Thomas Jones appears for the Secretary of State for Justice in Cain v Secretary of State for Justice [2024] EWHC 426 (Admin)

News | Tue 12th Mar, 2024

Summary

Thomas successfully represented the Secretary of State for Justice in Cain v. Secretary of State for Justice [2024] EWHC 426 (Admin). The Claimant is a life sentence prisoner who was convicted of two murders. He sought to challenge the decision of the Secretary of State not to follow the recommendation of the Parole Board that he be transferred to open prison conditions. The claim for judicial review failed on all grounds.

Facts

The Claimant is serving two life-sentences for murder. In 1987, the Claimant and another killed a shopkeeper in the course of a violent robbery. Then, in 1993, whilst in prison, the Claimant participated in the murder of a man convicted of sex offences against children. His tariff for the second murder expired on 5 July 2010. At the time of the challenge, the Claimant was in a category C prison.

On 31 January 2023, the Parole Board concluded that a period in open conditions was essential to inform future decisions about release and to prepare for possible release on licence into the community. The Parole Board took account of a report prepared by a psychologist who stated that if the Claimant were to remain in closed conditions, she would recommend that he be transferred to a Progression Regime. She considered that this would provide him with the opportunity to work closely with a key worker with the oversight of psychology staff to enable him to consolidate his previous learning and to offer him the opportunity to identify and develop robust resettlement plans. It was suggested by the Claimant that by the time of the hearing before the Parole Board, the same psychologist did not support a move to a Progression Regime, relying on a note from the Claimant’s solicitor who was present at the hearing.

On 17 May 2023, the Secretary of State for Justice decided not to accept the Parole Board’s recommendation that he be transferred to open conditions. He considered that the Claimant should first be transferred to a Progression Regime in order to address the issues referred to by the psychologist in her report.

The Claimant challenged the decision by way of judicial review on four grounds:

1. Irrationality: The Claimant alleged that the Defendant could not rationally conclude that it was not essential for him to move to open conditions in order to inform future decisions about release. He argued that the Defendant attached too much weight to the statement of the psychologist given that this was a conditional suggestion only. The delay caused by not accepting the Parole Board recommendation was disadvantageous, especially considering his age as employment opportunities become fewer. Similarly, the Parole Board had a particular advantage over the Defendant on the issue of essentiality, having heard oral submissions from the experts.
2. Failed to take into account relevant considerations: It was suggested that the Defendant failed to take into account relevant considerations because he did not know that the factual position had moved on since the psychologist’s report and he accordingly made the Decision without considering all relevant material.
3. Tameside Duty: the Claimant suggested a breach of the Defendant’s Tameside duty not to obtain a record of the oral evidence or some other indication of it, arguing that it was irrational to depart from the Parole Board’s recommendation, which hinged on oral evidence, without seeking to obtain a record of that evidence.
4. Unfairness: The Claimant submitted that it was unfair for the Defendant to proceed in the way that he did without first giving the Claimant the opportunity to make representations.

Decision

The claim for judicial review was dismissed on all four grounds. There was nothing irrational in the Secretary of State’s assessment that a period in open conditions was not essential to inform future decisions about the prisoner’s release and to prepare for possible release on licence into the community. The Secretary of State had been entitled to reach a different conclusion following his evaluation of the material which before the Parole Board.

Calver J referenced the comments made by Eyre J in the earlier case of R (Overton) v SSJ [2023] EWHC 3071 (Admin) that:

“33. If the second of the three elements in section 5.8.2 of the GPPPF were to be read literally it would apply to all or almost all prisoners serving indefinite terms of imprisonment and as a consequence would be satisfied in almost every case. Although it is possible for such a prisoner to be released from the closed prison estate directly into the community that will only be appropriate in a very small number of cases. In the vast majority of cases it will be necessary for the prisoner to spend some time in the open estate before his or her ultimate release. That will be in order for there to be an assessment of the degree of risk, if any, that the prisoner still poses when outside a closed setting and of the measures needed to address that risk. Such time will also normally be necessary to enable the prisoner to adapt to the move from a closed setting and to regain some of the skills needed for life in the community. In this regard Mr Buckley accepted that this criterion was not to be read literally.

34. If the criterion is not to be read literally what is its meaning? It is to be remembered that the criteria are, at least in part, concerned with the assessment of risk and with addressing the risk posed by the prisoner. In light of that I agree with Mr Leary that the criterion is to be read as imposing related requirements of timeliness and of preparedness. Taking account of those there are two aspects of the criterion. First, that time in the open estate is needed before the Secretary of State and/or the Parole Board can be satisfied that the risk posed by the prisoner is such that he or she can safely be released and also that the prisoner will cope with life in the community. As already noted that aspect will be present in almost all cases. The second aspect addresses the stage in the prisoner’s progress and development which has been reached. In that regard it will be necessary to consider whether further work is needed by way of addressing risk reduction or the prisoner’s offending behaviour or at least to consider whether such further work as is needed can adequately be undertaken in the open estate. However, it will also be necessary to consider whether the prisoner has reached a stage such that the level of risk which he or she poses can safely be managed in the open estate. The criterion will not be satisfied in respect of a prisoner for whom there is further work which can be done to address his or her offending behaviour at least unless that work can be done as effectively in the open estate as in a closed prison. Similarly, the criterion will not be satisfied in respect of a prisoner who cannot be managed safely in the open estate”.

Calver J agrees that this criterion is concerned, in large part at least, with whether the prisoner had reached a stage such that the level of risk that he or she poses can safely be managed in the open estate. However, Calver J disagreed that it is sufficient for the prisoner, in order to be entitled to be transferred to the open estate, to show that the further work required to address his offending behaviour can be done ‘as effectively in the open estate as in a closed prison’. Rather, Calver J clarified that it must be shown that a period in open conditions is considered ‘essential’ to inform future decisions about release and to prepare for possible release on licence into the community. If the further work on the prisoner’s offending behaviour can be done just as well in closed conditions on a Progression Regime then the test of essentiality may very well not be met, depending always on the particular facts of the case.

The judgment is available here and is reported at [2024] 2 WLUK 471. Thomas was instructed by Kristian Bagger at the Government Legal Department.