Neutral Citation Number: [2009] EWCA Civ 669
Case No: C1/2009/0077
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
(ADMINISTRATIVE COURT)
PLENDER J
CO/878108
Strand, London, WC2A 2LL

Date: 09/07/2009
Before :

LADY JUSTICE ARDEN
LADY JUSTICE SMITH
and
MR JUSTICE RICHARDS
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Between :

	THE QUEEN on the Application of MACKENZIE	Appellant	
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	SECRETARY OF STATE FOR JUSTICE	Respondent	
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 (Transcript of the Handed Down Judgment of
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Phillippa Kaufmann & Alison Gerry (instructed by Messrs Irwin Mitchell) for the Appellant
Parishil Patel (instructed by Treasury Solicitors) for the Respondent

Hearing date : 31 March 2009
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Judgment
Lady Justice Arden : 
1.	Mr MacKenzie is currently serving a discretionary life sentence at HMP Frankland.  Recently he has sought reclassification as a Category B prisoner on the grounds that following medical treatment he now presents a lower risk.  Reclassification would enable him to take courses which would facilitate his application for release, and he has little prospect of release unless he completes these courses.  Mr Mackenzie’s request was turned down on two occasions by the Director of High Security Prisons ("the Director").  Before the judge, Plender J, Mr MacKenzie sought unsuccessfully to challenge these decisions by way of judicial review.  In my judgment, the challenge should have succeeded on the basis that the Director had failed to take into account material evidence placed before him.  That evidence was in substance expert evidence suggesting that, following his treatment, namely surgical removal of the testicles (orchidectomy), Mr MacKenzie was unlikely to pose a high level of risk.   
Detention and classification of prisoners – legal framework
2.	Pursuant to section 12 of the Prison Act 1952, a prisoner may be lawfully confined to such prison as the Secretary of State directs. Under section 47 of that Act, the Secretary of State may make rules for the classification of prisoners. Rule 7 of the Prison Rules 1999 provides that:
“(1)  Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3.”
3.	 One of the purposes of imprisonment is rehabilitation into the community.  Rule 3 thus provides:
“The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life.”
4.	HM Prison Service has issued guidance entitled Categorisation and Allocation (Prison Service Order 0900), which came into force on 1 September 2000. This guidance emphasises the importance of categorisation. It states that the purposes of categorisation include actively assigning prisoners to the correct security category and ensuring that prisoners are not held in conditions of security higher than are necessary (para.3). Chapter 1 deals with categorisation and allocation of adult males. It sets out certain definitions of the security categories, including Category A and Category B:
“Category A  
Prisoners whose escape would be highly dangerous to the public or the police or the security of the state, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible.
Category B
Prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult.”
5.	Chapter 1 also sets out the principles of categorisation. Para. 1.2.1 states that prisoners must be categorised objectively according to the likelihood that they will seek to escape and the risk they would pose should they do so. There is then special guidance in relation to prisoners who do not present a high risk of escape but whose custodial behaviour requires a higher category. The paragraph then states that "The security category must take account of the above considerations alone".   Reference is then made to the Security Manual for the criteria against which eligibility for Category A status must be considered.
6.	The Security Manual explains that Category A prisoners are classified according to escape risk.  Standard Escape Risk is amplified as follows:
“They are not considered to have the determination and skill to overcome the range of security measures which would apply to the custody and movement of Category A prisoners. There is no current information to suggest that they have external resources which could be used to assist them to overcome those measures. They have no history of escape or determined escape planning. Even so the Prison Service must assume that they would take any opportunity to escape and that, if unlawfully at large, they would pose a very serious threat to the public, the police, or the security of the State."
7.	I need not refer to other escape risk categorisations in this case. The Security Manual then deals with reviews of security category.  Provision is made for an annual review of security category after sentence. After the first annual review, Category A prisoners must have their security category reviewed at least annually. Para.2.10 states:
“The recommendation must be completed by either the Governor or Deputy Governor who must make a clear recommendation in every case as to whether or not the downgrading of security category should be considered. He/she must ensure that any representations received from the prisoner had been addressed by the Local Advisory Panel on or before the recommendation is made and sent to the Category A Review Team.[‘CART’]”

8.	Any recommendation made at local level, whether supported by CART or not, for downgrading a prisoner is referred to the Director. The Director can seek the advice of an Advisory Panel consisting of the Head of Resettlement Programmes Group, Police Advisers Section Commander, Head of DHS Operations Unit, Head of CART and himself. 
9.	The Security Manual annexes an information sheet for Category A prisoners on categorisation procedures. This states that on the annual review:
“the Director (or, if appropriate, the Head of [CART]) will consider all available information, including any representations, relevant to the determination of your security category and escape risk classification. Account will be taken of all matters including the nature and circumstances of the present offence(s), any relevant offending history, participation in and progress made with offence-related work, custodial behaviour and maturation. Before making a decision for downgrading from Category A the Director will need to be satisfied that a prisoner’s level of dangerousness has diminished, in particular that there has been significant reduction in the risk of re-offending in a similar way if unlawfully at large. ”
10.	It will be noted that the process of review concentrates on the risk of escape. If a prisoner were to escape, he would be unsupervised and thus what has to be assessed is not behaviour in the community when supervised but the risk that he would escape and not have the benefit of supervision. This distinction was made by Judge LJ, giving the judgment of this court in  R(Williams) v Secretary of State for the Home Department [2001] 1 WLR 2264, 2271-2:
“24. The critical difference between these two decision-making processes in cases involving discretionary life prisoners is readily identified. Release on licence is a formal step. It means what it says. The release can be and generally is made subject to supportive measures as well as stringent conditions such as supervision or treatment, or both. The released prisoner is normally subject to a measure of immediate and continuing control. In the event of non-compliance, the licence is revocable.
26.  The category A committee is concerned with the risks posed to the public by a prisoner who escapes, something which may occur unexpectedly, at any time. If he escapes, and while he remains at large, the prisoner is uncontrolled and unsupervised, temporarily, at least, untraceable, on the run, subject therefore to the inevitable increased stresses on an individual who, by definition, has not yet satisfied the DLP [Discretionary Lifer Panel of the Parole Board, which considers suitability for parole] that it would be safe for him to be released on licence.
27.  In summary, the DLP is concerned with the protection of the public following a supervised conditional release of the prisoner, whereas the category A committee or review team concentrate on the risks to the public posed by an escape. This is a difference of substance…. ”
11.	Parliament has entrusted the merits of the decision on re-categorisation to the Secretary of State. The Secretary of State has set out his policy and procedures in the documents to which I have referred.  Mr Mackenzie is entitled to expect that the published policy and procedures will be applied in his case. In this regard, it is to be noted that one of the purposes of re-categorisation is to ensure that prisoners are not held in conditions of security higher than are necessary. Assessment of the security categorisation turns on escape risk classification and the other matters set out in the passage from the Security Manual quoted above. On escape risk, Mr Mackenzie has to satisfy the Secretary of State that there has been a significant reduction in the risk of his committing further similar offences if he were to escape.  If the decision of the Secretary of State is against him, and he can demonstrate that the decision is unreasonable, judicial review is available. Mr Mackenzie is also entitled to expect procedural fairness in the consideration of his case.  He is thus entitled to have his evidence and arguments in favour of re-categorisation considered.  On normal judicial review principles, it is for the decision maker to indicate that this has been done.   These principles of procedural fairness are all the more important where a prisoner has been held for as many years post-tariff as Mr Mackenzie.
Background
12.	Mr Mackenzie is now 63 years of age. In January 1991 Mr Mackenzie was convicted of two offences, one of rape and one of abduction with intent to rape, against two teenage girls who were both under sixteen years of age.  He was sentenced to a discretionary life sentence with a minimum term set at 8 years for the rape, and a concurrent 12 year determinate sentence for the second offence. The minimum term expired in September 1997.
13.	Since sentence, Mr Mackenzie has completed a number of programmes.  In particular, in 1993, Mr Mackenzie commenced the core sex offenders treatment programme, known as "SOTP", but found it difficult because of reading difficulties and so went on to complete the adapted SOTP in 2003. He also completed the Enhanced Thinking Skills course ("ETS"), attended the Adapted SOTP Graduate group and the Adapted Better Lives Booster programme (“ADBLP”). He has also completed other non-specific offending behaviour related courses.  His behaviour in prison is satisfactory and he has not had an adjudication since 2006.
14.	In 2005 Mr Mackenzie had a hip replacement. Later that year he was diagnosed with prostate cancer. In March 2006 he underwent surgery for this condition, which involved the removal of his testicles. An important part of  Mr Mackenzie’s case is that as a result of this surgery he has experienced a loss of libido and sexual functioning, and that his risk of re-offending has consequently reduced. 
15.	In October 2005, an expert’s report was obtained from Dr David Payne-Smith, an independent chartered forensic psychologist in preparation for a forthcoming parole review. Dr Payne-Smith opined that the risk posed to society if Mr Mackenzie was released at that point was “still considerable, although reduced by age, infirmity and his garnering of psychotherapeutic input”.  However, while he considered that release was still some way off he recommended that Mr Mackenzie should “progress through the system to a Category B establishment, with perhaps a further progression to Cat C at the next review”.  The panel of the Parole Board was not empowered to deal with re-categorisation and in the circumstances they did not recommend parole or a move to an open prison but the panel concluded that if Mr Mackenzie’s progress was to be tested, he would have to move through the prison system.  
16.	In August 2006, Ms Lisa Burton, a chartered forensic psychologist, carried out a Structured Assessment of Risk and Need (Sexual Offending) (“SARN”) on Mr Mackenzie. Ms Burton was not able to interview Mr Mackenzie for the purposes of her report. However, she was the author of a previous SARN report on Mr Mackenzie in 2003, and was Mr Mackenzie’s supervisor for the ADBLP.  She therefore had some personal experience of Mr Mackenzie. She noted that he had begun the process of addressing his offending behaviour. The risk, however, of his re-offending was assessed as being in the medium range. The only recommendation that could be made was that he would have to remain in high security conditions because the adapted programmes which he required to make further progress were not available.  I would observe that that is a very sorry conclusion to have to reach about any individual, but Mr Mackenzie seeks no relief in respect of this matter on this appeal.
17.	In March 2007, Mr Mackenzie’s solicitors instructed Dr R W K Reeves, a consultant forensic psychiatrist, to conduct a further risk assessment with particular focus on Mr Mackenzie’s health and the consequences of his cancer treatment. Dr Reeves described Mr Mackenzie’s appearance when he came to interview him:
“An unfit looking man, who came in using a stick. He was overweight, weighing 17 stone and he told me that he easily became breathless and suffers from angina and hypertension…Having watched him walk in I got some idea of his physical state, I thought he was now a very unlikely rapist.” 
18.	Dr Reeves opined:
“I do not consider Mr. Mackenzie is a whit dangerous and I seriously doubt if he was dangerous any longer even before the orchidectomy. I say that simply because I do not see him being in a position, as he was before.”
19.	Dr Reeves noted that Mr Mackenzie will not have to work and will not be subject to stress. He also noted that Mr Mackenzie fully accepts that he is an alcoholic and is emphatic that he will remain dry. Furthermore:
“since the situation last March he claims he cannot get an erection at all. His libido is gone. He knows that aspect of his life is over…All the evidence is that he is not the same person who arrived at the prison all those years ago.”
20.	Dr Reeves concluded that in his view Mr Mackenzie “should move on through the system as quickly as possible” and recommended that it would be wise for him to go through an open prison so that he could be tested with alcohol. He ended by repeating his early comment that Mr Mackenzie was “a very unlikely future rapist”. 
21.	Dr Reeves added a coda to his report:
“The research
In some countries, particular parts of Europe, castration has been offered to sexual offenders and there has been subsequent follow-up. There is a good resume of this in Dr Richard Rosner's Principles and Practice of Forensic Psychiatry. This is an American textbook with many contributors… the section dealing with castration states:... In Europe surgical castration was used as a biomedical intervention for dealing with sexual offenders who had high rates of recidivism - these being mostly rapists and paedophiles. Offenders were followed up for long periods whilst their recidivist rate was monitored. Overall studies showed a dramatic reduction in recidivism rates, the follow-up periods ranging from 5 to 20 years whilst at risk in the community. Post-castration rates of recidivism [were] reported as less than 5% during follow-up in most studies compared to a pre-castration rate of over 60%. A reduction in recidivism in the post-castration period is likely the direct result of a reduction of total testosterone levels and the consequent effects on sexual behaviour…. A number of authors are mentioned some from Denmark and Germany. One author reports the recidivism rate for castrated offenders is 2.3% compared with 8% in an untreated group and studied for up to 20 years. Another author reported that the recidivism rate fell to 4.1% in castrated offenders compared to 75% in those uncastrated over a five-year period. Another author reported a 3% recidivism rate in castrates and 46% in non-castrates followed for11 years. Other authors reported similar findings in their follow-up studies... also, a paper by professors David Crichton and Graham Towl, entitled Experimental Interventions for Sexual Offenders - a Brief Review of the Efficacy. Prof Towl is the chief psychologist at NOMS at the Home Office. I quote the physical treatments show higher effects. This was due largely to a single study of surgical castration that showed a very large homogenous effect. Hormonal treatments however showed more marked positive effects than any of the psychosocial interventions received… the findings also suggest the need for a degree of heterogeneity treatment approaches [sic] involving a mix of physical and psychological treatments.”

22.	This research suggests that orchidectomy has a profound effect on the risk of committing further sexual offences and that on the face of it its effect is not limited to sexual offences involving penile penetration.
23.	On 1 August 2007 the Local Advisory Panel (“LAP”) at HMP Whitemoor reviewed Mr Mackenzie’s security category and recommended that his security category be downgraded to Category B.  The report listed the courses that Mr Mackenzie had completed and described him as “motivated to engage in sentence planning”. The report also made reference to the medical reports which stated that the orchidectomy would leave Mr Mackenzie impotent and with a loss of libido. However, the Panel was uncertain whether the effect of the loss of the libido diminished the risk of offences involving penile penetration as opposed to the risk of sexual offending in general.
24.	On about 17 October 2007 the Director communicated his decision not to downgrade Mr Mackenzie’s security categorisation to Category B.  The Director referred to Dr Reeves’s report though not to the research summarised in the coda to his report.  The reasons given by the Director mainly focused on whether Mr Mackenzie had achieved progress in addressing his core risk factors.  As to the effect of his orchidectomy, the Director simply noted Mr Mackenzie's representations that his risk had been reduced through his recent surgery and said that he “had no conclusive evidence to show that was the case."   Subsequently to this decision, in March 2008, there was a recommendation at local level that Mr Mackenzie should remain a Category A prisoner until a further course had been undertaken.
25.	In June 2008, the Director communicated his further decision taken on 14 May 2008 not to downgrade Mr Mackenzie’s security status to Category B.  Although this is not a matter which forms the basis of the current application, it is to be noted that he records that Mr Mackenzie is effectively in a Catch 22 situation (my words) because he has been recommended for further specific work but this work is not currently available for him to undertake.
26.	The critical passage in the second decision letter reads as follows:
“The Director also carefully considered the information relating to Mr Mackenzie's health and mobility, and the effects of his recent orchidectomy. He was however not persuaded that this information provided convincing evidence that Mr Mackenzie could not or would not commit further violent sex offences. 
The Director noted that medical evidence from 2006 that Mr Mackenzie's orchidectomy may have caused impotence and loss [of] libido. He also noted Mr Mackenzie's claim, which had been accepted by the independent psychiatrist in 2007, that he is impotent and has no libido. 
The Director does not however accept this provided conclusive evidence that Mr Mackenzie's capacity to violently sexually reoffend had been eliminated. He considered that impotence itself did not prevent an offender from committing a violent sex assault, and the anger arising from such a situation could even enhance an offenders potential to reoffend. He considered that not all sex offending was motivated by libido, and is a need for affection could be potential motivation.
An example was also provided by the panel of a psychiatric patient in a secure ward who had been receiving a high dosage of anti-libidinal drugs, but had continued to acknowledge sexual fantasies and had reoffended during a release period. ”
Judgment of the judge
27.	In his judgment given on 19 December 2008, the judge first rejected the submission made on Mr Mackenzie’s behalf that Mr Mackenzie’s application engaged art 5(4) of the European Convention on Human Rights (“the Convention”) and accordingly the standard to be applied on judicial review was not that of reasonableness in the Wednesbury sense but that of anxious scrutiny.   Art 5 provides in material part: 
“Article 5
Right to liberty and security
1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)     the lawful detention of a person after conviction by a competent court;…
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
28.	The judge held that Mr Mackenzie’s case fell outside art 5(4) of the Convention on the ground that that article did not apply to the case of the accommodation within confinement that a prisoner will face but rather to the question of whether he shall be confined.  Accordingly art 5 did not establish any different standard for judicial review.
29.	The judge then summarised the reports of Ms Burton and of Dr Reeves.  He noted however that another report suggested that Mr Mackenzie still had some outstanding treatment needs concerning his sexual pre‑occupation and interest with teenage girls, and that there was a tendency on his part to minimise his responsibility. The judge concluded: 
“14.     I revert to the test to be applied by this court. On an application for judicial review it cannot be for this court to determine whether the Director's decision is one that a judge would take. It may be that a judge would be prepared to take a risk that a director would not be prepared to take. That alone is not sufficient to justify the grant of an application for judicial review. What must be shown, as I indicated earlier, was whether the decision was one that it was not open for the Director rationally to take on the evidence before him. Having regard in particular to what the psychiatric report said about the applicant's pre‑occupation and interest with teenage girls, about his tendency to minimise responsibility and about his adjudication for violence, I am entirely satisfied that there was before the Director evidence upon which he could rationally take the decision which he did. ”
Discussion
30.	Miss Phillippa Kaufmann, for Mr Mackenzie, presented a detailed argument to the effect that the judge applied the wrong standard of review and that as the matter related to Mr Mackenzie's right to liberty the judge should have scrutinised the decisions of the Director in the exercise of the court’s supervisory jurisdiction with anxious scrutiny rather than apply the conventional standard of Wednesbury unreasonableness or perversity. She further submitted that in any event it was not open to the judge to conclude that the decision of the Director was not perverse on the basis of the three factual matters mentioned by him in the passage from his judgment quoted above because at least two of those grounds were not grounds on which the Director had himself relied.  In my judgement, that latter submission is correct. It was not open to the judge to conclude that the decisions of the Director were not unreasonable on grounds that the Director did not himself give. The judge had to consider whether the Director’s decisions met the test of reasonableness on the grounds that he himself gave.
31.	Mr Parishil Patel, for the Secretary of State, submits that, as this case concerns the conditions of detention rather than the fact of detention, this is not a case for anxious scrutiny. He further submitted that the decisions of the Director were rational and open to him on the evidence. In any event, the judge was correct to hold that the Director was not satisfied that Mr Mackenzie had established a sufficient reduction in his risk level for him to be downgraded. The decisions of the Director were not irrational. Mr Mackenzie had made insufficient progress and work was still required to address his risk factors.
32.	I do not myself consider that it is necessary to ask what test of reasonableness the judge was bound to apply. To determine the correctness of this submission it would be necessary to consider the effect of the recent decision of the House of Lords in R (Walker) v Secretary of State for Justice [2009] 2 WLR 1149, delivered after the hearing of this appeal.  The decision of the Director was flawed on any basis. It is clear that one of the most important elements in Mr Mackenzie's case was that his orchidectomy, that is, his surgery, had materially altered the risk of his committing further serious sexual offences if he were to escape. As I have explained, the Director barely dealt with that part of his case in his first decision.  By inference that was one of the reasons why he agreed to reconsider his decision. 
33.	By contrast, in his second decision, he dealt with the question of the effect of the orchidectomy at some length. However, in doing so, he took the position that the evidence did not show that the risk had been eliminated. Furthermore, he demonstrated that he did not take into account the physical effect of orchidectomy, as opposed to the psychological causes of sexual re-offending. This is put beyond doubt by his reliance on the example of a case in which a psychiatric patient (by inference, also a person convicted of serious sex offences)  had been treated with anti-libidinal drugs but had gone on to reoffend.  In any event, no proper particulars of that case were given.   This may have been a case mentioned to the Director orally at an Advisory Panel meeting. The case does not appear to have been subjected to professional analysis so that the Director could be properly instructed as to whether or not it was a relevant example. 
34.	I am driven to conclude that the Director did not consider the argument put forward by Dr Reeves in his coda that the surgical effects of orchidectomy achieve a far higher level of certainty about the prospects of re-offending.  He has thus failed to engage with the case being put forward by Mr Mackenzie in a significant respect.  Moreover, while this point is not essential to my conclusion, his failure to do so may undermine his assessment of risk in other respects. 
35.	In the circumstances, in my judgment, the decisions of the Director must be quashed and the matter reconsidered by him. That is not to say that he will necessarily make a new decision in Mr Mackenzie’s favour.  That remains to be seen.  As the judge said, the court does not substitute its decision for that of the decision maker chosen by Parliament. On the other hand, the court will review whether his decision-making processes take proper account of the representations and evidence placed before him by Mr Mackenzie.
Disposition
36.	For the reasons given above, I would allow this appeal, quash the decisions of the Director of High Security in this case of 11 October 2007 and 14 May 2008 and remit the matter to him for further consideration.
Lady Justice Smith
37.	I agree.
Mr Justice David Richards
38.	I also agree.