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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nicholls, R (on the application of) v Secretary of State for Justice [2009] EWHC 2091 (Admin) (12 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2091.html Cite as: [2009] EWHC 2091 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		12 June 2009

1. DEPUTY JUDGE: The girl was 12 years old when Erin Nicholls killed her. He was 17, and he called her his girlfriend. They were in an isolated area. He threw lighter fluid at her or near her; then he threw lighted matches at her or near her. She burned to death. That was on 31 May 1998. He was convicted of her murder on 10 February 1999. He was then just 18. Because he was under 18 when the offence was committed, the sentence was detention during Her Majesty's pleasure. That is equivalent in all important respects to a life sentence. There was a tariff fixed of 12 years.
2. In March 2001 he was back in court. He was sentenced to a term of 2 years' imprisonment concurrent for an offence of inflicting grievous bodily harm. That was because whilst he had been in custody he threw scalding water over another prisoner. Before the offence of murder he had other convictions: one for arson - setting a fire, not it appears a very serious fire - on the top deck of a bus that was in service; one for assault occasioning actual bodily harm (spraying CS Gas in the face of a girl in the street); one for possession of a prohibited weapon (that was the CS Gas); and one for handling stolen goods. But he had not been to prison before.
3. The reports on him show an extremely troubled childhood, in care, with an enormously long succession of homes in which he lived. Since his most recent convictions he has been in custody as a category A prisoner, the most secure regime generally available in the prison estate. His categorisation is reviewed regularly, usually, in accordance with published practice, at yearly intervals. The question is always whether his category should be reduced to category B.
4. The review that is the subject of these proceedings took place during last summer. The local assessment panel recommended re-categorisation to category B, but the category A review team did not accept that recommendation. In a decision sent to the claimant on 9 September 2008 the Director of High Security concluded that he should remain category A.
5. That is the decision he challenges in these proceedings. He says that in making that decision the Director, who acts on behalf of the defendant, the Secretary of State for Justice, did not give enough credit for the progress he has made in erasing offending behaviour and responding to authority. It did not take sufficient account of a full psychologist's report prepared a few months earlier in connection with an application for parole. (There was a suggestion in that report that he might benefit from work that he cannot do while he remains a category A prisoner.) Further it is said that the decision failed to take account of the fact that he was a minor when he committed the index offence and, above all, it failed to take account of the fact that he suffers from cystic fibrosis: he may himself have only a relatively short time to live. In the mean time, he cannot undertake strenuous activity. It is said on his behalf that that fact of itself reduces considerably the risk of escape.
6. This claim was issued on 27 October 2008. Permission was given by Mrs Justice Black on 10 December 2008. At the time she gave permission there was still no acknowledgement of service from the defendant or summary grounds of defence. They were eventually filed on 6 February 2009.
7. As time has passed, the date of the next review of the claimant's re-categorisation comes nearer. The 10th anniversary of his detention following sentence has now passed. I am nevertheless concerned with the last review and the last decision. Mr Murray, on behalf of the defendant, has argued that because the next review is so close anyway and will supersede the result of the review under challenge, I should regard the present challenge as academic. I am unwilling to rule the claimant out on that basis. The claim was made a considerable time ago and whatever this court says in response to the challenge may have an impact on the next review.
8. The decision under challenge was made under the provisions of Prison Service Order 1010 (PSO 1010) which deals, in general, with reviews of security category of category A prisoners. Category A prisoners are defined at the beginning of that order in a short paragraph with an important commentary:

"1.2 A category A prisoner is a prisoner whose escape would be highly dangerous to the public or the police or the security of the state and for whom the aim must be to make escape impossible.

1.3 A High Court judgment in the case of ex p Pate required that in deciding whether category A is necessary, consideration may also need to be given to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security, and that the prisoner is categorised accordingly. However this will only arise in exceptional circumstances since escape potential will not normally affect the categorisation as it is rarely possible to foresee all the circumstances in which escape may occur."

9. I will read out also a passage from the annexe to PSO 1010 which is the form in which the guidance in that Order is communicated to prisoners. Paragraph 10 of the annexe is as follows:

"10 The Director (or, if appropriate, the Head of the Category A Review Team) will consider all available information, including any representations, relevant to the determination of your security category and escape risk classification. Account will be taken of all matters including the nature and circumstances of the present offence(s), any relevant offending history, participation in and progress made with offence-related work, custodial behaviour and maturation. Before making a decision for downgrading from Category A the Director will need to be satisfied that a prisoner's level of dangerousness has diminished, in particular that there has been a significant reduction in the risk of re-offending in a similar way if unlawfully at large."

I pause to note that the terms of the paragraph of annexe A that I have read out do not specifically incorporate the terms of paragraph 1.3. But I refer to them to indicate the role of the need to show change when establishing the risk of further offending or escape.

10. It is accepted by both parties to this claim that the appropriate process is therefore to decide, first of all, what is the risk of serious offending if the prisoner should escape. If the risk is such that category A is, in principle, still likely to be applicable then there would be consideration of whether there are exceptional circumstances showing that in the individual case a lower level of security will be adequate to achieve the aim of making escape impossible.

Standard of challenge

11. Miss Krause, who appears for the claimant, has submitted that the ordinary Wednesbury approach to challenge to the defendant's decision is not sufficient in a case such as the present. She referred to the well-known observations of Lord Cooke of Thorndon in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, 32. She accepted that those observations were made with relation to cases sounding under the European Convention on Human Rights and the Human Rights Act 1998. She accepted also that those observations do not indicate a proportionality approach to the decision I have to make. That was a point she conceded before Clare Montgomery QC, sitting as a Deputy Judge of this court, in R (Application of Hall) v First Secretary of State [2005] EWHC 3165 Admin In my view she was right to do so. She nevertheless asserted that in reviewing a matter of categorisation, because of the importance of the interests both of the claimant and of the public, a deeper investigation was appropriate than Wednesbury itself would require.
12. Miss Krause asserted further that I should bring the court's own approach to weighing the various factors taken into account in making the decision. In support of that argument, she cited R v Secretary of State for the Home Department ex p Benson (available to me only in a report from The Times, November 21, 1988). That is a decision of a Queen's Bench Division, Divisional Court, (Lord Justice Lloyd and Mr Justice Nolan). In that case the defendant, the Secretary of State, had taken into account - in deciding whether a discretionary life-sentence prisoner should be released on parole - two matters which, in the court's view, were of such little importance as to be entirely irrelevant. The court is reported as having said this:

"The weight to be given to such matters was a matter for the Secretary of State and not the court. But if in the court's view the matter was so small it ought to have been disregarded altogether it should say so, and such was the present case."

13. That decision is authority for the proposition that the court may determine that a matter taken into account in making a review of a decision was an irrelevant matter, irrelevant because properly understood it had no importance to the decision-making process. It is not authority for a proposition that the court is entitled to review the weight given to a matter which was not irrelevant.
14. I accept therefore the submission of Mr Murray that this decision has to be scrutinised according to established public law criteria. There is no legal rule that the claimant's illness or his youth demand a different approach. But those factors may increase the concern of a court undertaking the task of scrutiny. That is not the result of a legal rule; it is a matter of humanity, of common sense and of context - for in the law context is everything.

The Claimant's Submissions

15. Applying that approach to the scrutiny of the decision under challenge, I look now at the matters raised by Miss Krause in the order in which they needed to be taken into account. The first is the risk of serious offending if the claimant should escape, in other words, his behaviour. In R (on application of Roberts) v Secretary of State for the Home Department [2004] EWHC 679, Mr Justice Elias made the following observation at paragraph 39 in respect of a decision on review. (I should say that I accept Miss Krause's submission that the facts of Roberts are not parallel to the facts of the present case.) The observation is this:

"39 ..... The guilt of the prisoner must be assumed. That is what the review team properly did here. The review must then assess the nature of the risk in the event of an escape. Where the index offences are so grave, as they will inevitably be in category A cases, the review team can justifiably require cogent evidence that that risk has diminished."

16. In the present case the index offence was a serious one and the claimant had committed a further serious offence during his period of custody. He has been regularly subject to adjudications. Miss Krause in her submissions attempted to minimise the importance of these. I accept that the last adjudication for violent behaviour is now some time ago, but the claimant continued during the review period to resist authority and disobey orders. It may or may not be that in every case he thought he had a good reason for doing so. But there is no material before me and there is not said to have been any material available to the decision maker to show that the conduct resulting in the adjudications should in any way be condoned.
17. The claimant asserted in a letter to his solicitors which I have read that he had had no adjudications in the year up to 6 October 2008. The defendant's acknowledgement of service asserts that there were adjudications in September and October 2008. In a witness statement replying to the acknowledgement of service it is not suggested that that is wrong. In the circumstances I accept that the later adjudications happened, although it makes little difference to the pattern overall.
18. The truth of the matter is that - as noted in the report of the psychologist, that was before the decision maker - the claimant consistently failed to take full responsibility for his actions. For example, despite what was asserted in his solicitor's submissions supporting the application for re-categorisation, he does not accept still that he was guilty of murdering his victim. He accepts only that he did the acts that caused her death and claims he did not intend to kill her and that he tried to put the flames out.
19. The psychological report indicated that the claimant had taken a Controlling Anger and Learning to Manage it course (CALM), and so he has. He has indeed taken steps himself to finish it by having one-to-one training as the course was interrupted by him having to be in hospital. The report also makes absolutely clear under a number of separate headings that time is still needed to see whether the lessons of the course have been learned properly and can be put into practice before it could be said that any risk has diminished.
20. At the sentence planning meeting on 3 April 2008 the claimant's risk of harm to the public was still assessed as high. It is true that the psychologist said that "a progressive move" could be supported. But that does not of itself define risk, nor does the fact that he might benefit from a regime only available outside the category A status.
21. These reports and these factors were taken into account in the decision under challenge. They do not give any reason for supposing that the conclusion that the risk of a serious offence by the claimant if he escaped was not still that appropriate for category A. The first part of the decision that his categorisation should remain as category A is unassailable. There is no basis at all for interfering with it on the material taken into account by the decision maker and the reasons given.
22. I turn now to the risk of escape. The argument put last by Miss Krause - but which is logically taken properly first - is that, as a matter of practice, a prisoner re-categorised from category A to category B remains in security (that is in all important respects the same as category A security) for two years following re-categorisation. There was no proper evidence for that submission. For that reason, I reject it. The argument as put was very far from clear and indeed it is difficult to see that it would ever be possible to resist re-categorisation if it were truly the case that the security arrangements are the same. In fact however - as Miss Krause's was perforce to concede - the arrangements are not exactly the same and, as soon as it is appreciated that the arrangements would not be exactly the same, it seems to me that the argument fails in any event.
23. The primary argument made in relation to risk of escape relates to the claimant's illness. Given the terms of paragraph 1.3 of PSO 1010, it is argued that the claimant's illness should be taken into account as an exceptional circumstance. It should be taken into account in deciding whether his risk of escape is so low that he can properly be assigned to category B even if the risk of serious re-offending on his escape is high.
24. There is medical evidence derived from a report of 2005 that the general life expectancy of a younger man with cystic fibrosis is 32 years. There is no evidence of the claimant's own life expectancy. He has been seriously ill with this disease for some time. But on the other hand, he is in a regime in which he is subject to considerable supervision and the certainty of very speedy intervention in case of crisis. The only other clear evidence is that he can walk for no more than five minutes and run for no more than 200 metres.
25. Miss Krause said that it is irrational not to take those factors into account in deciding that he is an exceptional person for whom the security of categorisation in category B would be sufficient to minimise the risk of escaping. She referred to the decision of Mr Justice Turner in Pate v Secretary of State for the Home Department [2002] EWHC 1018 Admin and to the decision of the Court of Appeal in G v Secretary of State for the Home Department [2006] EWCA Civ 919. Both of those cases are different on their facts from the present case. This is not a case where, as in G, there is a demonstrable motive not to escape. Nor, for whatever reason, is it a case where there has been any medical or other evidence that in practical terms the claimant could not escape because of his debilitating illness. He did not try to attempt to escape from hospital: but there is no reason for supposing that his condition when not in hospital is the same as when he is.
26. Not all methods of escape require stamina; some escapes are achieved by guile or with the help of others. Perhaps it is said he might not last very long if he were on the run. But without evidence to the contrary he must be assumed to be capable of offending in that time.
27. The decision under challenge refers in a number of places to the claimant's illness. On the first page, under the heading "Background", is the following:

" .....

He has cystic fibrosis, an inherited degenerative condition affecting the respiration and digestion. Over the years it will require increasing levels of medication to treat inevitable physical deterioration. Average life expectancy is 32 years. As a result there has in recent years been sustained pressure from representatives for his downgrading.

Present Circumstances:

.....

His cystic fibrosis is controlled by regular medication and hospital treatment. He has for some time been on maximum levels of therapy due to respiratory deterioration. Although able to perform everyday tasks he would become breathless through regular exertion. Healthcare staff confirm he cannot walk for five minutes without severe respiratory distress.

.....

Representations [made on his behalf]

.....

The independent medical report confirms that without regular medication his physical condition would rapidly deteriorate. Within several months of escape he would become severely ill and within a year significantly incapacitated. This is a strong argument for his downgrading in accordance with the Pate judgment. His potential for escape is low and can therefore be downgraded."

That paragraph is a fair summary of the argument put on the claimant's behalf.

28. In the "Reasons for the Decision" appears this:

"The Director also carefully took into account Mr Nicholls' health problems and the possibility these may significantly reduce his risk of escaping or re-offending in a similar way. He accepted he had a duty to consider any exceptional circumstances that suggested Mr Nicholls' escape could be made impossible in less secure conditions.

The Director considered however that despite Mr Nicholls' obvious health problems, there was no compelling evidence these would immediately prevent his capacity to escape or to re-offend if unlawfully at large. He was satisfied that Mr Nicholls' health problems currently did not oblige a move to less secure conditions."

29. In G, at paragraph 25, Lord Justice Dyson who gave the second judgment, and with whom Lady Justice Hallett agreed, said:

"25 In my judgment the issue in this case" -

and it seems to me the issue in the present case as well -

"turns on a proper understanding and application of paragraph 1.3 of PSO 1010 ..... It contains no reference to the physical impossibility of escape. It states that consideration needs to be given to whether the stated aim of making escape impossible in lower conditions of security can be achieved for a particular prisoner in exceptional circumstances. Whether exceptional circumstances exist in a particular case is a matter for the decision of the director. It seems to me that the position was accurately summarised by the senior panel at paragraph 62 of the judgment in the case of the application of Dennis Roberts v Secretary of State for the Home Department [2004] EWHC 679 (Admin). The review panel in that case had said:

'The review team accepts it has a duty to consider whether there are any exceptional circumstances in a highly dangerous prisoner's case that would allow it to achieve the aim of making escape impossible in conditions of lower security. However the review team is satisfied there are no exceptional circumstances in Mr Roberts' case that would warrant such a consideration.'"

30. In my view it is quite wrong to say that the claimant's illness was not taken into account. It clearly was. The question posed by Miss Krause is whether it was taken into account properly. She asserts that the claimant's illness is such that a decision that it did not amount to such exceptional circumstances as would merit a re-categorisation to category B was irrational.
31. I reject that submission. As the observation I have cited by Lord Justice Dyson in G indicates, whether exceptional circumstances exist in a particular case is a matter for the decision of the Director. He made that decision in the light of all the information that was before him. He considered whether the illness, the details of which he was clearly aware, meant that the claimant's risk of escaping was such that a re-categorisation to category B was justified and decided that the illness should not have that effect.
32. I therefore reject the challenge insofar as it is based on the claimant's illness.
33. The last principal issue raised by Miss Krause on the claimant's behalf relates to his age. He was under 18 when he was first in custody on remand. He was over 18 when he was sentenced. By reference to the decision of the Court of Appeal in Secretary of State v Smith and Dudson v Secretary of State [2004] EWCA Civ 99, Miss Krause invited me to say that there is a special duty in fixing conditions of detention in the case of a person who has grown up into adulthood in prison. She was however - it is fair to say - unable to point to any specific authority for that proposition.
34. The relevance of age in this case, it seems to me, is small. The claimant did, as I have indicated, grow from minority into adulthood during the time he spent on remand. But it is also clear that in making the full report, the psychologist clearly took into account both the claimant's age and the fact that much of the claimant's offending - indeed all the claimant's offending other than the last offence - took place when he was a child. A considerable part of the report is devoted to looking at the claimant's present attitudes to responsibility in connection with his history of offending as a child. The decision maker took that report into account, as is clear from the decision. As is also clear from the decision, he also took into account the fact that the claimant was 17 when he committed the index offence. It seems to me that there was no requirement in this case for him to do any more.
35. The claimant's illness and his age raise matters of concern because of considerations of humanity and common sense. But it does not appear to me that the decision in the present case can be shown to have failed to take proper account of either of them. None of the matters identified by Miss Krause therefore throws doubt on the rationality or legality of the decision under challenge.
36. This application for judicial review therefore fails.
37. MISS KRAUSE: The claimant is publicly funded. May I have assessment of his public funding?
38. DEPUTY JUDGE: Yes; you may have that.
39. MISS KRAUSE: I am grateful.
40. MR MURRAY: No application.