MJ, R (on the application of) v Secretary of State for the Home Department

Introduction. The Claimant is a Category A prisoner who is serving a sentence of life imprisonment for rape. By his application for judicial review, the Claimant challenges the following decisions made by the Defendant (“the Secretary of State”): (i) the decision taken between 24^th November 2003 and 27^th November 2003 to uphold the Claimant’s Category A status; (ii) the decision taken on 29^th January 2004 to refuse to reconsider the decision to uphold the Claimant’s Category A status; and (iii) the decision taken between 29^th January 2004 and 4^th February 2004 to transfer the Claimant to HMP Wakefield. As will become apparent later in this judgment, decisions (i) and (ii) are more properly to be regarded as a single process of decision-making.

On 12^th July 2004, I heard the Claimant’s application. At the conclusion of the parties’ submissions, I dismissed the application and stated that I would give my reasons for having done so at a later date. This judgment sets out my reasons for the order that I made on 12^th July 2004.

The Grounds of Challenge and the Issues. In relation to the decision to maintain the Claimant’s category A security categorisation, the Claimant’s grounds of challenge raise the following issues.

In relation to the decision to allocate him to HMP Wakefield, the Claimant’s grounds of challenge raise the following issues:

The relief sought. In paragraph 4 of his written skeleton argument, Mr Lennon made it clear on behalf of the Claimant that the relief currently sought in these proceedings is as follows:

The Legal Framework. Section 47(1) of the Prison Act 1952 (“the 1952 Act”) provides that the Secretary of State may make rules for the regulation and management of prisons and for the classification, treatment, employment, discipline and control of persons required to be detained in prison.

Rule 7(1) of the Prison Rules 1999 (SI 729: “the 1999 Rules”), made pursuant to section 47 of the 1952 Act, provides as follows:

“Prisoners shall be classified, in accordance with any direction 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.”

Rule 3 of the 1999 Rules provides that the purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life.

There are four security categories for prisoners, namely A, B, C and D. At the date these proceedings were commenced, the definition of each category was set out in paragraph 9.5 of the Security Manual PSO 1000. However, following and in the light of the decision of Turner J in Pate (supra), the existing definition of category A was revised to remove the words “no matter how unlikely that escape might be” (see below). On 3^rd February 2003, a letter was sent to governors of all high security prisons by Peter Atherton, then the Director of High Security Prisons, explaining the revised definition of Category A, as follows:

“Revised definition

As well as Mr Atherton’s notification to prison governors in his letter of 3^rd February, the revised definition for Category A has been incorporated into the National Security Framework, which will replace the Security Manual and will be “rolled out to prison establishments over a 6 month period from January 2004” (see paragraph 7 of the first witness statement of Ms Clare Lewis (“Ms Lewis”). Ms Lewis is an Operations Manager in the Operations Unit at the Directorate of High Security, with responsibility for remand Category A prisoners. Accordingly, the following are the current relevant definitions of the various categories of prisoner (see paragraph 7 of Ms Lewis’ first witness statement: hereafter all references to Ms Lewis’ witness statement are to her first witness statement, unless otherwise indicated):

“Category A: prisoners whose escape would be highly dangerous to the public or the police or the security of the State, and for whom escape must be made impossible.

Category B: prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult.

Category C: prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt.

Category D: prisoners who can reasonably be trusted in open conditions.”

In addition to the four security categories, there are three escape risk categories for Category A prisoners, namely (i) Standard escape risk, (ii) High escape risk and (iii) Exceptional escape risk: see paragraph 9.6 of PSO 1000 and paragraph 1.5 of PSO 1010 (Review of Categorisation of Category A prisoners). These categories take into account, as appropriate, the likelihood that the prisoner will seek to escape and his ability to do so.

The Claimant, like most Category A prisoners, is classified as standard escape risk. Chapter 9.6 of PSO 1000, describes standard escape risk in the following terms:

“Standard escape risk

Most Category A prisoners are classified as standard escape risk. They are not considered to have the determination and skill to overcome the range of security measures which apply to the custody and movement of Category A prisoners. There is no current information to suggest that they have external resources which could be used to assist them to overcome those measures. They have no history of escape or determined escape planning. Even so, the Prison Service must assume that they would take any opportunity to escape and that, if unlawfully at large, they would pose a very serious threat to the public, the police, or the security of the State.”

Non-category A prisoners who pose a significant escape risk are placed on the escape list, referred to as “the E list”: see Chapter 9, paragraphs 17-22 of PSO 1000.

All prisoners have their security categorisation reviewed annually. Additional reviews may take place in response to emergencies. Decisions in respect of Category A prisoners are made by the Prison Service Headquarters, the three relevant decision-making bodies being the Category A Review Team (“CART”), the Category A Committee and the Director of High Security (currently the DDG), who takes the final decision in relation to all Category A categorisation cases that are considered by the Category A Committee. If the Director of High Security (i.e. the DDG) does not chair the relevant review meeting of the Category A Committee (as was the case for the particular review of the Claimant’s Category A status in the present case), he considers the recommendation and reasons of the Committee and gives approval or otherwise. The Director does not perform an appellate function. The overall process and the respective roles of the various decision-making bodies are succinctly described in paragraphs 8 to 10 of Ms Lewis’ witness statement, as follows:

“8.

The Secretary of State reviews the categorisation of all prisoners annually. Decisions in respect of prisoners in categories B, C and D are made by the governor of the prison holding the prisoner. Decisions in respect of (potential) category A prisoners are made by the Prison Service Headquarters, in recognition of the gravity of the risks posed by such prisoners.

9.

Within Prison Service Headquarters there are three bodies that deal with the categorisation of (potential) category A prisoners. The Category A Review Team (“CART”) makes most of the decisions. Membership of CART comprises various Prison Service Headquarters officials. The Category A Committee considers the considers the following categories of cases:

a.

Where the prison has recommended downgrading to category B or where CART considers that downgrading to category B should be considered; and

b.

In every case where five years have elapsed since the Committee last considered the prisoner’s case.

Membership of the (Category A) Committee comprises the Deputy Director General, the Head of the Police Advisers to the Prison Service, the head of the Resettlement and Programmes Group, the head of the Category A Review Team and representatives from the high security prisons. This last class could include governor grades, senior probation officers and members of psychology departments.

10.

However, the final decision in any case considered by the Category A Committee is always taken by the Director of High Security who is currently also the Deputy Director General.”

Decisions on the security categorisation of prisoners are made (inter alia) on the basis of reports prepared for that purpose. Before the judgment in R (Lord) ~v~ The Home Secretary (2003) EWHC 2073 (Admin), the Secretary of State disclosed to both provisional and confirmed category A prisoners the gist of the categorisation reports that had been prepared about them in advance of making the relevant decision. That practice was in accordance with the judgments in R (Duggan) ~v~ The Home Secretary (1994) 3 All ER 277 (DC), R ~v~ The Home Secretary, ex parte McAvoy (1998) 1 WLR 790 (CA) and R (Williams) ~v~ The Home Secretary (2002) 1 WLR 2264 (CA). In Williams the Court of Appeal observed that full disclosure might be required in an exceptional case. However, in the light of the judgment of Munby J in R (Lord) ~v~ Secretary of State for the Home Department (2004) PLR 65, the Secretary of State has changed his practice with regard to disclosure of categorisation reports. He now discloses the reports in full, save where it is necessary to withhold information in accordance with the Data Protection Act 1998: see paragraph 12 of Ms Lewis’ witness statement and the terms of the DDG’s letter to prison governors dated 25^th September 2003 (pages 42-43 of Exhibit 1 to Ms Lewis’ witness statement).

The Facts. On 14^th December 1998, the Claimant was sentenced at the Wolverhampton Crown Court to an automatic life sentence for the offence of rape. The tariff element of the life sentence was set at 7 years and 6 months. The tariff expiry date is therefore 14^th June 2006. The Claimant also received concurrent sentences of 10 years’ imprisonment for offences of kidnap and robbery. The Claimant’s record of previous convictions includes convictions for robbery and rape in 1985 and manslaughter in 1993.

In the ordinary way, all offenders who have been sentenced to life imprisonment are allocated to a prison in the High Security Estate (also known as “the Dispersal Estate”: high security prisons also being known as “dispersal prisons”) through the Directorate of High Security Operations Unit of the Prison Service. Those convicted of sex offences can be allocated to HMPs Wakefield, Full Sutton, Whitemoor or Frankland. When allocating a prisoner, account is taken of such matters as the prisoner’s home area, available places, other prisoners with whom the prisoner in question should not be co-located and, where possible, requests by the prisoner on compassionate grounds (see paragraph 42 of Ms Lewis’ witness statement).

Whilst on remand awaiting trial, the Claimant was detained at HMP Woodhill. At HMP Woodhill, the Claimant met a fellow prisoner, “K”, who made admissions to the Claimant regarding the rape and murder of prostitutes. The Claimant contacted the Police and (inter alia) gave an account of what he had been told by K to Detective Inspector Paul Owen (“DI Owen”) of the National Crime Squad. As a result of the investigation that followed, it was decided that K should be prosecuted for offences of murder and that, if he were prepared to do so, the Claimant should give evidence at K’s trial.

In due course, the Police contacted Mr Golds, who was then the Head of the Prisoner Management Section in the Directorate of High Security Prisons, through the Police Advisers Service, which is part of the Prison Service. As a result, Mr Golds visited the Claimant at HMP Full Sutton on 17^th November 1999 (“the November meeting”). The purpose of Mr Golds’ visit was to discuss the Claimant’s concerns about his management within the prison system if he were to give evidence at the trial of K.

There is an issue as to what assurances, if any, the Claimant was given by Mr Golds at the November meeting. In order to succeed on the issues identified in paragraphs 3(ii) and 4(ii) above (i.e. the second procedural issue and the legitimate expectation issue), it was necessary for the Claimant to establish that Mr Golds agreed to the Claimant’s terms for giving evidence at K’s trial and/or gave an assurance to the Claimant that he would be taken out of the dispersal estate permanently (i.e. that the Claimant would never be allocated to a dispersal prison at any stage during his life sentence: see below).

There is no direct evidence from the Claimant himself as to what transpired at the November meeting. Instead, the Claimant’s solicitor, Ms Sian Jones (“Ms Jones”), after having mistakenly identified Mr Golds as the Director of High Security Prisons at the time (see paragraph 7 of her witness statement, dated 16^th February 2004), gave the following account of what the Claimant says took place (see paragraph 9 of Ms Jones’ witness statement):

“9.

At the meeting in 1999, the Claimant agreed to give evidence only if he was to be taken out of the dispersal system permanently; thus the presence of Mr Golds at the meeting. Mr Golds agreed to this condition. However, it is understood that the Prison Service now deny ever making such an assurance. Mr Golds no longer holds that post but it is noteworthy that the Claimant was kept out of the dispersal system from 1999 until 4^th February 2004, suggesting that the Prison Service did indeed make this assurance. …”

However, Mr Golds has given the following account of what occurred both when he met the Claimant on 17^th November 1999 and, subsequently, at HMP Doncaster on 3^rd April 2000, in which he denies having given any such assurance (see paragraphs 5-25 of Mr Golds’ witness statement dated 12^th May 2004):

“5.

My first involvement in the Claimant’s case was in or about October 1999. At that time I was approached through the Prison Service Police Advisers, by police officers who were involved in the case, and asked to meet with the Claimant to discuss with him his specific concerns about his future custody, if he were to give evidence at a criminal trial.

6.

Following a search of my computer I discovered the following documents:

a.

A memo dated 10 December 1999 dealing with the visit I made to HMP Full Sutton on 17 November 1999 …

b.

A memo dated 3 April 2000 to HMP Doncaster (sic) …

7.

…

8.

As set out in the memo dated 10 December 1999, I visited the Claimant at HMP Full Sutton on 17 November 1999. …

9.

The purpose of my visit to HMP Full Sutton on 17 November 1999 was to interview the Claimant at the request of the police. I was accompanied by Gordon Harrison of the Police Advisers Service, which is a part of the Prison Service. To the best of my recollection DC Humphries was not present at that meeting. As far as I am aware I have not met DC Humphries.

10.

In the course of the interview, the Claimant stated that he was not prepared to give evidence unless his security categorisation was downgraded. I said that this was not possible but that his co-operation would be taken into account in any future review of his security categorisation.

11.

It appears from the memo that there was then a lengthy discussion at the end of which the Claimant stated that he would discuss the matter with his solicitor but was prepared to consider his earlier position.

12.

…

13.

This memo confirms my recollection of the meeting with the Claimant and that I did not promise the Claimant that he would not be returned to the dispersal estate and I did not say that if he gave evidence his security categorisation would be downgraded. Security categorisation was a matter for the Category A Committee and I had no power to determine current or future categorisation decisions. However, I could ensure that the Category A Committee were aware of the Claimant’s actions in giving evidence. However, the relevance of those actions to the categorisation decision and the overall decision were a matter for the Category A Committee to determine when the review was held. I could not and did not give any assurance of what the Category A Committee would consider relevant.

14.

The memo dated 3 April 2000 confirms that I met the Claimant again, but this time at HMP Doncaster. Although the memo does not specifically record the fact that I was accompanied by Gordon Harrison, it is my recollection that I was.

15.

As set out in that memo, the purpose of the visit to HMP Doncaster was to meet with the Leicester police to discuss the future management of the Claimant and also to interview the Claimant.

16.

The Claimant had by this time already given evidence against K who was convicted on 14 March 2000.

17.

As set out in the memo, I considered that K might wish to take revenge on the Claimant for giving evidence against him. It was therefore important that K should be monitored to determine the level of risk posed to the Claimant.

18.

When I interviewed the Claimant, it was plain that he was angry that he had not been downgraded and he said that he was unsafe in dispersal and wanted to remain at HMP Doncaster. He eventually accepted that he could not remain at HMP Doncaster and HMP Altcourse was accepted as an appropriate onward move with a return to HMP Doncaster in the future.

19.

I discussed with the Claimant the suspicions that he had been involved in bullying and drug activity which he denied. The Claimant denied any wrongdoing, but was warned that any future problems could result in him moving quickly and possibly to a dispersal prison.

20.

This memo confirms my recollection that I did not promise the Claimant that he would never be moved into the dispersal estate.

21.

To the best of my recollection I did not meet the Claimant on any other occasion. …

22.

I cannot imagine the circumstances in which I would promise a Category A prisoner that he would never be moved into the dispersal estate. Category A prisoners are normally accommodated in the dispersal estate and some important courses for Category A prisoners are only available in the dispersal estate. I have never made such a promise to any prisoner. …

23.

In the course of the meetings with the Claimant I believe that I would have said that there were other alternatives where he could be held as a category A prisoner if any future assessment indicated that he was at risk. I would have stressed that the Prison Service took its responsibilities for his safety very seriously and any assistance the Claimant gave … would be reflected in any future risk assessment to ensure that any risk to him could be minimised.

24.

On both occasions I would have reassured the Claimant that he would not return to a dispersal prison if there was a significant risk of harm to him. However, I gave no undertaking that he would not return to a dispersal prison at some stage. I did not give any assurance concerning the Claimant’s progress through the security categories. …

25.

The Prison Service fully understands its responsibilities towards all prisoners, including those who give evidence against other prisoners. As an important prosecution witness the threat to the Claimant was carefully assessed to determine whether he should be included in a Protected Witness Unit. … It was decided that the Claimant did not qualify for the Protected Witness Unit because he could be accommodated in the high security estate as the threat against him could be properly managed there. It should also be noted that at no time did the police involved request that the Claimant be considered for the Protected Witness Unit. This is usually a pre-condition of admission to the PWU.”

So far as material, Mr Golds’ memorandum of the 10^th December 1999, which records what took place when he met the Claimant at HMP Full Sutton on 17^th November 1999, is in the following terms:

“PURPOSE OF THE VISIT:

To interview (the Claimant) along with Gordon Harrison, at the request of the police.

MATTERS ARISING:

(The Claimant) was not prepared to give evidence unless he was downgraded. I said that this was not possible, however his co-operation would be reflected in any future review.

After a lengthy discussion (the Claimant) agreed to discuss with his solicitor but was prepared to reconsider his earlier decision. …”

There is thus a clear dispute of fact as to whether Mr Golds gave any assurance to the Claimant to the effect that, if he gave evidence at K’s trial, the Claimant would never be allocated to a prison in the Dispersal Estate at any stage whilst he was serving his sentence of life imprisonment. Putting to one side the fact that Ms Jones’ witness statement is hearsay evidence, whereas Mr Golds’ witness statement constitutes direct evidence of what took place at the November 1999 and the April 2000 meetings, I am satisfied that this important factual dispute is so acute that it cannot be resolved properly without the benefit of cross-examination.

At an early stage in the hearing of the application, I made it clear to Mr Lennon that I took the view that it would not be possible for me to resolve the factual dispute as to the alleged assurance by Mr Golds without the benefit of cross-examination and I pointed out that no direction had been made that there should be cross-examination in these proceedings.

On behalf of the Secretary of State, Mr Robb drew attention to R ~v~ Board of Visitors of Hull Prison ex parte St. Germain (No.2) (1979) 1 WLR 1401 and R ~v~ Secretary of State for the Home Department, ex parte Oladehinde (1991) 1 AC 254 and submitted that, in such circumstances, there would be no grounds upon which it would be right for me to reject Mr Golds’ evidence. In support of that submission, Mr Robb referred to and relied upon (inter alia), the following passage in the speech of Lord Griffiths in ex parte Oladehinde, at page 302B-C:

“However that may be, both inspectors swore affidavits that they received full oral reports of the results of the interviews with the immigrants and that they personally took the decision in the light of those reports to authorise service of the notice to deport. No application was made to cross-examine the inspectors and I can see no grounds upon which it would be right to reject their sworn evidence that the decision to deport was theirs and not that of the immigration inspectors. …”

At one stage during the proceedings, Mr Lennon indicated that he was minded to apply for an appropriate order that there should be cross-examination of (inter alia) Mr Golds. However, after he had carefully considered the matter over the short adjournment, he made it clear that he was not pursuing any application to cross-examine and, to the extent that he had initiated any such application earlier, he withdrew it. In those circumstances and as I made clear at the time, I can see no grounds upon which it would be right for me to reject the evidence of Mr Golds, as to what took place at the November and April meetings, to the extent that his evidence is in conflict with that of Ms Jones. On the critical issue, it is Mr Gold’s clear evidence that he did not give the Claimant any assurance of the sort alleged. Accordingly, it follows that the Claimant has failed to satisfy me (i.e. he has failed to prove) that Mr Golds agreed to the Claimant’s conditions for giving evidence and/or gave the assurance to which Ms Jones made reference in paragraph 9 of her witness statement (see paragraph 19 above).

The Claimant’s case on both the second procedural issue (see paragraph 3(ii) above) and the legitimate expectation issue (see paragraph 4(ii) above) was entirely dependent on his assertion that he had been given an assurance by Mr Golds to the effect that, if he gave evidence against K, he would never be allocated to a dispersal prison. Having regard to my conclusion that the Claimant has not established that Mr Golds gave him any such assurance (see paragraphs 27 above), it follows that his case on both the second procedural issue and the legitimate expectation issue fails.

As stated in Mr Golds’ witness statement, quoted above, the Claimant did give information to the police concerning K’s crimes and gave evidence at K’s trial. As a result, on 14^th March 2000, K was convicted of two counts of murder and sentenced to life imprisonment.

As already indicated, Mr Golds met the Claimant for a second time on the 3^rd April 2000. So far as material, Mr Golds’ memorandum of that meeting records what took place, in the following terms:

“Matters arising

(The Claimant) had given evidence against (K). He was clearly under threat from (K) and others. The officers undertook to monitor (K) to assess the threat.

It was considered that Frankland could offer (the Claimant) the opportunity to settle.

If he remained well behaved then a review of his categorisation could be undertaken.

(The Claimant) had been suspected of bullying and involving himself in drug activity.

Action

Interview (the Claimant). He is angry about the fact he would not be downgraded. He was also insistent that he was unsafe in a dispersal (prison) and wanted to stay at Doncaster. He finally accepted that this was not possible and Altcourse was accepted as an appropriate onward move with a return to Doncaster in the future.

He denied any wrong doing and was warned that any future problems could result in him moving quickly and possibly to a dispersal.”

The Claimant was allocated to HMP Altcourse shortly after having given evidence against K. Unfortunately, his position was not thereafter reviewed until mid-2001, because he had been overlooked as the result of a change of staffing at the Population Management section of the Prison Service. However, as soon as the Claimant came to Ms Lewis’ attention, she set about dealing with his management in the prison estate, taking appropriate account of the Claimant’s concerns for his safety, although there was no record stating that he was subject to any actual threat (see paragraph 47 of Ms Lewis’ witness statement).

Ms Lewis has met the Claimant on two occasions in order to discuss his future management within the prison estate. The first such meeting was in July 2001, whilst the Claimant was at HMP Altcourse. The second meeting also took place at HMP Altcourse, shortly before the Claimant was moved to HMP Highdown in November 2001.

On 15^th October 2001, Ms Lewis wrote to the Claimant and summarised their July meeting as follows:-

“Thank you for your letters of 14^th August and 19 September regarding your onward location. I am sorry that you have not received an earlier reply.

When I came to see you in July we discussed the possible options for your future management within the category A estate. We looked at alternatives which would enable you to address your offending behaviour needs and work towards a reduction in your security category. We discussed your concerns about your safety within the dispersal estate and I said that I would pursue possible future locations.

One of the options we considered was a transfer to Woodhill to complete the SOTP. Unfortunately I am sorry to tell you that the Core Sex Offender Treatment Programme is not, at present, available in any category A local prisons. This means that the only place for you to complete the SOTP at this time is a dispersal prison. I am currently trying to come up with a realistic plan which would enable you to progress in a safe environment, which unfortunately may have to be a dispersal.

I am sorry that I cannot give a more positive reply, I have discussed your case with DI Paul Owen from the National Crime Squad and he is fully aware of the limited options available to you.

Finally can I reassure you that no decisions will be made about your long term allocation without first talking about them with you. I hope to visit Altcourse at the beginning of November when we can discuss your future requirements.”

After the Claimant’s transfer to HMP Highdown, Ms Lewis arranged for him to be assessed for the Sex Offender Treatment Programme (“the SOTP”). Not surprisingly, given the details of the Claimant’s history of offending, the conclusion reached was that he presented too high a level of risk of re-offending for the “Rolling” SOTP, which is a programme available in local prisons and designed for prisoners who present a lower risk of re-offending and who can stop and start the programme at any stage (see paragraph 51 of Ms Lewis’ witness statement). The same assessment also concluded that the Claimant required the more exacting “Core” SOTP.

The Claimant’s present sentence plan therefore states that he should complete the “Core” SOTP (see paragraph 56 of Ms Lewis’ witness statement). However, as Ms Lewis made clear in her letter of 15^th October 2001, the Claimant can only do the “Core” SOTP in a high security prison (i.e. in a dispersal prison). The “Core” SOTP is not provided at local prisons because it is a six-month programme and the nature of the prison population in local prisons means that they would not have a stable group of prisoners to complete the course in the numbers the group work requires (see paragraph 51 of Ms Lewis witness statement).

At some stage, DI Owen had become aware that the Claimant believed that his life and/or personal security would be endangered, as a result of giving evidence against K, if he were to remain in or be allocated to a high security prison. As a result, on or shortly before 15^th October 2001 and as stated in Ms Lewis’ letter of that date, DI Owen met Ms Lewis to discuss the position with regard to the Claimant. It appears that it was an informal meeting, during which Ms Lewis informed DI Lewis of the up to date situation (see paragraph 50 of Ms Lewis’ witness statement).

In paragraphs 52 to 56 of her witness statement, Ms Lewis described her approach to the management of the Claimant as follows:

“52.

I was aware of the concerns expressed by the Claimant about returning to the dispersal estate, but as far as I was aware there was no evidence to suggest that those concerns were well founded and I considered them to be unfounded. Of course, the Prison Service would have to undertake a risk assessment (taking into consideration the fact that the Claimant had given evidence against K) before deciding to allocate him to a particular prison.

On 30^th April 2002 the Claimant was transferred from HMP Highdown to HMP Bristol. As indicated in paragraph 55 of her witness statement (see above), Ms Lewis informed the Claimant by letter dated 2^nd August 2002 that she considered that the most suitable location for him to undertake the necessary Core SOTP was at HMP Wakefield, a view that she repeated in her letters dated 2^nd October and 19^th November 2002. However, as stated in paragraph 53 of her witness statement (see above), in the light of the Claimant’s concerns about being transferred to a dispersal prison, in November 2002 Ms Lewis agreed he should remain at HMP Bristol until his Category A review was completed.

On 11^th October 2002, in anticipation of the Claimant’s Category A review, DI Owen wrote to the Prison Service in the following terms:

“I wish to bring to your attention a situation concerning the following inmate: -

(The Claimant)

This inmate approached myself whilst on remand in relation to conversations he had had with another prisoner K…, who disclosed to (the Claimant) that he had killed another woman. As a result of this information being passed to the Police, an investigation was re-opened and (the Claimant) gave evidence against K… who was subsequently convicted of this and other murders.

As a result of this (the Claimant) feels that he will be in danger from other prisoners as it is commonly known that he gave evidence against K…. I believe that the amount of risk that he has placed himself in as a result of giving evidence will reduce his danger to the public as he is aware that future re-offending will place him in a dangerous situation where he will be in the general prison environment with no protection.

I am aware that his Category A status is under review and if the board wish any further information from myself then I am happy to attend or provide it.”

In his report to the Category A Committee dated 29^th November 2002, the Governor of HMP Bristol recommended that the Claimant be recategorised to Category B and his assessment of the Claimant’s progress included the following passage: -

“From the time he has been in Bristol, there is no evidence to suggest that he is an escape risk.

Overall I concur with the Wing Principal officer’s report and agree that this man’s risk has diminished and that he would benefit from the regime opportunities within a category B establishment.”

The Claimant’s Wing Manager at HMP Bristol was Principal Officer Stuart Peppercorn (“Mr Peppercorn”). In his Category A review report dated 9^th November 2002, Mr Peppercorn also recommended that the Claimant be recategorised to Category B and included the following passages in his report:-

“My opinion is that his location at Bristol is inappropriate, he is unable to pursue his sentence planning targets as the facilities will not allow Category A participation.

His security category is also inappropriate, as it does not reflect his risk potential accurately.

…Attached to this report, is a copy of (the Claimant’s) ETS post programme, it is quite clear that offending behaviour work has started to reduce his areas of risk. Certainly his risk to the public has reduced significantly enough to recategorise him as Category B. This will enable the service to transfer him to another establishment (i.e. Albany) to continue his offending behaviour work.”

In his report to the Category A Committee concerning the Claimant, dated 4^th December 2002, the Head of Security at HMP Bristol also recommended that the Claimant be recategorised as Category B and included the following assessment:-

“(The Claimant) although involved in various nefarious activities, I do not class him as a security risk.

During his time at Bristol he has not shown any aggression towards staff.

His activities are all centred around the use of drugs and as such I feel he should be involved in some sort of therapy, this should be part of his sentence plan.

He has resided here now for over nine months and now Bristol cannot offer him any future progress …”

In his report dated 16^th April 2003, the Claimant’s personal officer at HMP Bristol, Mr C. Hurford, when assessing the risk posed by the Claimant, stated that he considered there to be nothing of importance in the Claimant’s behaviour or comments and made the following observations about the Claimant’s general conduct and present attitude: -

“Since (the Claimant) came to Bristol to complete a course which his Category A status excludes him from attending, he remains positive. Work, when it is available, has been willingly completed and has been “in cell”. Visits to the gymnasium have on occasion proved difficult, and have tried (the Claimant’s) resolve to remain calm and talk through the situation he is faced with.

(The Claimant) is keen to move on from Bristol, and even keener for his status to change.

To his credit, he retains a good sense of humour and an optimistic outlook as to the future.”

On 7^th May 2003, Mr Peppercorn wrote to the Chair of the LSP Lifer Board in the following terms:

“(The Claimant) has made claims to me that he was used by the Police as a Covert Intelligence Source and was responsible for the conviction of an individual who has been located into HMP Full Sutton. As this action by him was known by prisoners within HMP Full Sutton, (the Claimant) felt it would be too dangerous for him to return to the Dispersal Estate.

(The Claimant) supplied a contact telephone number for me to verify his claims. On investigation the telephone number supplied to me was the contact number for DC Martin Humphries. Mr Humphries confirmed to me that he was (the Claimant’s) controller, he was quite concerned that the Prison Service was contemplating moving (the Claimant) to HMP Wakefield, because he had been at a meeting with managers of the Category A Estate who had agreed not to move (the Claimant) into the Dispersal estate because of his service to the police and the successful conviction obtained. Mr Humphries did in fact visit (the Claimant) shortly after this.

Having had experience working in the Dispersal Estate, I would have to agree with (the Claimant). If his actions were known at HMP Full Sutton, they would be known throughout the Dispersal Estate, which would certainly place (the Claimant) in a potentially dangerous situation if he were to be moved to a dispersal prison.”

Since the prison recommendation was that the Claimant be downgraded to Category B, the Claimant’s 2003 Category A review was carried out by the Category A Committee, with the final decision being taken by the DDG (see paragraphs 9 and 10 of Ms Lewis’ witness statement, quoted in paragraph 14 above). In paragraphs 22 to 26 of her witness statement, Ms Lewis also gave the following succinct and (I accept) accurate account of the relevant decision making in relation to this particular review of the Claimant’s Category A status:-

“22.

On 9^th May 2003, the CART (Category A Review Team) sent to the Claimant’s solicitors a copy of the gist of his security category reports. These reports set out the prison’s recommendation. Although in the Claimant’s case the reports recommended that he be downgraded to category B, in each case it is for the CART or the Category A Committee (in fact the Director of High Security) to make the final decision on security categorisation and it is not unusual for the recommendation from the prison, whether it be to maintain a prisoner’s category A status or to downgrade, to be overruled. Indeed one of the criteria for the case being referred to the category A Committee is that there has been recommendation from the prison to downgrade …

23.

The letter enclosing the gist went on to advise that the Claimant’s case was to be reviewed by the Category A Committee on 27 August 2003 and in response to an earlier request for an oral hearing and disclosure of the reports in full, the letter stated that the CART was satisfied that there were no exceptional circumstances in the Claimant’s case entitling him either to full disclosure or to an oral hearing.

24.

On 20 August 2003 the Claimant’s solicitors sent representations in relation to the category A review to the CART on their client’s behalf.

25.

The Category A Committee (of which I was a member) subsequently considered the Claimant’s case and recommended that he should remain category A (Standard Escape Risk). This recommendation and reasons were approved by the Deputy Director General. The reasons for the decision are set out in the decision notification of 24 November 2003 sent to the Claimant’s solicitors by the CART under cover of a letter dated 25 November 2003.

26.

The decision notification essentially stated that:

a.

the Claimant had been convicted of very serious offences including rape and his history of physical and sexual violence;

b.

until there was sufficient evidence that the risk of the Claimant re-offending in a similar way (had significantly diminished), the Committee could not approve downgrading of his security category;

c.

although the Claimant had undertaken some courses, he had yet to address directly a number of issues relating to his offending behaviour, including the use of violence, victim empathy and sexual offending;

d.

there was insufficient evidence of diminished risk and the Claimant should remain in Category A.”

The letter dated 25^th November 2003 from the Category A Review Team, to which Ms Lewis referred in paragraph 25 of her witness statement (see above), also made clear that the Category A Committee’s decision and recommendation that the Claimant should remain Category A had been considered and confirmed by the DDG.

By letter dated 7^th January 2004, the Claimant’s solicitors requested the Director of High Security (i.e. the DDG) to: (i) reconsider his decision to confirm the decision of the Category A Committee, (ii) to consider further representations by them on behalf of the Claimant, (iii) to disclose fully any reports held back and (iv) to allow an oral hearing. The Claimant’s solicitors also expressed a concern that the decisions of the Category A Committee and the DDG were contrary to the recommendations contained in the various reports that had been prepared in relation to the Claimant.

On 29^th January 2004, the Prison Service replied by letter to the Claimant’s solicitors, as follows: (i) explaining that the Category A Committee was not bound to follow the recommendations of the various reports, (ii) confirming that all reports had been fully disclosed to the Claimant and his solicitors, (iii) inviting further representations which, if they contained new and relevant information, would be considered in a further review and (iv) stating that there were no exceptional grounds that warranted an oral hearing.

The Claimant’s solicitors have not made any further representations.

On 4^th February 2004, the Claimant was moved to HMP Wakefield. On arriving at HMP Wakefield, the Claimant expressed his concern about his safety, but agreed to go to a normal location within the prison. Given his concerns on arrival, prison staff approached the Claimant on several occasions to find out whether he felt under any threat. However, the Claimant did not suggest that anything had occurred since arrival to cause him concern for his personal safety and he made no request that he be segregated.

In paragraphs 58 and 59 of her witness statement, Ms Lewis gave details of the risk assessment that was carried out and the various precautions that were taken with regard to the Claimant’s safety and security, prior to the decision to move him to HMP Wakefield. The following is a summary of those various precautionary steps.

Following that discussion, it was decided that the transfer to HMP Wakefield was appropriate and safe because: (i) HMP Wakefield had a high staff/prisoner ratio; (ii) HMP Wakefield already had a number of other vulnerable prisoners, including prisoners who had given evidence against other prisoners and prisoners who are former police officers (see paragraph 78 of Ms Lewis’ witness statement).

The Claimant commenced these proceedings on 17^th February 2004. At a hearing before Collins J on 24^th February 2004 concerning the Claimant’s application for interim relief, the Secretary of State agreed to transfer the Claimant from HMP Wakefield as an interim measure and, as a result, the Claimant was moved to HMP Belmarsh, which is a Category A local prison and not a dispersal prison.

On 31^st March 2004, the Claimant was granted permission to apply for judicial review by Owen J.

On or about 6^th April 2004, the Claimant was attacked by other prisoners at HMP Belmarsh. However, it is common ground that this attack on the Claimant was for reasons entirely unconnected with the circumstances of and issues raised by this case. Shortly thereafter, the Claimant was moved to HMP Manchester.

The Issues and the Parties’ Submissions. As I have already indicated (see paragraph 28 above), to the extent that the Claimant’s challenge to the decisions in question depends on the alleged assurance by Mr Golds that the Claimant would never be allocated to a dispersal prison if he gave evidence against K, his challenge fails because there is no basis upon which I can properly reject Mr Golds’ evidence that he never gave any such assurance.

(i) The decision to transfer the Claimant to HMP Wakefield. It is therefore convenient to turn first to consider the only remaining issue with regard to the challenge to the Secretary of State’s decision to allocate Claimant to HMP Wakefield (i.e. the Article 2 Issue: see paragraph 4(i) above). This is the subject of Mr Lennon’s first submission: see paragraphs 38 and 39 of his written skeleton argument.

Mr Lennon drew attention to section 6 of the Human Rights Act 1998, which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It was Mr Lennon’s submission that, having regard to the circumstances of this case and the risk to which the Claimant would be exposed if he were allocated to a dispersal prison, Article 2 of the ECHR (The Right to Life) is engaged. Stated in broad terms, it was Mr Lennon’s submission that the Secretary of State is bound to protect the Claimant’s Article 2 rights and must do so by ensuring that he is never placed in a dispersal prison during the currency of his current sentence: see paragraph 38 of Mr Lennon’s written skeleton argument.

So far as material, Article 2 of the ECHR is in the following terms:

“(1)

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

Mr Lennon submitted that Article 2 is the most fundamental of provisions in the ECHR and is a human right from which there can be no derogation by the State, even in times of national emergency. He made the further uncontroversial point that Article 2 imposes positive obligations upon the State to take reasonable steps to protect potential victims from a real and immediate threat to their lives which is attributable to the actual or threatened acts of a third party: see the judgment of the European Court of Human Rights (“the ECtHR”) in Osman ~v~ UK (1998) 29 EHRR 245 at page 305, paragraphs 115 and 116. Mr Lennon also contended that the extent of the obligation to take steps to protect life varies from situation to situation, but calls for active participation of the State where the “authorities have taken the person in question into their custody”: see X ~v~ Federal Republic of Germany (1985) 7 EHRR 152 at 153.

Mr Lennon submitted that the evidence in this case established that there was a serious possibility that the Claimant’s life would be at risk if he were to be allocated to a dispersal prison and that this risk is both readily identifiable and real. It was Mr Lennon’s submission that this was a sufficient degree of risk to engage Article 2: see Fernandez ~v~ Government of Singapore and others (1971) 1 WLR 987 at 994, Osman ~v~ UK (supra) at page 305, paragraph 116 and R ~v~ Lord Saville of Newdigate and others, ex parte A and others 2001) 1 WLR 1855.

Mr Lennon contended further that a necessary corollary of his submission, that the Claimant cannot be allocated to a Category A dispersal prison without infringing his Article 2 rights, is that the Secretary of State must take such exceptional steps as are necessary to ensure that the Claimant’s prospects of progression through the prison system are not prejudiced (in particular, by taking appropriate steps to enable the Claimant to take the Core SOTP in a prison other than a dispersal prison): see paragraph 39 of Mr Lennon’s written skeleton argument.

Mr Robb emphasised that for Article 2 to be engaged in the present case, a real and immediate risk to the Claimant’s life must be established. I agree with that submission. In its judgment in Osman ~v~ UK (supra) the ECtHR stated the position in the following terms (see page 305, paragraph 116):

“In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual … from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”

Mr Robb submitted that the nature of the threat to life or safety, the protective means in being or proposed to counter the threat and the adequacy of those means are all highly relevant considerations in determining whether a threat to life exists that engages Article 2 of the ECHR and that the word “risk” in this context is a matter of common sense application to individual circumstances: see the judgment of Auld LJ in R (Bloggs 61) ~v~ Home Secretary (2003) EWCA Civ 686 at paragraphs 61 - 62. Again, I agree with that submission.

Mr Robb also referred to and relied on paragraphs 63 to 70 of the judgment of Auld LJ (with whom both Mummery and Keene LJJ agreed) in Bloggs 61 (supra), in which he observed that, despite the fundamental and unqualified nature of the right to life, it is still appropriate for the court to show some deference to and/or recognise the special competence of the Prison Service in making a decision going to the safety of a prisoner’s life (see, in particular, paragraph 65 of the judgment). Mr Robb also emphasised that, in paragraph 65 of his judgment, Auld LJ made it clear that it was not the court’s task to substitute its own view for that of the Secretary of State, but to review the decision with the intensity appropriate to all the circumstances of the case.

Mr Robb referred to and relied on Ms Lewis’ evidence concerning the careful and detailed risk assessment, investigations and precautions that were carried out and taken before it was decided to transfer the Claimant to HMP Wakefield (see paragraphs 58-59 of Ms Lewis’ witness statement). Mr Robb also stressed the considerable benefits, in terms of the Claimant’s personal safety, of him being allocated to HMP Wakefield: see paragraph 58 of Ms Lewis’ witness statement.

Mr Robb submitted (correctly, in my view) that, apart from wholly unrelated matters, the evidence clearly shows that: (i) the Prison Service is and has been at all material times fully aware of the Claimant’s concerns, in the light of which it has carried out a thorough and careful risk assessment, (ii) there have been no security reports indicating the existence of any actual threat to the Claimant, (iii) there is no evidence of any actual or immediate risk to the Claimant’s life or safety, (iv) the Claimant made no complaint to the prison staff that he had been threatened or that his safety had been compromised whilst he was at HMP Wakefield and (v) there was no request or suggestion by the Police dealing with the investigation into K that the Claimant should be considered for inclusion in the Protected Witness Unit, which would have been the appropriate procedure if there was concern that the Claimant was at risk.

Having regard to all these matters, Mr Robb submitted that, in all the circumstances of this case there is no evidence of a risk to the Claimant’s life sufficient to engage Article 2 if he is transferred to HMP Wakefield. He contended that the evidence upon which Mr Lennon placed particular reliance (i.e. the evidence of Ms Jones and the views expressed by Mr Peppercorn in his letter of 7^th May 2003: see paragraph 44 above) was almost entirely speculation and/or hearsay repetition of the Claimant’s generalised assertions. Mr Robb submitted that, to the extent that this evidence engenders any fear that the Claimant would be at risk if he were transferred to a dispersal prison, that fear had been more than adequately addressed and allayed by Ms Lewis’ evidence as to her awareness of the Claimant’s concerns, the careful risk assessment that has been carried out, the investigations and precautions that have been taken and the suitability of HMP Wakefield as a dispersal prison where full and proper provision for such concerns can be and is made. I agree with those submissions and reject Mr Lennon’s submissions to the contrary effect.

For the foregoing reasons, having considered the evidence in this case very carefully and having reviewed the decision to transfer the Claimant to HMP Wakefield with the degree of intensity that is appropriate to an Article 2 case such as the present, I have come to the firm conclusion that it has not been established that the decision in question involves any risk to the Claimant’s life so as to engage Article 2 of the ECHR. Accordingly, the Claimant’s remaining ground of challenge to the decision to transfer him to HMP Wakefield (taken between 29^th January 2004 and 4^th February 2004) also fails.

(ii) The Decision-making relating to the Claimant’s Category A status. I therefore turn to consider the four remaining issues that are raised by the Claimant’s challenge to the decision of the DDG, made between 24^th and 27^th November 2003, in which he considered and confirmed the decision and reasons of the Category A Committee that the Claimant should remain Category A (i.e. the first and third procedural issues and the first and second Pate issues: see paragraph 3 above). Mr Lennon submitted that the relevant decision-making was unlawful and irrational for the following reasons (see Mr Lennon’s third submission at paragraph 41 of his written skeleton argument):

Mr Robb accepted that the requirements of procedural fairness apply to the categorisation decision-making process. He referred to the present procedure (see paragraph 15 above) and submitted (correctly, in my view) that all the appropriate requirements had been observed in the present case, as follows:

Mr Robb submitted that there are no exceptional circumstances in the present case to justify an oral hearing. I agree. The Claimant is not in a “Catch 22” situation. For the reasons already given, I am satisfied that the decision to transfer the Claimant to HMP Wakefield is entirely lawful. Once he is at HMP Wakefield, the Claimant will be able to participate in the Core SOTP. The first reason for challenging the decision-making in question therefore fails (the first procedural issue).

The second procedural issue appears to misunderstand the role of the DDG in the decision-making process. As already indicated (see paragraph 14 above), the DDG is not an appellate body. When not chairing the relevant Category A Committee meeting (and making the final decision), the DDG considers the reasons and recommendation of the Category A Committee and then either confirms or reverses the Committee’s recommendation. As Mr Robb observed (see paragraph 83 of his written skeleton argument), by considering and confirming the recommendation of the Category A Committee in the present case, the DDG adopted the reasoning of the Committee. There is therefore no substance in the suggestion that the DDG’s decision was not supported by reasons.

In addition to the misconceived suggestion that the DDG’s decision was unreasoned (see the previous paragraph), the remaining part of the reason for challenging the Category A decision making, that gives rise to the second procedural issue in this case, is wholly dependent upon the Claimant establishing that Mr Golds gave the alleged assurance that the Claimant would never be allocated to a dispersal prison during the currency of his life sentence. For the reasons already given, the Claimant has failed to establish that Mr Golds gave any such assurance. Accordingly, the Claimant’s second reason for challenging the Category A decision-making process also fails.

Mr Robb submitted that the suggestion that the Category A Committee and the DDG failed to take proper account of the prison reports is without any substance in the present case. I agree.

The Category A Committee’s reasons (as confirmed by the DDG) were given in its decision notification dated 24^th November 2003 (see paragraphs 25 and 26 of Ms Lewis’ witness statement, quoted in paragraph 45 above). Those reasons state (inter alia):

“The decision has been reached following careful consideration of all the relevant factors, including the nature and circumstances of the present offences, the length of sentence imposed, your previous offending history and the latest prison reports.”

As Mr Robb pointed out (see paragraph 86 of his written skeleton argument), the process of risk assessment of a serving prisoner is now more sophisticated than it was in the early 1990s. Behaviour in prison figures is one factor in the risk assessment, but the successful participation in offender and offence-focussed courses, such as the SOTP programmes, is now seen as very important: see paragraph 27 of Ms Lewis’ witness statement. The legitimacy of this approach was recently endorsed by Elias J in R (Roberts) ~v~ Secretary of State for the Home Department (2004) EWHC 679 (Admin) at paragraph 44.

I accept Mr Robb’s submission that the Claimant can only succeed on the third procedural issue if it can be shown that the decision of either the Category A Committee and/or the DDG was irrational or perverse: see the judgment of Elias J in Roberts (supra) at paragraphs 48 to 51. I also agree that, on the facts of this case, such a challenge is bound to fail. It is clear from their reasons that the Category A Committee and the DDG properly took account of and gave appropriate weight to the following factors, before arriving at their decision to maintain the Claimant’s Category A status: (i) the prison reports; (ii) the Claimant’s conviction of very serious offences, including rape, and his history of physical and sexual violence; and (iii) the fact that the Claimant had yet to address directly a number of issues relating to his offending behaviour, including the use of violence and sexual offending.

I accept Mr Robb’s submission that, the light of those factors, the Category A Committee and the DDG were entitled to conclude that there was insufficient evidence of diminished risk and that the Claimant should remain in Category A: see Roberts (supra) at paragraphs 39 and 40. Accordingly, the third reason for challenging the Category A decision-making in this case also fails.

So far as concerns the first and second Pate issues, I accept Mr Robb’s submission that the Category A Committee and the DDG were entitled to conclude that the Claimant fell within Category A in terms of the risk he would present to the public if he escaped and that, therefore, it was necessary to make escape impossible for the Claimant. As to the first element of that conclusion, there is no suggestion that the assessment of risk was irrational or wrong and, in his judgment in Pate, Turner J upheld the lawfulness of the Secretary of State’s policy that underlies the latter part of the decision: see paragraphs 34 and 38 of the judgment.

I also accept the submission that the Category A Committee and the DDG considered the relevant circumstances relating to the Claimant and, having done so, were entitled to conclude that there were no exceptional circumstances, such as a significant physical disability, that would make it impossible for the Claimant to escape if he were to be recategorised as Category B.

Furthermore, I am satisfied that there is no basis for the suggestion that the Secretary of State has limited the effect of Turner J’s judgment in Pate to those cases where the prisoner is chronically ill: see paragraph 9 above and paragraphs 14 to 21 of Ms Lewis’ witness statement. In my view, there is no substance in the submissions put forward on behalf of the Claimant in relation to either of the first and second Pate issues. Accordingly, the last and remaining two reasons for challenging the lawfulness of the Category A decision-making process also fail.

Conclusion. The foregoing are my reasons for having dismissed the Claimant’s application for Judicial Review on 12^th July 2004.