Sexual offender prisoners were unlawfully denied certain privileges under prison rules
17 April 2012
R (on the application of Ian Shutt and John Tetley v Secretary of State for Justice (2012)  EWHC 851 (Admin) – read judgment
Hard on the heels of MP comes another case on the unlawful restriction of discretion with regard to prison rules (see my post on that decision). This case concerned national policy relating to prison incentives and the earned privileges scheme (IEP). The scheme gave enhanced status to convicted sex offenders who had been assessed as unready for a sexual offences training programme.
Both men were serving substantial determinate sentences in the Isle of Wight after having been convicted of serious sexual offences against children. Despite the fact that they had been assessed as suitable for the training programme under the national IEP policy, there was a points system under the local prison policy which meant that convicted sex offenders such as the claimants were considered unready for the programme by reason of continued denial of their offences. As the claimants refused to admit their guilt, they could not accrue enough points to attain enhanced status. The national IEP policy stated that unreadiness for such a programme “could” bar a prisoner from obtaining enhanced status. The issue was whether that amounted to a blanket ban, and if so, whether it was unlawful.
The claimants’ application for judicial review of the prison governors’ decision was granted.
The court’s reasoning
The natural meaning of the word “could” in the national IEP policy was that a prisoner in the same situation as the claimants could be denied enhanced status, but that such denial would not be automatic. Thus there would need to be an informed decision as to whether a particular sex offending prisoner in denial and therefore unready, should be refused enhanced status. Each case had to be considered individually even though denial of enhanced status would be the likely outcome in the vast majority. A local policy such as the one operated at HMP Isle of Wight (Albany), which excluded any element of discretion as to eligibility for enhanced status, applied equally to any sex offender with a sexual offences training programme as a target and who was in denial. It took away all discretion from the decision-maker and therefore operated as a blanket ban.
Such cases ought to be looked at on an individual basis even though, in the vast majority of them, the result was still likely to still be a refusal of enhanced status. So even though on the facts there had been no injustice to either of the claimants, the application of the unlawful policy to them had to be addressed. As Judge Belcher said:
… in this case I am not dealing not with a decision as to whether to award Enhanced status to a particular prisoner, but on the contrary a situation where no decision is in fact made on that issue because of a blanket bar in the local policy.
Whilst fully mindful that the prison service should be able to make operational decisions without undue interference from the court, the judge felt constrained to come to the conclusion that a local policy which excludes any element of discretion in the decision making process as to whether an “Unready Denier” should be denied Enhanced status was unlawful.
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When I have encountered this problem I have considered that denial of an offence might arise from three distinct possibilities :
1. One, that the prisoner’s denial is true (as in the case of wrongful convictions) and that, if they were to say that they are guilty the they must lie.
2. Two, that the prisoners ’s denial is false and that they know that this is so. In this case they continue, for their own reasons, to protest their innocence. That is they lie.
3. Three, that the prisoner’s report that they did not commit the offence is false but that they are in state of ‘denial’ used in a narrow psychological sense whereby they are not able to bring to consciousness information about their committing the offence. In this case although the prisoner does not tell the truth, they do not lie.
In each of these possibilities the authorities might wish to consider the impact on the degree of perceived risk that the prisoner can be seen to present. The first possibility would almost certainly reduce the degree of perceived risk. The second would increase the degree of perceived risk to the degree that the prisoners motivation for denial was not known. In the third case the degree of perceived risk need not be significantly changed.
The same problems arise when it comes to parole. The inmate maintaining his innocence usually fail to get out at that point.
Of course, because they are not facing up to an taking resposibility for their offences, which will have severely damaged their victims. Very often sex offenders try to portray themselves as the victimsthu competely abrogating reponsibilty.
I am afraid I have to disagree with Belcher J, here. One of the most important factors, if not the most important, in assessing readiness for sex-offender treatment is the willingness of individuasl to admit their responsibility fore their actions. It seems bizarre to me that any such offender should be granted enhanced prisoner status whilst contiuing in denial. Such status, would, in effect, be rewarding their intransigence. In my opinion a blanket ban is entirely reasonable and justifiable. In this context ‘could’ is a subjunctive and does not mean can or will. If it conlicts with local rules it is purely a hypothetical subjunctive and therefore requires no axtion.
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