Whittaker, R (on the application of) v Secretary of State for Justice

This is a challenge to the decision of the Category A Review Team (CART), part of the Ministry of Justice, not to re-categorise the claimant, Mr Whittaker, as a Category B prisoner from his present Category A status. The decision was made first in a letter of 28th September 2010 and then confirmed by a letter of the 29th November 2010.

Mr Whittaker was born on 11th March 1966 and is currently serving his sentence at Wakefield Prison. He has a long history of offending. On 8th February 2002 he was sentenced to life imprisonment, with a tariff of 24 years, for the offences of two murders and one attempted murder. In respect of all three offences he entered the victims' properties and shot them in the head. None of the victims were personally known to the claimant. His tariff will expire on 12th February 2025.

Up until 2025, when he developed symptoms associated with multiple sclerosis, Mr Whittaker had denied the index offences. That attitude has changed, at least to some extent, further to the onset of these symptoms. In 2005 he suffered from his first episode, paralysing him from his feet to his upper chest for 8 months. He suffered a similar episode in 2006, lasting 7 months, with residual tingling in the hands thereafter. He suffered a severe episode in 2007, where he had to be constantly catheterised and had extreme spastic weakness in both legs as well as some weakness and unco-ordination of his arm and sensory abnormalities of pins and needles in the hands. Since then he has remained wheelchair bound and his condition has deteriorated in that he is unable to walk or stand and has totally lost the use of his legs. While his arms remain functional they have also substantially deteriorated. He does not have the muscle strength to wheel himself around for sustained periods.

There may be occasions when the inability is not quite as total as I have just described but that, broadly speaking, presents the picture. His hand/eye and coordination have also deteriorated. He has difficulty in drafting correspondence. Short-term memory and ability to concentrate have also been impaired.

A full history of how the symptoms developed and of what they consisted is to be found in a report of Dr Loizou which stated the position as at the 29th July 2009 to be found at page 62 of the bundle.

In addition, he is said to suffer from a secondary ailment called involuntary emotional expressive disorder (IEED) where his internal feelings are not accurately represented by outward expressions and statements. So he might say one thing and feel something different inside. On the evidence before me that appears to be a self-reported condition but it is not suggested it is wholly implausible or fictitious.

The position in relation to Category A prisoners and re-categorisation is set out in the Prison Service Instruction (“PSI”). I read from several parts of that document, first of all paragraph 2, at page 3:

I pause there to say that for present purposes that assessment of this claimant is not under challenge. But the passage goes on:

At page 9, it is stated in the fourth paragraph of section 1:

Then moving to page 11, under the section headed "Oral Hearings":

So far as the facts are concerned, as already noted, the position now is that reviews of the claimant's category will take place approximately once a year, and I should indicate at the outset that the next annual review is to take place at some point in September 2011 and I am told that the reporting process, at least as the far as the prisoner is concerned, will commence shortly.

An extensive report was prepared by the Category A team for the purpose of the review in question. That document begins at page 22 of the bundle. At page 23 the definition of a Category A prisoner and the reference to escape potential are set out in the PSI is quoted there. The offence history is set out. At page 25:

Then at page 30 in relation to offence-related work, a brief report prepared by forensic psychologist it noted:

At page 33, in one of the sentence planning reviews it was noted:

On 8th August 2009 his application to be re-categorised was rejected.

Then at page 55, dealing with a further sentence planning meeting report, from the end of 2009, it was stated at page 56 of the bundle:

Then I turn to the representations which were made on Mr Whittaker's behalf, I think by his solicitors. They are dated 18th August 2010 and they begin at page 64 of the bundle. They set out the index offences, the previous convictions and the history of Mr Whittaker in prison. They then turn to health conditions, say that he is paralysed from the waist down and permanently bound to his wheelchair. His arms were very weak and he could not push himself very far without being easily exhausted. They described the earlier episodes much in the way that I have already set out:

I interpose there to make this observation. It was plain from the passages just read out that in so far as short-term memory and ability to concentrate can be described as mental impairment, as opposed to neurological consequences of the disease, and insofar as there is a reference to IEED, they have been invoked solely in the context of a submission that it is difficult for Mr Whittaker presently to be able to reduce risk through completing offending behavioural course work. They are not invoked in any other context.

In conclusion, the representations state that he was suffering from MS, it is degenerative; and he will not fully recover. He is permanently paralysed from the waist down and resides on the disability wing and in the only high security prison establishment equipped to deal with disabled prisoners. He is keen to reduce risk through programmes but will have difficulty doing so. It is not suggested it will be impossible.

Then there is reference to Category A prisoners and the obligation of CART to consider whether the objective of making escape impossible could be achieved in Category B. Therefore the risk of escape is a material factor when considering whether they should be re-categorised.

Then it goes to on to say this and I quote again:

That then provoked a response from those acting for Mr Whittaker in their letter of 22nd November 2010. It was said that what was noted was the key piece of offence focussed offending behaviour course work was CSCP (Cognitive Self-Change Programme) but he could not access this course while he remains a high security prisoner. It said that this information was contained within his representations but did not appear to have been taken into consideration.

The author then went on to say that he was concerned about the conclusion in the context of physical “improvement” had been taken out of context saying that he stills remained physically paralysed. His muscle wastage was so great he could not move his lower limbs. While he can move his arms he does so with great difficulty and they have become weakened. His short-term memory loss and issues surrounding IEED had not been considered which will inevitably impact upon him completing any offending behaviour coursework. It was said that the decision he remains Category A was irrational. His mental and physical frailty (as detailed above and within the lengthy representations) which related to his inability to escape and complete group/unadjusted offending behaviour work has not been taken into consideration.

I pause there. It was submitted to me by Mr Jagadesham that even though the apparent mental impairment had not previously been invoked as relevant to the issue of escape potential as opposed to the ability to complete course work, in this passage in the letter, it was. I do not accept that submission. This particular passage seems to me to be no more than summarising what has been said before and it was right to say that the mental (as opposed to physical) frailty related to inability to complete offending behaviour of work. If it was going to be suggested that the mental impairment was now to be regarded as a significant factor as to escape potential, something very much clearer than that would have to be stated. Certainly any reader of that letter would in my judgment, be entitled to assume it was doing no more than summarising the previous submissions. I will return to that topic hereafter.

The letter then went on to request an oral hearing. It was noted that this request had previously been refused. But given his physical frailty and the impasse in his case, in other words being unable to achieve re-categorisation until he completes the relevant work, an oral hearing would be appropriate in his case.

That led to the second decision letter under challenge, dated 29th November 2010. This noted that CSCP was a long-term sentence planning target and he was unable to access this course but it said that Mr Whittaker had yet to engage in one of the less demanding programmes which only required a small amount of written work and out-of-session work. It noted that Mr Whittaker had declined an assessment for CSCP in October 2009 citing ill-health and no attempt had been made to address very serious offending and he had yet to reduce risk of re-offending. The attitude and beliefs underpinning that offending had not been be addressed. The CART team acknowledged that given the nature of the progressive illness which resulted in confinement to a wheelchair his condition was likely to worsen over time, and that this could reduce the likelihood of him being physically able to carry out offences of a similar nature in the future. But they noted that his reports had not supported his submissions that his medical condition at that time would allow consideration to be given to a downgrading of his security. The CART team noted that physical conditions did not prevent him discussing and addressing offending behaviour. The CART team confirmed that it was fully aware of clients' physical condition and did not consider an oral hearing was necessitated in the interests of fairness.

Given the particular circumstances of this case and the fact that the prisoner was fully aware of his current needs, I do not consider that the letter written by the solicitors and the further decision letter takes the matter any further and if there were no grounds to interfere with the first letter, I cannot see that there are any grounds to interfere with the second.

Having completed that review of the papers, I should then briefly summarise the evidence of Mr Easton who is part of the CART team at the Ministry of Justice who dealt with this case. In his witness statement he sets out the various policies and rules and the PSI. He deals with the question of mental impairment from paragraph 15 onwards. He says he was involved in determining the most recent categorisation review. He said that the claimant's mental health, as part of the more general review of his health, was considered and was evidenced by the statement that the decision was reached after careful consideration of all the factors and the comments in the decision which noted the improvement in his condition and the possibility of participation in coursework going forward. The was also a reference to a report that previous problems with memory loss had improved. He considered that the report provided a more positive picture of his health generally than was put forward by the representations and there had been progress in relation to his physical condition independent mental health since last review. That was in line with the health care report writer's view, which was that the medical condition did not impact on any recommendation regarding his category status. Put another way, said Mr Easton, the writer clearly did not consider that the claimant's medical condition had lowered his risk of re-offending if unlawfully at large. As I have indicated, that at least is not in dispute for present purposes.

Then at paragraph 20 Mr Easton said:

One curious feature of this case is that although the consultant neurologist was offered for an oral hearing by Mr Whittaker’s representatives, no report had been obtained prior to the review, nor has a report been prepared subsequently, for example, for use by this court. That is material because, as noted below, the question of an oral hearing is now for this court to decide on an application such as this. Appropriate funding for an independent report had apparently been obtained and was going to be progressed by a visit but that visit, for some reason, did not happen. It is said that if an oral hearing was granted, then funding would be obtained or confirmed or repeated for the attendance of the appropriate specialist and the making of a report. Indeed given the prior funding agreement, apparently it is likely that funding would be available simply for a report to be produced at a review without an oral hearing. It is not suggested that an oral hearing is a prerequisite for the funding of a report. Certainly the experience of this court is that the reports are often obtained prior to reviews such as this, where there is a need for such reports. As I have already noted the dangerousness criterion itself for Category A is not an issue, it is simply a question of escape potential.

So far as the law is concerned there is no real difference between the parties who have concentrated rightly on those cases concerning oral hearings. The leading case now is the case of R (DM) v Secretary of State for Justice [2011] EWCA Civ 522, a recent decision of the Court of Appeal on 12th May 2011. I need to read only from the statements of principle set out in the judgment of Gross LJ, with whom the two other Lord Justices agreed. At paragraph 25 he said:

By way of amplification, Gross LJ looked at various examples in particular, at (i) he quotes from the decision at first instance in West v The Parole Board[2005] 1 WLR 350which referred to Lord Bingham's statement of principle that:

In DM itself, on the facts, the Court of Appeal reversed the decision of the judge at first instance holding that no oral hearing was required.

I then turn to the case of R (Riley) v Governor of FranklandPrison[2009] EWHC 3598 (Admin). There, an oral hearing was ordered by His Honour Judge Pelling QC. So far as the facts are concerned, this was where the prisoner was by then a stroke victim and had serious cognitive impairments which reduced very significantly his escape potential. It effectively ruled out a planned escape. So the only question was an opportunistic escape, and the question of mobility in that context then arose. There was then a real issue over mobility, and in paragraph 8 of his judgment, the learned judge noted that there had been a report prepared in relation to that but the refusal letter did not deal with that report at any great length. It simply referred to the fact that the report said:

While the case is Frankland does relate to the question of escape potential, it is very much based on its own facts. There are also statements of principle in that case but they have now been superseded or summarised by the statements of principle which I have already read out from the case of DM.

There is also the case of Roose v Parole Board[2010] EWHC 1780 (Admin), to which both sides have referred. In that case, there were reports from both sides before the Board although they were in dispute. By the time the matter came to court, there were even more. I read here from paragraphs 28 and 29:

Against all of that background, I turn to the two grounds of challenge. First of all, I deal with the challenge to the effect that the decision letters failed to take account of the question of mental impairment in relation to issue of escape potential. First of all, as is plain from the report and the representations it is absolutely clear that the mental impairment such as it was relied upon solely on the issue of coursework and the difficulty that that posed and nothing else. The extent to which the IEED disorder might impact on that or other matters is somewhat unclear but the nature of the reliance on the mental impairment is clear. I have already dealt with how those acting for Mr Whittaker came back to that issue in the letter of 22nd November 2010, and the view already expressed that the part of the letter which refers to mental and physical frailty, and then inability to escape and completion of group offending behaviour work does not take the matter any further. One simply cannot read into that a clear suggestion that mental impairment is now being relied upon for some other purpose.

Further, that being the case, as I have indicated, there was nothing wrong with the second letter from CART. Mr Jagadesham said that perhaps in any event mental impairment of this kind could have some impact and that I should consider that here and now, in relation to any ability, for example, to plan an escape. But it seems to me this is all highly speculative. I cannot see that those sorts of suggestions, at this stage, really take the matter any further. Certainly not from the point of view of any criticism of the decision letters faced with the submissions that had been made to CART at that time. It may be that on a future review the question of mental impairment will be investigated by Mr Whittaker or by a professional on his behalf more fully. There may be some submissions that can be made linking those particular impairments to the question of escape potential. But it has not been so far and it could not be put before me in anything than most speculative and vague terms.

Next, it is said to be an issue concerning the ability to undertake course-work and that the decision letter in some way got that wrong so that there was a failure to take account of mental impairment in that context. I think that this issue has been significantly overstated. All the decision letter said was that there was a possibility of doing some work. In fact it is not actually clear from the papers or from the representations that it would be impossible for the claimant to undertake that work. There were certainly difficulties lying in the way but the author of the decision letter was perfectly entitled to conclude that at least some of the less taxing programmes could be started because of the very limited demands which they would make on the physical or mental abilities of Mr Whittaker as opposed to his thinking skills. In any event even if there was an issue, that is not an issue which goes to the question of escape potential which is the basis of this particular ground.

Mr Jagadesham relied on the case of G v Secretary of State for the Home Department [2006] EWCA Civ 919. That was a case where there had been an asserted lack of motive to escape, which was put forward as exceptional circumstances as within the meaning of 1(3) of the relevant part of PSI. Pill LJ took the view that this was a principal controversial issue that had been raised and was understood as raising a discrete and significant issue (see the representations). What then happened was when that the decision letter came back, which was long and detailed, it contained no reference to the point at all. So it is unsurprising in that particular case that the court thought it appropriate to interfere.

But that is a long way from this case because, as I have indicated, there is no clear, or indeed any reliance upon the mental impairments such as they are as real factors in relation to escape potential. So the decision letters cannot be criticised for not dealing with it in that context.

In general terms, of course, the decision letters did take into account the course-work point. I have already referred to that in the decision letter but just to reiterate, at the bottom of 69, it was noted that the claimant needed a wheelchair and at the time of the last review was in the health care centre; the condition had prevented effective participation in the recommended intervention work but it then noted the current more and small recent improvements and now the possibility, due to medication, in relation to some initial coursework.

Obviously, in that context the only basis for those remarks could have been how they were put to CART in the first place, which was by reference to the mental impairments. In the context in which it was raised the decision letter clearly dealt with it. There is also the evidence of Mr Easton that in general terms the question of mental impairment was looked at.

In all those circumstances and on the materials presently before me, as indeed they were before the Review Panel, there is no basis for the first ground and I dismiss it.

I turn then to the only other ground which was the failure to order an oral hearing and in doing so I note that there is no separate ground attacking the rationality or otherwise of the decision in so far as it related to physical impairments and escape potential. That issue is raised solely in the context of the oral hearing.

So far as this is concerned, there were two key planks of Mr Whittaker’s submissions as developed in oral argument as to why, in the interests of fairness, an oral hearing was necessary so as to produce a fully informed and fair result. First, there was in fact a dispute between the claimant and CART as to the true extent of his disability from MS which related to the question of escape. Secondly, on that issue, the input of his own or possibly a different consultant neurologist would be of assistance and such a person could then be questioned.

As to the first factor, as confirmed by Mr Fullwood, there is no real issue over the extent of the disability. There may be at the margins but not its essence. Where there have been some small beneficial changes, for example, going back to his own room after having been in an adapted cell elsewhere, or where there has been a response to medication, that cannot really be gainsaid. Otherwise, all that is being said, so far as coursework is concerned is that there is the possibility of doing some. There were other changes noted, for example, that there was an eyesight problem but that it had been resolved. An ability to do a little writing or attend one of the two sessions or at least the possibility that that could be done is not in essence at odds with the medical symptoms put forward.

I accept that there are not any very extensive reasons on this point, either in the decision letter or in Mr Easton's witness statement which focus rather more on the outside risk, if I can put it that way, rather than the inside risk, that is the risk of an effective escape. But the question of escape was clearly considered. Returning to the letter, as already noted in the second paragraph, it referred to:

On a proper analysis, it is not that there is some major issue on the extent of the physical symptoms but rather, whether it meant that escape could be made impossible in less secure conditions. As far as that is concerned, there is, for example, the possibility of collusion with others to assist on any escape. Mr Jagadesham says that the mental impairments that had been identified, for example short-term memory, or inability to concentrate might militate against that. Perhaps, although again there is no detailed evidence on this point, I do stress that unlike many cases, there is no actual evidence from Mr Whittaker nor any professional on his behalf, which might have brought matters up-to-date or which otherwise could have assisted the court. There is of course the fact that he is in a wheelchair, either all or very nearly all of the time with the loss of the use of his legs either total or very nearly so. But I do not see that this fact (and there are obviously a number of disabled prisoners who have been convicted of very serious offences within the prison estate) in and of itself means that an oral hearing must be necessary. One can ask rhetorically: what more would the Board gain having had such a hearing? On that basis, therefore, the first plank of the submission in relation to oral hearing falls away.

That then leaves the issue of consultant neurologist. I emphasise that the presence of a consultant neurologist was the sole ground advanced for the oral hearing, obviously to assist on the question of physical impairment. But that is an entirely speculative proposition without some indication, at least, of what the neurologist would say. It is not uncommon to produce reports at this stage and, indeed, there would obviously have been papers from Mr Whittaker's own neurologist's reports of this incident examinations that could have been made available and perhaps supplemented by a note on escape potential. That simply was not done and has not been done even now, which is highly relevant because it is for the court now to decide on an oral hearing based on the material now before it.

There is the earlier report of Dr Loizou which Mr Jagadesham relies upon although it comes from 2009. That sets out how the disease has manifested itself and particular incidents had occurred, but it was not directed to the question of escape potential. Those particular facts do not themselves appear to be in dispute as to what has happened in the past. According to Mr Easton that was taken into account.

Mr Jagadesham is right to say that there could be a dispute not over primary facts but about their interpretation. I agree, although it may be that when there is a real and serious dispute on the primary facts going to a key issue then an oral hearing is more readily to be seen as appropriate. Of course ultimately there is bound to be a dispute where CART finds against Mr Whittaker so far as re-categorisation is concerned. The mere existence of a dispute as to escape potential is not by itself something that inevitably calls for an oral hearing. As the cases have emphasised, each case must turn very much on its own facts and those occasions are likely to be rare an oral hearing is called for.

I do note in passing that the written submissions on behalf of Mr Whittaker for this hearing, which suggested an oral hearing might have prevented CART from falling into error under ground 1, that is not taking into account mental impairment. But for the reasons I have already given there was in fact no error.

I also note that there was a suggestion at one point about the oral hearing helping to resolve any issue about an impasse so far as coursework is concerned. It is trite law that the fact that there may be an impasse issue in relation to coursework does not automatically mean that there should be an oral hearing and in any event, that particular point was not advanced before me. I say no more about that. Matters may have moved on since November 2010 and further reports may address this problem again if indeed it is a problem.

It may very well be that if hereafter a report is produced from a neurologist which goes into detail on present symptoms, future prognosis and perhaps deals with any relevant mental impairment, in the context of escape potential, planned or opportunistic, that not only will CART obviously have to give it careful consideration but it may be, if CART thinks that elements of that report are disputed in some way, or where it can gain real assistance from questioning its author, that an oral hearing will be ordered by the Review Panel. But that stage has not yet been reached. Obviously it is ultimately for CART to decide the appropriate course based on all of the evidence. It is not for the claimant to satisfy the court of some particular burden of proof. But it is likely only to be in an exceptional case where escape potential will result in re-categorisation where the underlying risk is still there, (see the guidance in PSI, to which I have referred and which is not challenged).

So, in my judgment, the claimant does at least need to set the ball rolling in a manner which goes somewhat further than he has done to date. As a matter of commonsense, if you say that a consultant neurologist will assist at an oral hearing, you do need to produce at least something in advance as to what he will say on a relevant issue. Until he does one does not even know whether there will be a dispute and, if so, as to what extent.

For all of these reasons I do not consider that an oral hearing here is appropriate on the materials before me and therefore this second and final ground of challenge must fail.

I add here an observation about what was said by Mr Easton in paragraph 21 of his witness statement:

That statement is wrong, if it is suggesting that oral hearings cannot been convened where the issue is escape potential. As escape potential is not directly referred to in that paragraph it is not clear to me whether that is what Mr Easton is saying but if he was he would be wrong. Obviously if there is something which is genuinely peripheral, it is hardly likely to warrant an oral hearing. But again, when a request for an oral hearing is put forward then the CART team have to consider that request in terms of the relevant circumstances.

Even if there was an error in paragraph 21, it cannot affect the decision here, because the decision here is that of the court. I make no such error. I make my decision as to whether there should be an oral hearing (a) on the basis of the materials before me and (b) on the basis of the well established legal principles. So that error, if that is what it is, can be safely ignored for present purposes but no doubt CART will note my observations.

I note that the next review is not far off. I would apprehend that a rather more substantial set of representations would be made on that occasion and on the face of it they will include a report from a professional instructed on behalf of Mr Whittaker. In that event, the CART review team must of course keep a genuinely open mind in relation to any further submissions made next time round on the question of escape potential and an equally open mind on any request that is made as far an oral hearing is concerned. As matters stand the present claim must fail.