CO/8095/2007
Neutral Citation Number: [2008] EWHC 1394 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Date: Wednesday, 9th April 2008
Before:
LORD JUSTICE LAWS
- - - - - - - - - - - - - - - - - - - - -
THE QUEEN ON THE APPLICATION OF STUART BROWNHILL
                                 Claimant

-v-
THE SECRETARY OF STATE FOR THE MINISTRY OF JUSTICE
                                 Defendant
- - - - - - - - - - - - - - - - - - - - -
(Computer‑Aided Transcript of the Stenograph Notes of 
Wordwave International Limited, A Merrill Communications Company
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
F. KRAUSE (instructed by AS Law) appeared on behalf of the Claimant.
MISS C. WEIR (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
J U D G M E N T 
- - - - - - - - - - - - - - - - - - - - -

1.	LORD JUSTICE LAWS:  This is an application for judicial review with permission granted by Forbes J on 18th December 2007 of the decision of the Secretary of State made on 28th February 2007 to the effect that the claimant should remain a category A prisoner.  By error the decision was not communicated to the claimant until 9th May 2007. 

2. The claimant is a man of 50 who on 20th May 1985 was sentenced to a mandatory term of life imprisonment for a murder with sexual associations committed shortly after he had been released from jail where he had served a sentence for another crime.  His tariff was set at 17 years and expired on 3rd September 2001.  He has completed a number of offending behaviour programmes and courses.  They are listed in the statement of judicial review grounds as follows:  1985 educational programmes; 1990 drug and alcohol awareness; 1999 anger management; 2000 computer skills; 2000 life and social skills module; 2000 enhanced thinking skills; 2001 sex offender treatment programme; 2003 extended sex offender treatment programme; 2002 drug and alcohol booster (that is noted to refer to relapse prevention work); 2006 the FOCUS programme (that refers to drug relapse).  He is currently detained at Her Majesty's Prison Frankland.  He has been subject to category A conditions ever since his detention in 1985. 

3. In 2004 he obtained a recommendation from the Deputy Governor that his security classification be downgraded, but the Deputy Director General of the Prison Service decided that he should remain category A.  That was sought to be challenged before Collins J who refused judicial review permission after a hearing on notice on 10th April 2006. 

4. On 28th February 2007 the CART (that is the category A review team) carried out its annual review of the claimant's security classification.  Since the only ground of challenge to the decision reached on that date is irrationality, it is necessary to set out the decision letter in full: 

"Stuart BROWNHILL Prison No: N20643 FRANKLAND     SECURITY CATEGORY REVIEW - Decision
Your security category review has been completed and the decision is that you are to remain Category A (Standard Escape Risk).
This decision has been reached following careful consideration of all relevant factors, including the circumstances of the present offence, length of sentence, previous convictions and reports prepared by Frankland.
You were provided with copies of your latest security category reports and factual information relevant to the determination of your security category.  Representations were submitted by your solicitors AS Law in a letter dated 5 January 2007.   Additional presentations detailing the results of your recent parole review have also been submitted under a letter dated 9 February 2007.
Your solicitors noted that the LAP for your last review had noted that you had moved from substantial denial to accepting full responsibility for the index offence.  They also noted that you had engaged in the sentence planning process and to-date had engaged successfully in a number of offence related courses, including FOCUS, ETS, Core and Extended SOTP, anger management and drug and alcohol awareness.  They stated that when your case was last reviewed by the Director, it was noted that your case should be referred back to him following your completion of the FOCUS course.
They acknowledged that further identified offending behaviour work remained outstanding, specifically the Better Lives Booster programme and the Healthy Sexual Functioning programme.  In addition, assessment for suitability for both the CALM and CSCP remained outstanding.  They also confirmed your willingness to undertake outstanding programmes identified for you.
They submitted that in light of your successful participation in offence related, your willingness to complete identified work, you no longer warranted Category A conditions.  Your solicitors also drew attention to your Parole Board notification dated 08.11.06 in which specific reference was made to your security status.
The Review Team noted that you were an enhanced level inmate, that you were generally quiet and polite in your dealings with staff and that your custodial behaviour was of a good standard and gave no cause for concern so far as the determination of your security category was concerned.  However, good custodial behaviour within the controlled environment of a maximum security prison could not, by itself, be conclusive in determining a prisoner's level of dangerousness, other factors had to be taken into account.
The Review Team noted that you now accepted culpability for the present offence and recognised to your credit that you had been prepared to address your offending behaviour and had taken part in relevant offending behaviour work and made some progress through your completion of Core SOTP (April 2001) and the Extended SOTP (March 2003), the ETS course in October 2000 and more recently the FOCUS programme (September 2006).
The Review Team noted that following your completion of the Core and Extended SOTP, a number of courses had been recommended including the Better Lives Booster programme and the Healthy Sexual Functioning programme and that previous psychology reports had noted that you had declined to participate in assessments as you were not ready for any further treatment as you had felt that it was not helping you to progress through your sentence.   The Review Team also noted that a further target set in your SARN was that you should be assessed for the CALM programme.  The Review Team noted that an initial assessment for the CSCP indicated that you would benefit from undertaking a further assessment.
The Review Team noted that you had recently completed the FOCUS programme and also noted the Director's recommendation outlined in a decision letter dated 22.03.05 that your case should be referred back to him following your participation in the CALM and FOCUS programmes.
The Review Team also noted that your Parole Board notification dated 08.11.06 recorded that careful consideration is given to your security category.  Concern was expressed that your present security classification may well be impeding your access to, and from carrying out, necessary risk reduction work and intervention.  The Review Team can confirm that it is not within its remit to countenance downgrading in order to access particular offending behaviour programmes within conditions of lower security.  The Review Team also noted that in your particular case a number of programmes/courses had been recommended to address outstanding areas of concern in relation to violence and to further address your sexual violence and that these courses were available within the high security estate.
In considering your security category the Review Team also took into account the very serious nature of the present offence in which you murdered a woman, sexually assaulted her, and set fire to her house.  The Review Team also noted that you committed the present offences shortly after you had been released from a previous custodial sentence.
The Review Team acknowledged that you had made some progress in addressing your offending behaviour.  However, in the interest of public protection the progress you had made to date had to be viewed against the gravity of the present offence and the fact that you had as yet not undertaken any work on anger and violence and that there were outstanding treatment needs in sexual violence.  In reaching this conclusion the Review Team was mindful that it was required not only to look at the risk of re-offending on escape but the nature of harm that would result.  In your particular case the Review Team concluded that notwithstanding the progress you had made, having balanced the evidence of risk reduction against the very serious nature of the present offence and your offending history there remained a significant (albeit reduced) risk of you re-offending in a similar way if unlawfully at large and that you must therefore at present continue to be regarded as potentially highly dangerous, particularly to women.
Category A Review Team
Directorate of High Security."
5. The material before the CART included: a report by the life manager to the effect that further work was needed in relation to sexual offending, anger management and violence.  It concluded that until those matters had been addressed the claimant must still be regarded as a danger to the general public.  Next, there was a report from the prison psychology department indicating that when they had contacted the claimant in July 2004 to discuss further treatment he had stated that he felt that he was not ready for any such further treatment.  It was not helping him to progress in his sentence as he remained a Category A prisoner.  He subsequently told the psychology department in June 2006 that
"He wanted a break from programmes due to engaging with offending behaviour work for over 6 years".  There was a report by his probation officer making recommendations for future offending behaviour work.  These recommendations included a CALM programme but it was indicated that he had stated that "he would only pursue these targets if the efforts he had made to date were acknowledged through his recategorisation".
6. The decision of CART has been superseded by a further review in accordance with the standard annual periodic process.  The fresh decision letter is dated 15th November 2007, about a month before Forbes J granted judicial review permission.  CART has again concluded that the claimant should remain Category A.  While the judicial review is formally directed at the earlier decision it must be right to have regard to the latest determination.  Apart from anything else, its legality or otherwise is likely to be material to any question of relief which in judicial review is of course discretionary.  Again I should read the whole document:
 
"STUART BROWNHILL (N20643) - FRANKLAND PRISON
Security Category Review - Decision
Your security category review has been completed and the decision is that you are to remain Category A (Standard Escape Risk).
This decision has been reached following careful consideration of all the relevant factors, including the nature and circumstances of the present offence, the length of sentence imposed, your previous offending history and the latest prison reports.  You also submitted representations towards your review.
You were provided with copies of your latest security category reports and factual information relevant to the determination of your security category.
The Review Team recognised that you had maintained your good behaviour since your last review.  It noted you were fully compliant with the regime and showed good relations with staff and other prisoners.  It noted you had received no adjudications for many years.
The Review Team however did not accept that your settled custodial behaviour within your present secure conditions, even if sustained over a long period, could in itself provide clear evidence of a reduction in your risk of reoffending in a similar way if unlawfully at large.  It required further convincing evidence to show you had addressed or had achieved substantial insight into the risk factors relating to your serious offending.
The Review Team noted you had taken part in a large number of relevant offending behaviour programmes.  It noted these programmes had covered a range of your identified risk factors, including your sexual offending, cognitive skills and abuse of drink and drugs.   The Review Team accepted that your completion of this work had provided evidence of some progress on the specific issues addressed.
The Review Team noted however that for some time now several important risk factors relevant to your offending had been highlighted for further treatment, in particular your ability to manage your angry feelings.  It noted you had been made a priority for completion of the CALM programme, but remained satisfied that evidence that you had addressed and achieved insight into this core risk factor should be available before an accurate assessment could be made of an appropriate reduction in your risk.
The Review Team also noted that outstanding issues relating to your sexual offending had been identified for further work, and that, while you had taken part in the Focus programme in 2006, you had declined to take part in the post-programme interviews.  As a result the extent of your progress on the programme remained unresolved.  It noted you had become disillusioned with offending behaviour programmes and had completed no new work since your last review.
The Review Team fully supported the Local Advisory Panel's recommendation that further identified work should be completed to help establish the level of your progress reducing your risk.
The Review Team noted the highly violent nature of your present offence, which you committed shortly after release from custody.  It also noted your extensive previous history of offending.
The Review Team considered that your offending indicated a high level of potential dangerousness.  While it accepted you had made some limited progress addressing your risk, it considered that a downgrading of your security category could not be justified until there was convincing evidence of a significant reduction in your risk of reoffending in a similar way if unlawfully at large.
The Review Team was satisfied that no such evidence was yet available and that you should remain Category A at this time.
Steve Easton
Category A Review Team
Directorate of High Security."
7. Given the detailed reasons set out in the two decisions, it is in my judgment wholly impossible to conclude that either of them within its own terms was irrational or unreasonable.  Even if, as the claimant asserts, the first report failed to take account of the claimant's participation in FOCUS, the second did not.  Indeed, it is fair to say that the claimant's argument, though as I have indicated it is categorized as one of irrationality, is somewhat more refined than a bare complaint of perversity (though Miss Krause for the claimant also persists in such an unadorned argument).  Her essential case is that this claimant faces what Miss Krause categorizes as a Catch 22 situation.  He cannot complete the offending behaviour work which the defendant says he must complete before he may be eligible for his prison category to be downgraded.  In particular, Miss Krause says that the defendants have effectively imposed a condition that he undertake the CALM programme, yet he has no reasonable or practicable access to it; nor is it suggested that he can undertake other programmes, the CSCP or the HSF at Frankland Prison. 
8. Counsel's detailed grounds cite lengthy passages from a judgment given by myself in this court in Walker, 30th July 2007, dealing with the Secretary of State's failure to provide courses in good time for prisoners serving sentences of imprisonment for public protection with short tariffs, so as to enable their release to be considered at a date at least reasonably close to tariff expiry.  That case went to the Court of Appeal which overturned a particular aspect of the Divisional Court decision, though I think that counsel is entitled still to rely on the passages cited.  However, this present case is not directly concerned, as Miss Weir for the Secretary of State is at pains to point out, with release dates.  However, categorization of a prisoner from category A downwards is an important matter for the prisoner as well as the community.  Category A status does not as a matter of law preclude consideration of administrative release by direction of the Parole Board but in practice it does (see the observations of Judge LJ in Williams, [2002] 1 WLR 2264,2271), and in any case the conditions of a prisoner's detention differ as between the categories.  If I were to conclude that the Secretary of State in truth imposed a condition on the claimant's eligibility to be considered for a change of status but then made that condition impossible of fulfilment, I would be inclined to the view that Miss Krause's case had considerable force.  It cannot be reasonable to present insurmountable hurdles to the achievement of a supposedly achievable target.  
9. In my judgment however the claim put in this way fails on the facts.  The claimant has on the evidence exhibited a recent disinclination to undertake further offending courses.  As part of the history he has not requested a transfer to Her Majesty's Prison Whitemoor, where at the time these decisions were made the CALM course was available.  It is fair to say that in a witness statement he has provided an explanation for that.  Mr.  Easton, head of the CART, in his statement dated 28th February 2008 referred to the fact that only normal location places are available at Whitemoor as opposed to places for vulnerable prisoners; and the claimant remains a vulnerable prisoner.  All this however is water under the bridge to this extent.  Miss Weir has indicated on instructions today that, first, it is accepted by the Secretary of State that it would be unreasonable to expect this prisoner to transfer to normal location in order to undertake an offending behaviour course; but in any event the CALM course is not now available to vulnerable prisoners within the prison estate at all.  CALM for the moment remains on any basis out of the picture.  As for the CSCP also referred to by the claimant's counsel, that is not currently considered an immediate target for the claimant (see Mr.  Easton's paragraph 19). 

10. It is important, given as I have said that the CALM course for which this prisoner was assessed as a high priority is out of the picture, to look carefully to see what the effects of that are in terms of this prisoner's prospects of a category reconsideration.  Mr.  Easton says this in paragraph 18 of his statement: 

"If Mr Brownhill is unwilling to go on normal location at Whitemoor Prison to complete the CALM programme he can discuss with psychology staff alternative means of addressing the risk factors covered by the programme". 
11. It is right that the claimant himself in his statement is sceptical about the value of such a process but that seems to me to be a circumstance falling far short of anything that would justify judicial review on irrationality grounds.  I do not think that it would be right to conclude that the Secretary of State has erected an absolute or insuperable bar to this prisoner's recategorisation by force of the unavailability of the CALM course.  In my judgment, the defendant's decision was well within the legal margins of his power.  Plainly there are difficulties with regard to the availability of the CALM course, but the matter is by no means so stark as to justify this court's intervention.  There are some other materials relied on by Miss Krause which I have not forgotten.  One is paragraph 7 of a Parole Board decision of 8th November 2006.  It is unnecessary to set out the detail.  This is a case where, despite Miss Krause's tenacious efforts, in the end the complaint is one of fact and not of law.  That is not to say that the means and methods within the prison system by which this man may be offered facilities that will provide him with a real chance of recategorisation are other than very important; but it seems to me that they are being conscientiously addressed.  I would dismiss the application. 
12.	MISS KRAUSE: There is an application for legal aid taxation. 

13.	LORD JUSTICE LAWS: You mean detailed assessment for the purpose of the LSC.  You may have that.