Turner, R (on the application of) v Secretary of State for Justice [2010] EWHC 3133 (Admin)

Case No CO/412/2009[2010] EWHC 3133 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice
Strand
London WC2A 2LL
FRIDAY, 19TH NOVEMBER 2010
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF TURNERClaimantv
Between
THE SECRETARY OF STATE FOR JUSTICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr S Field (Instructed By Cobleys) Appeared for ClaimantMr V Sachdem (Instructed By Treasury Solicitors) Appeared for Defendant
J U D G M E N TDate 2010-11-19
[1]MR JUSTICE MITTING: The claimant applies for permission to amend the grounds of the claim to challenge a recent decision affecting his categorisation as a Category A prisoner presently held at Whitemoor Prison. The approach which I adopt to the application is to ask myself whether had it been a free standing application for judicial review I would have granted permission for the challenge. If not, then I will refuse the application. If yes, I will grant it.[2]It is necessary to set it in context. On 8 February 2007 the claimant was charged with conspiracy to supply class A drugs. He was remanded in custody. He was provisionally categorised B.[3]On 24 August 2007 he was charged with murder. I am told, although I have seen no document which demonstrates this, that sometime in August 2007 his case was considered and it was decided that he did not meet category A criteria.[4]On 9 February 2007 I am told that the prison authorities received information via an anonymous call that he might be planning to escape, leading to a decision on 30 November 2007 that he was an escape risk.[5]On 16 November 2007 a decision was made provisionally to categorise him as a category A prisoner, and he was moved from Liverpool Prison to Manchester Prison. He was notified in a letter of 23 November 2007 which cited, as the relevant factors for the re-categorisation, the serious nature of the charges he was facing and intelligence which indicated that he was part of a gang with access to criminal associates and resources capable of mounting an escape. The conclusion was that he posed a high risk to the public and therefore met the criteria for category A.[6]On 6 May 2008, on the basis of further intelligence, he was re-categorised as a category A prisoner who posed a high risk of escape. On 23 May 2008 he was convicted of murder, and on 28 May sentenced to life imprisonment with a minimum term of 37 years, subsequently reduced on appeal to 35 years.[7]I have been able to glean a little about the circumstances of the offence from the documents. It appears that the claimant and co-defendants shot a male victim fatally. The motive was said to be an ongoing feud between the claimant and the victim. The judge when passing sentence apparently observed that the claimant demonstrated a high level of control and evil intent as the organiser of the murder, of drug conspiracies and of the sustained use of violence to obtain money. The claimant was also convicted on the same occasion of an offence of blackmail. On any view this killing was at the high end of the range of convictions, as is demonstrated by the sentence and what little I know of the circumstances and the judge's sentencing remarks.[8]After conviction representations were made on behalf of the claimant that his category should be downgraded. On 15 October 2008 the Directorate of High Security noted that on 16 September 2007 the claimant had been categorised as a category A prisoner in the light of the nature and circumstances of the offences and the escape intelligence. It also noted his conviction and the sentence. The document attached a report which contained a summary of the information upon which categorisation was to be considered. It set out part of what I have been able to glean about the nature of the offences and the judge's sentencing remarks.[9]On 6 November 2008 a decision was made and notified to the claimant that his categorisation as a category A prisoner would be maintained but his escape risk would be assessed as standard. That decision gave rise to these proceedings. The foundation of these proceedings is that it was irrational and inconsistent for the defendant to categorise the claimant as a category B prisoner but then to re-categorise him as a category A prisoner when there had been no change in circumstances beyond intelligence, the substance of which had been withheld from him.[10]Events have, however, moved on since then. The claimant's categorisation was reviewed in November of this year. The Local Assessment Panel reported details of the claimant's conduct in prison unfavourably.[11]On 4 November 2010 the category A team, having completed its security category review, notified the claimant that there would be no change in his categorisation. The reasons given were as follows:
"the category A team noted your present offences include murder, conspiracy to supply drugs and blackmail. The trial judge's sentencing remarks specified high levels of control and evil intent you display in these offences as organiser of the murder, of drug conspiracies and the sustained use of violence to obtain money. The category A team noted the high levels of violence shown by your offending and the high risk posed to the public and police by those who engage in the activities which led to your drug related convictions. It considered your extensive previous history and also showed your long term involvement in criminal activities. The category A team consider your offending showed you would pose a high risk if unlawfully at large, and that before your downgrading could be justified, there must be convincing evidence of a significant reduction in this risk."
The letter then went on to consider whether or not there had been such convincing evidence, and concluded that there had not been. It noted "his recent poor behaviour" which included placement on an unacceptable behaviour strategy, and involvement in drugs, both as an user and distributor. The conclusions of the Local Advisory Panel were accepted by the category A team. It also went on to consider the history of the matter, and concluded that the decision to place the claimant in category A in 2007 was valid.[12]Mr Field, who has advanced the claimant's arguments with commendable frankness contends that the now current decision in relation to the claimant's categorisation is, like the earlier decisions, flawed. He relies now only upon the principle of consistency, as he puts it, basing himself upon observations of His Honour Judge Kay QC in Lowe v the Governor of HMP Liverpool [2008] EWHC 2167 Admin at paragraph 36. Accordingly, he submits that if I were to grant leave to challenge the current effective extant decision there would be a realistic prospect that his challenge to the decision would succeed so that a judge might direct that the decision be taken again in accordance with lawful principles.[13]I am bound to say that I find that argument clearly ill-founded. Against the background which I have recited, the decision to maintain the claimant's categorisation as a category A prisoner is not only clearly rational and lawful, it would be surprising if a properly informed category A team could have reached a different decision. The surprise in the case is not that he is currently categorised as a category A prisoner, but that from the moment when it was known he was charged with murder that he was ever categorised as anything else. I accept of course that people can be both charged with and convicted of murder in circumstances where it could not rationally be thought that they posed a risk to members of the public whilst at large. Many instances of so-called domestic homicides fall into that category, but where, as here, this is a killing by shooting by a man described by the trial judge as exercising a high level of control over those who fired the shots, who displayed evil intent and, on any view, has been involved in a high level of criminal activity, any other conclusion would in my view have been perverse.[14]Accordingly, the amended grounds stand no prospect of success, and it would be futile for me to grant permission to amend and pursue a judicial review challenge based upon them. I think -- but will here Mr Field upon the question -- that effectively disposes of these proceedings.[15]MR FIELD: My Lord, it does. It leaves outstanding what my Lord does with the original claim. Thinking perhaps on my feet for a moment, the original --

MR JUSTICE MITTING: I think the kindest thing I can do is dismiss the claim as entirely academic.

[17]MR FIELD: That must be a very logical ruling on my Lord's earlier ruling.[18]MR JUSTICE MITTING: In view of that, as is entirely consistent with the submissions you have made, a frank concession, I do dismiss the existing judicial claim as entirely academic, and say no more about it.[19]MR FIELD: So be it, my Lord. I don't know if my learned friend has any application.[20]MR SACHDEM: You are legally aided.[21]MR FIELD: Yes. I have a final application.[22]MR SACHDEM: No application.

MR JUSTICE MITTING: Assessment of the publicly funded claimant's costs?

[24]MR FIELD: Yes.