Ashton, R. v [2014] EWHC 974 (Admin)

[2014] EWHC 974 (Admin)Case No YOR/11/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/04/2014
Before
MR JUSTICE JAY
Between
ReginaClaimantRyan AshtonDefendant
JudgmentMR. JUSTICE JAY :Introduction
[1]This is the second occasion on which this case has been brought before the Court on the application of Mr Ryan Ashton (“the Applicant”) for a review of his tariff. I refer to the review decision made on 5th September 2012 on which occasion Mr Justice MacDuff determined that he could not recommend that the Applicant’s tariff be reviewed. In short, it was MacDuff J’s view that the Applicant had not yet demonstrated sufficient evidence of exceptional progress within prison, but “if, as I anticipate, the Applicant continues to mature, his behaviour remains good, he avoids adjudications and other problems, there is no reason to believe that a new application would not be successful” (see paragraph 15(b) of his Judgment).

Essential Factual Background

[2]This has been set out in the first review Judgment, and in such circumstances I may be brief.[3]The Applicant was born on 23rd September 1988. On 18th July 2006, when he was still only 17 years of age, the Applicant murdered Mr Nathan Crawley in a brutal, senseless attack. Everyone agrees that drink played an important role in this tragic offence. On 19th February 2007 Mr Justice Openshaw sentenced the Applicant to detention during Her Majesty’s pleasure with a minimum term of 10 years. I have carefully considered Openshaw J’s sentencing remarks and have noted the Applicant’s remorse, which is accepted to be genuine, and the fact that he played a lesser role in the attack than others.[4]The Applicant is now 25 years of age. He has spent over one-third of his life in prison. His tariff expiry date is 31st July 2016. He will not be automatically released at that stage, but only if the Parole Board determines that he no longer represents a risk to the public.

The Review Jurisdiction

[5]Again, I may refer to the first review Judgment for a synopsis of this.[6]An indeterminate sentence of this nature must be kept under review in accordance with the principles laid down in R(Smith) v Secretary of State for the Home Dept [2005] UKHL 51 and the “Criteria for Reduction of Tariff in respect of HMP Detainees”. In essence, the question for me is whether the Applicant has made exceptional progress in prison. In the circumstances I think that it is worth repeating the relevant criteria from MacDuff J’s summary of them.[7]The following matters are, in principle, indicative of exceptional progress:(i) an exceptional work and disciplinary record in prison;(ii) genuine remorse and an acceptance of an appropriate level of responsibility for the part played in the offence;(iii) an ability to build and maintain successful relationships with fellow prisoners and prison staff; and(iv) successful engagement in work (including offending behaviour/offence-related courses) which results in substantial reduction in areas of risk.[8]Further:
“To reach the threshold of exceptional progress there would also need to be some extra element to show that the detainee had assumed responsibility and shown himself to be trustworthy when given such responsibility. Such characteristics may well be demonstrated by the detainee having done good works for the benefit of others.”
The criteria indicate that, ideally, there should be evidence of these factors being sustained over a lengthy period and in more than one prison.

The Applicant’s Progress since September 2012

[9]It is unnecessary for me to set out the material which was before MacDuff J when he prepared the first review Judgment. I naturally continue to bear it in mind.[10]A Parole Board oral hearing took place on 18th June 2013. The Parole Board recommended that the Applicant should move into open conditions. The Secretary of State agreed, and on 26th July 2013 he was placed into Category D. In October 2013 the Applicant was transferred to HMP Kirklevington Grange, which is an Open Prison.[11]Just before the Applicant’s transfer, and whilst he was still at HMP Wolds, a Tariff Assessment Report was prepared by his Offender Supervisor, Ms Emma Downes, on 23rd September 2013.[12]I have read this report very carefully indeed, and have been able to note the following very positive statements: “Mr Ashton has taken it upon himself to demonstrate his ability to change, by remaining drug and alcohol free and maintaining overall good behaviour. He has not been an aggressive individual nor does he become agitated or argumentative if put in awkward situations. Unit staff spoke very highly of him, in regards to his interpersonal skills, and his ability to mix well with others. His personal officer described him as a pleasure to manage and often commented on how mature he was when dealing with staff and other offenders. … Over the past year Mr Ashton became more aware of the possible consequences of his decision making and began to understand and accept the advice being given to him … Mr Ashton became more open and honest about the offence and the impact that it would have had on the victim’s family and the general public. Which, for a long time, he never spoke about. … Since being in custody Mr Ashton has completed various courses. He has completed all courses set to him during sentence plans as well as taking on further courses without any prompting. Mr Ashton has demonstrated hard work and a good level of motivation to achieve everything he has done so far. [Courses listed] Since being in custody Mr Ashton has worked hard to improve his chances of employability, and has to date completed. [Courses listed] While at HMP Moorlands Mr Ashton was working as an insider. This meant meeting new offenders and trying to help them with any issues or worries they may be facing. Whilst Mr Ashton’s behaviour has been good for the majority of his sentence, he has had three proven adjudications the last one being 19/11/2009 which was for fighting. Mr Ashton has certainly used his time in custody wisely and has shown his determination to better himself. He has completed more work than the average life sentenced prisoner and this work remains ongoing. … Mr Ashton has shown excellent motivation to achieve all he has during his sentence. He has completed more than what has been asked of him. This can only help his progress in the future.” [Courses listed]

[Courses listed]

[13]Unfortunately, there was an incident at HMP Kirklevington Grange shortly after his arrival there. On 16th October 2013 the Applicant was absent from work without permission. The circumstances are not altogether clear but it seems that he refused to get out of bed that morning and was rude to a Prison Officer. On 25th October 2013 he received an adjudication including loss of privileges for seven days. According to paragraph 11 of the written submission filed on his behalf, the Applicant was genuinely ill and “was not trying to be difficult or attempting to purposefully breach Prison Rules”. However, I am not prepared to draw the inference from the nature of the punishment imposed that this explanation was accepted by the prison authorities.[14]The most recent report in the file was prepared by the Applicant’s Home Probation Officer, Mr David Walmsley, on 17th January 2014. Again, I have read this report very carefully indeed.[15]I have to say that this report is less glowing than Ms Downes’.[16]The Applicant initially struggled to settle down at HMP Kirklevington Grange. He requested a transfer from this establishment, notwithstanding that his transfer there clearly represented a considerable step forward for him. However, since the adjudication I have already mentioned there has been a change in attitude and motivation, and three different staff at the prison support and congratulate him for this.[17]In answer to the question, “has the detainee shown exceptional progress in custody beyond what is expected of all life sentence prisoners?” Mr Walmsley said this:
“Whilst Mr Ashton has successfully completed an outstanding number of educational courses and treatment programmes throughout his time in custody, it could be argued that he has yet to fully evidence that he is able to effectively put into practice the theoretical learning he has undertaken. … According to HMPS records Mr Ashton volunteered to act as an “insider” during his time at HMP Moorland … I understand Mr Ashton did not volunteer for any similar positions during his time at HMP Wolds, nor has he since his arrival at HMP Kirklevington Grange. It could be argued that Mr Ashton has not evidenced an exemplary disciplinary record since his time in custody … I understand that since this incident [on 16th October 2013] Mr Ashton has complied with all prison rules and is now seen as a polite and hardworking inmate. Having completed the Sycamore Tree victim awareness programme before leaving HMP Wolds, Mr Ashton continues to willingly undergo any cognitive behavioural programme offered in order to progress in custody. In this work Mr Ashton has demonstrated a deep understanding of the effects of his offending behaviour and genuine remorse for his actions. However, evidence at interview and from his actions in custody at times indicates some outstanding cognitive deficiencies, especially in relation to consequential thinking about associates and effective planning for his eventual release. As such Mr Ashton would benefit from successfully completing the Think First Programme. This was agreed … and remains an objective for the future. It is not Mr Ashton’s fault that he has [not] completed this programme, he did not meet the selection criteria at HMP Wolds and I understand it is not available at this current location.”
[18]The following points are made in the submissions prepared by the Applicant’s solicitors on 5th February 2014:• Mr Ashton would not have been transferred to open conditions had he not made exceptional progress.• Mr Ashton continues to show genuine remorse.• Mr Ashton did volunteer for an “insider” role but his move to the education unit at HMP Wolds effectively precluded this.• Mr Ashton has had only one adjudication since November 2009 (this was in October 2013, as previously discussed).• Mr Ashton has achieved all his sentence plan targets, and cannot be blamed for his failure to complete the Think First programme.• Ms Downes’ report is highly supportive.• After a somewhat rocky start in open conditions, Mr Ashton has settled down extremely well.[19]I should also make clear that I have paid careful regard to the victim impact statements in this case and, in particular, to the ongoing impact Mr Crawley’s death and proceedings of this nature is having on the immediate family.

Decision

[20]In my judgment, Mr Ashton has continued to make very good progress in prison, but I am unable to conclude on the existing evidence that his progress has been exceptional.[21]In my view, the adjudication recorded against Mr Ashton in October 2013 is a blot on his disciplinary record which cannot be ignored. I appreciate and understand that this happened shortly after his transfer to open conditions, but to my mind this reinforces the concerns expressed in Mr Walmsley’s report to the effect that question marks remain over Mr Ashton’s maturity and ability to adapt to new situations. These question marks will become all the more significant as Mr Ashton approaches the end of his tariff.[22]Having said this, I accept that it would not be right to place too much weight on one unfortunate event, which viewed in isolation should not in any event be seen as particularly serious. Additionally, I can see so many plus marks in Mr Ashton’s case: the number of courses he has successfully concluded and the amount of hard work he has put into them; a much enhanced level of true victim empathy and remorse; good evidence that he has been able to build solid relationships with prison staff and fellow prisoners. I also agree with Mr Ashton’s solicitor’s submission that I should be attaching no weight to what happened at HMP Wolds and the visitor being in possession of drugs (see paragraph 14 of MacDuff J’s Judgment which deals with this issue).[23]Putting all these favourable matters into the balance as I do, the reality is that Mr Walmsley’s report is not sufficiently supportive to enable me to take the exceptional step of reducing Mr Ashton’s tariff by the one year indicated by MacDuff J. Very good progress is a feather in Mr Ashton’s cap, but it is inadequate in my view to enable me to accede to the present application which requires solid proof of something exceptional. Issues still remain over Mr Ashton’s maturity and his ability to convert theory into practice in the real world outside prison.[24]This decision should not be regarded as closing the door on any future application. I appreciate the importance of this decision for Mr Ashton, and anticipate the sense of frustration he will no doubt feel when he reads it in due course. I nonetheless hope and believe that his progress will continue and, even if his tariff is not reduced before its expiry, this will mean that the Parole Board is able to conclude at an appropriately early stage that Mr Ashton no longer represents a risk to the public.