Bell v Secretary of State for Justice [2011] EWHC 3409 (Admin)

Case No CO/6105/2011[2011] EWHC 3409 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Friday, 25 th November 2011
West Yorkshire
LS1 3BG
Before
HIS HONOUR JUDGE LANGAN QC(Sitting as a High Court Judge)
Between
BELLClaimantSECRETARY OF STATE FOR JUSTICEDefendant
(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 Straw (instructed by Chivers Solicitors) appeared for Claimant.Mr Chamberlain (instructed by Treasury Solicitor) appeared for Defendant.
JudgmentHis Honour Judge Langan QC:
[1]The history of this case is, I hope, adequately set out in the judgment which I gave earlier this morning. What now arises for consideration is the challenge by the claimant to the decision of the pre-tariff SIFT review meeting held on 23 May 2011. That challenge is made on the ground of irrationality. The purpose of the meeting, as stated in PSI 33/2009, paragraph 2.3, was to assess whether there was evidence in support of a move to open conditions such that a panel of the Parole Board might reasonably conclude that the prisoner could be safely transferred. The decision, as mentioned in the earlier judgment, was adverse to the claimant. The meeting decided not to send the matter forward to the Parole Board; that decision is challenged as irrational.[2]In order to examine that challenge, it is necessary to go at some length through the minutes of the meeting. One finds on the first page that the persons present were the claimant’s Offender Manager, who was in communication with the others by telephone; a senior Prison Officer, Mr Maplethorpe; the claimant’s Offender Supervisor, Ms London; a trainee psychologist; and the claimant himself. The claimant’s offending history is summarised. He is serving a life sentence for a murder committed with considerable violence in the course of a burglary. His tariff had been set at 17 years.[3]His previous SIFT review had been held on 10 March 2010 while he was a prisoner at Gartree in Category B. Three targets had been set at that meeting: that he should successfully complete an anger management course; that he should engage with psychology regarding assessment for a sexual offender’s course; and that he should achieve Level 2 in literacy and numeracy. The claimant’s risk of serious harm is then considered. It appears from elsewhere in the papers that he had been the subject of an OASys assessment as recently as January 2011. His risk of serious harm to children and the public in the community were considered. The risk was assessed as high to the public and medium to children.[4]There was then a consideration of the claimant’s progress in meeting the targets set at the previous meeting. All three targets had been achieved. He had completed the anger management course; he had been assessed for the sexual offender course but deemed unsuitable; and he had achieved the required level in literacy and numeracy. Reference was then made to his behaviour, which had been much improved in recent years. He was an enhanced prisoner, and he was employed within the Gardens Party in a relatively trusted position.[5]There is then a section dealing with new risks. It reads thus:
“Although some offence-related work has been completed, including all targets set at his last sentence plan, further work is needed in respect of an assessment for future risks of violent behaviour, and further exploration of his previous sexual offending. There is currently no evidence that these areas have been covered at previous establishments, and as such these need addressing before putting Mr Bell’s case forward for a parole review.”
That view that further work is needed is repeated at paragraph 27, and much of the rest of what follows is repetitive of matters which I have already set out. A psychological assessment about the degree of risks from violent behaviour, and further exploration of previous sexual offending, were both deemed to be required before risk could properly be evaluated. Specifically, it was mentioned that the claimant had only recently arrived in February 2011 in a Category C establishment and therefore a period of consolidation in such an environment would be beneficial to support his belief that he had matured and reduced his risk factors. In conclusion, some areas of risk remained outstanding. The case was not going to be put forward to the Parole Board, and that was the unanimous view of those present at the meeting, apart from the claimant himself.[6]There is a short witness statement from Mr Maplethorpe, which does not add a great deal to what I have read out. It does however say, and this is not challenged by the claimant, that the agreement at the meeting was that there was no reasonable prospect of a Parole Board making a recommendation of transfer to open conditions. That last point is important, because the starting point for consideration of this challenge has to be the test which was applied, and low though it may be, the correct test was plainly applied.[7]Mr Straw, appearing for the claimant, makes two main points on the matters to which I have referred. First of all, the targets which had been set for the claimant at the previous SIFT had all been satisfied, and were expressly found by the meeting to have been satisfied. Second, the only outstanding matters were assessments, and the need for carrying out those assessments could not rationally be regarded as a bar to the matter proceeding to the Parole Board. The assessments could be carried out in the interval between the SIFT meeting and the Parole Board hearing, or by the Parole Board itself.[8]I accept that those two matters are matters which can properly be invoked by the claimant in his own favour, but one has to view the proceedings at the SIFT meeting as a whole, which is why I went through the minutes at what may have seemed to be tedious length. If one looks at the minutes, one finds that against those favourable factors, there are at least two other factors which could be regarded as adverse, and perhaps highly adverse, to the claimant. First of all, there was the risk identified in a recent OASys assessment; and second, there was the fact that the claimant had only recently arrived in a Category C establishment, which led the meeting to the view that a period of consolidation in that establishment would be regarded as desirable before a move to open conditions could be considered.[9]It seems to me that the meeting adopted what might be called a holistic approach to the case. It took into account factors both favourable and adverse to the claimant, and reached a balanced decision. I find it impossible to stigmatise the result of the balancing exercise as infected by irrationality. Excellently and economically though the case on irrationality has been advanced on behalf of the claimant by his counsel, I have come to the conclusion that the challenge must fail and the claim for judicial review must accordingly be dismissed.

Order

Appeal dismissed. ^^^PJD^^^^ His Honour Judge Langan QC: Right, yes? Mr Straw: Thank you very much, my Lord. There are just three minor points. His Honour Judge Langan QC: Yes? Mr Straw: The first is about costs. His Honour Judge Langan QC: Yes. Mr Straw: In my submission, a fair order is no order for costs. The reason for that is the information that the SPRM was applying a test of no reasonable prospects of success only first came to light on 16 September in Mr Maplethorpe’s statement. Before then, there was no indication that they had applied that test. His Honour Judge Langan QC: Yes. Mr Straw: And it was only at that time at the very earliest that this claim could be said to be academic. His Honour Judge Langan QC: Yes. Mr Straw: And in fact, it was only really academic when the witness statement from Mr A’Cort arrived, served on 15 November, which said that if it had been appealed, then the same test would have been applied and refused. There is also the fact that Mr A’Cort served two different versions of the policy, which required two different skeleton arguments from the claimant, which would have been unnecessary if he had got it right the first time. So those are my submissions on costs. His Honour Judge Langan QC: Yes. Mr Straw: Shall I allow my learned friend to respond to that before I go on? His Honour Judge Langan QC: Yes. Mr Chamberlain: My Lord, I won’t seek to argue that my learned friend’s submissions have got no force at all. However, I do submit that the appropriate order would be a proportionate order in the Secretary of State’s favour, and the reason for that is this, really, that at least when Mr A’Cort’s second statement was filed, it should have been clear at that stage to the claimant that this case was academic. His Honour Judge Langan QC: Well, the second statement is pretty recent. Mr Chamberlain: It is. His Honour Judge Langan QC: It is 11/11. Mr Chamberlain: It is. His Honour Judge Langan QC: Yes. Mr Chamberlain: And so really what I am talking about in terms of costs is an order in respect of the costs of this hearing, and for the immediate preparation of it, and I accept, my Lord, that it would be ambitious, overly ambitious perhaps, for me to ask for anything more than that. Certainly, when the statement was served, I think I am right in saying that we invited my learned friend, and those instructing my learned friend, to withdraw the claim, and that invitation was declined. His Honour Judge Langan QC: Yes. Mr Chamberlain: So we could see at that stage that we were putting in clear terms to those instructing my learned friend that accepting that Mr Acorts' (^statement changed the picture, we invited them in the light of that changed picture to reconsider and withdraw, and that invitation was not taken up, so for that reason I suggest that the costs from that date onwards should be the Secretary of State’s. His Honour Judge Langan QC: Yes. Mr Straw: I do not have anything to add. His Honour Judge Langan QC: Well, it seems to me the fair result is to order the claimant to pay the defendant’s costs incurred on and after 18 November. I select that date simply as the expiry of a week from the date of Mr A’Cort’s statement. Otherwise, no order as to costs. Mr Straw: Thank you. Could we also have the usual order for detailed assessment of the claimant’s publicly-funded costs? His Honour Judge Langan QC: Yes, certainly, yes. Mr Straw: And then, just very briefly, my Lord, the third point is an application for appeal against the conclusion that the claim was academic, and the application was made on the basis that the claim is of wider public importance. His Honour Judge Langan QC: I think you will have to persuade one of the judges of the Court of Appeal that there is a realistic prospect of their saying that I should have heard this case. Alright? Thank you both very much.