Weddle, R (On the Application Of) v Secretary of State for Justice [2013] EWHC 2323 (Admin)

[2013] EWHC 2323 (Admin)Case No CO/1671/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 30 th July 2013
Before
MR JUSTICE CRANSTON
Between
R (on the application of Weddle)ClaimantSecretary of State for JusticeDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Leonie Hirst (instructed by Michael Purdon) for ClaimantTom Weisselberg (instructed by Treasury Solicitors) for Defendant
JudgmentMr Justice Cranston :Introduction
[1]The claimant is serving a life sentence. He seeks judicial review of what he alleges is the continuing failure of the Secretary of State for Justice (“the Secretary of State”) to provide him with the means to demonstrate reduced risk so that he can progress to a lower security category while in prison. Ultimately this has a bearing on his release into the community on licence. At one point the claimant was challenging the decision to refuse to recategorise him within the prison system, but that aspect of the judicial review is no longer pursued.

Background

[2]The claimant was sentenced to life imprisonment in February 1994 for the murder of a police officer. The officer had attended a domestic incident when the claimant attacked him with a fence paling and then repeatedly stabbed him. Although the claimant had a relatively large number of previous convictions for theft and motoring offences, he had only one offence for violence, an assault in 1988, for which he received a community service order. At the time of the murder he was under the influence of alcohol and other substances including temazepam. On his account he has never been able to recall either the murder itself or the events immediately surrounding it. However, he has accepted responsibility for the murder. The minimum term he must serve before he can be considered for parole was set by Irwin J at 25 years, less the 333 days he had spent on remand: [2009] EWHC 2800 (QB). That period is due to expire on 24 March 2018 at which point he becomes eligible for parole. He has spent a substantial period of his sentence at HMP Frankland but in March this year was transferred to HMP Full Sutton.[3]The claimant has remained a Category A prisoner throughout his time in prison. He currently has a “standard” escape risk. Category A is the highest category and is based on a prisoner’s risk of harm. Prison Service Instruction (“PSI”) 03/2010 defines that category as follows:
“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.”
All Category A prisoners are placed in one of three escape risk classifications: standard, high or exceptional.[4]In his time in custody, the claimant has completed a number of rehabilitative (“offending behaviour”) programmes. He completed the Enhanced Thinking Skills programme in 2000. When attending the sessions for that programme he displayed a negative attitude but his out of session work was more positive. When he spoke to a prison psychologist about the programme in 2004 he could not recall its content.[5]To address his substance abuse, the claimant has worked with CARATs, a drug treatment programme in prisons. The CARAT team consider that he has completed all available work on drug abuse. He has also followed the FOCUS substance abuse programme. Since his imprisonment he has been subject to mandatory drug testing and no concerns have been raised about his consumption of alcohol while in custody. In addition, the claimant has completed courses in literacy, numeracy, healthy living, art and design, money management, physical education and life and social skills.[6]In January 2009 the claimant was examined by a forensic psychologist. Initially he said that he “does not do psychology” but later he saw her for two hours. He expressed the view that it was unfair that his Category A status was attributable to his having murdered a police officer when in his view there were far more serious offenders with Category C status. Consequently, the psychologist thought that he had a limited insight into his offending and its impact. She also concluded that as long as he had that view the extent to which he could demonstrate a reduction of risk was limited. As regards the Enhanced Thinking Skills programme she gave thought to whether he might benefit by revisiting the course. However, he did not have the required level of need to qualify and thus she concluded that it was not necessary for him to undertake the programme again. During the interview the claimant appeared to see the potential benefits of the Controlling Anger and Learning to Manage It (“CALM”) course but to some extent he did not seem committed to understanding the factors which contributed to his offending. She recommended that he remain a Category A prisoner.[7]The claimant was assessed for the CALM course in late July 2009. In August he was informed that he was unsuitable because of “an absence of reported emotional precursors, a lack of previous violent offences and a lack of recollection about the index offence.” Thus, he was told, the CALM course would be removed as a sentence planning target. The following year he was told that the course would be suitable in the future if he were to remember more about his commission of the murder.[8]In 2009 the claimant was assessed as well for the Cognitive Self-Change Programme (“CSCP”), a programme designed to address violent offending. Again he was found to be unsuitable. The explanation was that he did not meet the criteria for the programme because he did not have a history of violent offending and his score on an OASys assessment was too low. OASys is a widely-used risk assessment tool for defendants and prisoners. Further assessment for the CSCP programme was not recommended.[9]The Parole Board considered the claimant’s suitability for open conditions in May 2010. The panel member commented that since both CSCP and CALM were unavailable following assessments “it is not clear from the dossier as to what direction [the claimant] should now take”. The Board concluded that outstanding areas of risk needed to be addressed before the claimant could be moved to open conditions. His lack of recollection of the events surrounding the index offence had prevented him from fully engaging in rehabilitative programmes.[10]There was a sentence planning review two months later, in July 2010. The claimant declined to attend. The meeting noted that he was on the enhanced regime under the incentives and earned privilege scheme operating in prisons. The meeting considered a number of matters, including the claimant’s risk of reconviction on the basis of his OASys scores. On each of the three measures used, he ranked as being of medium risk. In reviewing the claimant’s progress, the meeting noted that the CALM programme was deemed unsuitable because he could not recall the offence: the situation would be monitored by the CALM team, “and should [he] recall the index offence, it has been recommended that he contact the Psychology department.” The meeting had received a report from the Psychology department that they would be making an annual check on whether the claimant’s recollection had changed. That department was examining the possibility of acquiring assessment tools which might help to improve his recollection so that an accurate assessment of his treatment needs could be completed. The Psychology department had concluded that the Thinking Skills Programme was suitable for the claimant’s needs, albeit that he had undertaken the ETS course in 2000. The meeting recommended that he participate in the programme, in order to address risk factors that he was currently unable to address through CALM.[11]The following year, on 22 March 2011, the Psychology and Programmes section of HMP Franklin explained, for the purposes of the claimant’s annual Category A review, that:
“The [CALM] programme has been identified as unsuitable for [the appellant’s] treatment needs at this time due to [his] current stance of his index offence, as he does not admit significant aspects of it. However if [he] changes his stance at any time he is encouraged to contact the psychology department for assessment.”
[12]In June that year, a Local Advisory Panel considered the claimant’s case and identified drugs, lifestyle and associates, and anger and violence as outstanding risks. It recommended that he complete the Thinking Skills Programme, CALM and CARATs.[13]The next month, on 22 July 2011, the Category A Team refused to downgrade the claimant’s security category from Category A. It reasoned that he still posed a high risk, although his behaviour in prison was generally acceptable and he had completed some rehabilitative courses. Its reasoning continued:
“[Y]our lack of progress examining and addressing your use of extreme violence still prevented a determination of a significant change in your risk. The Category A Team considered there was no evidence you had achieved substantial further progress since that time, either by addressing core risk factors relating to your offending through intervention work or participation in assessments or interviews that might show advances in insight and personal development ... The Category A Team understood that you remained unable to recall your offence, and had remained unable to discuss issues that might shed light on a change in your risk, such as the sources of your extreme violence, and skills to prevent similar reoffending.”
The letter continued that there were several courses to help show the necessary risk reduction, including Thinking Skills and CALM “should remembrance of your offending change”. But he had yet to participate in those programmes. “[T]here continued to be no clear and convincing evidence of a significant reduction in your risk of reoffending in a similar way if unlawfully at large, despite your settled behaviour and completion of the bulk of your tariff.” The claimant’s settled behaviour could not provide reliable evidence of significant risk reduction, nor could the passage of time, at least not without supporting evidence that his ageing had also brought about a great change in attitudes. “The Category A Team also did not accept that you were prevented from progressing and showing suitable evidence of risk reduction. It considered the opportunity remained open for you to discuss issues relating to your use of extreme violence, as it had throughout your sentence. This in turn would enable a full risk assessment and possible completion fo suitable intervention work.”[14]The claimant’s solicitors sent a letter before claim on 26 September 2011. It said that it was clear from the decision of the Category A team that the claimant was required to demonstrate a reduction in the risk of violent offending, but he was not able to undertake either the CALM or CSCP Programmes since he was found to be unsuitable for both, partly on the basis of his inability to recall the offence. Neither the Thinking Skills Programme nor work with CARATs would enable the claimant to address violent offending or demonstrate a reduction in the risk of violence. No other offending programmes had been recommended. While the decision of the Category A team referred to participation in assessments or interviews to show advances in insight and personal development it was unclear what that meant. Other than CALM, no other means had been suggested or offered to the claimant so that he could address violent offending or demonstrate a reduced risk of violence.[15]The Secretary of State’s reply to that letter on 6 October said that the Category A team was satisfied that means were available to the claimant to discuss and address his offending:
“either through psychological assessments or identified intervention programmes should his recall of his offending change. The Category A team considers [the claimant] has precluded himself from progression due to his lack of recall, and that any impasse relating to his progress has not been imposed from outside.”
[16]Dr David Millar, a clinical neuropsychologist, examined the claimant at his solicitor’s request on 23 November 2012. He prepared a report the following day. For the purposes of the report Dr Millar reviewed a number of other reports on the claimant and also the relevant literature. Dr Millar referred to one study which found that just over 30 percent of perpetrators of extreme violence such as murder had described amnesia of the incident, which was more likely when the level of violence was higher. Typically, however, amnesia existed around the time of the offender’s initial court proceedings. It was difficult to make judgments in relation to amnesia, as in the claimant’s case, so long after the event. Dr Millar identified three possibilities in relation to the claimant’s inability to recall the incident – dissociative amnesia (i.e. amnesia for a dramatic experience which is of a psychological origin), the effect of intoxication, or a conscious wish not to disclose details.[17]As to dissociative amnesia, the claimant had reported vague recollections to both a psychiatrist at the time of the proceedings in 1993, and to Dr Millar himself, descriptions which were commonly associated with this condition. Regarding the effect of intoxication, the claimant had consistently asserted that he thought he had taken alcohol and other substances the evening of the offence. The third explanation – a deliberate decision not to recall – appeared unlikely “as there is little apparent motive for him to do so and his lack of recall is actually hindering his progress.” Dr Millar added that if in the future the claimant recalled something of the incident the issue of a false memory would also be relevant. He concluded as follows:
“On balance it appears most likely that the cause of [the claimant’s amnesia] is related to a dissociative experience and after such a long period of time he is very unlikely to recall those events. It is also the case that the veracity of any “recovered” memories were they to occur would be questionable. During my assessment [the claimant] accepted responsibility for what he did, expressed remorse and was noticeably emotional when discussing the crime. This would suggest that there was some potential for him to psychologically address what he has done. On the other hand, however, he also reported that he did not feel it was necessary as he just wanted to move on and this would question his motivation to engage.”
[18]On 28 May 2012 the Psychology department at HMP Frankland informed the claimant that he had been assessed as unsuitable to undertake the Thinking Skills Programme because it did not meet his treatment needs.[19]Meanwhile this judicial review had been lodged. Permission was granted in late April by Stuart Catchpole QC, sitting as a deputy High Court judge. On 22 July 2012 the Secretary of State filed its detailed grounds of defence, in the course of which it asserted that “courses (such as TSP and CALM) are not the only means to demonstrate to the [Category A Team] that a prisoner is progressing…[P]risoners such as the claimant may address their own risk in a variety of ways including completing an alternative programme, undertaking further education and training, non accredited courses or demonstrating a sustained period of stable behaviour.” The detailed grounds specifically asserted that the Secretary of State identified the possibility of the claimant undertaking psychology assessments as a means of demonstrating a reduction in risk.[20]During his almost 20 years in custody the claimant has had 22 adjudications. On 3 July and 10 October 2012 the claimant was subject to adjudications under Prison Rule 51(20) for using threatening, abusive or insulting words or behaviour, although he has attributed that to a blip caused by his father’s death. This year, on 20 March, he had an adjudication for refusing a mandatory drug test.[21]The claimant’s most recent categorisation review took place on 2 January this year. The Category A team again refused to recategorise him. It explained that the claimant’s behaviour was generally acceptable and he had taken part in intervention work to address his drug use and thinking skills. But his “use of extreme violence has remained essentially unexplored and unaddressed, principally due to your lack of recall of the present offence.” There were reports of a poor attitude and several demonstrations of anger, including verbal threats and physical displays of aggression. That could not be ignored in his risk assessment, taking into account the nature of his offending, and the lack of progress exploring his emotional control and aggression.[22]The Category A team noted that the claimant had made no further progress discussing and addressing these key issues through intervention work or contact with the psychology staff. The fact was that there was still no convincing evidence that the claimant had achieved insight into, or had changed the risk factors influencing, his use of extreme violence. Dr Millar’s report contained no convincing evidence that the claimant had achieved a significant reduction of risk. While the Category A team noted Dr Millar’s conclusion about the claimant’s lack of recall, it considered that this did not negate the high level of risk shown by his violent offending or demonstrate that he had reduced his potential to act in the same way again. It noted that Dr Millar’s report suggested that the claimant may yet be able to discuss and address these issues through one to one work.[23]There is a report from a Sentence Planning Meeting dated 26 June 2013. It refers to the claimant’s latest OASys report on the risk of reoffending from January this year. That shows that he is of medium risk on two of the predicators but a low risk on the third. As a result of recent adjudications his risk of harm to staff, particularly female staff, increased and is still worryingly high. His risk to the community is high is based on the murder and remains constant. The report sets out his short term objectives as follows: to be assessed for the Thinking Skills programme, to make use of his time constructively in work and education, to maintain a positive standard of behaviour and to apply for a victim awareness course. His long term objective is to be assessed for the RESOLVE course, which is a new programme designed to reduce violence in medium to high risk adult male offenders. It is considered to be suitable for offenders with a history of reactive or instrumental violence.

Legal and policy framework

[24]Rule 3 of the Prison Rules 1999, SI 1999 No 728 states:
“The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life.”
The purpose outlined in Rule 3 is referred to in Rule 7:
“Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3…”
[25]Prison Service Order (“PSO”) 4700 provides at [4.1.1] that indeterminate sentence prisoners “will be managed through their sentence plan with the primary aim being to meet their individual needs and help them to reduce the risk of serious harm they present to the public, in line with the principles of offender management and in the light of the principle that the ultimate responsibility for demonstrating a reduction in risk lies with the offender.” Paragraph 4.1.1 continues that plans for such prisoners will aim to identify the risks they must reduce and offer the effective and timely delivery of properly identified interventions, having regard to available resources, so that Parole Board reviews can be meaningful. Each offender’s indeterminate sentence will be managed, as far as possible, to best meet their intervention needs based upon principles, including that the offender’s sentence plan will be managed and sequenced through the sentence, with actions aimed at their individual needs rather than interventions available at an establishment, so as to assist the offender to reduce their risk: [4.1.2].[26]Category A prisoners are entitled to an annual review of their security category. These reviews are governed by PSI 03/2010, which stipulates that there must be “convincing evidence the prisoner’s risk of re-offending if unlawfully at large has significantly reduced” before his security category can be downgraded. PSI 03/2010 states that this can be evidenced from the prisoner’s contact with others or from his participation in offending behaviour work. A Category A prisoner is by definition unlikely ever to be released until he can progress to conditions of lower security: R v Secretary of State for the Home Department ex p Duggan [1994] 3 All ER 277, 288d. Rehabilitative courses are not the only means by which a prisoner can demonstrate a reduction in risk: R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin), [39], [80].

The public law duties

[27]On the claimant’s behalf Ms Hirst submitted that the Secretary of State is under a public law duty to provide indeterminate sentenced prisoners, including life-sentenced prisoners, with the means by which they can demonstrate that, by the expiry of their sentences, their risk has reduced sufficiently to enable their release. She invoked R (on the application of Walker) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553 (“Walker”) and a number of single judge decisions in the High Court. Walker may have been a decision about those sentenced to Imprisonment for Public Protection (“IPP”), not to life imprisonment but, quoting from Lord Hope’s speech at [3] in that case, Ms Hirst submitted that the duty was a general public law duty “to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention”. In Ms Hirst’s submission this duty does not require systemic failures and can also lead to a remedy in the case of a specific prisoner. Alternatively, Ms Hirst submitted that the Secretary of State is in breach of its narrower public law duty by acting irrationally in requiring the claimant to undertake work addressing violent offending without providing any means by which he can do so.[28]By contrast Mr Weisselberg’s primary submission was that the Secretary of State is not subject to the public law duty contended for, which the Secretary of State assumed in Walker in the particular circumstances of the introduction of IPP sentences. Those circumstances do not apply to a life sentence prisoner such as the claimant, for whom systems and resources are already in place. Moreover, the duty in Walker relates to the availability of systems and resources and is not concerned with the particular manner in which a particular prisoner is treated within the prison system. A breach of the public law duty recognised in Walker requires proof of systemic breaches. No such breach is alleged in this case. As a matter of domestic law, in circumstances where no systemic breach of the Walker public lawduty can be proved, the question is whether the Secretary of State has acted rationally within the limits of the available resources pursuant to the decision in R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522; [2004] UKHRR 101. In Mr Weisselberg’s submission the Secretary of State had acted rationally in making choices in relation to the allocation of resources for programmes across the prison estate and in his decisions relating to this claimant. To support his submission Mr Weisselberg referred to the recent decision of Supperstone J in R (Kaiyam)v Secretary of State for Justice [2013] EWHC 1340 (Admin).[29]These submissions demand an analysis of the decision of the House of Lords in Walker and a history of the case in the lower courts. The background to those proceedings was the introduction of IPP under the Criminal Justice Act 2003 but in a cost neutral manner. Thus there were not the rehabilitative courses available for the significant number of IPP prisoners soon in prison, especially those on a short tariff. Consequently, they could not display a reduced risk at the point their tariff expired, and in some cases at a point well beyond.[30]In the Divisional Court in R (Wells) v Parole Board; R (Walker) v Secretary of State for the Home Department [2007] EWHC 1835 (Admin); [2008] 1 All ER 138 (“Wells”) Laws LJ held that the Secretary of State was in breach of his public law duty as set out in Lord Hope’s speech in the House of Lords, quoted a moment ago. Mitting J agreed with Law LJ. Laws LJ’s reasoning was based on the legislation, the Secretary of State’s policy and common law principle. In discussing the “underlying premise” Laws LJ began with what “had long been understood that government would provide offending behaviour courses and the like so as to enable lifers to be released at or as soon as possible after tariff expiry where the risk they posed at that stage could be shown to be low enough for that to be justified”: [24]. Laws LJ went on to hold that it was not lawful to hold IPP prisoners following the expiry of their tariffs without the means, including the provision of rehabilitative courses, for the effective assessment of the risk they posed. In course of his judgment he affirmed his decision in Cawser, that the continued detention of a lifer past the expiry date of his tariff by reason, for example, of the absence of courses, did not breach Article 5 of the European Convention on Human Rights (“the Convention”).[31]After the judgment in Wells was handed down there was a hearing as to the nature of the order to be made. The court rejected a mandatory order in favour of a declaration. There was some discussion about whether the declaration should refer specifically to the claimants. That option was rejected and ultimately the declaration made by the Divisional Court was in general terms: the Secretary of State had acted unlawfully by failing to provide for measures to enable prisoners serving IPP to demonstrate to the Parole Board by the end of their minimum term that it was no longer necessary for the protection of the public that they continue to be confined: Wells v Parole Board, CO/2480/2007, CO/2537/2007, 31 July 2007.[32]The Court of Appeal maintained the Divisional Court’s declaration: R (Walker) v Secretary of State for Justice (Parole Board intervening); R (James) v Secretary of State for Justice (Parole Board intervening) [2008] EWCA Civ 30; [2008] 1 WLR 1977. (The appeal in Wells was heard along with an appeal in a separate but similar case, James). In giving the judgment of the court, Lord Phillips CJ focused on the object of the IPP sentence. He noted that the Secretary of State in Cawser had conceded that it would be irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such courses: [37]. Rehabilitative courses are provided, said Lord Phillips CJ, because experience showed that these are usually necessary if dangerous offenders are to cease to be dangerous and it was for this reason that performance of the appropriate courses was likely to be a prerequisite to a prisoner satisfying the Parole Board that he has ceased to be dangerous: [39]. That passage continued that whether prisoners could show this lay largely in the hands of the Secretary of State. While it had been his policy to provide the necessary courses, and within a time scale giving lifers a chance to demonstrate that they were safe for release by the time that they completed their tariff periods, or reasonably soon thereafter, resources had not been provided on the introduction of the IPP regime. Significantly Lord Phillips CJ continued:
“[40]…This cannot simply be regarded as a discretionary choice about resources, which is pre-eminently a matter for the Government rather than the courts. We are satisfied that his conduct has been in breach of his public law duty because its direct and natural consequence is to make it likely that a proportion of IPP prisoners will, avoidably, be kept in prison for longer than necessary either for punishment or for protection of the public, contrary to the intention of Parliament (and the objective of article 5 of which Parliament must have been mindful). [41] We also accept that those who promoted the 2003 Act and Parliament that enacted it must have anticipated that the lifer regime that was already in place in accordance with the Secretary of State's policy would be available to IPP prisoners so as to give them a fair chance of ceasing to be, and showing that they had ceased to be, dangerous. This was the context in which the legislation was enacted. To use Laws LJ's phrase…it was “a premise of the legislation”
. In these circumstances he could have founded his finding of breach of duty on the part of the Secretary of State on the principle in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.[33]Lord Phillips CJ then went on to hold that Laws LJ had been wrong to hold that IPP prisoners who had completed their tariff terms were unlawfully detained; the common law had to give way to the statutory regime governing the release of prisoners. In concluding Lord Phillips CJ referred to the systemic failure on the part of the Secretary of State to resource rehabilitative courses so that IPP could function as intended: [72].[34]In the House of Lords, as I have explained, the Secretary of State accepted the existence of the public law duty to provide rehabilitative courses and that he was in breach of it. He did not appeal against the declaration which the Divisional Court had made, and which the Court of Appeal had upheld. The House of Lords underlined that the only remedy for a breach of that public law duty was a declaration: [5], [36], [123]. In his speech Lord Hope referred to the deplorable failure of the Secretary of State in its public law duty ([3]), and Lord Brown to the “systemic breach” of that duty ([65]). The House of Lords then considered at length the second issue in Laws LJ’s judgment, the lawfulness of detention after expiry of the tariff period under the statutory regime and Article 5 of the Convention. That need not detain us since it is not relevant to the present proceedings.[35]In my view it is evident from the lower courts’ decisions in Walker that Ms Hirst’s submission is correct: the public law duty enunciated there cannot be confined to IPP prisoners. The reasoning in relation to IPP prisoners drew on the situation of prisoners with a life sentence and the accepted need for those prisoners to have the means of demonstrating readiness for release. As Ms Hirst put it, it was because the Secretary of State’s duty to provide the means of risk reduction was accepted in relation to life sentenced prisoners that the Secretary of State was found to be in breach of his public law duty by failing to provide additional resources when IPP sentences were introduced.[36]Quite apart from the genesis of the Walker public law duty, there is no principled basis for distinguishing between prisoners sentenced to IPP and those sentenced to life when it comes to providing the systems and resources so that they can demonstrate to the Parole Board that it is no longer necessary that they remain in detention for the safety of the public. In a recent decision, R (on the application of Haney and Jarvis) v Secretary of State [2013] EWHC 803 (Admin), the Secretary of State appears to have accepted as much: [54-57]. That is not surprising when IPP and life-sentenced prisoners progress in the same manner in prison through conditions of lower security to ultimate release. The means of risk reduction for both categories is the same, a point underlined by the Prison Rules 1999, particularly the rehabilitative purpose in Rule 3 and the need to have regard to that purpose in the categorisation of prisoners outlined in Rule 7.[37]As we have seen there were references in the various Walker judgments to systemic failures on the part of the Secretary of State in his breach of the public law duty. On my reading that is a description of the situation which existed in that case, not a necessary element of a breach of that duty. As to remedy, it is clear from the Walker judgments that the public law duty was only enforceable by means of a declaration, applied generally, and not specifically in relation to the claimants’ situations. Finally I note that in the passage quoted from Lord Hope’s speech in Walker the reference is to the position of prisoners by the time of expiry of their tariff periods, or reasonably soon thereafter. That latter qualification is not necessarily apposite to life sentence prisoners with substantial minimum terms: in my view the systems and resources must be in place so that they can demonstrate the reduced risk at or around the end of their tariff period.[38]It is now necessary to canvass in outline the other authorities. Cawser has been mentioned. It preceded Walker and was a judicial review of what was said to be the failure of the Home Secretary to place the claimant on the extended sex offender treatment programme in time to avoid delay of his likely release date. In his judgment, Simon Brown LJ referred to the Secretary of State’s ready acceptance that it would be irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such courses, although it was solely a public law duty to act rationally to which the Secretary of State was subject: [30]. Simon Brown LJ held that the duty to provide courses was qualified by the extent of available resources and subject only to the test of rationality: [34]. Laws LJ agreed with this.[39]In R (on the application of Falconer) v Secretary of State [2009] EWHC 2341 (Admin) Pitchford J invoked the duty in Walker as potentially of benefit to a single prisoner who had been denied recategorisation because of an absence of means to demonstrate timely progress, although the prisoner was not able to sustain his case on the facts: [31]-[32]. That statement of the law, with respect, does not accord with my reading of Walker.[40]In R (on the application of Mehmet) v Secretary of State for Justice [2009] EWHC 1202 (Admin) Bean J found that the failure for nearly a year to provide a psychologist’s report about a prisoner to the Parole Board, which was relevant to an assessment of his risk, was a breach of the Secretary of State's public law obligations. In that case there had been a systematic failure in preparing psychological reports in the prison where the claimant had been incarcerated. One basis of Bean J’s decision was that the Secretary of State had not acted rationally within the constraints of resources, quoting Cawser: [17]. The other basis of the decision lay in Walker: Bean J said that there was a public law breach where it results in the Parole Board being deprived for a long period of the reports which constitute the prisoner’s dossier for a hearing such as a current report on risk: [31]. There is nothing inconsistent here with Walker, given the failures in that prison with the completion of psychological reports. However, Bean J went on to grant a declaration relating specifically to the claimant and gave liberty to apply were no report to be produced within a period of weeks: [32]-[33].[41]I turn to R (Kaiyam) v Secretary of State for Justice [2013] EWHC 1340 (Admin). There the claimant submitted that the Secretary of State owed a public law duty derived from Walker, to each and every indeterminate sentence prisoner, that they be given a reasonable opportunity to demonstrate their safety for release at tariff expiry and at further parole reviews: [3], [13]. Unsurprisingly, Supperstone J held that Walker recognised no such duty, but that the duty accepted by the House of Lords was a duty about systems and resources, not individual prisoners, what he characterised as a “target” duty: [21]. My own preference would be to avoid that description of the duty, which may imply that the Secretary of State need only aim at, but can regularly be wide of, the mark. That is certainly not the case, since the systems and resources must be in place.[42]Drawing these threads together, I regard the authorities as establishing the following propositions:(1) The Secretary of State is under a public law duty to provide indeterminate sentence prisoners with the means by which they can demonstrate, at or around the expiry of their sentences, that their risk has reduced sufficiently to enable their release. That duty is not confined to those serving IPP but includes life sentence prisoners.(2) A breach of the duty occurs when there is a failure to provide the appropriate systems and resources covering matters such as reports and rehabilitative courses. This failure may be described as systemic although proof of a systemic breach (whatever that means) is not an additional requirement to establish a breach of duty.(3) Breach of this duty does not confer on a particular prisoner a right to a remedy in his particular case although the upshot of a prisoner demonstrating a breach may be a ready improvement in how he is treated within the prison system e.g., if there is a system or resource problem in his particular prison which improves as a result.(4) There is the separate and well accepted public law duty on the Secretary of State to act rationally and to take into account relevant factors, while disregarding irrelevant matters. This duty applies to making choices in relation to the allocation of resources for rehabilitative programmes. For example, subject to resources it would be irrational to have a policy of making release dependent upon a prisoner undergoing a rehabilitative course without making reasonable provision for such courses.(5) This separate and well accepted public law duty also applies to the treatment of a particular prisoner, including the indeterminate sentence prisoner being able to demonstrate that his risk has reduced sufficiently for release by the expiry of his tariff or (depending on its length) very soon after. The threshold is high. But it would be a breach of this duty to require a prisoner to demonstrate a type of progress to a reduction of risk which is effectively impossible for him to perform. This duty cannot be interpreted as an absolute obligation to make a prisoner ready for release when his tariff expires.

Application to the claimant’s case

[43]Since the public law duty recognized in Walker relates to the availability of systems and resources, it does not arise in this case. There is no allegation that the problem facing this claimant constitutes this type of failure. What is effectively being said in his case is that the Secretary of State is in breach of its public law duty to act rationally in the provision of courses or other means by which he can demonstrate reduced risk.[44]The reality is that at present it is impossible for this claimant to demonstrate a reduction in risk. What is the reason for this? Firstly, the claimant cannot remember the details immediately surrounding the murder. That is something he has consistently asserted. According to Dr Millar’s report that assertion is likely to be genuine, and Dr Millar’s opinion is that his recollection of details is highly unlikely ever to improve. Secondly, the murder was the claimant’s only use of extreme violence – the 1988 offending and the prison adjudications cannot be characterized as such – so that the requirement that he address his use of extreme violence before progressing to conditions of lower security as set out in the letters from the Category A Team reviews in July 2011 and January this year, must refer to the murder.[45]Thirdly, there are no rehabilitative courses available to the claimant enabling him to address his use of extreme violence. As described earlier in the judgment the claimant has undertaken a number of courses with the intention of reducing his risk in other areas including the Enhanced Thinking Skills Programme, the drugs courses and further education and training. As I understand it these programmes do not address extreme violent offending as a risk factor. The claimant has constantly been told that other courses are unsuitable. It will be recalled that the claimant was assessed as not meeting the criteria for the CSCP programme in 2009 because his OASys risk score was considered to be too low and because he lacked the history of violent offending (apart from the murder) required for the programme. As recorded in the June 2013 sentence planning report his OASys risk score has actually reduced as regards reconviction. CALM was not considered suitable in 2009 due to the absence of emotional precursors, a lack of previous violent offences and a lack of recollection regarding the murder. Subsequently, the Secretary of State’s position has been that annual checks are carried out to determine whether the claimant’s recollection has changed so he can undertake it. In the light of Dr Millar’s report that is highly unlikely. As with CSCP he is unlikely ever to be deemed suitable for the CALM programme. So I regard any suggestion of the claimant being suited at some point in the future for CALM or CSCP if his recollection improves as pie in the sky. Vague is perhaps too generous a description for the assertion that the Secretary of State “has been investigating the possibility of acquiring assessment tools which may help to improve the claimant’s recollection of his offence so as to enable him to access programmes such as CALM and CSCP…” As regards the RESOLVE programme that is too far off and there is no evidence about its availability to and suitability for him.[46]Fourthly, while rehabilitative programmes are not the only means by which the claimant could address his extreme violence, the fact is that the Secretary of State has failed to provide any other means by which he can demonstrate a reduced risk. The Category A team reviews have made clear that good custodial behaviour, even over a sustained period, is insufficient to demonstrate a reduction in risk. Aging may do the trick, but so far has not. As a result it appears of this judicial review, the suggestion has emerged that the claimant might undertake psychological assessments or interventions. The first suggestion - psychological assessments – is puzzle since as I understand it these are typically used to identify treatment needs or to measure the impact of an offending behaviour programme. It seems to me that they are unlikely to be accepted in themselves as demonstrating a reduction in risk. One to one psychological intervention is perhaps more promising. Dr Millar mentioned it in his report and it was referred to favourably in the Category A review early this year. But the plain fact is that no steps have been taken to provide the claimant with one to one work. It is perhaps best that I offer no comment on Mr Weisselberg’s submission in argument that the claimant being examined by Dr Millar (funded, of course, by legal aid) demonstrates that he is able to access one to one psychological services.[47]In effect the stance of the Category A reviews quoted earlier in the judgment is that until the claimant recalls the murder events he will not be offered or provided with any offending behaviour interventions to address his extreme violent offending. Without such interventions, the claimant will not be able to demonstrate that his risk in that regard has decreased. The claimant will therefore remain a Category A prisoner, with no prospect of release at or after the tariff period. I cannot see in the evidence any practical consideration of how the claimant might progress should his recall of the murder events remain a blank. Any reliance by the Secretary of State on the possibility that the claimant might regain his memory of these events is irrational in the light of the report from Dr Millar.[48]If the Secretary of State believes that one to one work with a psychologist to address extreme violence is the best way forward, it is in my view irrational for him not to have taken practical steps to explore its potential. Otherwise the Secretary of State is putting beyond the claimant the means of demonstrating progress towards rehabilitation while at the same time demanding such progress before granting him recategorisation. The Secretary of State requires him to address his use of extreme violent offending but at the same time is effectively withholding the means by which he can do that. By failing to unfold the steps by which he can evidence a reduction in the risk of extreme violence, the Secretary of State is in my view acting irrationally and in breach of his public law duty. For sake of completeness I note that there is no suggestion that the failure to provide the means to risk reduction is due to a lack of resources.[49]The Secretary of State submits that any claim is premature since the claimant’s minimum term of imprisonment is not due to expire until 24 March 2018. There is still significant time available for him to demonstrate a reduction in risk, to secure re-categorisation, and thereby to work towards release upon the expiry of his tariff or reasonably soon after. Thus there is no current breach of any relevant duty. Given the time that exists between now and tariff expiry, Mr Weisselberg’s submission was that the claimant should be proactively taking steps to address his emotional control and aggression, rather than looking to these proceedings to operate as a silver bullet.[50]In my view this claim is not premature. PSO 4700 envisages that an indeterminate sentence prisoner will progress gradually from Category A through lower security conditions to release. At each stage, he is required to demonstrate a reduction in risk before he can move to the next stage. Typically the process takes several years and must begin in sufficient time if there is to be a realistic prospect that a prisoner will be able to demonstrate a reduction in risk to be released at (or shortly after) the tariff period. Here there is nothing tangible on the immediate horizon and the claimant’s tariff is ticking away. There is no reason at the present time to think that the claimant’s position will change between now and 2018, unless steps are taken soon. The position cannot continue to drift.

Conclusion

[51]For the reasons I have given the claimant succeeds in his claim. There is no need for the mandatory order the claimant requests; I have no doubt that the Secretary of State will address the matter with the necessary expedition. I give liberty to apply if there are concerns.

Cited in 4 later judgments