Shutt & Anor, R (on the application of) v Secretary of State for Justice [2012] EWHC 851 (Admin)

Case Nos: CO/10883/2010 AND CO/1060/2011[2012] EWHC 851 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Leeds Combined Court CentreDate 11/04/2012
Before
HER HONOUR JUDGE BELCHER
Between
R (on the applications of IAN SHUTT and JOHN TETLEY)ClaimantTHE SECRETARY OF STATE FOR JUSTICEDefendant
Mr Jason Elliott (instructed by Chivers Solicitors) for ClaimantMr Sam Green (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 5 July 2011 and 30 January 2012
JudgmentHer Honour Judge Belcher :
[1]These applications for Judicial Review raise almost identical issues and have been heard together. I understand that there are a number of similar applications awaiting the outcome of these proceedings. This matter first came before me in July 2011 when there were a number of difficulties. It became clear that the time estimate was wholly inadequate. Further, various documents were produced on behalf of the Defendant in a piecemeal way during the hearing. It became clear that the up to date relevant local policy had not been produced prior to the hearing and it was clear from the numbering on the further documents that they were incomplete. What was produced also gave rise to the possibility that the Claimant’s grounds would need amending and, on any view, both parties needed time to ensure that there was full and proper disclosure and to consider the impact of such disclosure. The case had to be adjourned. When it became clear that to relist the matter in front of me would involve considerable delay, I offered the parties the option to start again in front of a different Judge, an option which was declined.[2]By the time of the resumed hearing on 30 January 2012, the original bundles had been superceded and replaced by 2 bundles only, one in respect of each Applicant. The bulk of the contents in the 2 bundles is identical. The differences relate to documents which by their nature are relevant only to the individual Applicant such as each Applicant’s OASYS sentencing plan. For ease of reference I propose to use the bundle in Mr Shutt’s Application as the primary point of reference and documents in that bundle will be referred to in this Judgment by a capital “B” followed by the relevant page number. Where necessary to refer to the bundle in Mr Tetley’s Application, I shall refer to it as “TB” followed by the relevant page number.[3]At the time of their respective Applications both Claimants were serving prisoners at HMP Isle of Wight (Albany). Mr Shutt’s Application was lodged on 18 October 2010 and challenged the decision of the Prison Governor, dated 17 July 2010, to downgrade his Incentives and Earned Privileges (“IEP”) rating from Enhanced to Standard. Permission was granted by Kenneth Parker J at an oral hearing on 21 February 2011. Mr Tetley’s application was lodged on 4 February 2011 and challenged “…the ongoing decision..” of the Governor refusing him Enhanced status under the IEP scheme. Both men were serving substantial determinate sentences having been convicted of serious sexual offences against children. Since the July 2011 hearing, Mr Shutt has been released on licence. Mr Tetley remains a serving prisoner. It will be necessary for me to go into the facts in more detail, but in essence both men were refused Enhanced status on the basis that by maintaining their innocence in respect of the offences in question (also described in various documents as denying their guilt), they could not undertake a Sexual Offences Training Programme (“SOTP”).[4]The decisions were originally challenged on a number of grounds. By the time of the resumed hearing the matters had resolved into 2 issues, which were described during the course of the hearing as the “assessment” and the “blanket ban” issue, terms I shall adopt in this Judgment for ease of reference. The “assessment” issue.[5]The assessment issue arose out of the Claimants’ contention that neither had been assessed for his suitability to undertake SOTP and that both were willing to undertake that assessment. There is no dispute in this case that an offender has to be assessed as both “suitable” and “ready” for SOTP before he can undertake such a programme. Both Claimants had been assessed as suitable for SOTP, in Mr Shutt's case in November 2009, and in Mr Tetley’s case, in August 2010 (Witness Statement of Jacob Seaward, B235 and 236). However, neither had been formally assessed as to readiness. It was asserted, therefore, that the refusal of Enhanced status based on an assertion that the Claimants were failing to engage with their respective sentence plans was based on a fundamental error of fact and was unlawful. The Defendant, through the officers at the prison, in each case had formed the view that the Claimant’s denial of guilt was such that he would not be able to do any SOTP, that further assessment was a fruitless exercise since the outcome was obvious, and therefore it was clear that each Claimant was failing to engage with the sentence plan requiring him to undertake SOTP.[6]In May 2011 both Claimants were duly assessed and Mr Shutt was assessed as suitable for the Becoming New Me SOTP, but owing to his continuing denial of his offences he was assessed “not ready” for the SOTP. Mr Tetley was assessed as suitable for the Rolling SOTP, but he too was assessed as “not ready” by reason of his continuing denial. (Witness Statement of Jacob Seaward, Forensic Psychologist and Clinical Lead for the SOTP in the Accredited Interventions Department at HMP Isle of Wight, B230 -232). Each Claimant was advised by letter dated 16 May 2011 of the outcome of the assessment (B 235 and 236).[7]There is no dispute in this case that the assessments at that time were proper assessments. In his original skeleton argument, Mr Green sought to reserve his position that there was no substance in the complaints that there had not been adequate or proper assessments prior to May 2011. In front of me on 30 January he very sensibly recognised that he would struggle to sustain that position in the light of the evidence of Dr Ruth Mann, a Chartered Forensic Psychologist employed as a Senior Manager in the Rehabilitation Services Group of the National Offender Management service Agency (“NOMS”) of the Ministry of Justice (Witness Statement of Dr Mann dated 23 June 2011, B243, paragraph 24). Accordingly, in deciding the issues in this case, I do so on the basis that prior to May 2011, there was no proper assessment in respect of either Claimant as to whether he was “ready” for SOTP.[8]I suggested to Mr Elliott that this ground had fallen away, having been cured in May 2011. Mr Elliott submitted that the issue was not academic on the basis that if the situation prior to May 2011 was unlawful, the Claimants would have the right to pursue compensation claims. Mr Green submitted that on the evidence before the Court I could conclude that there had in fact been no injustice as a result of any failure in the assessment process, such that this court need grant no relief. In my judgement, on the facts of these cases I cannot assess whether any injustice has been done without considering the period prior to May 2011. Mr Elliott sought to invite me to make declarations as to unlawfulness but not to go further and consider whether any injustice had resulted. He suggested that the further findings might cause difficulty for another court hearing any future compensation claims. I made it clear that either the issue was academic and required no determination at any stage, or it was live and required full determination. Having heard the submissions in the case, I am satisfied that this is an issue which I ought to determine in these proceedings in order to decide what, if any, relief should be granted. The “blanket ban” issue.[9]It is important that this issue is clearly formulated since, as argued, it is different from the issue as formulated in the Amended Grounds. In the Amended Grounds the issue is expressed as follows “The Defendant erred in law in adopting a policy which in practice prevents prisoners who maintain their innocence but do all within their power to comply with sentencing planning from attaining enhanced status under IEP in all circumstances” There is no dispute that, drafted in that way, the ground cannot be sustained. It fails to allow for denial by prisoners of offences of a type which can be addressed by programmes which do not require offence focussed work or an admission of guilt (for example, certain dishonest or violent offences). It also fails to distinguish between those sex offenders who deny their offences but for whom intervention other than SOTP is more appropriate. It also fails to allow for the situation of a prisoner who maintains his innocence and is still actively pursuing an appeal in the courts. The second Witness Statement of Doug Graham, Deputy Governor at HMP Isle of Wight (B448-454) gives examples of cases which plainly illustrate that the Amended Ground as drawn is too wide and must fail.[10]The real issue in this case, and the one addressed in argument, is whether the Isle of Wight (“IOW”) local policy unlawfully imposes a blanket ban on attaining Enhanced status on a sex offender who is suitable for SOTP but is unready solely by reason of his denial of guilt. That is what I address in this Judgment when considering the “blanket ban” issue.[11]This issue requires consideration of both national and local IEP policies. IEP schemes are currently governed by Prison Service Instruction 11/2011 (“PSI 11/2011”) which provides criteria for the earning and retention of privileges. There is no dispute in this case that PSI 11/2011 which took effect from 1 April 2011 largely mirrors its predecessor, Prison Service Order 4000 (“PSO 4000”), a matter of some importance when considering the authorities put before me which consider PSO 4000. It is also relevant insofar as PSO 4000 was the applicable Order at the outset of these claims but was then superceded by PSI 11/2011. The case was argued solely on the basis of PSI 11/ 2011, it being accepted that the provisions in all material respects are identical to the earlier provisions in PSO 4000 and that my Judgment in relation to PSI 11/ 2011 would equally apply to PSO 4000 and the issues in this case prior to 1 April 2011. The same approach was adopted when considering the current IOW local policy. My Judgment addresses only the most recent local policy but it is accepted that it will equally apply in respect of the earlier local policy which was the same in all material respects.[12]The aims of the IEP scheme nationally are to encourage responsible behaviour by prisoners; to encourage effort and achievement in work and other constructive activity by prisoners; to encourage sentenced prisoners to engage in sentence planning and benefit from activities designed to reduce re-offending; and to create a more disciplined, better controlled and safer environment for prisoners and staff. These aims are achieved by ensuring that privileges above the statutory minimum are earned by prisoners through good behaviour and performance and are removed if they fail to maintain acceptable standards. (PSI 11/2011, paragraph 1.3; B140). There are three privilege levels: Basic; Standard; and Enhanced. The privileges which can be earned on Enhanced status include, by way of example, matters such as extra and improved visits, eligibility to earn higher rates of pay, more opportunities to wear own clothes, and extra time for out of cell association. These are plainly matters of some significance for serving prisoners.[13]Annex G to PSI 11/2011 is headed “Managing Prisoners who deny their offence – IEP and Sentence Planning” (B177-178). Paragraphs 7 -17 of Annex G deal with sex offenders in denial of their offence. Those paragraphs deal with a number of situations. Where an offender is judged as both suitable and ready for SOTP, SOTP should be listed as a target in the sentence plan. There may be situations where an offender is suitable but is not ready for reasons other than denial, for example if the offender’s English is not sufficiently competent. In such a case SOTP will be set as a future target with interim work on English competency as an interim objective. Paragraph 16 provides as follows “However, where the unreadiness is due to denial and no other objectives are more relevant, the SOTP target should remain. In this case, the prisoner’s refusal to undertake SOTP could bar him from obtaining Enhanced regime status.” (Emphasis added) B178.[14]In her Witness Statement made for these proceedings Dr Mann exhibits the Witness Statement she made in R (Hewlett) v Secretary of State for Justice [2009] EWHC (Admin) 2979 (“Hewlett”). Her Witness Statement in Hewlett is at B 246-254 and addresses the previous IEP scheme (PSO 400), sentencing planning, the nature of SOTP, and, in particular at paragraphs 24 and 25 (B252-253), the relationship between sentence planning, privileges and treatment. At paragraphs 13 and 14 of that Witness Statement she states as follows: “….denial alone will not be sufficient to deny a prisoner enhanced status unless it impacts upon sentence planning and addressing offending behaviour. As such it is not accepted that the denial by a prisoner of his offence necessarily and wholly debars him from reaching enhanced level on an IEP scheme. However, if the prisoner's denial of guilt does prevent him from participating constructively in the sentence planning process, or prevents him from addressing offending behaviour…. then it is considered that this is a relevant and material factor to the taken into account in deciding what privilege level should be granted to the prisoner.” (B249)[15]In paragraph 25 Dr Mann specifically addresses the issue of a sex offender refusing to undertake SOTP as follows: “Furthermore, as I understand it, if any sex offender refused to undertake SOTP, this refusal alone would not usually or necessarily mean that he was automatically unable to grant additional privileges. Privileges are linked to compliance with the sentence plan as a whole, not to individual components of a sentence plan. As I have explained above, denial alone does not necessarily debar a prisoner from earning extra privileges. The crucial wording in the policy guidelines dated February 2008 is that a prisoner's refusal to undertake SOTP could bar him from achieving enhanced status, not that it will bar him from achieving this status. Therefore, this is not an inflexible policy. The February 2008 guidelines set out the number of steps that should first be taken to encourage the offending behaviour to be addressed. Only when there is no other possible activity that could reduce risk, and there still is the potential for risk to be reduced, would SOTP become such a dominant part of the sentence plan for a sex offender that the refusal of treatment will become the main reason for refusing enhanced status.” (B253)[16]The IOW local IEP policy effective from March 2011 (B356-389) states that at HMP IOW the IEP scheme is operated in accordance with PSI 11/2011 (B359). The local policy operates a points system, awarding up to 3 points in each of 5 categories: Employment; Personal and cell hygiene; Behaviour/attitude to staff and other prisoners; Warnings; OASYS Plan. The maximum points achievable is 15, and the minimum is 5. The points required for each level are 14 – 15 for Enhanced, 11-13 for Standard and 5 – 10 for Basic. Under the fifth category, “OASYS plan”, the policy provides “A prisoner will score 3 points for full compliance of their sentence plan, 2 if in denial but have an appellant number and 1 for refusing to engage with objectives or in denial for SOTP courses” (B368). It follows that where a prisoner is in denial for SOTP he will be allocated 1 point only in the fifth category. Even if he scored the maximum 3 points in all other categories, because he will only achieve 1 point in the fifth category, he will never achieve more than 13 points and he will automatically be given Standard status for IEP.[17]On 23 June 2011 HMP IOW issued a Notice to staff headed “Re: Prisoners in denial of their offence” (B390-391). This was issued since it was considered that the IOW guidance on these issues did not appear to have faithfully reflected the national guidance and the notice was issued to clarify this in an unambiguous manner. (Second Witness Statement of Doug Graham, paragraph 5, B449). The notice undoubtedly reflects the national guidance and expressly includes the relevant phrases from it, in particular:
“In determining IEP levels, the fact that someone is in denial of their offence should not automatically be a bar to attaining enhanced status”
B390 “…where unreadiness is due to denial and no other objectives are more relevant, the SOTP target should remain. In this case the prisoner’s refusal to undertake SOTP could bar him from obtaining Enhanced regime status”. B391[18]Mr Elliott submitted that the blanket policy created by the points system at HMP IOW constitutes an automatic bar for Enhanced status, thereby removing the discretionary element suggested in the national policy. Therefore, he submitted, the local policy is, unlawful in this respect. Mr Green’s primary submission on this issue was that the word “could” in paragraph 16 of the national policy is permissive rather than prescriptive. He submitted that what paragraph 16 does is to permit a local prison to adopt a policy making the fact of denial by a sex offender absolute in terms of barring the prisoner from Enhanced status. Making it an absolute bar has benefits for the local prison in making the outcome predictable, easy to assess and fair across the board. He urged me that this could not be seen as any sort of substantial departure from the national policy and he reminded me that the national framework is precisely that: a framework and not to be construed as if it were statute or in an unduly prescriptive way. He submitted a wide margin of internal management flexibility is and should be accorded to individual prisons. The Court, he said, should not involve itself in micro-management, such matters properly being within the executive decision making processes of the Prison’s staff.[19]In response to this, Mr Elliott submitted that the purpose of PSIs is to enable a degree of conformity to exist between like establishments. The PSI enables prisons to set up local schemes particular to their individual circumstances in certain respects. For example, the national policy recognises that there will be differences in schemes at Young Offender Institutions as opposed to schemes in adult Prisons. The national policy also recognises that the nature of benefits to be earned may vary depending upon what a particular prison can offer. That, he submitted is wholly different from the adoption by a local prison of a scheme which precludes the exercise of a discretion which the national policy plainly includes.[20]Giving the word “could” in Paragraph 16 of the national policy (set out at paragraph 13 above) its natural and obvious meaning in its context, it seems to me that the natural meaning is that a prisoner with SOTP as a current sentencing target but unready for SOTP solely as a result of denial, could be denied Enhanced status, but he might not be. The most natural reading of that sentence in my Judgment is that it would be permissible in appropriate circumstances to deny Enhanced status, but that it will depend on the circumstances. Thus there would need to be an informed decision as to whether a particular sex offending prisoner in denial and so unready for SOTP should be denied Enhanced status.[21]Not only is that the most natural meaning, it is the meaning ascribed to the scheme in Dr Mann’s evidence for Hewlett, which evidence has been adopted for the purpose of these proceedings. Mr Green sought initially to distance himself from that evidence on the basis that this was just Dr Mann’s view of the scheme. However this evidence was put before the Court by the Defendant expressly for the purpose of defending these proceedings. In my judgement it plainly represents what the Defendant, through NOMS, regards as the proper approach to IEP. In any event, the evidence is, in my judgement, cogent and entirely sensible in the context of the national policy. In my judgement the national framework recognises that a sex offender in denial of his offences and with no more relevant objective (whom I shall refer to by the shorthand used at the hearing, the “Unready Denier”) could be denied Enhanced status, not that he automatically will. Accordingly there is incorporated a decision making process as to whether or not the particular Unready Denier should be denied Enhanced status.[22]Mr Green’s secondary submission was that there was in fact no inconsistency between the points scheme in the local policy and paragraph 25 of Dr Mann’s Witness Statement in Hewlett. I accept that the local policy is entirely consistent with the first 4 sentences of that paragraph. It is the final sentence which seems to me to illustrate the difficulty with the points scheme in the local policy. That sentence is “Only when there is no other possible activity that could reduce risk, and there still is the potential for risk to be reduced, would SOTP become such a dominant part of the sentence plan for a sex offender that the refusal of treatment will become the main reason for refusing enhanced status.” Mr Green submitted that if there were other sentencing objectives for these men to be getting on with, then they might not lose Enhanced status. However, once the sentencing objectives have funnelled down so that the prisoner is left solely with SOTP, then it becomes the dominant part of the sentence. At that point there is, he submitted, nothing wrong with the blanket bar on Enhanced status.[23]That, in my judgement, is not the effect of the blanket bar in the points system. The points system applies to any sex offender with SOTP as a target and who is in denial. It fails to address the question as to whether SOTP is the sole remaining objective and/or that there are no other more relevant objectives. In my judgement the blanket bar removes all discretion from the decision maker. Whilst I accept that in the vast majority of cases of the Unready Denier, SOTP will be the sole outstanding objective, it does not follow as a matter of course that there will be no other objectives. Similarly there might be other factors which might militate against a decision to deny Enhanced status. In my judgment each case falls to be considered on its own merits even if, in the vast majority of cases, the result will in all probability be the removal of Enhanced status. There is, to my mind, a significant difference between a policy which provides that it is likely that an Unready Denier would be refused Enhanced status (which inevitably requires someone to consider all relevant circumstances before making the decision), and a policy which puts in place a blanket bar, thereby removing any discretion from the process and removing the need to consider whether there are any other more relevant objectives for the prisoner in question. .[24]Mr Green referred me to R v Secretary of State for the Home Department, ex parte Potter and ors [2001] EWHC Admin 1041 (“Potter”) where Moses J found that the prison service was entitled only to award Enhanced status to those who addressed their offending behaviour. All 4 claimants in that case were deniers who could not therefore undertake SOTP. He submitted that I should be careful not to be over intrusive in internal administrative arrangements. He further submitted that in the light of Moses J’s decision, it was perfectly proper for the local policy to be in the form it was. There is nothing in Potter to suggest that there was a points system in use. What was upheld in that case was the exercise of a discretion by the prison officials to withhold Enhanced status from the 4 offenders. That, it seems to me, is very different from the situation before me where discretion has been excluded by the terms of the local points scheme, in a way which, in my judgement, is outwith the national framework. I recognise that in Potter Moses J referred to the unreported decision of Laws J in R v Secretary of State for the Home Department, ex parte Hepworth and Ors and R v The Parole Board, ex parte Winfield which emphasise that the chances of success in relation to challenges to decisions in relation to IEP will be rare and that courts should be slow to interfere with decisions which relate to management of prisons. However, in this case I am not dealing not with a decision as to whether to award Enhanced status to a particular prisoner, but on the contrary a situation where no decision is in fact made on that issue because of a blanket bar in the local policy. The decision in Potter does not, in my judgment, address this issue.[25]Whilst fully mindful that the prison service should be able to make operational decisions without undue interference from the court, I have come to the conclusion that a local policy which excludes any element of discretion in the decision making process as to whether an Unready Denier should be denied Enhanced status is unlawful and outwith the framework in PSI 11/2011.

Has either Claimant suffered any injustice?

[26]I now turn to consider whether either Claimant has in fact suffered any injustice. My starting point is that until May 2011 neither Claimant had been assessed as unready and, therefore, even if the blanket bar had been lawful, its application to each Claimant was unlawful prior to that date. Prior to that assessment each man was technically complying with his sentence requirements and was willing to be assessed as to whether he was ready to undertake SOTP. After May 2011 the application of the blanket ban remained an unlawful decision by reason of the local policy excluding any discretion. It follows that no proper decision was made on Enhanced status for either Claimant.[27]Mr Green submitted that there is ample evidence before me from which I can conclude for each Claimant that SOTP was, in Dr Mann’s words, “such a dominant part” of his sentence plan that refusal of treatment would become the main reason for refusing enhanced status. He submits that neither Claimant has suffered any injustice as a result of either the inadequate assessment process or the application of the blanket ban after proper assessment. I shall consider this issue in relation to each Claimant separately.

Ian Shutt

[28]In relation to Mr Shutt, Mr Green submitted that it is quite clear from the start that it was the impact of his denial on unreadiness for SOTP which was causing him to fail to meet the criteria for Enhanced status; that Mr Shutt knew that at the time, and still knows it. He referred me to the permission ruling of Kenneth Parker J where he referred to matters as “ ..a very technical state of affairs indeed” and noted that “..one is left with the strong feeling that no real injustice has been suffered”. This was against the background of ruling it arguable that there had been no assessment.[29]Further Mr Green pointed out that it was no part of Mr Shutt’s case that such an assessment would result in him being deemed ready for SOTP. On the contrary, the final paragraph of the original grounds in his case reads as follows:
“The relevant criteria for docking points under the new policy document is “engagement with OASYS plan or work”
. The Defendant’s response to the pre action letter reads:
“The OASys target reads that the objective is the SOTP and work to be done is – to engage in assessments to determine the appropriate SOTP required”
. The Claimant is doing this. He has indicated his willingness to be assessed in such a way. The fact that such an assessment will prove fruitless does not detract from the fact of his compliance with “engagement with OASys plan or work.” (B14)[30]Mr Green took me through Mr Shutt’s OASys analysis dated 28/04/11 which is at B101 -143. Whilst Mr Shutt was pursuing an Appeal through the courts he was entitled to a score of 2 on the final category on the IOW points system such that if he gained maximum points on all other areas he would qualify for Enhanced Status. Mr Elliott accepted, based on a letter dated 16 July 2010 from the Defendant to Mr Shutt’s solicitors, that Mr Shutt’s appeals situation was resolved between May 2009 and May 2010. The challenged decision to downgrade him to Standard status was taken in July 2010. Accordingly the question of whether he has suffered any injustice has to be considered from July 2010. Whilst the OASYS plan is dated 28/04/2011 it includes information from earlier reviews. At B105 (paragraph 2.5), B106 and at B108 there is repeated information that Mr Shutt denies the offending and that he has not undertaken any offending behaviour work. At B108 it is stated that Mr Shutt insists he is willing to be assessed for the SOTP but in the full knowledge that he will be assessed as unsuitable as he is maintaining his innocence. The author continues that he has struggled with this as Mr Shutt has challenged a condition that he has to undertake this work, saying how can he do that if he is innocent and, by the same logic, the author asks why should he be willing to be assessed if he is innocent?[31]Mr Green submitted that the final box on B111 shows that the only real progress available to Mr Shutt was SOTP. This was the case in May 2010 and again in April 2011. I accept that submission. Indeed Mr Elliott did not seek to persuade me otherwise. The further comments at B115, 116, 122 and 134 all further support that conclusion. Looking at the document as a whole I am satisfied that by May 2010 the point had been reached where the further objectives in the sentencing plan had to relate directly to the management of future risk in relation to sexual offending by completing SOTP, and that there were no other more relevant objectives.[32]In those circumstances Mr Green submitted that if Mr Shutt had been formally assessed for readiness for SOTP prior to the down grading to Standard status in July 2010 (rather than the inadequate assessment in fact undertaken) the result would plainly have been that Mr Shutt was unready by reason of his denial. That was the actual result in May 2011 and there is nothing to suggest it would have been any different had it been made earlier. It is significant in my judgement that the assessment in May 2011 amounted to 2 meetings between Psychological Assistants in Jacob Seaward’s team at HMP IOW team and Mr Shutt, the first on 5 May 2011 and the second on 11 May. On 5 May he indicated he did not accept he committed his offence. On 11 May he was visited again with a view to assisting him with the consent process for SOTP but again Mr Shutt confirmed he was denying his offences. (Witness Statement Jacob Seaward B231, paragraphs 6-8). Whilst complying with the required formal procedures, the assessment conclusion of unreadiness was based on Mr Shutt’s continued denial.[33]Prior to the formal assessment all involved, including Mr Shutt, knew that the outcome of the formal assessment would be that he would not be accepted for the course by reason of his maintaining his innocence. What was missing was 2 visits to Mr Shutt by prison psychologists to formally confirm what everyone knew to be the true situation. In those circumstances I am satisfied that Mr Shutt has suffered no injustice as a result of the failure to carry out the formal assessment as to readiness nor as a result of the application of the blanket bar in circumstances where the SOTP had plainly become the dominant and principal objective in his sentence plan, and there were no other more relevant objectives.. There is nothing to suggest that the denial of Enhanced status in those circumstances has resulted in any injustice to him.

John Tetley

[34]Undertaking the same process for Mr Tetley leads me to the same conclusion. His OASYS plan is at TB 46 – 91. When considering the information at pages TB 51, 52, 57, 61, 62, 70, 80 and 82, it is clear that at every stage the position was clear to Mr Tetley and to prison officials that SOTP needed to be undertaken and that his denial precluded that. Mr Green submitted that the one critical issue, denial, had been addressed in substance, albeit not in the correct form. The May 2011 assessment for Mr Tetley was identical to that for Mr Shutt (Witness Statement of Jacob Seaward, B232 paragraphs 11 and 12). Mr Elliott did not seek to persuade me to any different construction of the OASYS plan for Mr Tetley.[35]What Mr Elliott did submit for both Defendants was that there was unfairness since the failure to carry out a proper assessment did not allow for shades of grey within the denial. For example a person who denies part only of his offending or who admits previous sexual offending may in certain circumstances be considered ready for SOTP. Similarly a denier might be considered unready for reasons unrelated to his denial, such as ill health. Had the May assessments produced a result other than unreadiness due to denial, there might have been some force in these submissions. However, in the light of the result of the May 2011 assessment, I am satisfied that no injustice has been suffered by either Claimant in the circumstances of this case,[36]Finally Mr Elliott suggested that the fact of Standard rather than Enhanced status could have impacted on issues of re-categorisation or parole decisions. There is no evidence in this case on those matters nor is there any challenge on that basis. I reject those suggestions as purely hypothetical.

Conclusions

[37]In summary, therefore, I find that the IOW local policy which, by reason of the points system, includes a blanket ban on attaining Enhanced status for any sex offender who is suitable for SOTP but is unready by reason of his denial of guilt, is an unlawful policy. However, I find that there has been no injustice to either Claimant from the application of that unlawful policy, or from the failure prior to May 2011 to carry out a proper assessment in respect of either Claimant as to whether he was “ready” for SOTP.