EWHC 2303 (Admin
Summary from Lawtel:
PENOLOGY AND CRIMINOLOGY
CATEGORY B PRISONERS : RECATEGORISATION : SEX OFFENDERS : DENIAL OF GUILT AND FAILURE TO PARTICIPATE IN TREATMENT PROGRAMME : REASONS APPEARING ON FACE OF FORM RC1 : NEED TO SHOW REDUCTION IN RISK
A decision refusing to recategorise a prisoner from category B to category C did take into account factors independent of denial of guilt; it was clear that the prison governor could not be satisfied that there was a positive reduction in risk sufficient to merit a downgrade.
The claimant (C) applied for judicial review of a decision of the defendant governor (G) refusing him a progressive move out of category B (high security) conditions. C had been sentenced to 11 years' imprisonment for rape, attempted rape and indecent assault, all against his 11 year old daughter in 2004. He sought recategorisation from category B to category C. The reason given on the relevant form RC1 for refusing recategorisation was that C was maintaining his innocence with the result that he had not participated in the sex offenders treatment programme and there was no reduction in risk. G relied on evidence seeking to demonstrate that the decision was not based solely on the denial of guilt and non participation in the treatment programme; those were merely relevant and important considerations; there was no evidence of any change in risk; prisoners who continued to deny guilt could participate in various courses; G took into account information about what C had said about his daughter. C submitted that G sought to rely on evidence unrelated to the material contained in the form RC1 to justify the decision, then that was the clearest evidence that risk as a whole had not been properly considered. G submitted that the form was not intended to constitute the detailed decision; all that was required was sufficient detail of the reasons to enable the prisoner to engage the internal complaints process; the reason why no evidence of mitigation of risk appeared was that none had been found; a downgrade could only occur if there was demonstrated a clear change of risk and the evidence showed that there was no such clear change.
HELD: (1) The authorities highlighted the continuing difficulties that prisoners who denied their guilt faced in demonstrating the necessary reduction in risk to enable progressive recategorisation, against the assumption of guilt which the prison authorities had to apply to such prisoners, R (on the application of Roberts) v Secretary of State for the Home Department (2004) EWHC 679 (Admin), (2005) 1 Prison LR 20 and R (on the application of Osborne) v Governor of Littlehey Prison (2010) EWHC 1277 (Admin) considered. (2) In order for G to consider recategorisation he had to be satisfied that there was a clear reduction in risk. One element of risk which was independent of C's denial of offending was the evidence of the threat made with regard to the victim in 2006. On the basis that the threat had been taken into account in each recategorisation review that had taken place since that intelligence came to light, that was one area that specifically continued to require demonstration of change in attitude. There was no evidence of such change. In fact only the contrary indication had emerged with the further intelligence that C was actively attempting to trace the whereabouts of his daughter. If those factors had been taken into account in the decision making process, then the decision not to downgrade was unassailable. (3) The absence of reference to that important intelligence from the form RC1 was concerning. It tended to suggest to the reader, including C, that the sole reason for not downgrading to Category C was the continued denial of the offending and consequent failure to take part in a suitable treatment programme. The evidence of the intelligence could be construed as after the event justification of the decision rather than giving the actual reasons for the decision. That was why the decision was vulnerable to judicial review. (4) Even if the decision was struck down for lack of sufficient reasoning on the face of the form RC1, G 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, G did, in fact, take into account factors independent of denial in making the decision not to downgrade; it was clear that he could not be satisfied that there was a positive reduction in risk sufficient to merit a downgrade.
Counsel for the defendant: Simon Murray