work does not itself bar downgrading. This is or should be common ground. It is equally common ground that it would be unlawful to refuse to downgrade simply on the basis of a denial of guilt. Rather the principle that applies is that approved in R(Roberts) v. SSHD

[2004] EWHC 679

by Elias J at Paragraph 34 namely:

“ ... in some cases, particularly cases of serious persistent violent or sexual crime, continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the board is entitled (perhaps obliged) to deny recommendation. ”

However the considerations that apply to re-categorisation decisions are not identical to those that apply to parole decisions. The Parole Board is concerned with assessing risk in the context of someone who is lawfully released and subject to continued monitoring and control, whereas the decision whether a prisoner should remain in Category A is concerned with and informed by the risks posed by someone who may be unlawfully at large and therefore not supervised or monitored -- see Roberts (ante) at paragraph 35 to 36.

[14]In relation to the provision of treatment programs, it is common ground that it will be a breach of the Secretary of State's public law duty to put beyond a prisoner the means of demonstrating a reduction in dangerousness while at the same time demanding such progress from the prisoner before granting him re-categorisation -- see, most recently, R (Falconer) v. SSJ [2009] EWHC2341 (admin) per Pitchford J at paragraph 31.

Discussion

[15]I start by noting that it was common ground that the Claimant had been convicted of very serious criminal activity which involved active assistance in the imposition of unimaginable and indescribable suffering on the Bosnian Muslim population of Srebrenica. Although the Claimant was convicted as an aider and abettor, the offences that he aided and abetted were among the most serious that can be considered by an international criminal tribunal. It was the serious nature of these offences that led to the imposition of what on any view is a very substantial period of imprisonment on the Claimant. None of this is or could be in dispute as Mr Weatherby fully and frankly acknowledged at the outset of the hearing.

[16]However, it is to be borne in mind that the Claimant was not sentenced on the basis that he posed a future risk. He was sentenced and rightly sentenced to a very substantial term of imprisonment in order to punish him for his role in the commission of the offences concerned and no doubt to deter others. There is nothing in the versions of the judgments of either the Trial or Appeal Chambers of the Tribunal available to me that suggest that future risk played any part in arriving at the penalty that was imposed. The issue for the Defendant is not and never was the seriousness of the offences for which the Claimant was convicted but whether he was so highly dangerous to either the police or the public (the security of the state is not in issue in this case) as at the date of the decision concerned – in this case 20th October 2009 – as to justify his continued categorisation as a Category A prisoner having regard to the Defendant’s declared policy that every prisoner must be placed in the lowest security category consistent with the needs of security and control.

[17]It was nonetheless submitted on behalf of the Defendant that he was entitled to categorise the Claimant as a Category A prisoner and thereafter to refuse to de-categorise him by reference to the offences committed by the Claimant since it is obvious from their very nature that they demonstrate that he was and remains highly dangerous. When pressed to define to whom the Claimant was said to be highly dangerous, Ms Davies maintained that the Claimant could rationally be regarded as highly dangerous to any Muslim or at any rate Bosnian Muslim and an indirect danger either to anyone including but not limited to the police because the offences that the Claimant had committed demonstrated such a callous disregard for human life that anyone coming across the Claimant or seeking to detain him if he escaped would be at risk. Mr Weatherby’s submission was that this was irrational because the offences whilst heinous had been committed in the context of a serious communal conflict that has long since concluded, that the Claimant’s offending was situational and short lived in nature and that there was nothing in the circumstances of the Claimant’s offending that suggested he would be a danger to anyone in October 2009. Mr Weatherby also pointed out that the decision letter did not identify any current risk factors.

[18]Whilst the decision letter is supposedly the means by which the Defendant explains to the Claimant why the Defendant has decided not to de-classify the Claimant, it does not actually achieve that objective in any real sense. It describes the Claimant’s offences for which he was convicted in the fourth paragraph of the letter (the first paragraph quoted above). It is implied that the nature of the conviction was itself the basis for the original conclusion that the Claimant ought to be categorised as a Category A prisoner. The opening words of the fifth paragraph of the letter (the second quoted above) imply that the Defendant remained of that view at the date of the decision under challenge some ten years later. The submission that the offences were committed in a specific context was rejected simply on the basis that it did not provide a convincing ground for downgrading without attempting to explain why that was so. No attempt has been made to identify the categories of person to whom the Claimant was considered to be highly dangerous or what it was in the circumstances of the offences that justified the conclusion that the Claimant continued to be highly dangerous.

[19]The letter in response to the protocol letter from the Claimant’s solicitors took matters a little further to the extent that the Defendant expressed the view that “ …your client’s index offences were unusual in the fact that he was convicted of being involved in genocide and an act of ethnic cleansing which indicated a certain risk to sections of the public…”Although the letter does not say so in terms the implication at least is that the Defendant considers that the Claimant is to be regarded as highly dangerous to Muslims or Bosnian Muslims.

[20]Clearly there will be cases where it can be inferred from the nature of the offences committed that the prisoner concerned continues to be highly dangerous either to the public or to a sub set of the public at large. This will be so particularly where the offender concerned has been convicted of persistent serious sexual offences or offences of violence. However the Defendant recognises that not all such offences will justify the imposition of Category A status. This much is apparent from Paragraphs3.1 and

3.2 of PSO 1010. Paragraph 3.1 actively requires the assembly of information about the nature of the offending of the prisoner concerned in order that a rational conclusion can be reached. There is no evidence however that any attempt has been made to carry out an exercise of this sort in relation to the Claimant at any rate when considering whether the Claimant remained highly dangerous on 20th October 2009 when the relevant decision was taken. The circumstances of this case are highly unusual because the sort of information about the index offences that might otherwise be routinely available in the ordinary run of cases may not easily be available in relation to a case of this sort. However where the decision to be taken is whether a prisoner should remain a Category A prisoner, and where the original decision was taken by reference to the nature and circumstances of the index offence (as appears to have been the case here) then the least that someone in the position of the Claimant can expect is that the decision maker would carefully review the judgment of the Trial and Appeal Chambers in order to ascertain whether the Claimant is to be regarded as or as continuing to be highly dangerous.

[21]A perusal of the decision letter suggests that this exercise was not undertaken. Indeed the reference to it being “self evident” that the Claimant was highly dangerous by reference to the nature of his convictions strongly supports the view that such an exercise was not undertaken. The description of the offence contained in the letter is not consistent with such an exercise having been undertaken. Had such an exercise been undertaken then the basis on which the Appeal Chamber confirmed the Claimant’s conviction and the aggravating and mitigating circumstances that the Appeal Chamber took into account in arriving at its sentence would have been referred to for the purpose of showing why it was thought that the Claimant continued to be highly dangerous notwithstanding that: i) the Appeal Chamber had upheld his conviction but as an aider and abettor and not as a principal co-perpetrator of the murders and persecutions and had done so on the basis that he permitted the main staff of the VRS to use personnel and resources under his command to facilitate them; and ii) The Appeals Chamber had recognised four mitigating factors being(a) the nature of the Claimant’s provision of his Corps assets and resources

(b) the fact that he had only recently assumed command of the Corps during combat operations

(d) his efforts to ensure the safety of Bosnian Muslim civilians transported out of Potocari, none of which were obviously consistent with the Claimant being or continuing to be highly dangerous as an individual or otherwise than as the Army Corps Commander with all the infrastructure and personnel available to him that such a role implies. As I have said, the Defendant simply rejected the contention advanced on behalf of the Claimant that the situational nature of the offences did not provide convincing grounds for downgrading without explaining why. In the circumstances that was not a proper or sufficient manner in which to address the point because it does not explain or demonstrate – even to the relatively low threshold required by a rationality test – why that point is not a relevant or even a determinative point. As I have noted the letter in response to the pre action protocol letter said that “ …your client’s index offence were unusual in the fact that he was convicted of being involved in genocide and an act of ethnic cleansing which indicated a certain risk to sections of the public…”. Aside from the fact that this does not reflect anything that appears in the decision letter in so far as it purports to identify the section of the public said to be at risk in the event of an escape by the Claimant, its summary of the nature and circumstances of the Claimant’s conviction is if anything even more unsatisfactory than that which had been adopted in the decision letter. It amounts to little more than an assertion that because the Claimant had been convicted of the offences in question, it therefore followed that he remained highly dangerous. Aside from that it does not specifically identify the section of the public the Defendant had in mind when reaching the conclusion identified. Even assuming that it had been intended to identify those who were at risk as being either the Muslim population in the UK or the Bosnian Muslim population there is nothing in the letter that explains why the Claimant was to be regarded as highly dangerous to those sections of the public in the circumstances as they were in October 2009.

[22]In the statement of Mr Easton dated 2nd July 2010 two separate points are made about the significance of the offences for which the Claimant was convicted. First he refers to Paragraph 3.2 of PSO 1010 and to the criteria therein identified. This does not assist in the issues I am now determining. The criteria to which Mr Easton refers are the criteria applicable to deciding whether a person should be “reported in” – that is, identified as – a provisional Category A case. It is in other words the starting point for identifying those who might have to be classified as a Category A prisoner. The remainder of the relevant paragraph makes clear that prisoners satisfying one or more of the criteria must then be evaluated in order to decide whether they should be categorised as a Category A prisoner. The other point made by Mr Easton is that contained in Paragraph 10 of his statement. There he says that the Claimant’s offending clearly demonstrates that the Claimant is extremely callous having been capable of facilitating the mass execution of men and boys for ideological reasons. Aside from the fact that this analysis does not appear either in the decision letter or the letter in response to the pre -action protocol letter, there is no evidence that in reaching this conclusion account has been taken of any of the factors referred to above.

[23]Before leaving this part of the judgment, I should say that one issue that arose in the course of the argument is whether the phrase “the public” in the PSO definitions of Category A prisoners is capable of applying to the public or a section of the public outside the UK. It is not necessary for me to decide that point in the circumstances of this case and I prefer to say no more about it other than to draw attention to the point and to the possible merit of an amendment to the definition of a Category A prisoner so as to take account of the implications of obligations such as those resulting from the Agreement.

[24]It was submitted on behalf of the Defendant that once it had been concluded from the circumstances of a prisoner’s offending that he was highly dangerous, downgrading could only be justified by a demonstrated change of circumstances and that there was no evidence of a significant change in the Claimant’s circumstances since the last review. There is an air of unreality about this analysis. It is common ground that the Claimant does not speak English. The Defendant maintains that the Claimant should make efforts to learn English utilising the spoken English courses available in prisons. Whilst such a proposition may be a tenable one in relation to a prisoner who has been convicted by an English Court of offences committed by the prisoner while in England, potentially different issues arise in relation to prisoners who are foreign nationals who have been convicted and sentenced by an international tribunal in relation to offences committed outside England and Wales. A requirement that such a prisoner demonstrates significant change in the risk he poses by reference to his participation in courses run by the Defendant which however the prisoner is not able to participate in because he does not speak English is likely to give rise to an allegation of breach of public law duty by the Defendant. Whether or not that is so does not arise in this case however because the primary point made by the Claimant is that there are no courses available that are relevant to the offences that he committed. This would appear to be accepted. Certainly no courses have been identified by the Defendant in either the decision letter or the reply to the pre-action protocol letter for that matter in the most recent sentence review where the only course identified was the English language course. That being so the Defendant could not rationally attempt to resolve the re-categorisation issue by reference to issues of this kind.

[25]Overall, in my judgment the decision of the Defendant ought to be quashed and the question whether the Claimant ought to be re-categorised ought to be reconsidered because in my judgment the Defendant failed to consider or consider with the necessary degree of scrutiny the matters relied on by the Claimant in support of his representations that he ought to be considered for de-categorisation. It is not for me to substitute my decision for that of the Defendant. It is however my function to quash decisions which fail to take proper account of the material representations and evidence available. In my judgment the reality is that the Defendant failed to look beyond the gravity of the offence and ask himself the right question – which was whether the Claimant was highly dangerous at the date of the relevant decision – or answer it by a proper consideration of all the material facts and matters relevant to the determination of that issue bearing in mind the policy that every prisoner is to be placed in the lowest security Category consistent with the needs of security and control. This process required in particular a proper analysis of the basis of the Claimant’s conviction as set out in the judgments principally of the Appeal Chamber but also the Trials Chamber to the extent the findings made there survived the decision of the Appeals Chamber for the purpose of asking whether the Claimant could be said to be highly dangerous having regard to the nature of his involvement, the passage of time since the offences occurred, the circumstances in which the offences occurred, and that the conflict which provided the backdrop to the commission of the offences has long since ceased.

[26]At the conclusion of the hearing, it was agreed between counsel that in the event that I came to the conclusion that the decision ought to be quashed I would make that order and direct that the position should be re-considered by no later than 29th October 2010 and that the Defendant ought to be ordered to pay the Claimant’s costs of the proceedings to be assessed on the standard basis if not agreed. That is the order that I propose to make.

Krstic, R (on the application of) v Secretary of State for Justice [2010] EWHC 2125 (Admin)

The Facts

The legal Framework

Discussion

Cited in 2 later judgments