Miscarriages of JusticeUK

Hyrone Hart Defeats Governor of HMP Whitemoor & Chris Grayling

''I will have the truth uncovered and the real perpetrators brought to justice'

Hart v Governor of HMP Whitemoor [2014] EWHC 3913 (Admin) (24 November 2014)

1. On 21 December 1999 Hyrone Hart, the Claimant, was sentenced to life imprisonment. He is a Category A prisoner and the term he must serve ("tariff") before he is eligible to be considered for release will not expire until 2027.

2. He is currently held at HMP Whitemoor, ("the prison"), and in August 2012 a decision was taken by the prison that he should be the subject of Safeguarding Children Measures, ("SCM's"). These impose restrictions upon any contact he may have with children, whether his own or not. This review seeks to challenge the validity of that decision. Permission to seek this review was not opposed by the Defendant.

3. Mr. Hart has been convicted of two offences of murder, two attempted murders, two robberies and three offences of the possession of firearms and offensive weapons.

4. On 25th June 1998 the Claimant and another man killed a woman in the presence of her husband and two small children. They forced their way into her home, armed with a gun and a knife. It may have been that they believed she was involved in drug dealing. Whilst in the house, they restrained the man and woman by tying them up. They made the children lie under a mattress whilst they stole items of jewellery and on leaving, the Claimant shot the woman, killing her, he also fired at, but missed, the man.

5. Less than a month later, on 17th July 1998, the Claimant went to a house where the victim of the second murder lived with his partner and young child. Following an argument the Claimant shot and killed the man.  Hyrone Strongly contests this version of events, see end of transcript*

7. From his incarceration for these offences, and in particular from the date of sentence on 21 December 1999, until February 2010 the Claimant has been held in a number of different prisons. There had been no extraordinary restrictions upon his contact with children. >From 2004 until February 2010 he was in HMP Whitemoor without any extra restrictions. In February 2010 he was informed of that prison's decision to make him the subject of SCM's. He was then transferred to HMP Full Sutton and on to HMP Frankland. Those prisons did not implement the SCM's. HMP Full Sutton, at least, had carried out an assessment and concluded such measures were not necessary. They were actively imposed on his return to HMP Whitemoor in August 2012.

8. The Claimant has made at least one application for contact with his daughter, niece and nephew.

9. The Defendant (Governor of HMP Whitemoor and Secretary of State for Justice) is bound to apply the procedures laid down in the Public Protection Manual, Chapter 2 Section 2, Child Contact Procedures, version 4.0 January 2009, "the PPM", which governs contact permitted between inmates and children. Paragraph 1 identifies the purpose as providing,

"…information and statutory guidance relating to the assessment of the level of contact that prisoners who have been convicted of or charged with an offence against a child or have a previous conviction for an offence against a child which includes offences of violence, sexual offences, neglect and abuse, who present an identified risk of harm (Risk to Children) must have with children and young persons which are held in custody."(sic)

The manual goes on to set out the over-riding principle that the welfare of the child is paramount, that contact must be in the child's best interest and that contact includes telephone calls and correspondence as well as visits by the child to the inmate.

10. Procedures are laid down and described as being necessary before permitting contact with children. The first step is the identification of relevant prisoners,

"Establishments are required to identify prisoners who have:-

Been convicted or charged with a sexual offence against a child

A previous conviction for a sexual offence against a child

A conviction or charge of murder or assault against a child

A charge or conviction involving domestic violence or abuse where a child was involved

A charge or conviction where emotional abuse or neglect of a child was involved

Displayed any behaviour whilst in custody indicating the prisoner presents a risk to a child

Information has been received from other agencies about the risk that the prisoner presents"

Having identified the prisoner as falling into one of the above, the prison is then required to commission "a multi-agency risk assessment" to determine, what, if any, contact should be allowed. Paragraph 3.2 of the PPM sets out the following,

"We have a duty to ensure that prisoners who represent a risk to children do not have contact with children prior to the completion of a full risk assessment."

Children are divided into two categories by the manual; "immediate family or children" and "other children". "Immediate family or children" include a prisoner's own children, a partner's children, (if they were living together in an enduring family relationship) and brothers, sisters, grandchildren, step children, adopted children and foster children. Nephews and nieces are not included in the category of immediate family; they are therefore identified as "other children". In order to have contact with "other children" the prisoner must "produce a substantial case for contact" and the Governor or Director of contracted out prison (sic) agrees that such contact would be in the interests of the child and only after a full risk assessment had been carried out. Such contact must be supported by the Parent/Carer, Social Services/Children's Services, Police and the Offender Manager Probation.

The Decision by Defendant
15. After his return to HMP Whitemoor on 22 August 2012 the Claimant was informed that the IRMT had decided that he posed a risk to children whilst in custody and at an Interdepartmental Public Protection Panel (IPPP) the decision was taken to make him subject to SCM's. The basis for that decision was set out in a letter and expressed as follows,

"Due to the circumstance of the offences that Mr Hart has been convicted of where children were present in the property, he has been assessed as a medium risk of harm to children in the community in his OASys………..Due to the nature of his index offences has been convicted of murder with the presence of children in the vicinity of the crimes. They will undoubtedly have been traumatised from their experience and therefore Mr Hart does present a risk to children." (Emphasis added.)

No further reasoning was given and the issue of the risk that the Claimant posed to children, whilst in custody, was not addressed further.

The Argument in Court

18. The Claimant Hyrone Hart relied on three fundamental submissions,

a. That the imposition of SCM's has a significant impact on the rights of any prison inmate,

b. That although such a course is undoubtedly necessary in certain cases, the denial of right must be a proportionate to the risk of harm it is intended to prevent and

c. That the risk must exist in reality. In this case the Claimant submits that whatever risk he might be deemed to pose to children, if at liberty, he presents no appreciable risk whilst incarcerated.

He further submits that the Defendant's process was flawed in material respects in that,

a. The offences for which he is serving are not a proper trigger for the process of considering the imposition of SCM's,

b. Even if that proposition is wrong and they did trigger the process there is no continuing risk so long as the Claimant is in custody and

c. He seeks support for the above from the fact that a number of other prisons, even when they carried out the assessment exercise, did not find that the Claimant presented such a risk.

19. The Defendant (Governor of HMP Whitemoor and Secretary of State for Justice) contend,

a. It is not a necessary requirement that the index offences should have been committed against children and the fact that these offences were committed in the presence of children is capable of being enough of a trigger,

b. That the fact that the other prisons were in error in not reaching the same conclusion as the defendant does not render its decision unlawful and

c. That the Claimant's interpretation of the PPM is too narrow and restrictive and if applied universally would cause the Prison Service to fail in its objective to satisfy the over-riding objective of protecting children.

The Courts Conclusion
20. Each claim of this kind must turn on its own particular facts. It is obvious that the denial of a right to have contact with a child that is a family member is a serious step and one that can only be justified if the denial is proportionate to the risk of harm to be avoided or curtailed. It is further obvious that the denial of such a right can also be the denial of a child's right to family contact.

a. An offence which does not appear on Annex A may still be capable of being a trigger to the imposition of SCM's depending on all the circumstances, including physical proximity,

b. In cases where the crimes were not committed against or in relation to children there is no general rule to be gleaned simply from the seriousness of the offences,

c. That these offences, having been committed in the presence of children, could be triggering offences and the decision that they were cannot be said to be so arguably wrong or irrational as to be unlawful,

d. That if, the Defendant's decision was lawful it could not, on the facts of this case, be rendered unlawful by the failure of other institutions to follow the same line of reasoning,

e. The purpose of the rules is to ensure that the prison authorities take all necessary steps to avoid the risk of harm to children from inmates whilst in the custody of the prison,

f. That for the foreseeable future this Claimant presents a high risk of serious harm to the public on his release into the public, although that release cannot be considered before 2027 on his current tariff and

g. That, whilst in custody, he is, as the OASYs assessment makes clears, a low risk to children.

21. Accordingly it was not a proper decision on the facts of this case to find that the level of risk that the Claimant presents to children is such that it was appropriate or necessary to impose SCM's. This claim succeeds and the decision must be quashed.