Colling v Secretary of State for Justice

This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by HHJ Grenfell on 21 September 2009.

The claimant is serving a life sentence for the murder in January 1999 of a 16-year-old boy. The boy had been brutally attacked with a claw hammer, and there was evidence that he had been subjected to anal intercourse when he was dying. The claimant threw his body into a canal. The trial judge, Toulson J as he then was, following the claimant’s conviction for murder at Exeter Crown Court in April 2000 recommended to the Home Secretary that the claimant should serve at least 17 years in prison before he should be considered for release. In his sentencing remarks Toulson J said that the claimant was obviously a very grave danger to boys, and that he could not foresee that it would be safe to release him until any possibility of his being sexually stimulated had ceased through the aging process. In fact the Home Secretary set the minimum period at 20 years, but following the procedures put in place since that time the recommendation was reviewed by Rafferty J on 3 July 2008 and she concluded that there was no reason to depart from the view of the trial judge, and she confirmed the minimum period of 17 years less the 14 months and nine days spent on remand. The net effect of this is that it will not be until February 2016, some since years hence, that the claimant could be considered for release. That he could be considered then is one thing; whether he is released, of course, is another and depends to a very large extent upon the risk that he would be perceived to present if released.

The present application is designed to challenge a decision of prison authorities at HMP Frankland which the claimant suggests could have a bearing on the risk assessment that in due course will have to take place. He seeks to challenge a sentencing planning objective that he undertakes the Sex Offender Treatment Program (“SOTP”), an objective that obviously has its origins in the sexual element of the offence to which I have referred and which is designed to reduce the risk of any repetition of the dreadful offence he committed. He also seeks to complain largely on the same basis of the reduction in his status under the Incentives and Earned Privilege Scheme from enhanced status to standard status.

What lies behind all this is either his unwillingness or his inability to admit the circumstances of the offence, particularly the sexual element of that offence. Without that it is said that the ability to work with him to reduce the risks of repetition is impossible. This general issue is not an unfamiliar one and one which finds itself being addressed in judicial review proceedings from time to time. In the second half of last year, Wyn-Williams J in the case of Cannon and HHJ Anthony Thornton in the case of Hewitt had to address similar issues. Ms Davies has pressed on me both orally and in her written skeleton argument that only in the most exceptional cases would the court interfere with internal prison decisions of this nature. She says, and rightly, that in none of the cases upon which Mr Southey relies on the claimant’s behalf has the court intervened.

For my part I would accept that she is right about that. But of course I am not deciding the substantive hearing, I am merely being invited to say that the claimant has an arguable case. The claimant wants to suggest that he is not a true “denier” of the relevant part of his offence, as others are, because there is, it is said, respectable expert evidence that he cannot remember those features of the offence and it is therefore impossible for him to make the kind of admission necessary to qualify for the SOTP course and equally thus to retain his enhanced status.

The expert report upon which he would wish to rely is criticised by Ms Davies in this application and would doubtless be criticized at any substantive hearing if I grant permission. But in response Mr Southey is able to say (a) it (the expert view) was not addressed when the relevant decisions were made and that is not indeed disputed by Ms Davies, and (b) the general message of the report does not appear to be disputed in any event notwithstanding some of the points that Ms Davies makes. Should it have made a difference of should it not? That will be a matter for argument at any substantive hearing. Is it reasonable for the prison authorities to take into account the kind of report relied upon here; there seems little dispute about that, but it is an issue that might be addressed on the basis of argument at any substantive hearing.

Against that background it seems to me that if the claimant’s case is that his inability to participate in the SOTP procedure is based on a genuine inability to recall enough to make the necessary admissions, then that is something which it is at least open to him to put before the court for consideration at a substantive hearing, particularly as, as I say, the reports upon which it is based were not apparently addressed by those who made the various decisions.

So against that background I am inclined to say that there are arguable grounds that merit the attention of the court. What the result may be in due course is of course not for me to say.