![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gill, R (on the application of) v Secretary of State for Justice [2010] EWHC 364 (Admin) (26 February 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/364.html Cite as: [2010] EWHC 364 (Admin), (2010) 13 CCL Rep 193 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
The Queen (on the application of Dennis ![]() |
Claimant |
|
- and - |
||
Secretary of State for Justice |
Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Steven Kovats (instructed by The Treasury Solicitors) for the Defendant
Hearing dates: 11 February 2010
____________________
Crown Copyright ©
Mr Justice Cranston:
INTRODUCTION
BACKGROUND
The claimant's imprisonment
"Offence related programmes recommended to address his identified areas of risk were for him to be assessed for the Enhanced Thinking Skills (ETS) Programme in order to explore his thinking style, assessed for the FOCUS course in order to assess whether there was a link between drug misuse and offending and the Cognitive Self-Change Programme (CSCP) or Controlling Anger and Learning to Manage it (CALM) regarding his violent offending."
"5 The consensus is that your literacy problems make your participation in accredited offending behaviour programmes impossible, yet without such participation your risk reduction cannot be measured. In the absence of such evidence the Panel can make no positive recommendation."
6. The panel is extremely concerned that unless means are found to address your offending behaviour without exclusive reliance upon improving your literacy and involvement in offending behaviour programmes your constructive progress through the prison system will be impeded.
A further Parole Board hearing in December 2008 again decided not to direct the claimant's release or to recommend his transfer to open conditions.
"In the absence of evidence of a reduction in risks through the completion of programmes aimed at addressing your offending behaviour the Panel must look elsewhere for evidence of change. Other signs are favourable. You have not been involved in violence of any sort since 2004 and [the Probation Officer] reports a dramatic improvement in your behaviour since then. You have consistently provided negative drugs tests and have received neither adverse adjudications nor warnings for five years. You are now an enhanced prisoner with a job in the kitchen where you have access to hot water or knives that you could easily misuse. This means that you are now regarded as safe and trustworthy. You are to be congratulated on this progress and as a result you are being moved to a lower category prison where you will meet new people and new challenges. If you cope with these challenges without losing your temper or using violence you will provide more evidence that the risk you posed in the past has been sufficiently reduced to test you in open conditions with a view to eventual release."
The board went on to note that if the claimant demonstrated that he could behave properly in the less controlled environment of HMP Lindholme where it had been proposed that he be sent consideration could then be given to the next stage of his rehabilitation. In HMP Lindholme he would have more contact with his family, which was important in the longer term. The future remained uncertain but the claimant now had the opportunity to demonstrate that he had changed and could be trusted in the community. A further period of testing his behaviour at HMP Lindholme was required before consideration could be given to any further moves.
The claimant's disability
The claimant in prison
"It is of particular importance that he manages to successfully complete programmes that will ameliorate his behaviour and his attitude toward others before release can be considered. Clearly at this juncture without any participation in any group programme the risk of offending must remain relatively the same".
"There is no doubt that [the claimant] has been let down by the system in that the treatment he required has not been forthcoming due to his learning difficulties. Naturally he has not had any control over this situation and he has languished in prison without any real offence-focused work being completed. Thankfully as indicated in the information I have received he does seem to have changed his attitude over the last five years or so and perceivably his outlook has matured so that, at least in a high risk establishment, his risk of harm potential seems to have been reduced to some degree."
PRISON POLICIES AND THE CLAIMANT
Prison policies
"The essential elements of the policy for short term lifers and arrangements for their management through their period in custody are as follows:
complete any specialist assessments required
CARATS, CALM, CSCP etc commence offending behaviour work."
In that paragraph there appears the following in bold:
"They [short term lifers] must be prioritised for offending behaviour programmes according to the length of time left till tariff expires. The same principle must apply for all lifers, so that length of time tariff expiry is taken into account when allocating offending behaviour programme resources. In other words lifers must be given every opportunity to demonstrate their safety for release and tariff expiry."
"It is vital that prisoners with disabilities can access any offending programmes as identified in their sentence plan, with adjustments made as necessary, e.g. relocation in a course if inaccessible".
Later paragraphs, paragraphs 6.40-6.41, outline that a prisoner with a disability should not be prevented from being re-categorised and transferred to a new establishment simply because of that disability. Each case must be assessed on the need of the individual prisoner.
"Some factors when considering the reasonableness of making adjustments: whether taking particular steps would be effective in overcoming the difficulty that disabled people face in getting access; the extent to which it is practicable for the service provider to take the step; financial and other costs of making the adjustments; the amount of disruption caused by taking the steps; money already spent on making adjustments; the availability of financial or other assistance."
Paragraph 8.2 continues that all governors and staff need to look to make reasonable adjustments in respect of prisoners with disabilities, and to document where these are not possible. Governors need to be aware that, if reasonable adjustments are not made in respect of a prisoner with a disability, they are vulnerable to legal challenge: para 8.4.
"There may be activities or programmes that are difficult for disabled prisoners to access. Establishments must consider the reasonable adjustments that could be made to these activities or provide a reasonable alternative method of providing them to enable disabled prisoners to make use of them" (para 3.4.2).
"it is important that prisoners with disabilities are able to access courses and/or move to a lower category prison as they would were they not disabled. This has proved to be a problem in cases which have resulted in Judicial Reviews, with prisons unable to identify where suitable accommodation exists, or unable to arrange a transfer. Prisoners with disabilities must be able to follow their sentence plans and satisfy the conditions for parole" (emphasis in original)."
Under the heading "mandatory action" it is provided that governors must ensure that prisoners with disabilities are able to access the regime and appropriate interventions. Where that is not possible at the particular establishment because appropriate accommodation is not available, and reasonable adjustments can not be made, the prison should contact the prison management service to identify another establishment with the appropriate accommodation and courses: para 12. Moreover, prisoners with short sentences should be considered as soon as possible for those reasonable adjustments required to ensure that they are able to access the regime: para 18.
Offending behaviour programmes
Intellectual ability and offending behaviour programmes
"Programmes make a difference. They contribute significantly to the assessment of risk, the reduction of risk and the management of risk. They provide a wealth of important information about what motivates and drives offenders and how they might be able to live a successful and offence-free life. They contribute to the successful management of an offender through their sentence and provide valuable information for decision makers contemplating their progression."
That paragraph is not repeated in the updated version of the document published by the National Offender Management Service, entitled Suitability for accredited interventions, May 2009. Both the 2007 and 2009 documents contain what is entitled the responsivity principle, that is, if a programme is to be effective its mode of delivery must match the preferred learning styles and other diverse needs of participants. Thus even when an offender is suitable for a programme based on risk and need, it may not be suitable for him or her if it is not delivered in a way to which that person will respond. The National Offender Management Service is obliged to provide for offenders with different needs and treatment. Managers must make all reasonable adjustments to ensure programmes are accessible to those who could potentially benefit. Then in both the 2007 and 2009 document there appears this passage in italics:
"Is there any evidence that the offender's IQ is lower than that necessary to enable meaningful participation in the programme? In general, an IQ in the region of 80 or below may prevent meaningful engagement with the material or may cause difficulty coping in the group setting."
The claimant and offending behaviour programmes
"We see that OBPs [offending behaviour programmes] have remained a sentence plan target, albeit a prospective one. This seems to be more due to a routine identification of the range of interventions within HMPS [prisons] rather than a useful focus on how best to achieve the outcomes in [the claimant's case] OBPs should not have remained identified as a potential treatment target for [the claimant] for two reasons. First, due to the acceptance of those working with him that they are not a suitable treatment path. Second, because he has achieved positive outcomes (e.g. improved institutional behaviour and improved emotional control) via other means hence could be identified as no longer having sufficient "need" for this work. The failure to remove the OBP target for [the claimant] is in my view an error."
DISABILITY DISCRIMINATION
Legal principles
(a) A service, or the performance of a public authority function?
"[25] The broad view of what counts in these terms as provision of a service is important because it is important that the disability and other discrimination legislation does apply in circumstances which it is natural to think it should apply. I do not think that it is conceivably right to say now that Parliament intended this very important legislation not to apply in circumstances such as the detention centre with which we are concerned with, detention in police custody or detention in prison. Some of the functions that were performed there are purely governmental, like, as is conceded in this case, the administrative handling of the detainee on his arrival. But once he is there he is as a detainee a member of a section of the public. He is provided with what are in truth services and there is no reason either in the Act or in the authorities to which I have referred to exclude those services from the ambit of the Act".
(b) Discrimination and public authorities
"(1) For the purposes of section 21B(1), a public authority discriminates against a disabled person if-
(a) for a reason which relates to the disabled person's disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified under subsection (3), (5) or (7)(c).
(2) For the purposes of section 21B(1), a public authority also discriminates against a disabled person if-
(a) it fails to comply with a duty imposed on it by section 21E in circumstances in which the effect of that failure is to make it-
(i) impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or
(ii) unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected,
by the carrying-out of a function by the authority; and
(b) it cannot show that its failure to comply with that duty is justified under subsection (3), (5) or (7)(c)."
"(1) Subsection (2) applies where a public authority has a practice, policy or procedure which makes it-
(a) impossible or unreasonably difficult for disabled person to receive any benefit that is or may be conferred, or
(b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected,
by the carrying-out of a function by the authority.
(2) It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect.
(6) Subsection (7) applies where an auxiliary aid or service would-
(a) enable disabled persons to receive, or facilitate the receiving by disabled persons of, any benefit that is or may be conferred, or
(b) reduce the extent to which it is adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by a public authority.
(7) It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to provide that auxiliary aid or service.
.
(9) Nothing in this section requires a public authority to take any steps which, apart from this section, it has no power to take.
(10) This section imposes duties only for the purposes of determining whether a public authority has, for the purposes of section 21B(1), discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such."
"1. Did the [public authority] have a practice policy or procedure?
2. Did that practice policy or procedure make it impossible or unreasonably difficult for disabled persons to receive any benefit that is, or may be, conferred by the [public authority]?
3. If so, is it under a duty to take such steps as is reasonable in all the circumstances of the case for it to change that practice policy and procedure so it no longer has that effect?
4. Has the [public authority] failed to comply with its duty to take such steps?
5. If so, is the effect of that failure such as to make it unreasonably difficult for [the disabled person] to access such benefit?
6. If so, can the [public authority] show that its failure to comply is justified ?"
The Secretary of State's submissions
Discussion and analysis
"There are no additional resources or services available at Long Lartin. Where the presence of a learning difficulty/disability prevents access to offender behaviour programmes, Long Lartin will make a referral to the offender learning skills provided, i.e. Manchester City College, or to specialist learning disability units.
There is a broad range of other interventions that may be able to prepare an individual for offending behaviour work or that may be used for addressing offender's risks.
Long Lartin does not have the ability to facilitate one to one offending behaviour programmes and there are no adapted one to one behaviour programmes available nationally."
In reply to a further question whether there were any prisoners with learning disabilities, throughout the prison estate, not just HMP Long Lartin, who received offending behaviour work on a one to one basis, the answer was as follows:
"Information on prisoners undertaking offending behaviour work on a one to one basis in establishments is not held centrally. Some prisons have in the past offered individual support for prisoners attending offender behaviour programmes between group work sessions for those deemed to be struggling, but this has not been restricted to those with learning difficulties.
Two programmes have been adapted for a developmentally impaired/learning disabled population. Neither of these courses are delivered at Long Lartin.
In respect of Long Lartin specifically, Long Lartin does not offer one to one offending behaviour work."
Public Law Duties
CONCLUSION