Cannan v HMP Full Sutton

A prisoner's refusal to undertake sentence-planning courses designed to reduce reoffending may rationally justify withholding enhanced privileges, even where the prisoner denies the convictions and the course may require an admission of guilt. The decision must nevertheless be assessed in the individual circumstances. There may be a stage at which requiring participation becomes unreasonable or irrational, particularly where compliance is known to be impossible. Relevant decision-makers may attach limited weight to old, incomplete or unrecognised therapeutic work and pastoral meetings when compared with recognised risk-reduction programmes. A refusal of enhanced status in these circumstances is not disciplinary punishment. Article 3 requires treatment of sufficient severity or intensity, and Article 8 requires a proper basis for concluding that private or family life has been infringed.

The claimant, a category A prisoner serving a life sentence, challenged the Governor's decision to retain him at the standard level under the Incentives and Earned Privileges Scheme. He had persistently denied the offences of conviction and refused to apply for Enhanced Thinking Skills and a Sexual Offenders Treatment Programme, which formed part of his sentence planning. He relied on previous therapeutic and pastoral work, psychological reports, alleged irrationality, lack of independence from prison discipline, and Articles 3 and 8 of the European Convention on Human Rights.

Permission for judicial review was initially refused on the papers but granted on renewal. Following a further review, the central issue was whether maintaining standard status was rational and reasonable in all the circumstances.

1. The claim was dismissed. The decision to retain the claimant at standard status under the Incentives and Earned Privileges Scheme was rational and reasonable.
2. The court followed Potter v Secretary of State for the Home Department [2001] EWHC (Admin) 1041. It was not intrinsically unfair, unreasonable or irrational to require a convicted prisoner to apply for and, if accepted, undertake a course intended to reduce reoffending, even where he denied guilt and participation in a later course might require an admission of guilt. Refusal to grant enhanced status for declining such a course could likewise be rational.
3. The principle was not absolute. The circumstances of the particular prisoner had to be considered. The court accepted that a stage might arise when a persistent and entrenched denial made it inappropriate or irrational to require participation. That stage had not been reached. ETS did not itself require an admission of guilt; the claimant's position might change; the scope of any admission required for SOTP remained open to discussion; and release on licence was at least possible when the tariff expired.
4. The decision-maker was entitled to give little or no weight to an incomplete and old therapeutic assessment, pastoral meetings, and conflicting expert evidence. Those matters did not displace the need identified through sentence planning for recognised risk-reduction courses. The claimant's refusal to comply with valid targets was a proper reason for withholding enhanced status. The refusal was the loss of a privilege through non-compliance, not punishment or a disciplinary decision.
5. The prison authorities were entitled to determine the terms on which psychological interviews were conducted and rationally refused interviews subject to conditions dictated by the claimant concerning tape recordings.
6. The Article 3 claim failed. Under Ireland v United Kingdom (1980) 2 EHRR 25, ill-treatment had to reach a minimum level of severity, and mental suffering required sufficient intensity. The evidence did not establish that threshold. The Article 8 claim also failed; neither Norris v Ireland [1985] 44 DR 132 nor Norris v Ireland (A/142) (1991) 13 EHHR 186 provided a basis for finding an interference with private or family life.

The court found no unlawful connection between discipline and IEPS, made no order for costs unless contrary written submissions were received, and declined to determine complaints concerning decisions predating June 2008.

Permission for judicial review was refused on the papers by Sullivan J on 21 May 2007, but granted on renewal by Underhill J after an oral hearing on 30 October 2007. The Administrative Court then dismissed the substantive claim.