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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Riley, R (On the Application Of) v Secretary of State for Justice [2012] EWHC 4407 (Admin) (11 September 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/4407.html Cite as: [2012] EWHC 4407 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		11th September 2012

1. JUDGE JEREMY RICHARDSON QC: I do not intend to give a detailed judgment in this case today. My reason is simple. The case has, as of today, been very sensibly compromised as a result of an indication I gave at the outset of the hearing. Counsel appearing on behalf of the Secretary of State for Justice, Mr David Manknell, took instructions upon my suggestion and has provided a very sensible solution on behalf of the Secretary of State for Justice against whom this claim is brought. Counsel for the claimant, Ms Melanie Plimmer, has accepted the solution but is desirous of keeping the case alive given that I have not heard full argument upon the issues she raises, either from her or indeed the Secretary of State.
2. I have come to the conclusion that it would be right for this case to be kept alive simply because I have not heard full argument from either party. Although, in my judgment, the claimant has secured all that he reasonably can; it is important to observe that is my provisional view, absent full argument.
3. It is important I should set out something of the circumstances of this case, but I in no way intend to delve into the detailed history or give any observation of any real meaning in respect of the submissions that might be advanced in the future. I trust that a line can be drawn under this case hereafter. I trust that this case in any real sense is now over, at least before the courts, and that a way forward can now be found to deal with the very difficult problem surrounding the claimant given his state of health and the fact he is coursing towards the end of a very long sentence.
4. This case is about a prisoner who is severely disabled, who asserts the Prison Service, acting under the Secretary of State for Justice (Secretary of State), have failed to take reasonable steps to enable him to access what can generally be described as offender behaviour work. It is asserted, in particular, that they have failed to obtain appropriate medical advice and treatment for him and that appropriate adjustments to the ordinary prison regime for a prisoner who is approaching the end of a long sentence have not been made. In the round, it is asserted the Secretary of State and the prison have breached their public law duty and, furthermore, are in breach of the Equality Act 2010.
5. This claim for judicial review, which was originally refused on paper by His Honour Judge Shaun Spencer QC, was renewed before His Honour Judge Kay QC on 21st November 2011. Permission was granted at that oral hearing.
6. Philip Riley, the claimant, is now aged 56 years. He is a category A prisoner, serving a sentence of 39 years in total. He will be released automatically without licence on 27th November 2014. In early 2005 he suffered a severe stroke, which has produced very adverse physical and mental sequelae. The precise extent of his mental health condition is not, as of today, fully known. He asserts the Prison Service have failed to accommodate and take account of his disability over a prolonged period, thereby he, in essence, asserts is deprived and has been deprived of demonstrating to the Parole Board and others that he is suitable for downgrading from a category A to a category B prisoner prior to his release in two years' time. He is presently detained at Her Majesty's Prison Frankland and spends, as I understand it, much of his day watching television. His memory is affected and he can scarcely speak.
7. I do not intend to set out the facts of this case in any detail. I have simply noted the claimant's criminal history. I observe in that regard it is long, and there have been episodes when he has escaped from prison, committed other serious crimes, and indeed in 1996 was involved in a siege. Absent his stroke, I can see every reason why the Prison Service would regard this man as having the potential to escape and having the potential to inflict severe misery on the public should he escape. He was and may still be a practised criminal.
8. I have additionally noted, but I will not recite, the long prison history of this claimant prior to his stroke in 2005. I simply make the observation that it does not make happy reading.
9. I have also noted, but will not recite, the details of the occasion when he suffered a stroke in 2005 and the subsequent medical treatment, coupled with the various reports sought in respect of him thereafter from medical practitioners. I also have noted his prison history post-stroke and his applications to the Parole Board. It is necessary for me very briefly to recite something of the current situation so far as relevant to the case as it appears today.
10. It would seem from the material that I have read in the bundle that the claimant has only completed part of a programme prior to his stroke. It is clear that he is now utterly incapable, by reason of the stroke, from completing the ordinary courses and opportunities that may be available to a prisoner like the claimant who did not have his disability. It is thus impossible for him to participate in the usual courses that would be available to a man like the claimant absent a stroke. The Secretary of State at one stage puzzled as to whether the absence of speech and the various other matters set out in the medical reports were genuine sequelae or contrived. A consultant psychiatrist was instructed. He was not as clear as he might have been in his advice tendered some two years ago. A consultant neurologist was asked to intervene and he reported that the speech problems are genuine and associated with his stroke in 2005. It is accepted by all that the claimant cannot participate in the courses to which I have briefly called attention. What therefore is to be done?
11. The Secretary of State, through the Prison Service, recognise that they have an unusual and difficult problem on their hands. The claimant is a very long-term prisoner who ordinarily would pose significant dangers to the public, but, who, on any analysis has to be released in 2014. In other words in just two years' time he must be released. Moreover, this man has suffered a seriously disabling illness. It had been advanced -- I emphasise the past tense -- that a visit from an offender superviser every two months was sufficient. This has been recently modified in the sense that an offender superviser, currently in the shape of Miss Kenzie, is prepared and indeed has been visiting the claimant every two weeks. Unfortunately, for a significant period of time the claimant has disengaged from that process. That is not helpful. However, it is not known at this point in time whether his disengagement is borne out of stubbornness deriving from matters wholly unconnected to the stroke or it is part and parcel of the sequelae of the stroke, or a combination of both. If it is a combination of both of those broad factors, advice needs to be sought as to which is the overriding or operational cause.
12. If it turns out, as I suspect will be the situation, that this is broadly part and parcel of his illness, then the Secretary of State needs to have advice as to how to manage these fortnightly meetings. There is simply no point in the offender superviser turning up and expecting to have a coherent conversation with a man who, for medical reasons, cannot converse with her. I have no doubt at all that a psychiatrist will be able to adjudge the situation and give proper advice to the Secretary of State as to how to manage this difficult situation.
13. Consequently, the Secretary of State, given there is a lacuna in the formidable armoury that has been mounted against the claimant's case, wisely, as a result of my invitation this morning, decided that such a report will be obtained within a reasonable period of time. In my judgment, that is a sensible course. It is pragmatic, it is comprehensively sensible and may well inform the future of this case to the very great advantage of the general public, and indeed the claimant himself.
14. It would not be right for me to make any binding observations at all as to the claimant's case. I have to say my provisional view is, subject to this psychiatric assessment point, that I am not over impressed with the arguments that have been advanced on paper. It may well be that Ms Plimmer, had she been given an opportunity to develop these points, would have turned the tide. I doubt it, but I cannot be sure.
15. There was one chink in the armoury, as I have indicated, mounted by the Secretary of State and is related to the psychiatric aspect of the case, as I have briefly adumbrated it to be. Given that that problem is now being addressed by the Secretary of State, Ms Plimmer should rejoice at having been triumphant in part, but, in fairness to the Secretary of State, I rather suspect that if this case had been fully argued, he would have been rather more broadly successful than the claimant.
16. As I say, those are provisional views based upon what I have read already and are in no way to be regarded as determinative of this issue. I trust the issues will not need determination for I am convinced that once advice has been obtained from the psychiatrist as to how best to proceed, the Secretary of State will, I am convinced, implement those matters as best as can be. It does not mean to say there is going to be a perfect solution. It may well be that certain things that are advised are just not available or practicable given that this is a prisoner serving a long sentence. We shall see. An open mind must be kept, and it is for that reason, coupled with the reasons that I mentioned at the outset of this short judgment, that I have decided it would be unwise to dismiss this claim at present. Although I take the view the Secretary of State has a formidable armoury in this case, I also take the view in fairness, balancing the various factors, that it would be right to keep the claim alive, at least until such time as we know the outcome of the medical advice which is being sought from the psychiatrist.
17. I have therefore come to the conclusion all that could be achieved has been achieved absent full argument. A pragmatic approach has very sensibly been taken by both sides in dealing with this difficult case. I strongly urge the Secretary of State to obtain the professional advice as soon as may be and to implement whatever can be implemented in the light of that advice.
18. Ms Plimmer very helpfully, during the course of submissions, indicated to me that following receipt of the report of the psychiatrist she will go and see the claimant in person at Her Majesty's Prison Frankland in order to give him detailed advice. Indeed, it is to be hoped robust advice, to co-operate fully with whatever the Secretary of State manages to implement. This of course is entirely dependent upon the Secretary of State being prepared to implement whatever is advised.
19. There are thus, it can be seen, a number of imponderables. Until we have the advice of the psychiatrist the Secretary of State cannot be expected, so it seems to me, to implement policies on the off chance.
20. The one problem there was in this case is that a psychiatrist had not opined. That problem is now being addressed, as I have indicated. I strongly endorse the suggestion of Ms Plimmer that she has a purposeful consultation with her lay client once the report is known. I trust this case will not be restored before me, and I propose to give a direction this case is reserved to me hereafter unless released by me to another judge. Furthermore, if there should be an application to restore this case to the list, that is an application which must be supported by written grounds, and I will decide as a paper application as to whether it should be restored. If it is to be restored, it will be. If I decline to restore the case to the list in a paper decision, then there may be a renewed application to restore before me at a suitable date and time. I do not want to finally dispose of this case, in the event that there is to be a final decision, absent proper submissions. I trust, however, that this case will not be wantonly restored before me. I expressly warn any party who seeks to restore this case to the list unwarrantedly there could be adverse orders as to costs. I simply place that as a marker, I in no way suggest that there will be a wanton application, but I do not want there to be any misunderstanding that if this case is unnecessarily restored to the list hereafter there could be adverse orders as to costs.
21. In the result therefore I am prepared to adjourn this case. It should be recorded in the order that the Secretary of State has agreed to commission the report, as I have indicated, and that the case is adjourned generally with liberty to restore, coupled with the directions that I have just set out.
22. I repeat, this case has been dealt with pragmatically today. A solution has been found. Ms Plimmer should, as I say, be triumphant in receiving what she has for I think it was optimistic in the extreme to have sought to have achieved more. I shall say no more for I may one day have to adjudicate upon that -- I trust not, but one never knows.
23. Before parting with this case I wish to say a word of two about the bundles. They are not in a ship shape form. It was unfortunate that following the oral hearing before His Honour Judge Kaye QC the usual directions relating to bundles were not appended to that order as, for example, they would have been had it been a written decision to grant permission. However, the fact that there was no direction on the face of an order does not obviate the need for the parties to comply with CPR Part 54 and the practice direction relating to bundles. There has been, so it seems to me, an abject failure to comply with paragraphs 15 and 16 of practice direction 54A relating to judicial review. I shall say no more about it. No-one is seeking any order as to costs today. It has been agreed that there should be no order as to costs up to today, but if this case is to be restored before the court at any later stage, there shall be a fully comprehensive bundle in accordance with the rules of court. Had this case proceeded as a full application today and not have been compromised in the way that it very sensibly has, there would have been very significant problems for the court in proceeding in the way that it should, for the skeleton arguments have been put together very late, the bundle is by no means complete and the court has been very considerably disadvantaged. I spent a not inconsiderable amount of time over the preceding weekend trying to sort out what was relevant and what was not and the court has been deluged with additional material yesterday which officials have endeavoured to put into the bundle. I am still now not convinced that everything is in its right place. Fortunately, this case has, as I have indicated, been sensibly resolved as a result of the court's invitation and suggestion. I simply add that the one thing that did leap out at me from what I had read of these papers is that there seemingly was a gap in relation to the psychiatric aspect of the case. I shall say no more, but if this case is to be restored it will be restored in a ship shape form, and woe betide anybody who does not comply with that maritime framed direction.
24. For the reasons that I have endeavoured briefly to give, this claim is adjourned in the way that I have described. I shall so order.
25. MS PLIMMER: My Lord, would it assist for me to draw up an order that can be agreed between Mr Manknell and I?
26. JUDGE RICHARDSON: Certainly. You need not rush, you have until 4 pm on Thursday to lodge it with the court office.
27. MS PLIMMER: Most grateful.
28. JUDGE RICHARDSON: I do need it by then because I shall be leaving here on Friday.
29. MS PLIMMER: I shall be doing it today.
30. JUDGE RICHARDSON: Thank you very much indeed. If this case is restored, it must be restored, as I say, in accordance with the maritime direction I have just given, ship shape.
31. MS PLIMMER: My Lord, yes.