Hamblett, R (on the application of) v HM Prison Frankland

MR JUSTICE STANLEY BURNTON: In these proceedings, Mr David Hamblett seeks judicial review of the refusal to accord him enhanced status at HM Prison Frankland, where he is serving a sentence of imprisonment of 15 years, passed as a result of his conviction for a substantial number of sexual offences.

Enhanced status, which would give him privileges which he does not presently enjoy, has been refused and continues to be refused on the basis that he has not complied with the sentence plan originally formulated in 2002, but recently reaffirmed on 15 June 2004, as set out in paragraph 13 of the witness statement of Patrick Fox, the acting Deputy Governor of the prison.

The Sentence Review Board determined that Mr Hamblett should be assessed for a Sexual Offenders Treatment Plan and also should be assessed for an Enhanced Thinking Skills Course. He was required to make meaningful commitments to any recommendations made as a result of that course. The Board's 2002 decision includes the following comments:

In 2002 Mr Hamblett stated, and continued to state, that he was an appellant against his conviction -- an appellant denying his guilt. The position of the prison in those circumstances was that, since he was an appellant, it was inappropriate for him to be assessed for the SOTP, a course which requires a prisoner to address his offending behaviour. In fact, Mr Hamblett was not even at that date an appellant in any meaningful sense. The Court of Appeal had dismissed his application for leave to appeal against his convictions in July 1998. He had made an application to the CCRC, but it had closed the file on his case in 2001. There were in fact no pending proceedings related to his conviction.

Regrettably, his assertion that he was an appellant was not checked by the Prison Service and matters for some time were considered by the Prison Service, and indeed by the Prison Ombudsman, on the basis that he was in fact an appellant. He has not been assessed for the SOTP because he continues to deny his guilt of the offences for which he was convicted, and his status as an appellant and his position as a denier -- indeed, someone who is referred to by the Prison Service as a persistent denier -- have this in common, that it is impracticable for him to go onto a course which requires a prisoner to address his offending behaviour, to come to terms with what he has done and to change his attitude to his offending behaviour at a time when he denies any participation in the offences for which he has been convicted.

The first question, therefore, he contends is that it was unreasonable and unlawful for the Prison Service to refuse him enhanced status on the ground of his refusal to be assessed for the SOTP or the refusal of the Prison Service to assess him for the SOTP, in circumstances where he is a persistent denier, since that would require him to accept his guilt. He contends that that requirement is an unlawful requirement.

There is a second ground of complaint on his part, and that is that it was unreasonable and unlawful for the Prison Service to insist that he undertake the Enhanced Thinking Course. He says in the documents that he does not require such a course. He is a man, he asserts, of considerable intelligence, whom has himself required others to attend such courses. He does not need one himself.

The third complaint of the claimant is that the Prison Service has not complied with a recommendation of the Ombudsman made as a result of his complaint concerning the SOTP.

It is convenient first to deal with the question of the SOTP. The question that arises, effectively, is whether the Prison Service acts unreasonably in a case such as the present, or unlawfully, in denying enhanced status to a prisoner convicted of sexual offences, who disputes his guilt and is therefore unsuitable for attendance on an SOTP.

Cases in all material respects identical to this claimant so far as this ground of complaint is concerned was considered by Moses J in R(Potter and ors) v The Secretary of State for the Home Department [2001] EWHC Admin 1041. He held that it was reasonable and lawful for the Prison Service to deny enhanced status to a prisoner who had been convicted of sexual offences on the ground of non-attendance or unsuitability for an SOTP in circumstances of denial of the offence because, to put it shortly, "the prison management was entitled only to reward those who addressed their offending behaviour": see paragraph 57 of the judgment. While Moses J's judgment is not binding on me, it is a judgment which I would accept as being correct unless I were convinced that it were wrong as a matter of law.

Mr Hamblett has not appeared before me and is not represented. I have, therefore, not had the benefit of his or his counsel's or solicitor's argument on Moses J's decision. I have to say that I see no basis, on my reading of Moses J's judgment, on which it could be argued that his conclusions were wrong, and certainly no basis on which it could be said that his judgment was clearly wrong. I propose to follow his judgment as correctly setting out the law on this subject.

On that basis, the refusal to assess the claimant for SOTP because of his unsuitability, given that he cannot address his offending behaviour in circumstances where he denies it, is entirely reasonable and lawful. He has not achieved the target of his sentence plan. In those circumstances, it was understandable and lawful and reasonable for the Governor of Frankland Prison to refuse him enhanced status. As Moses J put it, enhanced status is a reward for addressing offending behaviour, and if it cannot be addressed because of persistent denial of guilt, enhanced status is properly refused.

The second reason put forward by the prison for refusing enhanced status is the refusal to undertake the Enhanced Thinking Course. So far as that is concerned, it was the subject of complaint to the Prison Ombudsman, who rejected the complaint of the claimant in a letter dated 20 February 2004. The evidence on the matter is relatively exiguous, but it is quite clear from the Ombudsman's letter that the prison has substantial grounds based on substantial psychological evidence that the course is suitable for the claimant.

In those circumstances, merely on the basis of his assertions of unsuitability for it, it would be quite wrong for the court to come to the conclusion that the Prison Service has acted unreasonably and unlawfully.

Lastly, so far as the Ombudsman's decision is concerned, his recommendations were accepted and implemented by the prison. They are set out at paragraph 34 of the acting ombudsman's report of 13 September 2003. The recommendation was only that a copy of that report be placed on the claimant's file and tabled with the Sentence Planning Board. Both those things were done.

He also recommended that the Prison Service should consider whether, in the light of the report, further guidance needed to be issued about target setting for appellants identified as needing to complete an SOTP. That has no practical application so far as the claimant is concerned. The report was based on the misapprehension that Mr Hamblett was an appellant, and therefore the SOTP should not have been set as a short-term target, the Ombudsman decided, since it was not achievable while he was an appellant. That conclusion was based on a misapprehension of the facts, as I have indicated. Mr Hamblett was not, in fact, an appellant. Therefore, it would be quite wrong, in those circumstances, for the Prison Service to comply with a recommendation based on that misapprehension, particularly since it was a misapprehension caused by Mr Hamblett himself.

Be that as it may, the report of the ombudsman was considered by the Sentence Review Board on 15 June 2004, according to the evidence before me. The Board determined that there should be no material change to Mr Hamblett's targets, that he should remain a category B prisoner and should remain on the standard status. It seems to me that there were abundant grounds for the Board to have come to that conclusion, namely his refusal to undergo the Enhanced Thinking Course and his persistent denial which made him wholly inappropriate for the SOTP or its assessment.

In those circumstances, judicial review is refused.