Case No: CO/2503/2010
Neutral Citation Number: [2010] EWHC 2303 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS

Leeds Combined Court
The Courthouse
1 Oxford Row
Leeds LS1 3BG

Date: 15th September 2010 

Before 
His Honour Judge S P Grenfell:
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Between :
R on the application of CLIVE CRAIG
		Claimant	
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	GOVERNOR OF HM PRISON ALBANY	Defendant	

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Mr Jason Elliott (instructed by Chivers Solicitors) for the claimant 
Mr Simon Murray (instructed by the Treasury Solicitor) for the defendant

Hearing date: 24th August 2010
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Judgment
His Honour Judge Grenfell: 
1.	Introduction
2.	On the 17th February 2005 the claimant, Clive Craig was sentenced to 11 years imprisonment for rape, attempted rape and indecent assault, all against his 11 year old daughter in 2004.  He was first eligible for release on parole on the 12th February of this year 2010.   His non-parole date for release is 13th December 2011.
3.	The claimant is currently a prisoner at HM Prison Albany, Isle of Wight.  He applies for judicial review of the decision of the Governor dated 18th December 2009 refusing him a progressive move out of category B (High Security) conditions, on the grounds (as amended) that the Governor:
(i)		erred in law by failing to provide a categorisation review in accordance with PSI 16/2008; 
(ii)	erred in law by failing to consider the presumption of a move to open conditions;  
(iii)	placed too great an emphasis on the fact that the claimant denies the index offence;  
(iv)	has failed to provide written reasons within a reasonable time; 
(v)	has decided informally that the claimant will not get a progressive move, thereby prejudging his recategorisation; and 
(vi)	has failed to comply with PSO 0900 which requires that he be detained at the lowest possible category.
4.	By his Acknowledgement of Service the defendant Governor contended that:
(i)		the claimant has pursued neither the internal complaint process nor applied to the Prisons and Probation Service Ombudsman before making this claim;
(ii)	recategorisation is governed by PSI 03/2009 and must be based on clear evidence of change in the level of risk, otherwise, the presumption is to remain in the same category;
(iii)	the decision is clearly explained and does not rely on the denial of the index offences or the failure to complete offending behaviour work;
(iv)	notwithstanding the requirement for 6 monthly reviews under PSI 16/2008 in the last 30 months of the sentence, the defendant’s view is that the claimant is still not suitable for a move from category B conditions;
(v)	the defendant’s letter of 08/12/2009 was a decision made prior to the Governor’s decision on 18/12/2009 and in no way pre-judged the decision.
5.	His Honour Judge Behrens granted permission observing that it was arguable that the sole reason that the claimant had not been recategorised was because he continues to deny the index offences and, therefore remains unable or unwilling to be placed on any Sex Offenders Treatment Programme (SOTP) courses.  He also observed that authority suggested that failure to make an appeal to the Prisons Ombudsman is not a bar to relief.  That, in any event, has not been pursued before me as an issue except that it is submitted by Mr Murray, counsel for the defendant, that such failure may be relevant in the event that the application for judicial review succeeds, when the exercise of discretion whether or not to grant relief would come into play.  
6.	One matter of debate before me was whether in so observing Judge Behrens was limiting the grant of permission.  I did not read it so.  However, the reality is that he put his finger on the essential point in this judicial review:  what can a prisoner in this situation do to facilitate his progressive recategorisation before eventual release? Does the inability to undergo relevant SOTP courses through denial of his index offences effectively dictate recategorisation decisions? 
7.	Since the grant of permission, there has been a further recategorisation decision which was promulgated on the 30th July last.  It may well have been made on the 30th June, but nothing turns on that.  Similar issues apply to this decision.  I granted permission to amend the grounds on the 13th August and, in the course of argument, for this new decision to be the subject of the application for judicial review.  It clearly makes sense for the latest decision only to be the subject of review.  See also R (Osborne) v Governor of HMP Littlehey 2010 EWHC 1277 (Admin) where His Honour Judge Langan QC followed that course.  Earlier decisions are relevant by way of background and information.
8.	As Mr Elliott, counsel for the claimant, was at pains to point out, this is not a case where the prisoner is seeking a recategorisation to open conditions, but rather from B to C.  That dispels any suggestion to the contrary.
9.	For such a recategorisation to take place it is common ground that there has to be demonstrated a reduction in risk.  In practical terms this means risk, should the prisoner escape or otherwise be at large, to the public or, in particular, to his victim.  Consideration of risk also includes risk to fellow prisoners.  It is also common ground that a prisoner should be categorised at the lowest level commensurate with security and risk.
10.	The rationale for this consideration of risk stems from the basis of categorisation.  
Category A – Prisoners 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.
Category B – Prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult.
Category C – Prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt.
Category D – Prisoners who can be reasonably trusted in open conditions.
11.	Thus Category B remains appropriate where the risk to others, should the prisoner escape, is regarded as too great.  Because under Category C there is a greater chance that the prisoner either might escape or more probably abscond from Temporary Release on Licence, so there has to be demonstrated a reduction in such risk before a prisoner can be downgraded to Category C. 
12.	In my view, this application for judicial review turns on a relatively straightforward point, namely what the actual reasons were for the decision.  In this regard, Mr Elliott submits that the reasons are to be found solely in the form RC1.  There has been some debate as to whether permission extended to a reason based challenge to the decision.  For the avoidance of any doubt I indicated that I was prepared to hear argument as to the adequacy of the reasons, in particular, with reference to Form RC1.
13.	Mr Murray, counsel for the defendant, relies on 3 witness statements of Mr Alan Cousins, Governor, dated 18th May, 19th August and 24th August 2010, which seek to expand on the form RC1 as to the reasons for the recategorisation decisions.  The effect of this evidence is to demonstrate that the decision was not based solely on the denial of guilt and non participation of SOTP courses; that those were merely relevant and important considerations; that there was no evidence of any change in risk; that prisoners who continue to deny guilt can participate in various courses, such as for example Enhanced Thinking Skills, through which they can demonstrate reduction in risk; that further, the Governor took into account the OASys report which flagged the claimant as medium risk to other prisoners whilst in custody.  In his second statement Mr Cousins made reference to information that, whilst at HMP Bullingdon, the claimant had said to an officer “when I get released I will end my victim’s life just like she’s ended mine”.  There was also reference to a proven adjudication in February 2010 resulting in loss of 10 association and TV days.  The 3rd statement produces the security intelligence held at the prison in respect of the claimant.  The most relevant entry is that of the 9th July 2010 which reads:  ‘Offender Craig is attempting to contact the UK [border] agency to ask if his daughter/victim has been given British citizenship.  In 2009 he was found to be writing to a family tracing service asking to find a daughter.  In 2006 he stated that when released from prison he will end his victim’s life like she has done his.’
14.	On the other hand the relevant forms RC1 contained the following reasons:
The 18th December 2009 form:  ‘Rolling SOTP has been recommended as most suitable for Mr Craig.  He is in denial of his offences therefore has not completed any coursework to reduce his risk.’
The 30th July 2010 form: ‘Rolling SOTP has been recommended as most suitable for Mr Craig.  This offender is maintaining his innocence of offences.  SOTP has not been completed as although eligible due to the nature of his offences he cannot participate due to denial.  No reduction in risk.  Remain Cat B.’
15.	There is no reference in either form to the additional factors contained in Mr Cousins’ statements.  This raises the question whether the additional factors are no more than justification for the decision rather than forming part of the decisions themselves.
16.	The legal framework
17.	The principles by which adult male prisoners are to be recategorised are to be found in Chapter 2 of PSO/0900:
“2.1.1 	By the time a prisoner is eligible for review, staff will know much more about him than when he was first categorised by OCA staff in the local prison.  However, while his circumstances may have changed, the matters which are relevant to a recategorisation are the same as those for an initial categorisation.  The aim of recategorisation is to use this information to establish whether there has been any clear change in the risk the prisoner poses.  More specifically, staff must answer two important questions: (1), is the prisoner more or less of a risk to the public than when he was first categorised; and (2), is he now more or less likely to escape or abscond.  It is not necessary to prove continued or increased risk in both areas to retain the prisoner in his present category or upgrade him. There will be prisoners who pose less risk of escape than they once did, but who present such a serious threat to public safety that we cannot accept even the smallest chance that they will abscond or escape.
“2.1.2	Having balanced the risk of the prisoner escaping or absconding against the likely risk to the public were he to do so, governors (or equivalent grades in contracted out establishments) must decide, provisionally, whether the prisoner should remain in his current category, or whether he should be upgraded or downgraded.  Where the provisional decision is to retain the current category or to downgrade it the governor must consider whether any control factors point to a different categorisation.  For instance there will be some prisoners who, while posing less risk and therefore being eligible for downgrading, may be unsuitable in other ways for transfer to conditions of lesser security.  Staff must complete the suitability Assessment at the end of the Recategorisation form, after which the prisoner’s new security category can be finally decided.”
18.	PSI 03/2009 also states the principles of recategorisation.  Paragraph 8.1:
“The purpose of the recategorisation process is to determine whether, and to what extent, the risks a prisoner presented at his or her last review have changed and to ensure that the prisoner continues to be held in the most appropriate conditions of security.
Recategorisation must be based on:
• Evidence of a clear change in the level of risk posed by the prisoner in terms of escape or abscond and/or the risk to the public in the event of an escape or abscond.
• New or additional information, which impacts on the original categorisation decision.
• Concern that the previous recategorisation decision is unsound.  There must be corroborative evidence to support this view.
• Control issues…
19.	Paragraph 8.2 in terms of reviewing a prisoner’s category states, “it is essential to look at the reasons why at his or her last review the prisoner was placed in the current security category.”  Only then can it be determined whether circumstances have changed so as to warrant a change in category.
20.	Paragraph 13.1 states that the OASys assessment should be used to assess or review the risk of harm which a prisoner presents to the public. The paragraph goes on to set out other relevant information which is to be considered. This includes behaviour: but good, compliant behaviour does not, in itself, indicate that the prisoner poses less risk either of escape or abscond or risk of harm to the public or risk to the good order of the prison and is not sufficient justification to downgrade a prisoner. There must be additional sound evidence that the prisoner’s good behaviour is representative of a change in attitude and an associated reduction in the risks that were evidenced at the last categorisation review.
21.	Section 2.3 of Chapter 2 of PSO/0900 ‘Completing the Recategorisation Form’ is particularly relevant to the issues raised on behalf of the claimant with the respect to the contents of Form RC1.
22.	Paragraph 2.3.1 reads:	
“‘Assessment of Escape or Abscond Risk’ -This section of the Form must be completed by someone with full access to the prison Security Intelligence system.  Such staff are most likely to work in the Security Department, but governors may direct that this base information is recorded by another department in the prison.  All facts and items of analysed intelligence that might help determine whether the likelihood of the prisoner attempting to escape or abscond has been reduced, must be recorded.”
23.	Paragraph 2.5.3 is highlighted in Bold:  
“In all cases the form RC1 must be used to record in full detail how the prisoner’s circumstances have changed since his last review and why his current security category and allocation are no longer appropriate.  If the prisoner needs to be transferred to conditions of greater security at very short notice then the sending prison must complete the RC1 and forward it to the prisoner’s new establishment as soon as possible..”
24.	It is common ground that a decision that is solely based on denial of the index offending is unlawful.  See R v Secretary of State for Home Department Ex parte Hepworth, Fenton-Palmer and Baldonzy; R v Parole Board ex parte Winfield [1997] EWHC Admin 324; ; R v Parole Board and Home Secretary ex parte Oyston [2000] 1 PLR 45; R (Roberts) v Secretary of State for Home Department [2004] EWHC 679 (Admin).
25.	The authorities, nevertheless, highlight the continuing difficulties that prisoners who deny their guilt face in demonstrating the necessary reduction in risk to enable progressive recategorisation, against the assumption of guilt which the prison authorities have to apply to each such prisoner.  Elias J summarised the situation in the following passage from his judgment (paragraphs 39  to 42) in Roberts:
“39. I accept Mr Kovats' submissions. There is a very real difficulty facing the review team in cases of this nature. The guilt of the prisoner must be assumed. That is what the review team properly did here. The review team 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. 
40. That evidence will, in the normal way, be most cogently demonstrated by the prisoner participating in courses and programmes which are directed to the specific offences, so that there can be some self-awareness into the gravity and consequences of his conduct. However, it is a condition of a number of these courses that the prisoner must admit his guilt. That is so, I am informed, for the Sex Offences Treatment course, the CALM course (controlling anger and learning to manage), and the CSCP course (cognitive self change programme). By not participating in such courses or programmes the prisoner inevitably makes the task of the review team more difficult, and in some cases practically impossible. 
41. It must be recognised that this compounds the injustice for anyone who has suffered the grave misfortune to be wrongly committed [sic] of such terrible crimes, and there will inevitably be such people. It puts pressure on the innocent to admit guilt in order to facilitate release, or, alternatively, to serve a longer sentence than they would have had to do had they committed the crime and felt properly able to admit guilt. But that seems to me to be inevitable, the system cannot operate unless the verdict of the jury is respected. 
42. Moreover, on very, very, many more occasions defendants deny guilt for offences which they have in fact committed, for a whole variety of reasons. Given that the danger must be presumed from the nature of the index offence, it is plainly a proper requirement that there should be cogent evidence in the diminution of risk if the safety of the public is to be secured. No doubt to those in denial the recitation by a review team that being in denial does not of itself preclude recategorisation may appear to have something like a mantra-like quality. There is no doubt that if they disqualify themselves from the courses which address their specific offending, it will be considerably more difficult than to be able to satisfy the review team that recategorisation is justified. This is not, however, a punishment meted out to them because they have not admitted the offences, but it is because by being in denial they limit —  and in many cases severely limit —  the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates that they have not accepted that the risk was ever present. In the circumstances, therefore, I do not consider that the review team can be criticised on this ground.”
26.	In terms of a potential solution, there have to be other ways by which the prisoner can demonstrate a reduction in risk.  With reference to the passages that I have just cited, in R (Osborne) v Governor of HMP Littlehey 2010 EWHC 1277 (Admin) His Honour Judge Langan QC addressed the question of a prisoner’s inability to attend courses in the context of assessing risk at paragraph 38:
“…  It would, of course, be wrong for the defendant to retain the claimant in Category C simply because the claimant has not attended appropriate courses or because he is in denial of his offences.  Denial and a consequent inability to attend courses are relevant only to the extent that it is usually fundamental to demonstrating reduction in risk that a sex offender accepts responsibility for what has happened in the past and takes concrete steps to address his future conduct. But if he will do neither, he puts himself in a situation in which it is difficult, indeed practically impossible, for him to obtain a downward recategorisation.”
27.	I return with adopted diffidence to the words of Elias J in Roberts at paragraph 47:
“47. Whether there is scope for more one-to-one work with specialist staff than currently exist, and whether this is a satisfactory alternative, I do not know; but the tenor of the reports I have seen in this case suggests to me, maybe mistakenly, that this possibility may not be widely appreciated by some staff in the prisons. I do no more than raise the question whether it is explored as an alternative as often as it might be.”
28.	Hearing argument and considering these authorities, I feel that it is incumbent on the Governor to explore what work can be done with a prisoner who maintains his denial in terms of addressing risk for the purposes of recategorisation.
29.	Finally, His Honour Judge Langan QC also made the valid distinction, which I respectfully adopt, in terms of a Governor’s assessment of risk in the context of a recategorisation decision, which is perhaps more relevant to consideration of open conditions, but nevertheless informs the nature of the risk to be considered.  That distinction is between risk where a prisoner is subject to licence and where he is simply at large through absconding.  In the former circumstance, he is subject to some form of monitoring and is answerable for breaches of his licence.  Plainly, there are no such safeguards in respect of a prisoner who is unlawfully at large.  It is for these reasons that the principles involved in the assessment of risk for the purposes of recategorisation are similar to those for the purposes of considering parole.
30.	Discussion
31.	Mr Elliott’s argument can be summarised.  The Decision as reflected in Form RC1 is founded entirely on the maintenance of denial comprising the fact of denial coupled with the consequent inability to attend appropriate offender programmes; there is no suggestion that the fact of denial has been considered as part of a more holistic approach to the issue of risk; all the factors referred to in Mr Cousins’ evidence preceded the Decision under challenge; if they had informed the Decision, then they might be expected to have been contained within Form RC1; the fact that they are not so contained, he submits, demonstrates the unlawfulness of the document and, therefore, the Decision not to downgrade itself.  He submits that the need to consider risk as a whole is not abrogated by the fact of denial; moreover, there should be objective evidence as to the specific risk assessment contained with Form RC1.  Thus, he submits, where as here the defendant seeks to rely on evidence unrelated to the material contained in Form RC1 as seeking to justify the Decision, then that is the clearest evidence that risk as a whole has not been properly considered; moreover, if there has been inadequate consideration of risk as a whole, the defendant cannot say that he has considered any such factors that might weigh in the claimant’s favour, such as his previous good character, his offending being restricted to within the family environment, and his likelihood of returning to the family where the police would look first for him, were he to abscond.
32.	Mr Murray submits that the defendant was bound to consider that Category C prisons are less secure and, in particular, any risk that might be posed were the claimant to be granted release on temporary licence (ROTL).  The two factors which were relevant to assessment of that risk were the reported threat to his victim made to an officer in 2006 and the more recent attempt to ascertain the victim’s whereabouts and nationality status.  In response to Mr Elliott’s reason based challenge to Form RC1, Mr Murray submits that the form is not intended to constitute the detailed decision; all that is required is sufficient detail of the reasons to enable the prisoner to engage the internal complaints process.  He submits, with particular reference to paragraphs 2.3.5, 2.3.7 and 2.3.10 of ‘Chapter 2’ that the reasons why no evidence of mitigation of risk appears is that, none had been found.  He complains, further, that the absence of any internal appeals process has precluded a more thorough paper trail to illustrate the decision making factors.  Finally, he submits that the Decision was lawful and in accordance with the appropriate Prison Service Instructions:  a downgrade can only occur if there is demonstrated a clear change of risk, so that the Governor is positively satisfied that such is the case; Mr Cousins’ evidence shows that there is no such clear change demonstrated; there was no need to record this on the form RC1 where no clear change is in fact demonstrated.
33.	In order for the Governor to consider recategorisation, it is clear, he has to be satisfied that there is a clear reduction in risk:  in a case such as this, therefore, that sufficient change in risk has been identified.  One element of risk which is independent of this claimant’s denial of offending is the evidence of the threat made with regard to the victim in 2006.  On the basis that the threat has been taken into account in each recategorisation review that has taken place since that intelligence came to light, this is one area that specifically continues to require demonstration of change in attitude.  In my judgment, Mr Cousins is right when he says that there is no evidence of such change.  What he would have been looking for would be some evidence that the claimant had addressed his strong feelings of grievance against his daughter.  In fact only the contrary indication has emerged as recently as June of this year with the further intelligence that he was actively attempting to trace the whereabouts of his daughter.  If these factors were taken into account in the decision making process, then the decision not to downgrade at this stage is unassailable.
34.	In my view, the absence of reference to this important intelligence from the form RC1 is concerning.  It tends to suggest to the reader, including the claimant, that the sole reason for not downgrading to Category C is the continued denial of the offending and consequent failure to take part in a suitable SOTP.  Mr Cousins’ evidence can be construed as after the event justification of the decision rather than giving the actual reasons for the decision.  This, in my judgment, is why the decisions of December 2009 and June/July last are vulnerable to judicial review.
35.	In the event, it has not proved difficult for Mr Cousins to identify actual reasons why there is no reduction of risk demonstrated, indeed if anything some increase in risk.  All that was needed for completing Form RC1 was a reference that currently held intelligence was taken into account.  Otherwise, without Mr Cousins’ evidence, the only evidence of the reasons considered appeared to be confined to the maintenance of denial.  That demonstrated an unlawful decision.
36.	Mr Murray, in my view, makes a valid point that, if the claimant had followed the Prison appeals procedure, the resulting paper trail would have made clear the intelligence that was hindering recategorisation; likewise a reference to the Prisons Ombudsman could have achieved a similar effect.
37.	In the result, it is clear to me that, even if I were to strike down the most recent decision for lack of sufficient reasoning on the face of the form RC1, the Governor would simply take account of all the relevant intelligence independent of denial and reach a similar conclusion.  The granting of relief, therefore, would be academic.  Nevertheless, I am satisfied that in fact the Governor did take into account factors independent of denial in making the decision not to downgrade at this stage:  it is now clear that he could not be satisfied that there was a positive reduction in risk sufficient to merit a downgrade.
38.	It is important that the claimant should now understand the basis for the Decision not to downgrade him to Category C.  Because the onus is on him to satisfy that the relevant risk has diminished and because he cannot complete an appropriate SOTP course, then, reflecting the words of Elias J in Roberts and my own observations above, I consider it vital in a case such as this that work needs to be done so far as is practicable to address the specific risks to the victim that are the subject of currently held intelligence.  Professional work apart from denial of offender would seem appropriate so that risk relevant to recategorisation can be realistically addressed well in advance of the preparation for release in this determinate sentence.
39.	In the circumstances, I refuse the application for judicial review.  Questions relating to costs can be reserved to written submissions.