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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hassett & Anor v Secretary of State for Justice  EWHC 3723 (Admin) (23 December 2015)
Cite as:  EWHC 3723 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PATRICK HASSETT AND SIMON PRICE
|- and -
|SECRETARY OF STATE FOR JUSTICE
Matthew Slater (instructed by TSOL) for the Defendant
Hearing dates: 14/10/2015
Crown Copyright ©
Mrs Justice McGowan :
i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.
ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.
iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.
iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.
v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.
vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.
vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.
viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.
ix) The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.
x) "Paper" decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.
xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.
xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness.
xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty.
i) CART is an internal, administrative body.
ii) It receives reports and submissions from the prison and the prisoner.
iii) CART assesses and then decides whether to categorise the prisoner as Category A based on the risk to the public if the detained person were to escape from custody during the sentence.
iv) The Parole Board deals with whether a person is released from custody or not.
v) The Parole Board is therefore a court for Article 5 purposes.
vi) The Parole Board is made up of persons from outside the prison service who are obliged to consider rehabilitation.
i) That the dispute of opinion between Ms Tock and Mr Matthews, expert psychologist witnesses, is sufficient to require an oral hearing to determine and
ii) That the prisoner has served 30 years in Category A, was at the date of the decision more than 8 years past the end of the tariff period and has never previously had an oral hearing
In his case there is a report dealing with the Claimant's contact with the Psychology Department compiled by Sharon Griffiths, that report is marked "this document is NOT A RISK ASSESSMENT and cannot be used to determine any reduction in risk". It is difficult to see what part that report should have played in the decision making process which is aimed only at deciding risk. Accordingly that cannot provide the support which the Claimant seeks. The Defendant had to consider the reports provided by Gemma Tock, who felt that Mr Hassett might, after further assessment, need to repeat some part of his SOTP (Sexual Offenders' Treatment Programme) and Rhys Matthews, instructed on behalf of the Claimant, who felt it was unnecessary as there was "no reason to suppose that further progress would be made".
The Claimant submits that this divergence or difference of opinion is enough to meet the test as is now set out in the new guidance at paragraph 4.7 (b). The test is whether "there is a real and live dispute on particular points of real importance to the decision". How wide the gap between the two experts actually is does not have to be determined by the court in this case. This is an expert panel who have experience of resolving these sorts of issues. The Claimant's position is protected by the instruction of his own expert and by the provision of submissions by specialist solicitors acting for him. It cannot be maintained that the refusal to allow him to actually participate in this process by his physical presence was unreasonable or that it operated to his disadvantage.
"The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute."
On the facts of this case it is difficult to see what Mr Hassett could have contributed to the debate. He would no doubt have expressed a genuine willingness to co-operate fully in future work. The issue to be determined was not his willingness to co-operate in the future but whether he was currently less of a risk if at large. It must be remembered that this is someone who still denies having committed the index offences. In addition, it cannot be reasonable that every prisoner should be able to participate, in the sense of an oral hearing, in every decision which has consequences for the conditions of their imprisonment. It was not unreasonable in the circumstances of this review that Mr Hassett was, at that stage, refused an oral hearing. That remains the position even though Mr Hassett has served a very long time already and has long ago completed the tariff portion of his sentence. The longer a term an individual has served is an important factor but it cannot be determinative. Such cases are primarily fact specific. This is in no way to diminish the importance of his desire to be present but that alone, in these kinds of decisions, is not sufficient to render a decision to refuse unreasonable.
i) That the level of dispute of opinion between the prison service psychologist experts and the psychologist experts instructed on behalf of the Claimant, is sufficient to require an oral hearing to determine,
ii) The alleged lack of insight on Mr Price's part, which gives rise to that dispute, could be better explored at an oral hearing and
iii) That because there is no way open to the Claimant to demonstrate a reduction in risk an impasse has arisen and therefore there should be a hearing. At the time of the claim he was likely to have been released in December 2016. The position has now changed and the additional sentence for the confiscation element of his offence now means he still has a considerable amount of time to serve.