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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gourlay, R (on the application of) v The Secretary of State for Justice & Ors [2016] EWHC 1957 (Admin) (29 July 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1957.html Cite as: [2016] EWHC 1957 (Admin)

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

		Leeds District Registry 1 Oxford Row Leeds LS1 3BG
		29/07/2016

Her Honour Judge Belcher:

1. This is an application for Judicial Review made pursuant to permission granted by HHJ Jeremy Richardson QC on 22 July 2015. There was a dispute before me as to whether that permission was limited to the First Defendant. In my judgment it plainly was so limited, but I have no hesitation in extending that permission to cover the Second Defendant. The issues are plainly arguable in relation to both Defendants.
2. The Claimant is a post-tariff life sentence prisoner at HMP Northumberland which, since 1 December 2013 has been managed as a private prison by the Second Defendant under contract to the First Defendant. The Claimant challenges the "on-going" failure of the Defendants to make appropriate rehabilitation provision for him such that he would have the means to demonstrate the necessary risk reduction for a move to open conditions which, in a case such as this, is a necessary precondition to his ultimate release. The hearing bundles in this case comprise 4 lever arch files, plus 2 further lever arch files containing the authorities relied upon. References in this Judgment to the hearing bundles will be by reference to the File (A-D as appropriate) with the Tab number where there is a Tab, and the page number, for example: A:184 (no Tab) or B:2/31 (where 2 is the tab number, and 31 the page number).

The Facts

3. In 1991 the Claimant, then aged 24, was convicted after trial and sentenced to 9 years imprisonment for three offences of rape. The Claimant continues to maintain his innocence in respect of those matters although he admits consensual sexual intercourse with one of the complainants who was 15 at the time of the offence. The Claimant asserts that he believed that Complainant to have been over 16 at the time.
4. In 2000, the Claimant was convicted after trial of a further offence of rape, an offence committed approximately 2 years after his release from prison in relation to the 1991 rapes (C/15: paragraph 4.3). He was sentenced to life imprisonment with a tariff set at five years two months (as varied by the Court of Appeal). His tariff expired early in August 2005, either 1 August or 4 August. The precise date is unclear, but is not material for the purposes of this judgment, and therefore I shall use the 4 August date. The Claimant is now almost 11 years over tariff, and into his 16^th year of imprisonment, shortly to commence his seventeenth year of imprisonment. That equates to a determinate term of 32 years. The Claimant continues to maintain his innocence in relation to this conviction also.
5. In a progress report in February 2002, the Claimant's offender supervisor concluded that unless and until the Claimant changed his position of denial of both the index offence and previous convictions, "….there will be no offending behaviour programmes completed and no evidence to suggest reduction of risk" (C:4/2). In July 2002 the Claimant signed a compact agreement confirming his willingness to participate fully in all courses, but always on the basis that he maintained his innocence (D:119/7-8).
6. On 18 September 2002 the Claimant completed an Alcohol Education Programme (C:12/1). In September 2003 the pre-tariff Parole Board did not recommend release or transfer to an open prison due to a failure to demonstrate risk reduction (C:16/2). In May 2005 the on-tariff Parole Board decided that the Claimant should not be released on licence or be transferred to open conditions (C:34/5). No coursework of any type had been undertaken between the two Parole Boards. Shortly after this, on 5 August 2005, the Claimant's tariff expired. Accordingly, the punitive term was completed and the Claimant became eligible for release provided the Parole Board was satisfied that the reduction of risk was such as to make that appropriate.
7. In February 2006 a pre-transfer report was completed giving the reason for a transfer to HMP Albany as "…..progressive move to continue offending behaviour work, initially ETS" (D:119/21). In September 2006 the Claimant completed the Enhanced Thinking Skills course ("ETS"). In February 2006 the offender supervisor's report for the Sentence Planning Board noted that no offending behaviour programmes had been undertaken and that the previous board had set the objective to complete SOTP (Sex Offenders Treatment Programme). It was proposed that the same objective be set and that was indeed done at the Sentence Planning Board meeting in March 2006. The Sentence Planning Board noted that the Claimant appeared motivated to undertake offence related coursework. The same objective was set again at the Sentence Planning Meeting in March 2007 where it was noted that the Claimant was in denial and no offending behaviour programme work had been undertaken. That is plainly intended as a reference to no sexual offending work having been done, since ETS had been done in September 2006.
8. On 4 June 2007 the Parole Board did not direct release stating that, despite completing the ETS, "Your continued denials have prevented you taking part in a SOTP and thus matters seem to have arrived at an impasse. It should be noted that despite the lack of offence focused work your behaviour in prison is described as exemplary" (C:42/1-2). In June 2008 completion of the SOTP remained a sentence objective for the Claimant (D:119/131-132).
9. In September 2008 the Claimant was transferred to HMP Acklington (now HMP Northumberland). A record of contact dated 5 November 2008 shows that the Claimant had put himself forward for the Healthy Relationships Programme but was considered not suitable as he maintained he was not abusive towards his partner and that there was nothing in his behaviour that he wanted to change (B:2/121).
10. After his transfer to HMP Acklington the Claimant also applied to be assessed for SOTP. When interviewed for that assessment in December 2008 it was noted that he did not admit his guilt (B:2/123). However, a file note from January 2009 states that the Claimant should be interviewed again as the only possible inroad appeared to be the admission of sexual intercourse with an underage girl incapable of lawful consent (B:2/123). In February 2009 the Claimant was interviewed again regarding his suitability for SOTP. The record of contact states that " …he [the Claimant] noted that he could not envisage any benefits of completing SOTP. He stated he does not admit guilt to his offences and he was not willing to explore an offence that occurred 15 years previous…….. Due to Mr Gourlay's current stance on his sexual convictions it is deemed that SOTP is not suitable for his needs at the present time" (B:2/124).
11. In March 2009 a further Sentence Planning and Review meeting maintained the objective of completion of SOTP for the Claimant (C:53/3,8 and 10). A report prepared for the Parole Board by the offender manager in April 2009 noted that the Claimant's sexual offending needed to be addressed but that because of his continued denial he remained unsuitable to undertake the SOTP, and that in the circumstances it was not possible for him to progress through the prison system (C:55/9 and 13).
12. In June 2009 the Parole Board again decided not to direct the Claimant's release or recommend a transfer to open conditions, and said that the Claimant needed to reduce his risk and start to accept responsibility for his sexual offending and to engage in the SOTP work identified. The Board expressly noted that the "impasse regarding offence focused work is likely to continue" (C:58/3-4).
13. In July 2009 the Claimant's solicitor wrote to the governor of HMP Acklington asking for confirmation as to how the Claimant was expected to reduce his risk and suggesting that the prison service must look beyond the standard mainstream "offence based" courses as the Claimant had either completed the appropriate courses or was not suitable due to his stance (D:119/128).
14. In December 2009 the Claimant was assessed as suitable for a Thinking Skills Programme ("TSP") and was found to be suitable for a "denier's group" course. He was willing to participate (B:2/136). In January 2010 a Sentence Planning Board meeting identified the Claimant's need to do TSP, after which it was hoped he would be more willing to engage in a meaningful way with the SOTP process, including accepting responsibility for the previous rape against a victim who was under the age of sexual consent, and be willing to explore his thoughts and feelings to enable him to develop insight into his risk factors and better manage his behaviours in the future (C:64/12). In January 2010 and again in May 2010, the Claimant was assessed as not suitable for SOTP (D:65/1 and D:67/1). Completion of SOTP was a sentencing plan target again in June 2010. (D:69/41).
15. In September 2010 the Claimant completed the TSP (D:76). This was not in fact a deniers group as that course was not run, and he took part in the main stream programme. The Post Programme Report states that the Facilitators did not feel that the Claimant has gained any new skills from the TSP as the Claimant had stated "I don't feel I've gained nothing new, the course put headings to skills I already knew". Whilst it is clear in that report that he accepted the 1991 criminal offence against an individual under the age of 16, it is also stated that he "… did not feel it realistic to look at previous decisions as he felt a number of factors made this irrelevant, 'it was a long time ago, culture/society has changed, he has changed and his social circle and also, we were looking at things with the benefit of hindsight'" (D:76/140-141).
16. There is also a note from September 2010 that the Claimant was continuing to work with psychology and had relatively recently accepted that there was an offence "in the eyes of the law" as one of the victims was a 15 year old who could not consent to sex (B:2/149). In the same note it is recorded that the Claimant is critical of the fact that psychology has not done the current work with him before now.
17. In March 2011 solicitors on the Claimant's behalf made detailed representations to the Parole Board complaining that all the weight was being placed on non-completion of the SOTP, and that some other measures should be in place to encourage progression (D:82/7). The Claimant himself made the same point to the Sentence Planning Board on 23 March 2011 (D:84/1). In March 2012 the Claimant was again assessed as unsuitable for SOTP, given his denial (B:2/116 and D:92/2-3). On 22 March 2012 the Parole Board concluded that the Claimant should not be released and should remain in closed conditions as no reduction in risk was evidenced (D:94/1).
18. On 1 May 2012 the Secretary of State set the next parole review target date as September 2013 and specified as an objective to be completed during the 18 month interval "To commence and complete SOTP" (D:95-2). In May 2013 the Claimant was assessed as still not being ready for an SOTP programme as he maintained his innocence (B:2/118 and D:101/2).
19. In January 2013 the Claimant was interviewed with a view to offering him a place on the A-Z programme, but he declined the opportunity on the basis that he was not prepared to do work he had already completed on ETS and TSP (B:2/156). The Claimant received 3 months of motivational 1:1 sessions with his Offender Supervisor, Tracey Nicholson which were completed in April 2013. When assessed further for SOTP in May 2013, the Claimant denied any offence, referring to everything as allegations. Whilst he was willing to talk about anything and do anything others directed, it was concluded he was "Not ready for group work. Still believes he hasn't committed any offences" (D:101/3).
20. A sentence plan review in January 2014 again stated that what was required was SOTP (D:105/43). The Parole Board decision of 10 March 2014 concluded that the Claimant's denials had prevented him from accessing the appropriate courses to address the risks surrounding sexual offending, but that the Claimant could not reduce risk without attending a SOTP course. On 14 March 2014 the Secretary of State again set a review target date of 18 months (ie by October 2015) with the specified objective being "12 months to complete all interventions identified – you cannot reduce your risk factors without attending an SOTP course and you cannot attend SOTP without admitting at least some sexual offending. Therefore you must comply with any recommendations and assessments made by psychological services to address your sexual offending. Until you address this risk factor, your risk will remain high" (A:37). At a Sentence Planning Board Review meeting in the summer of 2014 the Claimant again expressed concerns that he was not being set a reasonable and achievable pathway to release (A:31) and in July and August he raised official complaints about the lack of courses available to him (A:50 -58).
21. In November 2014 the decision of the Parole Board dated 14 March 2014 was quashed by King J. In January 2015 a letter before action was sent in relation to this action. At a Sentence Plan Review in March 2015, SOTP was still said to be required (D:108/43). In April 2015 these proceedings were issued against the First Defendant with permission being granted in July 2015.
22. In August 2015 Ms Horton of North East Psychology Services undertook a psychological risk assessment in respect of the Claimant. She concluded that the SOTP was the most appropriate option for anyone found eligible for the programme based on risk, need and responsivity. Whilst acknowledging that the Claimant's denial was not in itself sufficient reason for him to remain in closed conditions indefinitely, she also noted that the difficulties in identifying risk and need had stemmed directly from the Claimant's continued stance of maintaining innocence of his convictions. She noted that there is no clearly defined alternative treatment pathway available. In those circumstances she suggested that it may be appropriate to consider whether work done on protective factors would be appropriate, placing the focus on increasing the likelihood of desistance rather than decreasing the likelihood of reoffending. (D:113/24-25, paragraphs 7.3-7.4). In the light of that report the offender manager prepared an Addendum Parole Assessment Report dated 4 September 2015. He noted that the Claimant could not be safely managed in the community until the work recommended within Miss Horton's psychological risk assessment was undertaken. This involved the commissioning of one-to-one psychological intervention work (D:115/209). In September 2015 the Secretary of State applied for a stay of this action until completion of the rehabilitative work in the form of one-to-one sessions with the North East Psychology Service. That application was refused by HHJ Gosnell on 28 September 2015. However, the Parole Board hearing which was due to take place on 6 October 2015 was deferred to enable that work to be delivered.
23. The work was carried out by Dr Gillian Sutcliffe and her report following the work is dated 24 March 2016. She reported that "No further treatment or intervention could be recommended to explore his sexual offending as coercion in treatment can be counterproductive and the Claimant does not believe he needs to change. She concluded it is not possible to make any meaningful changes to the Claimant's attitudes and behaviour unless he chooses to change and can see the benefits to himself in doing so (D:118/21, paragraphs 7.8 and 7.9). The Parole Board hearing convened on 27 April 2016 and, by decision letter dated 29 April 2016, the Parole Board did not direct the Claimant's release nor did it recommend transfer to open conditions (A:371a-h).
24. In setting out the above facts I have drawn heavily on the chronology prepared by Mr Rule and Miss Thomas, and on additional factual material provided by Mr Hodivala and Mr Patience in the Second Defendant's skeleton argument. I am grateful for the assistance provided to me in this respect by both documents. It will equally be clear that there is a significant amount of that chronology which I have omitted. The reason for that is as follows. Insofar as aspects of the chronology were designed to draw to my attention detail showing the Claimant's willingness to attend courses, I fully accept for the purposes of this judgment that the Claimant has expressed himself willing, certainly throughout the last decade, to attend appropriate courses. Indeed the position goes further in that during that time he has, both personally and through his solicitors, expressly requested the provision of further input to enable him to demonstrate reduction of risk and to progress to open conditions and, ultimately, release.
25. Having said that I am equally mindful of the information contained within the bundles to the effect that whilst having completed certain courses willingly, the Claimant considers he has learnt nothing from them and that there is nothing that he needs to change. When necessary to do so, I shall refer specifically to the relevant documents in the course of my judgment. For present purposes it suffices to say that I accept that the Claimant has been willing at all times to attend courses. I also have clear evidence that whilst he attends courses offered to him, he appears to derive no benefit from them in the sense that he considers he has no need to change and therefore no need to learn anything at all from what is on offer in the courses. I also accept that he has been a model prisoner in terms of prison behaviour throughout that decade and more. This is made clear in the most recent Parole Board decision dated 29 April 2016 (D:20/5).
26. Insofar as aspects of the chronology deal with more general matters such as consideration of the introduction of new types of programme and pilot schemes, I shall address those matters separately when considering the relevant challenge.

The Grounds of Challenge

27. The Grounds of Claim are set out at paragraph 37 of the Detailed Statement of Facts and Grounds of Claim as follows:

"(1) failure to discharge the public law duty to reasonably provide the means for prisoners (particularly those in denial of sexual offending) to regain liberty by access to the necessary offending-behaviour work which provides reduction of risk or evidence of the same to support the satisfaction of the Parole Board the prisoner may be released (sic) [the "James/Walker duty"];"

(2) application of an unlawful policy or approach limiting access to relevant offending-behaviour work for prisoners denying guilt to those at liberty on licence conditions and not making provision for any open conditions prisoner thus preventing the Board from permitting progression. This is unlawful at common law and/or a violation of Art. 8 ECHR;

(3) irrational, Wednesbury unreasonable, or disproportionate failure to provide access by the Claimant to the necessary offending-behaviour coursework or risk reduction measures ["Cawser" failure]. This encompasses the failure over a prolonged period to provide relevant accessible work to the Claimant and/or the irrational or unreasonable failure to provide access to sexual offender treatment programmes for prisoners who deny their offending, thus creating an impasse in progression. That public law error also causes inevitable consequential deprivation of liberty;

(4) violation of Art. 5 ECHR and the ancillary duty therein. Applying the judgment of the Supreme Court in R (Massey); (Robinson); (Haney); (Kaiyam) v Secretary of State [2015] 2 WLR 76: the violation of Article 5 ECHR by breach of the ancillary duty to progress the Claimant towards release and to provide reasonable opportunity to reform himself and/or to demonstrate risk reduction." (A:17).

28. In his submissions Mr Rule explained that this was a two-pronged attack: firstly, a system challenge and, secondly, a challenge to the individual treatment of the Claimant. He told me the systemic challenge related to the non-provision of courses for those in denial, and that the individual challenge was based on the fact that the Claimant over a prolonged period has not been assessed and identified for an achievable rehabilitation pathway. It is also part of his case that there is a systemic failure by providing access to SOTP only to prisoners in closed conditions and to those in the community on licence, but with no such provision for prisoners in the open estate. He submitted that is of particular significance to the Claimant since the provision in the community allows attendance by those in denial of their offending. There is inevitably some overlap between the claims for systemic failure and the claim as it relates to the Claimant personally. Whilst the grounds have been broken down into four separate headings, I propose to approach the case on the basis firstly of dealing with the systemic challenges and secondly the challenge to the individual treatment of this Claimant.
29. Before turning to those matters I should deal with a point which Mr Rule sought to raise in the course of his oral submissions. These courts are very familiar with the situation which has arisen in this case, that is the situation where an offender is willing to, indeed wishes to participate in a sex offender treatment programme ("SOTP"), is assessed as suitable to do an SOTP, but is not offered a place on such a course by reason of being deemed "unready" because of his continued denial of the offences.
30. Whilst going through the facts Mr Rule pointed to those situations in which it appeared that the Claimant was willing to acknowledge his 1991 offence "in the eyes of the law" insofar as he admitted having sexual intercourse with a girl under the age of 16. He sought to submit that the Claimant should therefore have been treated as ready for the SOTP based on a willingness to explore that area of his offending. Indeed, as is clear from the factual analysis set out above, that very possibility was being considered by those exploring these matters with the Claimant both in 2009 and again in 2010 (See Paragraphs 10, 15 and 16 above).
31. I challenged Mr Rule on this point, indicating that he had expressly stated in his skeleton that it was no part of his case that the Claimant should have been placed on an existing type of SOTP. In response he told me that was not his concession but rather the Second Defendant's case. At paragraph 52 of his skeleton, the following appears

"To an extent the Defendants appear to have misunderstood the grounds of claim. The claim is very plainly not asking that the Claimant undertakes a type of SOTP course that is not suitable for those who deny their offences. The claim is about the requirement to make available a suitable opportunity for rehabilitation, including the potential to access a type of SOTP that is available to those in denial, or other potential work that would create a similar and reasonable opportunity for reducing risk and progressing in sentence. To discharge the duties engaged it is for the defendant and not the claimant to specify and identify the suitable courses for him to complete to demonstrate risk reduction: though in the event of the failure such as here the claimant of course may point to the work not done or treatment not made available."

32. I accept, that strictly construed, that paragraph does not preclude the possibility that appropriate rehabilitative work could include attendance on an existing SOTP course for a partial denier who is both suitable and deemed ready, and that such a course could not be described as unsuitable. However, nowhere in the Grounds of Claim is it asserted that the Claimant should have been treated as ready to attend an SOTP based on partial denial. Whilst Mr Rule's position is that it is not for the Claimant to specify and identify suitable courses for him, the generality of that approach does not permit him, in my judgment, to rely on a specific and identifiable failure, where he has declined to give the appropriate details. Such a specific and identifiable matter should form an itemised part of the Claim and the Grounds of Claim so that it may properly be considered within the context of the decision as to whether permission should be granted, and so that the Defendants are on notice and can respond accordingly. This issue does not even appear in Mr Rule's skeleton argument. The whole thrust of the case on provison of courses for deniers is directed to much more general alleged systemic failings, together with the individual impact of that upon the Claimant. In my judgment it was not open to Mr Rule to pursue this point and I made that clear to him. In any event, in my judgment, any such attack was bound to fail given that each time the issue was explored with the Claimant he made it clear that he was unwilling to explore historic matters and address the issues that might have arisen even as a partial denier.
33. The same issue arises in relation to Mr Rule's submission that the Defendants are in breach of their systemic duties by failing to allow deniers to do those parts of the SOTP which would be relevant to them notwithstanding their denial. The Defendants submitted that this was not pleaded and had not therefore been addressed in the Defendants' evidence, and that it is not right for the Court to entertain this now. In response to this, Mr Rule relied on the fact that his pleaded case is that there has been a failure either to give the claimant the SOTP "or something equivalent or that might be regarded as equivalent by the Parole Board" (my emphasis). Mr Rule's stance throughout this case has been that it is not necessary for the Claimant to specify and identify the suitable courses for him to complete to demonstrate risk reduction. He submitted that the duty on the defendants to make available a suitable opportunity for rehabilitation is such that it is for the defendants and not the claimant to specify and identify the suitable courses.
34. Plainly it is not for an individual prisoner in the prison system to specify or demand any particular course or type of course. It is part of the prison system that the courses available within the prison are provided by the Secretary of State following due accreditation. However, in my judgment that is very different from the proposition that Mr Rule seeks to put forward in relation to pleading the case. In arguing the case before me, he sought to identify specific matters which he said the Defendants could and should have carried out in the proper exercise of their duties owed to the Claimant. Furthermore, in response to questions from me, Mr Rule conceded that there could be a case in which it might be impossible to provide any further form of rehabilitative work to a given prisoner, although he said there would have to be compelling evidence to support that. He accepted that there might come a point, say 30 years into someone's sentence, where literally everything has been done. He told me he could not disavow that position, albeit he submitted that is not made out on the evidence here.
35. The fact that there might be a case where impossibility precludes a Claimant bringing a case demonstrates, in my judgment, why a Claimant must point to the particular matters which he relies upon to show that there has been a breach and to put the Defendants on proper notice of the case they have to meet. It is not sufficient, in my judgment, to rely on a generalised allegation such as a failure to provide rehabilitative work equivalent to SOTP, without indicating what that work might be. The first time that Mr Rule expressly made the point that some only of the modules of the SOTP that are available in custody could and should have been made available to this Claimant, was in the course of oral argument before me. He told me that he was aware of cases where this had been done. That exemplifies the difficulty given that he, of course, is not in a position to give evidence and there is no evidence before the court to that effect. The Defendants were not put on notice of this and have not been able to address it in evidence. In my judgment if the Claimant wants to assert and argue that a certain number only of existing modules within an existing SOTP course should have been provided as an alternative form of rehabilitative work, that should be expressly identified in the Grounds of Claim. In my judgment the failure to do so means that this is not properly arguable before this court and I do not propose to address it.
36. Having said that, I recognise it is closely related to a matter which was argued and which I shall deal with, namely, that a specific course suitable for deniers could be created by altering one only of the existing modules of the SOTP. In my judgment there is a significant difference between the claim that deniers should be able to take part only of an existing programme which is specifically designed for those who admit their fault, and a claim that it is possible to create a suitable specific courses for deniers from parts only of the existing SOTP programme. The latter point is addressed in the evidence filed by the Defendants. Whilst the detailed matters relied upon now by Mr Rule were not in the Grounds of Claim, or in any evidence filed by the Claimant, it is derived from the evidence submitted by the Defendants and neither Defendant suggested I should not deal with it.
37. Before turning to the remaining alleged breaches, there is one other matter which I feel I cannot ignore. The paragraph from Mr Rule's skeleton which I have quoted at paragraph 31 above, indicates that the Defendants appear to have misunderstood the Grounds of Claim. I have sympathy with them. As I indicated to Mr Rule I share the view expressed by Hickinbottom J in R(Hussain) v Parole Board [2016] EWHC 288 (Admin) where he described the lengthy written and oral submissions of Mr Rule as disparate and sometimes lacking optimal analytical consistency, precision and clarity. During the course of submissions I mentioned this more than once. At one point, in the course of his submissions in reply, Mr Rule advised me that regardless of what the judgment of Hickinbottom J said about him, he takes his satisfaction from the fact that he was proved right and the defendant's contrary submissions about the relevant legal duties were rejected, as reflected in the judgment in the case. I regret to say I thought that an inappropriate and somewhat petulant remark. Mr Rule is plainly a highly intelligent advocate. I would expect a competent, professional advocate to be concerned as to the standards of both his written and oral advocacy, particularly as the clarity of such advocacy assists any judge in identifying the real issues in the case before him or her, and ensures that a proper decision is reached on the real issues in the case. The fact that Hickinbottom J was able ultimately to identify the issues in the case before him, and that he decided those issues in favour of Mr Rule's client, does not seem to me to be the issue. I would urge Mr Rule to reflect upon that.

The Legal Framework

38. I have been provided in this case with two bundles of authorities, containing 33 reported cases. Many of these were not in fact referred to and when I challenged the provision of a bundle of this sort, I was told the cases had been included "in case it was necessary to refer to them". That practice in relation to bundles is a practice which should cease. The law in this area is now reasonably well settled following the decisions of the Court of Appeal in R (Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587 ("Kaiyam (CA)") and by the Supreme Court in the appeal from that case R (Haney, Kaiyam, and Massey v Secretary of State for Justice [2014] UKSC 66 ("Kaiyam (SC)"). In October of last year Kerr J, giving judgment in the case of R (Tait) v Secretary of State for Justice [2015] EWHC 2953 (Admin), indicated that the law in this area had been clarified by Kaiyam (SC) and hoped that it would enable claims such as this to be determined without such extensive citation of authority as he received. This too is an important part of the responsibilities of a competent advocate in providing proper assistance to a judge. In the days of modern technology it is wholly unnecessary to provide cases to a judge "in case they might need to be referred to". Should that happen it will be very easy to obtain a copy of the relevant authority at short notice. Indeed counsel might choose to have those available for that purpose without having included them in the Judge's bundle from the outset.
39. There was in fact little, if any, real dispute before me as to the legal principles applicable. There is no dispute that the punitive part of the Claimant's sentence expired at tariff on 4 August 2005. In those circumstances the Claimant is eligible for release subject to the Parole Board being satisfied that it is no longer necessary for the protection of the public that he should be confined. In a case such as this there will ordinarily be a phased release from the closed estate to open prison conditions in order to test the prisoner's readiness for release into the community on life licence. Once in open conditions, part of that testing process will include release on temporary licence ("ROTL") to assess the offender's attitude towards and integration within the community. Inevitably this staged progress from closed conditions to release into the community will require the prisoner to satisfy the Parole Board that there has been the appropriate reduction in risk, such that he may be properly managed in the community. The purpose of the sentence is to rehabilitate the prisoner with a view to his release at the earliest possible date once the tariff has expired. Life sentence planning involves monitoring and recording the means by which a lifer is to be supported in the process of achieving a reduction in risk.
40. A denial of guilt must not of itself prevent progression or release of a prisoner. The focus must be on risk reduction, but it is clear that the fact of denial of guilt will be a relevant factor in assessing risk reduction. Whilst a particular offender may deny offending, the prison service, the Parole Board, and this court must approach the case on the basis that the offender has been duly convicted in a court of law and is thus guilty, whatever his personal stance may be. The case law on these issues is well settled and is not in dispute and I do not propose to set out and rehearse the relevant authorities.
41. The Claimant's case is that the Defendants are in breach of both common law duties and the ancillary duty implicit within Article 5 ECHR. The common law duties are set out in the judgment of Lord Dyson MR in Kaiyam (CA). He identified three separate public law duties with respect to the provision of offending behaviour courses and assessments for indeterminate sentence prisoners as follows:

i) the public law duty derived from R (James, Lee and Wells) v Secretary of State for Justice) [2010] 1 AC 553 at [3], namely the duty to provide systems and resources necessary to afford to prisoners a reasonable opportunity to demonstrate that it is no longer necessary for the protection of the public that they are no longer dangerous.

ii) The duty to provide systems and resources in a rational way.

iii) The duty to act in accordance with rules and policy.

There is inevitably some overlap between those duties.

42. In Kaiyam (SC) the human rights claims under Article 5 were considered. The court found that, within the overall scheme of Article 5 ECHR, there is an implied ancillary duty "… to provide an opportunity reasonable in all the circumstances for such a prisoner [ie lifers and ISPs] to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public". Their lordships also expressed this as a "duty to facilitate the progress of such prisoners towards release by appropriate courses and facilities" (See per Lords Mance and Hughes JJSC at [36] and [38]). The corresponding right in favour of the prisoner to be given such opportunities by the state is a right in favour of each individual prisoner and whether it is breached is "a highly fact sensitive question in each case". (See per Lords Mance and Hughes JJSC at [41] and [43]).
43. It is clear that a lack of resources cannot be relied upon by the Secretary of State as a defence to an allegation of breach of any of the public law duties. The duty requires sufficient resources to be made available for its fulfilment. (see Fletcher and Others v Governor of HPM Whatton [2014] EWHC 3586 (Admin) per Dingemans J). However, that does not mean that the Secretary of State is under an absolute duty to devise and provide all the courses and assessments necessary to maximise an individual's chances of obtaining release. The duty to provide courses and assessments in accordance with the Secretary of State's policy and the statutory scheme is qualified by the extent of available resources and by the consideration that "… There are many different ways in which it might be possible to assist in the preparation of prisoners for release. Difficult judgments have to be made as to which prisoners would benefit from these courses and when they would best be able to do so" (per Simon Brown LJ in R (Cawser) vSSHD [2003] EWCA Civ 1522 at paragraph 34). Similarly, in Kaiyam (SC) Lords Mance and Hughes JJSC stated as follows at [60]:

"Article 5 does not create an obligation to maximise the coursework or other provision made to the prisoner, nor does it entitle the court to substitute, with hindsight, its own view of the quality of the management of a single prisoner and to characterise as arbitrary detention……any case which it concludes might have been better managed. It requires that an opportunity must be afforded to the prisoner which is reasonable in all the circumstances, taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been."

44. It follows from the above that whilst an absence of resources is not a defence against an allegation of breach of any of the public law duties, when considering whether there has in fact been a breach of any of the duties, consideration of the competing needs for limited resources may be a proper and relevant consideration.
45. In Kaiyam (SC) when giving his reasons for dismissing the claim of Robinson, Lords Hughes JSC [at 90 and 91] made the following three points: (i) that there is no obligation to furnish a particular course, in that case the ESOTP; (ii) to hold that a delay, even an unacceptable delay, in providing a course constitutes a breach of article 5, via the ancillary duty, would be likely to have the perverse effect of discouraging the prison service from providing it at all, and of discouraging recommendations for courses unless and until they are known to be shortly available, and/or of discouraging the prison service from devising and suggesting new forms of programme; and (iii) that whilst coursework is important and may succeed, it holds no guarantees. I recognise that Lord Mance JSC came to a different view on Robinson's claim, but the reasons of Lord Hughes JSC are those of the majority. I also accept the point made by Mr Rule that the Article 5 ancillary duty is owed to each individual prisoner and in considering whether a breach is established, the court must have regard to the factual history in custody of the prisoner in question, in this case the Claimant.
46. There is an issue of considerable importance in this case as to whether the extent of the duties owed by the First and Second Defendants is the same. This issue arises out of the fact that the prison in this case is a private prison run by the Second Defendant under contract to the Secretary of State, the First Defendant. It is more convenient to consider this aspect of the case after the specific challenges have been considered and the extent of any potential breaches of the public law duties has been established. Whilst I shall continue for ease of reference to refer to the Defendants in the plural, that remains subject to this issue which I shall address later in my judgment.

The Systemic Challenges.

47. As I understand Mr Rule's submissions, the alleged "systemic" breaches which remain (after my exclusion of the alleged failure to allow deniers to do those parts of the SOTP which would be relevant to them notwithstanding their denial for lack of proper pleading) are as follows:

i) A failure to provide a course specifically for deniers

ii) A failure to allow deniers to attend the SOTP or other courses in the closed and/or open estates when those in denial and in the community on licence may attend the C-SOGP in the community.

Failure to Provide Specific Courses for Deniers

48. In this case the Claimant has completed certain rehabilitation work set as objectives for him including ETS in 2006, alcohol awareness in February 2010 and TSP in September 2010. However, as Mr Rule pointed out in his skeleton, the Claimant "has not been able to complete any SOTP or anything that might be regarded as equivalent by the Parole Board." In his oral submissions Mr Rule described this as the nub of the case. He pointed to the impasses regarding offence focused work identified by the Parole Board in June 2007 and again in June 2009, impasses reached as a result of the fact that the Claimant was repeatedly assessed as suitable but unready for the recommended SOTP. Assessments continuing through to 2013 continued to find the Claimant unready for SOTP as he was continuing to maintain his innocence. Insofar as from time to time he appeared willing to recognise an "offence in the eyes of the law" in relation to the underage victim, he was unwilling to discuss that matter and, therefore, remained unready for SOTP. Mr Rule pointed out that no sex offending work has been done from 2002 to date despite repeated recommendations that SOTP should be completed.
49. The nub of the Claimant's case is that the Defendants have breached their public law duty to provide the means by which prisoners, such as the Claimant, in denial of their offending, can demonstrate a reduction in risk to the Parole Board. Mr Rule submitted firstly that there should be available, in the closed estate, in open conditions, and in the community SOTPs specifically created for and suitable for deniers. He submitted that the failure to provide such courses is a breach of the duties on the Defendants to provide the means to enable such prisoners to progress through their sentence with a view to a move to open conditions and, ultimately, release.
50. Further and in the alternative, he relies upon the fact that provison for deniers is currently available in the community, but not in either the closed or open estates. Deniers who are on licence in the community (in other words, former prisoners) are allowed to attend the equivalent SOTP courses to those being provided in the closed estate, despite the fact that in the closed estate they would be considered unready. In other words deniers, on licence in the community, are allowed to attend courses in the community not specifically designed for deniers.
51. To support that contention Mr Rule referred me to a 2010 document entitled "Suitability for Accredited Interventions" issued by the National Offender Management Service ("NOMS") on behalf of the Ministry of Justice, which is exhibited to the Witness Statement of Gemma Hardy at B2. Unfortunately, the exhibit has not been paginated to fit in with the bundle numbering so that the Witness Statement is numbered 1 to 10 and then the exhibit numbering recommences with the number 1 rather than the number 11. At page 25 of that exhibit is a section headed "Denial", in which various courses are listed as not suitable for offenders in total denial of their offences. That list includes all prison SOTP's and all community SOTP's except C-SOGP (Community Sexual Offender Group-work Programme) (my emphasis). Page 26 of the same document records that a maximum of two total deniers will be allowed per group on the C-SOGP. At page 46 in the same document, the C-SOGP is described as suitable for all levels of risk reoffending, with medium or high risk offenders normally undertaking the full 240 hour programme and low-risk offenders normally only requiring the 100 hour programme.
52. Mr Rule submitted that it is irrational for such provision to be available only in the community. In particular, he submitted it should be available to those in the open estate, and would be then be a relevant factor informing the decision as to progression into the open estate as the Parole Board would be able to take into consideration the opportunity for further SOTP work to be undertaken in the open estate, and which would be relevant to the decision as to whether the risks could be managed in the open estate.
53. I have the benefit of a witness statement from Adam John Carter, a Chartered and Registered Psychologist and Head of Offence Specialism, Sexual Offending Treatment Programmes, in Interventions Services in NOMS (A379-481). He has overall responsibility for the development of the sexual offending treatment programmes for custody and providing advice to treatment sites to help them maintain treatment integrity and the training of staff to deliver this work.
54. The Witness Statement is very helpful in its detail. It can fairly be summarised as follows. Those who maintain their innocence but are convicted of sexual offences have been a challenge to NOMS for a number of years. They are not suitable to be treated in regular SOTPs in the closed estate because it is necessary for an individual to disclose thoughts, feelings and behaviour in the build up to the offence. That is plainly not possible where all offending is denied. (A383, paragraph 11(a)).
55. Whilst the CSOGP will take up to 2 people on each programme even if they are in categorical denial, this has not been formally evaluated and some facilitators have reported that the people in denial can be disruptive or fail to engage with the programme. Therefore, adopting a community-based programme into prisons as a solution for people in denial has never been deemed an option. Research in Germany confirmed the same pattern where deniers were found to greatly disrupt groups for others. Furthermore, there is no outcome data from programmes in other jurisdictions that incorporated deniers, and the costs associated with a major programme redesign could not be justified (A383, paragraph 11(a)- (c)).
56. Further research which has emerged since 2002 led to the development of two programmes which, whilst not targeted at those in categorical denial, were designed in the hope that those in categorical denial would nevertheless be able to engage with and meet the goals of the programme. In January 2015 a new programme named Horizon was accredited and staff at five prisons have been trained to be able to run it. The Horizon programme is designed for medium risk offenders, with an average of 10 on each course, and there are unlikely to be more than two spaces available on each course for people who are in categorical denial. The course is to be rolled out in the five prisons commencing in the third week of March 2016 through to August 2016 (A384-385, paragraphs 14-16). The five prisons do not include HMP Northumberland where the Claimant is in custody. Further, the Claimant is not a medium risk offender. The precise timetable for furthering full implementation of Horizon will be dependent on the experiences of the first phase and it is not possible to set out when HMP Northumberland will introduce Horizon (A386, paragraph 18).
57. The second programme is called Kaizen and is a programme for high risk offenders. However, this is still in development with the intention to start commissioning from April 2017, subject to accreditation and the development of an agreed implementation plan (A386, paragraph 17). The position as at 22 March 2016 (the date of Dr Carter's Witness Statement), was that NOMS had yet to pilot the first programme that people in categorical denial will be able to access (Horizon) and have not finished developing programmes for high risk offenders in denial (Kaizen). He points out that this is ongoing work which is complicated and which will need time to work through, complete and evaluate. NOMS are trying to ensure that as far as possible new programmes are designed in a way where the goals of treatment can be met and an individual be able to engage with treatment even if they are in categorical denial (A387, paragraph 20).
58. Mr Rule sought to argue that the development of these programmes should have happened much earlier than it has. He referred me to the NOMS letter of October 2015 addressed to Treatment Managers and which is exhibited to Dr Carter's Witness Statement at A471-478. That letter advises Treatment Managers of interim changes being made to the Core SOTP to better align it to the new Horizon programme. The letter shows that Block 12 dealing with victim empathy will be changed and that the victim empathy role-plays will no longer be part of the Core SOTP. In essence, the change is away from looking at past victim empathy arising out of the offending, to looking instead at developing future victim empathy. This is because there is now evidence demonstrating that the development of empathy for past victims does not contribute to lowering risk of proven sexual reoffending, nor is it clear that empathy for past victims generalises to future situations. The letter also advises of changes to Block 5, "Active Accounts", indicating that offence responsibility is overemphasised in the programmes.
59. Mr Rule submitted that the changes involved are in reality limited to one module, and that these changes could and should have been made earlier given that the difficulties arising out of treating categorical deniers have been the subject of research since at least 2002 based on Dr Carter's Witness Statement. I cannot accept this submission. There is no evidence to show that the current state of thinking in these complicated matters which arises out of more recent research, means that courses could and should have been devised sooner. The fact that what is proposed by way of transition results in changes to only one or two modules in the Core SOTP is, in my judgment, far too simplistic an approach. The fact of relatively small areas of change does not necessarily equate to something which should have been achieved sooner, as a result of speedier research. As Dr Carter's Witness Statement makes clear, these areas are extremely complicated.
60. Whilst I am satisfied that the systemic duty must include a duty to keep course provision under review and to develop course provision in line with ongoing research, including research designed to assist categorical deniers, there is no evidence before me to suggest that there has been any breach of that duty in this case. Insofar as Mr Rule sought to suggest that the provision of Horizon in only five prisons was inadequate and that it could be a very long time before such a course might be available to the Claimant, that criticism too must fail. Even if the Claimant would qualify for Horizon when it becomes available (which is far from clear), there cannot, in my judgment, be any breach of duty by providing a course on a roll out basis, that is initially at some prisons only, before being made available over a period of time across the prison estate. That is an inevitable consequence of the need to train those who are to deliver the courses whilst maintaining proper provision for existing courses during the transitional period. It is also entirely rational, reasonable and proper for courses to be made available at a few prisons in the first instance so that their efficacy can be considered and any appropriate adjustments made before the course is rolled out to other prisons.
61. So far as Kaizen is concerned, there remain real doubts as to whether the programme can reduce risk for complete deniers. There is the possibility that the programme will be suitable only for people in categorical denial who can disclose a certain amount of problem areas, for example are able to recognise emotional management difficulties, relationship problems, problematic core beliefs and so forth because access to the programme without such an acknowledgement may mean that no meaningful work can be undertaken. It appears that the commissioning authority thinks that participants will need to acknowledge problems in their lives. (Dr Carter: A/385-387, paragraphs 17, 19 and 21.) As all the evidence in this case shows, the Claimant is not able to recognise any problem areas within his life or any possible need for change. On the basis of the current evidence about likely access requirement for Kaizen, he would not qualify for it in any event.
62. I accept Mr Pievsky's submission that it is a very difficult case to prove that material available to NOMS at a particular point in time was such that the reasonable thing to do was to invent a new course which would experiment with reduction of risk, or to have thought of Horizon/Kaizen earlier.
63. Insofar as the contrary argument relies upon the provision or availability of places for deniers on the C-SOGP in the community, there is no evidence to support that provision being effective. Indeed the evidence is to the contrary as set out in paragraph 55 above. In my judgment there would need to be such evidence to support the argument that consideration ought to have been given to extending such provision to the closed, and indeed, open estates.
64. Insofar as this aspect of the Claimant's case related to open conditions, Mr Pievsky further submitted that it was not relevant in any event since the Claimant is in closed conditions and the Parole Board has decided he is not safe enough on present evidence to be moved to open conditions. Mr Rule submitted that this aspect of the claim is relevant to the Claimant. He submitted that if available in the open estate, that fact could inform the decision of the Parole Board to permit an onward move into open conditions. In my judgment, that decision is not informed by any provision in the open estate. The issue for the Parole Board is whether there has been a suitable reduction in risk to date, not whether there is the possibility of a reduction of risk, or further reduction of risk in open conditions.
65. Furthermore, Mr Pievsky makes the point in his skeleton that if this submission was accepted, it would convert the duty not only to a duty to provide a particular course, but also to provide it to a particular prisoner or category of prisoners at a particular time (that is in open conditions). He submitted that is not what the law requires and goes beyond the relevant duty which is a duty to provide "an opportunity reasonable in all the circumstances for…. a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public". Mr Pievsky submitted that there are obvious differences between prisoners in closed conditions and those who are in open conditions or who have already been deemed safe enough to be released on licence. He submitted there is no proper or fair comparison to be made.
66. I accept Mr Pievsky's submissions. In my judgment Mr Rule's challenge based on a systemic failure arising out of the failure to provide a course specifically for deniers, or at least a course suitable for deniers must fail. Similarly, his rationality challenge based on the availability of access to the SOTP for deniers in the community must also fail.
67. I should mention the decision of William Davis J in R (Morgan) v Secretary of State for Justice [2016] EWHC 106 (Admin) to which I was referred. That decision was dealing primarily with challenges to the decisions, and in particular the decision making processes in reaching those decisions, of CART (the Category A Review Team) and the DDC (Deputy Director Custody High Security). The issue in respect of those decisions was whether Morgan's denial of his index offences had been treated as decisive in respect of the review of his categorisation. However, it was also argued that the Secretary of State had failed to provide Morgan with a reasonable opportunity to enable him to make progress, including the need to provide a programme for Morgan as a prisoner in categorical denial. William Davis J rejected the argument that the failure to provide a course suitable for those in categorical denial amounted to a breach of duty to provide him and those like him with a reasonable opportunity to make progress. At paragraph 48 of his judgment he said this:

"Morgan has been given "an opportunity reasonable in all the circumstances… to rehabilitate himself." The fact that the National Offender Management service is considering new initiatives which may or may not assist Morgan cannot mean that there has been any breach of the duty owed to him. The argument put on his behalf is a counsel of perfection."

68. It will be clear that I entirely agree with that conclusion. I have visited the issue in rather more detail than William Davis J did in Morgan, as it was plainly a more peripheral point in that case, whereas here it was central and a major plank of the Claimant's case.

The Individual Treatment of the Claimant

69. The thrust of Mr Rule's submissions in relation to this aspect of the claim is as follows. He submitted that by repeatedly maintaining the requirement to undertake an SOTP as part of sentence planning for this Claimant, who was in categorical denial and would therefore always be deemed unready to do the course, without making some suitable alternative provision, was to deny him a reasonable opportunity to rehabilitate himself. He submitted that it was equivalent to locking the door and throwing away the key and that it placed the Claimant in a position where he could never progress. He particularly relied upon the impasse identified by the Parole Board in 2007 and again in 2009, and the fact, he submitted, that no further progress has been made since.
70. Mr Rule submitted that for prisoners, like the Claimant, in categorical denial the Secretary of State and the prison in question must "think outside the box" and look for other ways which will provide a prisoner with an opportunity reasonable in all the circumstances to rehabilitate himself. He reminded me that the Article 5 ancillary duty, is a duty owed to individual prisoners. He submitted that on a proper analysis of the facts in this case, the Claimant has been denied the opportunity, reasonable in all the circumstances, to rehabilitate himself. Mr Rule submitted that, in effect, the Claimant has been abandoned: it was known the Claimant was in categorical denial, that he would not be ready to do an SOTP, and yet that remained the objective year on year.
71. Mr Rule pointed to the one to one sessions provided to the Claimant after this claim was issued as being evidence of what could, and he says should, have been done for this Claimant in order for the Defendants to discharge their duties to him. Mr Rule further submitted that the outcome of those sessions is not relevant to the issue which I have to decide. The issue is whether the Claimant was provided with an opportunity reasonable in all the circumstances to rehabilitate himself, not what the result was of any opportunity properly offered to him. He pointed out that this court cannot know whether the Claimant's stance would have been the same if the one-to-one sessions carried out between October 2015 and March 2016 had been carried out sooner. To put this another way, he submitted that if the sessions had been carried out sooner, it is possible that the Claimant might have been able to benefit from the sessions and to make some real progress towards addressing the risk factors which are of concern to the Parole Board.
72. Mr Rule further submitted that because the Secretary of State required completion of the SOTP within the 18 month review period which he set both in May 2012 and in March 2014 (see paragraphs 18 and 20 above), that the decision in Kaiyam SC applied and that this judicial review must succeed. In my judgment that aspect of the submission is wholly misconceived. In the cases of Haney and Massey, two of the four individual cases which were considered by the Supreme Court in Kaiyam, the position was wholly different. Findings were made against the Secretary of State because targets had been set for the next Parole Board Review, but the reason they were not achieved was because of a failure by the Secretary of State to provide the relevant places in open prison (Haney) or a place on the ESOTP course (Massey). That is totally different from the situation which I am considering where SOTP courses were available to be taken by the Claimant, and the reason they were not so taken was because he was unready by reason of his continued denial. This is not a case where the Claimant was set that target, was assessed as suitable and ready but where no course was made available to him within the timeframe set by the Secretary of State. Accordingly, insofar as the Secretary of State set completion of the SOTP as a target before the next Parole Board review, in my judgment that is simply part of the relevant factual matrix and it does not raise any different issues for my consideration. The issue remains whether the Claimant has been provided an opportunity reasonable in all the circumstances to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.
73. I sought clarification from Mr Rule as to the extent of his submissions. It appeared to me that he was submitting that there is a duty on the Defendants to provide some form of rehabilitation, such as the individual work, but not necessarily limited to that. The way I put it to him is that I understood him to be submitting that they must provide "something else, anything else, whatever is required to discharge that duty". He confirmed that was indeed his case that there must be some form of rehabilitative work, even if it is wider than the more limited scope of the SOTP.
74. I then asked him whether he accepted that there might come a stage where it would be impossible to provide rehabilitative work to an offender. He told me he would have to accept that if, for example, the reason why work hadn't been offered or completed was because a prisoner was refusing to leave his cell. But in other cases such as this case where the prisoner is indicating a willingness to do whatever he's given to do, he submitted there would have to be compelling evidence to establish an impossibility. He submitted that the Secretary of State would have to demonstrate "everything conceivably possible" had been done in a timely fashion with an individual in order to discharge their duties. He acknowledged that there might come a point, say 30 years into their sentence, where literally everything has been done and that he cannot disallow that position, but he submitted that is clearly not made out on the evidence in this case.
75. Mr Pievsky on behalf of the Secretary of State submitted that the provision of the individual work with the psychologist Gillian Sutcliffe in 2015/2016 was irrelevant to my consideration of the facts in this case. He submitted that there was no duty on the Secretary of State to provide that work. That submission was supported by Mr Hodivala on behalf the prison. At first sight that seems a surprising submission, inevitably begging the question as to why that work was provided, particularly as it appears to have been prompted by these very proceedings, and given that the Secretary of State sought a stay of these proceedings pending completion of that work.
76. However it is plainly important to look carefully at the duty and what is required by it. The duty is "to provide an opportunity reasonable in all the circumstances for… a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public". There is no doubt that in deciding what opportunity was reasonable in all the circumstances, resources are a proper consideration. It is noteworthy that Mr Rule's submission in response to my questions about impossibility, was that the Secretary of State would have to demonstrate "everything conceivably possible had been done". That, it seems to me, must be an overstatement of the position. If the duty was to do everything conceivably possible, resources would be wholly irrelevant. Plainly in this case resources were found to enable this individual work to be undertaken. However, that does not necessarily mean that this was work which had to be delivered in discharge of the relevant duty.
77. Mr Hodivala submitted that I should be very careful to find that the provision of one-to-one work in a situation such as this was required by the duty to provide an opportunity reasonable in all the circumstances for a prisoner to rehabilitate himself. He submitted that if I were to find that duty I could place his client in the difficult position where, notwithstanding it was contracted with the Secretary of State to provide accredited courses for prisoners, it would nevertheless have to consider the provision of one-to-one psychology or other work out-with the accredited courses in order to avoid the risk of being sued. He submitted this is wholly inappropriate in circumstances where the contract between the prison and the Secretary of State does not require that provision. I will be returning to these issues when I consider whether there is any difference in the duty owed by these two defendants. However, in considering whether a particular type of work is required to discharge the duty, in my judgment the contractual arrangements between the Secretary of State and the prison can have no relevance.
78. As already indicated Mr Rule's position throughout is that it's not for his client to identify work that could be undertaken or is necessary. That he says is a matter for the Defendants in the proper discharge of their duties. In my judgment that submission goes too far, precisely because it amounts to requiring the Defendants to do everything conceivably possible for the Claimant. I am not prepared to impose a duty on the Defendants to provide some unspecified and unidentifiable work, which might or might not assist the Claimant in circumstances where their duty is limited to the duty to provide him with a reasonable opportunity to rehabilitate himself.
79. I turn then to consider whether the one-to-one work provided in 2015/2016 falls within the duty to provide an opportunity reasonable in all the circumstances for the Claimant to rehabilitate himself. Mr Rule relies on it as evidence of the type of work that was and should have been made available. The defendants deny they had any duty to provide that work.
80. Whilst I accept Mr Rule's submission that the duty is not dictated by the results, or any anticipated outcome whether positive or negative, it is equally clear that in considering whether any given opportunity is reasonable, all the circumstances must be taken into account including "…the use which has been made of such rehabilitative opportunity as there has been" (per Lords Mance and Hughes JJSC in Kaiyam (SC) quoted in full at paragraph 43 above).
81. Prisoners who continue to deny their responsibility for offences of which they have been convicted undoubtedly present problems in terms of rehabilitative opportunities. That is recognised in the witness evidence of Adam Carter. The Secretary of State and the prison must start from the basis that the prisoner is guilty of the offences and it is plainly proper for the prison to try and encourage a prisoner to accept responsibility for the offences, with a view to then opening up access for him to appropriate offending coursework. Equally, a prisoner must have the opportunity to progress notwithstanding he is a denier. This is recognised in the case law which provides that the mere fact of denial cannot, by itself, be a reason for refusing the re-categorisation and/or progress to open conditions in an appropriate case. Of course in many cases, deniers who are unready for SOTP can nevertheless make progress through other courses such as TSP, alcohol courses better relationship programmes and such like. It does not follow, therefore, as a matter of course that a denier cannot make progress.
82. Furthermore, the courts and the prisons have experience of deniers whose stance may change. Indeed, there was potential in this case for this Claimant to be given access to an SOTP in 2010 when he appeared willing to acknowledge that the offence involving a girl of 15 amounted to a rape as a matter of law, regardless of whether or not she consented to sexual intercourse. However, when this was explored further with the Claimant, he made it clear he was unwilling to discuss an offence from over 15 years prior to that date, in effect regarding it as irrelevant, particularly as he had already served a sentence for that offence and been released. All of this is indicative of the very real difficulties faced by those seeking to work with this Claimant with a view to rehabilitating him.
83. The Secretary of State and the prison rely on the work that has in fact been carried out with this Claimant to show that he has been given the opportunity reasonable in all the circumstances to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. They point to the courses completed (set out in paragraph 48 above). They also point to the one-to-one counselling and psychological assessments carried out in 2010. Mr Rule very properly made the point that the 2010 counselling was with a view to trying to persuade the Claimant to accept responsibility for the offences, thereby giving him access to SOTP, and was of a wholly different nature to the work undertaken by Dr Sutcliffe in 2015/2016. The Defendants submitted that this Claimant has had an opportunity reasonable in all the circumstances to rehabilitate himself. In reality, they say, he has simply not chosen to make use of the opportunity, not by reason of being a denier, but because he believes he has no need to change.
84. When completing her report on the work carried out, Dr Gillian Sutcliffe concluded it is not possible to make any meaningful changes to the Claimant's attitudes and behaviour unless he chooses to change and can see the benefits to himself in doing so (See paragraph 23 above).
85. As I have already indicated I recognise that the likely result of rehabilitative treatment does not and cannot inform the question of whether there is a duty to provide it. If the provision of such treatment would provide a reasonable opportunity in all the circumstances for a prisoner to rehabilitate himself, then the fact that he fails to cooperate with the treatment or course or to derive any benefit from it, does not mean that there was no duty to provide it in the first place.
86. It is important to remember that the duty is not a duty to provide a reasonable opportunity to rehabilitate. It is in fact a duty to provide an opportunity which is reasonable in all the circumstances for a prisoner to rehabilitate himself. If the duty to provide an opportunity which is reasonable in all the circumstances extends to a duty to provide one-to-one work for prisoners in denial, that raises hugely difficult questions not just of resources but of when it should be assessed that the prisoner should move from mainstream accredited course provision to one-to-one provision. At what point should the prison ajudge that the prisoner will never change his stance of denying the offences? Indeed the facts of this case provide a very useful illustration as to the difficulties that arise in relation to that. The Claimant's tariff expired in 2005 but in 2010 it appeared there was the prospect he was willing to accept one of his previous offences which might have resulted in him being considered ready for an SOTP. To say that the prison had a duty to provide one-to-one work simply by reason of the Claimant being a categorical denier pre-empts, in my judgment, the possibility that the prisoner's stance may change.
87. Mr Rule submitted that there must be rehabilitative provision for deniers. He suggested that it had always been open to the Claimant to "talk the talk and walk the walk", in other words to say and do all the right things simply to get through the SOTPs with a view to progression. He pointed out this prisoner has not chosen to do that but continues to maintain his denials. That is undoubtedly his right but in the eyes of the law he is guilty of all of the offences. If a prisoner simply opts into the course with a view to talking the talk and walking the walk, one would hope that would be recognised by course providers and be reflected in feedback after the course. Having said that, it seems to me that in fact this Claimant has "talked the talk and walked the walk" in relation to those programmes he has undertaken, more specifically TSP and ETS. At all times he expressed a willingness to do them but he remained of the view he had nothing new to learn and derived nothing from those courses. It is against that background that the claim that he should have been provided with the 2015/16 type of one to one sessions is to be viewed.
88. I recognise that there may be cases in which the facts might be such that the provision of one to one work would be required in discharge of the duty. Indeed in the Acknowledgement of Service filed on behalf of the Secretary of State, it is stated that it is open to prisons to conduct risk assessments by psychologists to consider whether one-to-one sessions with them might cause the prisoner to reconsider his position in relation to the index offence, or some other previous offence. It is perhaps unsurprising in the light of that pleading, that the Second Defendant did indeed refer the matter to a psychologist for a further risk assessment. Of course that Acknowledgement of Service refers to one-to-one work with a view to the prisoner reconsidering his position, whereas Mr Rule's case is that there should have been one-to-one work directed towards rehabilitation, rather than an acknowledgement of offending.
89. Having considered all of the evidence in this case, I have come to the conclusion that the Claimant has been provided with an opportunity reasonable in all the circumstances to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. The fact that so far he has been unable to do so does not mean that he has not had that opportunity. In my judgment Mr Rule's approach to this matter focuses on the wrong test by placing the emphasis on whether there was a reasonable opportunity rather than whether there was an opportunity reasonable in all the circumstances. The two are undoubtedly different. Mr Rule's submission that what has happened here is that effectively the key has been thrown away and that this Claimant has been denied all opportunity of rehabilitating himself is one I reject. That is the counsel of perfection or to use Mr Rule's own words, "requiring everything conceivable to be done". That is not the duty. In my judgment this Claimant had been provided with an opportunity reasonable in all the circumstances to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. The reason he has not done so lies within his own attitudes including his refusal to recognise any need for change himself, and his refusal to discuss the offence involving a 15 year old victim which might well have given him access to the SOTP. Against that background, I am of the view that the further work undertaken in 2015/16 was not required in order to discharge the duty. In reaching that decision I do so against the background of the previous provision and the Claimant's attitude to it and I disregard the outcome of the 2015/16 work.
90. Furthermore, even if I am wrong about that and one-to-one work of the type delivered in 2015/2016 ought to have been delivered in satisfaction of the relevant duty, I am not satisfied that it should have been delivered any earlier than it in fact was. As I have already indicated, in my judgment it is entirely proper for the prison to wait in the hope that the position on denial might change. Given there was an indication in 2010 that it might change, in my judgment it was entirely proper to continue work on motivation and other matters in the hope that that change would be accompanied by a willingness to discuss that particular offence notwithstanding the number of years that has lapsed since it happened and notwithstanding that the Claimant had already been released into the community having served a sentence for that offence.
91. Accordingly, I reject this ground also.

Is the Extent of the Duty Owed by the Defendants different?

92. I now turn to consider the issue of whether the extent of the duties of the First and Second Defendants is the same or different in this case. In view of my findings that there are in fact no breaches of duty, this aspect of the case, which was raised effectively by the Secretary of State and not by the Claimant, is academic. However, it seems to me to be a point of such importance that I should deal with the submissions which were made to me.
93. As already stated this issue arises out of the fact that the prison in this case is a private prison run under contract to the Secretary of State from 1 December 2013. I have not seen that contract. However, the Witness Statement of Gemma Hardy states that the Second Defendant is in its third year of a three-year programme and the prison's delivery plan only contains "accredited programmes". A programme's accredation is based on evidence that it is an effective and proven way of reducing offending. NOMS audits the prison to ensure that it is complying with the programme manuals and national guidance. If the prison did not comply with these guidelines, then it would risk losing authorisation to deliver that programme, which would impact on the prisoners requiring these courses (B/2, paragraphs 8-12).
94. The Second Defendant accepts that it is a public authority for the purposes of S6 Human Rights Act 1998, and that it is subject to the ancillary duty set out in Kaiyam(SC). The Second Defendant relies on the fact that the duty is a duty to provide such rehabilitative opportunity as is reasonable in all the circumstances. Mr Hodivala submitted that has to be determined by reference to the practical restrictions placed on the prison by the First Defendant, and that it is not reasonable to require the Second Defendant to depart from the First Defendant's policies and the provision of accredited programmes. The Second Defendant's case is that, insofar as the Court may rule that there should have been some intervention other than an accredited programme, that is not an intervention the prison is contracted to supply and therefore, the prison cannot be in breach of the ancillary duty.
95. To put this another way, the Second Defendant is inviting me to find that when considering what is a reasonable opportunity in all the circumstances, those circumstances must include any restrictions contained in its contract with the Secretary of State. Mr Hodivala argued that since the contract requires them to deliver only accredited programmes, there can be no duty on the private prison to go beyond that.
96. He further submitted that unless the Second Defendant's duties are viewed through the prism of the Secretary of State, there would be an unwelcome divergence of interest between prisons and the Secretary of State as the provider of courses. That, he submitted, might result in an individual prison, keen to avoid the risk of being sued for damages by a prisoner, determining to embark on some individual bespoke programme in circumstances where the Secretary of State would have wished the prison to persist in maintaining the target that the prisoner should attend an accredited programme. Mr Hodivala submitted that divergence of interest cannot be in the public interest.
97. To support his argument Mr Hodivala sought to rely on paragraph 45 of the judgment of Collins J in R (Gordon-Jones) the Secretary of State for Justice [2014] EWHC 3997 (Admin). That case relates to the provision of books to a prisoner and whether the Prison Service Instruction ("PSI") restricting access to books was being properly applied by the prison governor, who was the Second Defendant in that case. The paragraph relied on in the judgment provides as follows

"The claim against the Second Defendant asserts that he failed to exercise his discretion properly. The Second Defendant was bound to act in accordance with the policy. It was not for him to judge whether or not it was lawful. He acted in accordance with it and thus did not act unlawfully. In reality, it is only if the policy was unlawful so that the Claimant can succeed against the First Defendant that she can obtain any relief"

In my judgment that is completely different from the situation here. Mr Hodivala is not relying upon a policy which the prison is applying, but rather the terms of the contract between the prison and the Secretary of State. Furthermore, this case relates to an ancillary duty under Article 5 and not a question of applying a policy issued by the Secretary of State. I do not consider that paragraph assists Mr Hodivala. I consider it has been taken wholly out of context.

98. Mr Rule submitted that the duty to provide an opportunity reasonable in all the circumstances for a prisoner to rehabilitate himself is the same duty for both Defendants. He accepts that the application of the duty varies according to their respective functions. He submitted that the consequence is, that in making policies at a general national level, the duty in relation to that falls on the Secretary of State. However, in all other respects he submitted it is a joint responsibility concerning a prisoner at HMP Northumberland.
99. I accept Mr Rule's submissions in this regard. I have to say I struggled with the notion that the obligations on this prison were somehow different to the obligations which would rest on a prison which is not a private prison but is being run by the state. In my judgment if the duty to provide an opportunity reasonable in all the circumstances for a prisoner to rehabilitate himself requires, on the facts of the case, something over and above the provision of access to coursework, a private prison cannot simply say that all it has to do is deliver accredited programmes. Indeed the Secretary of State's Acknowledgement of Service appears to recognise precisely that, and the Second Defendant was brought into this action because the Secretary of State purported to transfer any blame in this case to the Second Defendant as being responsible for the day-to-day care of the prisoner and therefore for delivering the opportunities which are reasonable in all the circumstances for rehabilitation. In particular, it was stated in the Acknowledgement of Service that there was no impasse since it is open to prisons to conduct risk assessments by psychologists to consider whether one-to-one sessions might cause prisoners to reconsider their position in relation to the index offences. I appreciate that is different from the type of one-to-one rehabilitative work that Mr Rule submitted should have been provided (and which I have rejected), but it plainly suggests that the Secretary of State sees no difficulty with the prison considering situations over and above the provision of accredited courses.
100. There cannot, in my judgment, be a two tier prison system depending upon whether the prison is a private prison or run by the state. The responsibility for the day-to-day dealings with the prisoner rest with the prison authorities, in this case the private contractor running the prison.
101. There was some argument before me as to whether the responsibility for sentence planning rested on the offender manager (an employee of NOMS and therefore not an employee of the prison) or on the offender supervisor (an employee of the prison). Mr Hodivala submitted that from two years prior to tariff onwards the responsibility for the sentence planning rested with the offender manager, thereby seeking to pass responsibility for that away from the prison. I was referred to PSI 19/2014 "Sentence Planning". Mr Hodivala relies on paragraph 1.9 which provides as follows:

"For life sentence prisoners, the following applies:

NPS offender managers in the community must produce the initial assessment and sentence plan

custody based offender supervisor's must oversee delivery and review the assessment and sentence plan during the custodial period

NPS offender managers in the community must prepare the assessment and plan in line with the generic parole process timetable, prior to release, and complete them post- release"

102. Mr Rule sought to rely on paragraph 2.18 of the same PSI which provides

"Where the offender is in custody, offender managers and offender supervisors are required to participate in sentence plan review is for all NPS-allocated cases."

He submitted that the responsibility is a joint one and that, in any event, the prison has the ultimate responsibility. Wherever the actual responsibility for the sentence planning lies, (and I make no decision in relation to that), it is clear, in my judgment, that the duty to deliver the sentence plan including the duty to provide such opportunity as is reasonable in all the circumstances to rehabilitate the prisoner must rest with the prison, and of course with the Secretary of State.

103. Insofar as Mr Hodivala argued that I should not find any obligation to undertake individual work because the risk was that a private prison would find itself in a position of having to consider assessing prisoners for one-to-one work in order to avoid the risk of being sued, even though the prison's contract with the Secretary of State allowed only for provision of accredited courses, I reject that submission for the reasons already given.
104. For the reasons set out earlier in my judgment, the claim that the defendnats were in breach of relevant public law or ECHR duties to facilitate the Claimant's rehabilitation has failed on the merits, and this claim for judicial review must be dismissed.