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||Neutral Citation Number:  EWHC 106 (Admin)
||Case No: CO/1760/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR JUSTICE WILLIAM DAVIS
||- and -
||Secretary of State for Justice
Mr Hugh Southey QC (instructed by Kyles Legal Practice Ltd) for the Claimant
Mr David Pievsky (instructed by GLD) for the Defendant
Hearing dates: 15 December 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice William Davis:
- The Claimant, Stuart Morgan, is a serving Category A prisoner and has been since 1996 when he was convicted of murder. He has served his entire sentence at HMP Frankland. His minimum tariff period to meet the requirements of retribution and deterrence was set at 20 years. This period will expire on 21 February 2016. He seeks judicial review of the decisions of the Defendant's Category A Review Team ("CART") to refuse to recategorise him from Category A to Category B and to refuse to grant him an oral hearing prior to the making of the categorisation decision. It is said that the categorisation decisions should be quashed and that there should be a declaration that the Claimant is entitled to an oral hearing when his categorisation is reviewed. He also claims that he has not been provided with proper opportunity to undertake offending behaviour work and seeks a declaration to that effect.
- The claim for judicial review initially related to a decision made by CART in January 2014. Any prisoner in the position of the Claimant will have his categorisation reviewed annually. Because the claim was stayed for a considerable period pending other litigation, CART made a further decision in January 2015. The Claimant was given leave to amend his claim to include a challenge to this further decision. It is that decision which was the focus of the submissions made to me. The reasoning of the later decision in relation to categorisation was in very similar terms to the earlier decision. There was a change in July 2014 to the Defendant's published instruction (PSI 08/2013) in relation to oral hearings in relation to categorisation decisions, the change in policy being prompted by the decision of the Supreme Court in R (Osborn) v Parole Board  AC 1115. The decision in January 2015 to refuse an oral hearing was taken against the background of the revised instruction.
- The Secretary of State for Justice who is responsible for CART disputes the claim in its entirety. He argues that CART was entitled to reach the view it did in respect of the risk posed by the Claimant. It is accepted that an oral hearing was refused but it is said that this was appropriate in the circumstances of the Claimant's position. The Secretary of State says that the Claimant has been given proper opportunity to undertake offending behaviour work and that the prime reason for such work not having been undertaken has been the Claimant's refusal to accept that he has relevant offending behaviour to address.
- Stuart Morgan is now aged 56. I shall refer to him for the purposes of brevity as Morgan. No discourtesy is intended. He was 36 at the time of the offence which was committed in December 1995 and 37 when he was convicted in October 1996. Until his conviction for murder his criminal history was modest. He had committed burglaries and serious driving offences in his teens which resulted in a period of Borstal training. He had been convicted of criminal damage in 1984 and 1995. There was nothing in that history which would have suggested that he would go on to commit murder. At the time of the offence he was working as a lorry driver. To all outward appearances there was nothing to suggest that he was by then anything other than an ordinary working man.
- Evidence of the circumstances of the murder was available to me via the trial judge's report to the Home Secretary, the trial date pre-dating the removal of the Home Secretary's power to set a tariff by some years, and via the judgment of the Court of Appeal Criminal Division delivered in February 1998 when it refused a renewed application for leave to appeal against conviction. It is clear that at some point those considering Morgan's categorisation must have had access to one or other or both of those documents. They reveal that at the time of the offence Morgan took a number of considered steps to conceal what he had done. However, it is not clear whether CART had that material specifically in mind at the time of the decisions in question. The evidence of Mr Easton, the Defendant's Head of Review Casework, is that CART will be provided with a prisoner's offending history which "may" include the report of the trial judge. In relation to the circumstances of the offence I must consider the decisions in this case on the basis simply of the material concerning the offence to which specific reference is made in the evidence.
- That material principally consisted of the OASys assessment provided to CART at the time of the decisions in 2014 and 2015. It set out the following. Morgan's victim was a 19 year old hitchhiker from France named Celine Figard whom he had picked up in his lorry in mid-December 1995 at a service station on the M4 in Berkshire. He killed her either on the day he picked her up or on the following day by inflicting repeated blows to her head with a blunt instrument causing catastrophic head injuries. There was also evidence of strangulation. Prior to her death he had had sexual intercourse with her. Wherever it was that he killed his victim, he had dumped her naked body 10 days later in a lay-by on a road near Worcester. It follows that he had kept the body somewhere for those 10 days over the Christmas period whilst he had spent time with his family. He had kept items belonging to his victim which he had hidden between inner and outer walls in his garage at home. The assessment identified a sexual motivation for the murder. The assessment noted that Morgan's account at trial was that he had picked up the girl in question, that he had had consensual sexual intercourse with her and that he had dropped her off alive and well in Southampton. This account was only given when DNA and other evidence linked Morgan to the victim. In his initial interviews he had denied any knowledge of her.
- As already noted Morgan applied for leave to appeal against his conviction and renewed the application to the Full Court when it was refused by the single judge. He maintains his innocence to this day. This has manifested itself when the issue of undertaking offence related courses has arisen. The evidence placed before me is as follows.
- In May 2005 Morgan was asked by the Psychology Department at Frankland if he wished to be assessed for the Enhanced Thinking Skills programme. He said that he was not prepared to undertake any course as he was denying the offence of murder and that he was not prepared to engage in a course on the basis of previous convictions since they already had been addressed. This latter reference must have arisen when it was suggested that he could engage in a programme with his previous offending being the starting point.
- In October 2012 Morgan was asked if he was willing to participate in the Thinking Skills programme for which he had been assessed as suitable. He said that he was not prepared to participate and that the assessment had been completed on false information. The suggestion that he could engage in the programme by reference to his earlier offending was repeated. His response was the same as in 2005. Morgan also said that he would not engage in any sex offender treatment programme. His position was that he only could complete such a programme if he had been convicted of a sexual offence – which he had not. He could not address something he had not done.
- In December 2013 Morgan was reported as saying that he was unwilling to address any aspect of his offending behaviour in case it compromised any future appeal. (It should be said that no further appeal appears to be in prospect.)
- In March 2014 Morgan was invited in writing by the Psychology Department at Frankland to attend a meeting for assessment for a sexual offender treatment programme. He declined the invitation. In the space on the form provided for setting out the reasons for non-attendance he wrote "too long to list here."
In December 2013 solicitors acting on behalf of Morgan – the same solicitors represent him in these proceedings – made written representations to CART in relation to the review of his categorisation i.e. the review which in due course was carried out in January 2014. I shall return to the wider approach taken by the solicitors in those representations, an approach not mirrored in the submissions made to me. In relation to offending behaviour programmes the solicitors said this: "it will not be possible for Mr Morgan to complete any of these courses whilst he maintains his innocence."
- In January 2015 further consideration was given to Morgan engaging in a thinking skills programme. His reported response was that he was innocent of the offence for which he was serving his sentence and that he was not prepared to engage by reference to his previous convictions because these concerned his behaviour as a child and were not similar to the offence of murder.
Evidence from Morgan himself was filed on the day prior to the hearing before me. It repeated his declaration of innocence in relation to the murder of Celine Figard. He stated that he had no objection to engaging in any offending behaviour programme which did not require him to accept involvement in her death. He said this: "I am of course willing to complete the (thinking skills) programme based upon areas other than my conviction for murder." This is contrary to what he has stated on a number of occasions to those involved in such programmes at HMP Frankland. Yet his evidence did not deal with those previous statements. His position in relation to any sexual offending programme remains as it always has been i.e. he is not prepared to engage in any currently available programme because he had not been convicted of a sexual offence and "there is little reliable evidence that the death of Ms Figard was in fact sexually motivated." He went on to say "I will not complete the Core SOTP or any other programme requiring me to admit the commission of a sexual offence." His assertion as to the nature of the offence of which he was convicted does not deal with the clear indication to the contrary in the OASys assessment. The only sensible inference is that the killing of Ms Figard did involve a sexual element. To conclude otherwise would be to accept that she may have been prepared to have consensual sexual intercourse with a 36 year old lorry driver who she had never met before and that thereafter something occurred which led the lorry driver to beat her and/or strangle her to death. That scenario is unreal.
Morgan has behaved well within the prison environment. The material provided to CART in relation to the review in January 2014 set out the following: Morgan's behaviour on the wing was very good; he was a laundry orderly and a buddy to other prisoners; he associated well with everyone on the wing, both staff and prisoners; he had not been the subject of any adjudication for many years; he had undertaken vocational courses. The material provided to CART in respect of the review carried out in 2015 was in the same terms.
The CART system
All prisoners within the prison estate are subject to categorisation. Category A is the highest category. There are three classifications within Category A. The different classifications relate to the level of escape risk. This case is concerned with standard escape risk i.e. there is no particular reason to suggest that there is a current threat of escape. A prisoner will be categorised as Category A if, were he to escape, he would be highly dangerous to the public.
A prisoner within Category A will be subject to constraints which do not apply to prisoners within other categories. Thus, the Secretary of State conducts an annual review of all such prisoners. This review is carried out on his behalf by CART under the direction of the Deputy Director Custody High Security ("DDC"). The team consists of officials of the Ministry of Justice based in London. As happened in this case CART is provided with material by a local panel based within the relevant prison and a recommendation based on that material. The prisoner is able to make representations. That occurred here only in relation to the decision made in January 2014.
If the recommendation of the local panel and the view of CART coincide, the categorisation decision can be made without reference to the DDC. However, the case will be referred to the DDC whenever the DDC has not reviewed the case for 5 years. Further, the DDC is solely responsible for any downgrading of a prisoner subject to Category A status.
The decisions in this case
The first review of which complaint is made was carried out by CART in January 2014 without reference to the DDC. As I already have indicated Morgan's solicitors made written representations as to his proper categorisation. They noted that by reference to PSI 08/2013 (in its unrevised form) CART, if it was to recategorise someone in Morgan's position, required "convincing evidence that the prisoner's risk of re-offending if unlawfully at large has significantly reduced, such as evidence that shows the prisoner has significantly changed their attitudes towards their offending or has developed skills to help prevent similar offending." I should say that it is not suggested in these proceedings that PSI 08/2013 is unlawful. It is accepted that this test is appropriate where a prisoner hitherto has been identified as highly dangerous. It is also common ground that Morgan was properly assessed at the outset i.e. as being highly dangerous were he to be unlawfully at large. The solicitors asserted that this requirement meant that Morgan could not demonstrate any reduction in risk by his good behaviour in prison since his conviction. It was said that he only could do so by reference to successful completion of offending behaviour programmes. Since he did not admit the offence of which he had been convicted, this was impossible. In that context the solicitors requested an oral hearing because that would enable Morgan to give oral evidence and thereby demonstrate that his risk of reoffending had significantly reduced.
I am satisfied that the solicitors' analysis of this part of PSI 08/2013 was flawed. It elided evidence of reduction of risk with evidence of a change in attitude to offending. Clearly there will tend to be a link between the two. But the convincing evidence referred to in the instructions was not stated to be available only where there was evidence of a change in attitude to offending. The words "such as" are intended to indicate that what follows are examples although they are obvious examples of evidence which plainly shows a reduction in risk.
The decision which followed the representations was in these terms:
"(CART) considered your offending showed you would pose a high level of risk if unlawfully at large and that before your downgrading could be justified there must be clear and convincing evidence of a significant reduction in this risk……While your behaviour has been acceptable for some time, your total denial of the present offence has prevented effective exploration of the suggested risk factors and, therefore, also of a reduction in your capacity to reoffend in a similar way….(CART) remained of the view….your close adherence to the regime, even if sustained over many years, did not alone provide convincing evidence of a change in your risk of reoffending similarly if unlawfully at large. It still also needed evidence of significant offence-related insight and change in the risk factors suggested by your serious offending."
Thus, the decision on the substantive merits of the review accepted that Morgan's behaviour had been most satisfactory within the prison regime. However, because of the nature of the offence committed by Morgan, CART, which had to assume that the original conviction was properly sustained, concluded that good behaviour alone was not sufficient.
The review also considered the request for an oral hearing. This request was made in the context of the unrevised PSI 08/2013 which stated that an oral hearing would be held where "there are material factors relevant to the assessment of the prisoner's suitability for downgrading that cannot be determined through the standard review process and that the consideration of these factors following oral representation is the fairest means of determining the prisoner's suitability for downgrading." As already observed it also was made against a misconceived reading of other parts of PSI 08/2013. CART refused an oral hearing in these terms:
"(CART) considered your present reports were entirely suitable for the purposes of the review and for the submission of effective representations. It did not accept that an additional oral hearing was appropriate or necessary either to enable an effective risk assessment to take place or to allow you to explain your progress and suitability for downgrading verbally. It considered there were also no other issues that could be resolved only through an oral hearing."
It follows that the reasoning of the decision followed the language of PSI 08/2013 as it then stood. No reference was made to the judgment in Osborn although the judgment had been handed down in October 2013.
The second review in January 2015 is the categorisation decision which is currently operative. It was referred to the DDC and the decision is expressed as being the view reached by the DDC. No written representations were made in the course of the review process either by Morgan himself or his solicitors. However, by the time of this review these proceedings had been commenced in relation to the 2014 review. The pre-action protocol letter had asserted that an oral hearing should have been held before any decision had been made in respect of the 2014 review and had referred to Osborn in some detail. The pleaded case was and is of wider compass. The 2015 review was conducted in the knowledge that these proceedings were in train and with an appreciation of the issues raised in the proceedings.
The DDC applied the test in PSI 08/2013 as set out at paragraph 14 above. He referred to a need for "clear and convincing evidence" of a significant reduction in risk. The word "clear" does not appear in PSI 08/2013. This cannot be of any significance in terms of the lawfulness of the decision. For evidence to be convincing self-evidently it must be clear. The use of the word "clear" in the decision added nothing. The DDC continued:
"The DDC…..recognised Mr Morgan's continued good conduct in custody but remained satisfied that this alone provide (sic) no convincing evidence of a significant reduction in his risk if unlawfully at large. He also needed evidence Mr Morgan had addressed and achieved some level of progress amending the risk factors relating to his serious offending.
The DDC noted there continued to be no evidence Mr Morgan had achieved any progress on the risk factors suggested by his offending due to his denial of guilt of his present offence and his lack of engagement in assessments or interventions to explore and address these risk factors……..
The DDC…..considered evidence of a significant reduction in Mr Morgan's risk of similar reoffending if unlawfully at large was not available despite his settled behaviour and cooperation with the regime."
The language used in 2015 by the DDC was different to that used in 2014. The substance of the decision was the same. One difference in the language which it is argued on behalf of Morgan is of significance is the conclusion that there was "no evidence" of any progress in relation to risk. That may have been implicit in the decision made in 2014 but it was not stated expressly.
By January 2015 PSI 08/2013 had been revised to take account of Osborn. The revised instruction was prefaced as follows:
"This instruction has been revised at paragraphs 4.6 and 4.7 to reflect changes in policy on oral hearings for security category reviews, following a recent Supreme Court judgment relating to Parole Board oral hearings."
Paragraphs 4.6 and 4.7 as revised are in these terms;
"4.6 The DDC High Security (or delegated authority) may grant an oral hearing of a Category A / Restricted Status prisoner's annual review. This will allow the prisoner or the prisoner's representatives to submit their representations verbally. In the light of the clarification by the Supreme Court in Osborn, Booth, Reilly of the principles applicable to determining whether an oral hearing should be held in the Parole Board context. The Courts have consistently recognised that the CART context is significantly different to the Parole Board context. In practical terms, those differences have led to the position in which oral hearings in the CART context have only very rarely been held. The differences remain; and continue to be important. However, this policy recognises that the Osborn principles are likely to be relevant in many cases in the CART context. The result will be that there will be more decisions to hold oral hearings than has been the position in the past. In these circumstances, this policy is intended to give guidance to those who have to take oral hearing decisions in the CART context. Inevitably, the guidance involves identifying factors of importance, and in particular factors that would tend towards deciding to have an oral hearing. The process is of course not a mathematical one; but the more of such factors that are present in any case, the more likely it is that an oral hearing will be needed. Three overarching points are to be made at the outset:
First, each case must be considered on its own particular facts – all of which should be weighed in making the oral hearing decision.
Secondly, it is important that the oral hearing decision is approached in a balanced and appropriate way. The Supreme Court emphasised in Osborn that decision makers must approach, and be seen to approach, the decision with an open mind; must be alive to the potential, real advantage of a hearing both in aiding decision making and in recognition of the importance of the issues to the prisoner; should be aware that costs are not a conclusive argument against the holding of oral hearings; and should not make the grant of an oral hearing dependent on the prospects of success of a downgrade in categorisation.
Thirdly, the oral hearing decision is not necessarily an all or nothing decision. In particular, there is scope for a flexible approach as to the issues on which an oral hearing might be appropriate.
4.7 With those three introductory points, the following are factors that would tend in favour of an oral hearing being appropriate:
Where important facts are in dispute. Facts are likely to be important if they go directly to the issue of risk. Even if important, it will be necessary to consider whether the dispute would be more appropriately resolved at a hearing. For example, where a significant explanation or mitigation is advanced which depends upon the credibility of the prisoner, it may assist to have a hearing at which the prisoner (and/or others) can give his (or their) version of events.
Where there is a significant dispute on the expert materials. These will need to be considered with care in order to ascertain whether there is a real and live dispute on particular points of real importance to the decision. If so, a hearing might well be of assistance to deal with them. Examples of situations in which this factor will be squarely in play are where the LAP, in combination with an independent psychologist, takes the view that downgrade is justified; or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds. More broadly, where the Parole Board, particularly following an oral hearing of its own, has expressed strongly-worded and positive views about a prisoner's risk levels, it may be appropriate to explore at a hearing what impact that should or might have on categorisation.
It is emphasised again that oral hearings are not all or nothing – it may be appropriate to have a short hearing targeted at the really significant points in issue.
Where the lengths of time involved in a case are significant and/or the prisoner is post- tariff. It does not follow that just because a prisoner has been Category A for a significant time or is post tariff that an oral hearing would be appropriate. However, the longer the period as Category A, the more carefully the case will need to be looked at to see if the categorisation continues to remain justified. It may also be that much more difficult to make a judgement about the extent to which they have developed over the period since their conviction based on an examination of the papers alone.
The same applies where the prisoner is post-tariff, with the result that continued detention is justified on grounds of risk; and all the more so if he has spent a long time in prison post-tariff. There may be real advantage in such cases in seeing the prisoner face-to-face.
Where there is an impasse which has existed for some time, for whatever reason, it may be helpful to have a hearing in order to explore the case and seek to understand the reasons for, and the potential solutions to, the impasse.
Where the prisoner has never had an oral hearing before; or has not had one for a prolonged period."
In his decision letter the DDC did not refer explicitly to PSI 08/2013. In his letter he said this: "…(he) considered there were no grounds for an additional oral hearing in relation to Mr Morgan's review, either to help determine Mr Morgan's level of progress or to determine his suitability for programmes or interventions to explore and address these risk factors." I have no evidence from the DDC. Thus, I have no direct evidence as to what he meant by an "additional oral hearing." I infer that this was a reference to the fact that Morgan was able to deal directly and face to face with those considering his case at local level. The DDC's conclusion was based on the fact that he needed evidence of a reduction in risk. He determined that an oral hearing would not add to the available evidence. The DDC did not refer to the cost of a hearing as being relevant to his decision. He reached his conclusion by reference to the facts of Morgan's case.
The Claimant's submissions
Three matters are argued on behalf of Morgan. First, it is said that both decisions were unlawful because they treated his denial of the index offence as decisive in respect of the review of his categorisation. For that reason it is said that both decisions should be quashed and that there should be a fresh review of Morgan's categorisation as soon as possible. This argument is based on the decision of the Court of Appeal in R v Parole Board ex parte Oyston  Prison LR 45. That case was concerned with the decision of the Parole Board in relation to the early release on licence of Owen Oyston who had been convicted of rape. The Board had to apply the directions applicable at the time which in part read thus:
"Before recommending early release on licence, the Parole Board shall consider whether:
(1) the safety of the public will be placed unacceptably at risk. In assessing such risk the Board shall take into account:
(b) whether the prisoner has shown by his attitude and behaviour in custody that he is willing to address his offending behaviour by understanding its causes and its consequences for the victims concerned, and has made positive effort and progress in so doing…."
Particular reliance is placed on paragraphs 24 to 26 of the judgment of Lord Justice Pill:
"There is, in my view, a real risk that the decision of the Board was taken only on the basis of the denial of guilt and the consequences which inevitably flowed from that denial. The letter reads as if risk is only capable of being assessed as low if the conditions set out in sentences 3 and 5 of the letter are established. I repeat part of sentence 3:
"… there is no evidence to show that he has gained insight or understanding about the offences, and there is little in consequence to indicate that he has modified his behaviour and attitudes, shown victim empathy and developed strategies to avoid re-offending."
That sentence closely echoes the language of paragraph 2(1)(b) of the direction. It indicates a frame of mind in the decision maker that it is only by the stated route that the respondent is able to persuade the Board that the present risk is a low one. That, in my view, is an erroneous approach. Having regard to the previous good character and the other circumstances referred to, a change of lifestyle was in this case a possible way of producing a conclusion that the risk was a low one. Sentence 3 suggests a mechanistic approach to paragraph 2(1)(b). Moreover, in the letter the expression "in consequence" appears on three occasions. That too suggests that the "consequences" in mind follow from the denial of guilt and the Board, rather than assessing the circumstances in the particular case, has had regard only to a situation in which the prisoner is able to achieve the consequences desired by reason of an acceptance of guilt.
In my judgment the Board has taken too narrow a view of paragraph 2(1)(b) of the direction. Moreover, as Mr Kovats accepts, and rightly accepts in my view, the test is a general one. The test is as to the current level of the risk to the public and it is essential in applying that test that all the circumstances of the particular case are considered. There is nothing in the decision letter to indicate that the evidence of the proposed change in lifestyle was a factor considered by the Board in reaching their decision."
It is said that the DDC made the same error in this case. Morgan was a prisoner with a good behaviour record over much of his time in custody. This factor did not play a proper part in the decision in which the denial of the offence effectively acted as a bar to any progress. Read as a whole the passage in the decision letter as set out in paragraph 19 above demonstrates invalid reasoning.
The second matter relied on by Morgan is the refusal to hold an oral hearing. Such a hearing was refused both in 2014 and in 2015. It is argued that the refusal in 2014 was contrary to the principles laid down in Osborn. The same argument applies to the 2015 decision. But that decision was taken after the revision of the instruction and it is said that the decision in 2015 was flawed on two bases: it was contrary to the principles in Osborn; it failed to follow PSI 08/2013 as revised.
The judgment of the Supreme Court in Osborn was delivered by Lord Reed. At the outset of the judgment he conveniently summarised his conclusions. The relevant parts, set out in paragraph 2 of the judgment, are in these terms:
"(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 on 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.
(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.
(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…….
Particular reliance is placed on the factors at (iv) (the legitimate interest of the prisoner in being able to participate in a decision with important implications for him), (v) (fairness is separate from the prospects of success in the prisoner's application and the latter should not determine whether an oral hearing is held), (viii) (issues of time, trouble and expense should not dictate whether an oral hearing is heard) and (xi) (if in doubt, hold an oral hearing). It is argued that the general principles enunciated in Osborn apply just as much to CART review decisions as they do to decisions of Parole Board. The proposition put forward is that the consequences for a prisoner if his categorisation remains as Category A are comparable to the impact of a decision of the Parole Board not to release the prisoner. Reliance is placed on R v Secretary of State for Home Department ex parte Duggan  3 All ER 277 at 288b where Lord Justice Rose said: "I am unable to accept that there is any material practicable distinction between a decision of the Parole Board in relation to the release of a life sentence prisoner and a decision of a governor that a 'lifer' should be category A." Applying the principles in Osborn should have resulted in an oral hearing whether in 2014 or 2015.
It is said that proper application of PSI 08/2013 as revised would also have led to Morgan being given an oral hearing prior to the making of the decision as to his categorisation. The instruction recognises that Osborn has led to a change in policy in relation to oral hearings in respect of categorisation decisions. It states explicitly that there will be more such hearings now than in the past. It is argued that paragraphs 4.7.c and 4.7.d apply particularly to Morgan. Had the DDC considered the instruction properly, he ought to have granted the request for an oral hearing.
The overriding argument put on behalf of Morgan is that fairness demanded that he had an oral hearing, fairness being for the court to determine. It is said that it would have been only in an oral hearing that his credibility properly could have been assessed.
The final matter put forward on Morgan's behalf is separate from the decision making process. It is said that the Secretary of State in the case of a prisoner in Morgan's position has an obligation to provide a prisoner with offending behaviour work. He must provide the prisoner with a reasonable opportunity to enable him to make progress. This duty recently was emphasised and defined in R (Kaiyam) v Secretary of State for Justice  AC 1344: see paragraphs 36, 41 and 42 of the judgment of Lord Mance and Lord Hughes. It is argued further that Strasbourg jurisprudence requires the Secretary of State in an appropriate case to consider provision of individual therapy: Rangelov v Germany (22 March 2012) ECtHR (unreported) at paragraphs 91 and 97. No particular course is identified by Morgan as a course with which he should have been provided but was not but it is said that there has been no proper attempt to progress his rehabilitation. Moreover, reliance is placed on the evidence of Dr Carter, the Head of Sexual Offending Treatment Programmes with the National Offender Management Service. His evidence deals with the current availability of such programmes for sexual offenders who maintain their innocence. There is none. However, he also deals with programmes which currently are being developed with a view to their suitability for prisoners who are in what is termed "categorical denial." One such programme has been tested. As a result further programmes are in development. It is argued that this evidence demonstrates that a programme suitable for Morgan would be feasible. It has yet to be fully devised. But the failure to do so means that the Secretary of State is in breach of his duty to provide Morgan (and those like him) with a reasonable opportunity to make progress.
The response of the Secretary of State
In relation to what may be termed the Oyston argument the Secretary of State puts forward three propositions:
- The categorisation decision must be rational i.e. it must take into account all relevant matters.
- Denial of the offence may be relevant. Indeed, it may be a very significant factor. It is not necessarily a conclusive factor.
The Secretary of State invites my attention to two first instance decisions of this court: R (Roberts) v Secretary of State for Home Department  EWHC 679 (Admin); R (Quaddy) v Governor of HMP Long Lartin  EWHC 2029 (Admin). Roberts involved a prisoner whose offence was not dissimilar to Morgan's in the sense that it involved a fatal attack with sexual motivation. Mr Justice Elias (as then was) approved a formulation that there will be some cases in which a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner remains high. Quaddy involved a prisoner serving a very long determinate sentence for importation of huge amounts of Class A drugs. Counsel in that case drew a distinction between the prisoner involved in very serious crime of this kind and the prisoner convicted of violent sexual crime. Counsel accepted that in the latter case a denial of guilt could be very close to bar to a reduced categorisation. Mr Justice Jay in his judgment did not disagree with that proposition.
- All cases are different and context is all. Where the case involves very serious and otherwise unexplained violence, denial of the offence may make it impossible to find that there has been any reduction in the level of risk.
The Secretary of State accepts that a balancing act was required even if the factors favouring recategorisation were vastly outweighed by the risk factors. He argues that this is what occurred in this case. He also suggests that, whilst denial of the offence should not be a bar to recategorisation, denial could be the determining factor in the appropriate case – of which this was one.
The Secretary of State accepts that the incidence of oral hearings in recategorisation cases will be greater under the revised PSI 08/2013 than hitherto. He argues that there remains a distinction between CART reviews and Parole Board decisions, that being apparent from the terms of PSI 08/2013. In particular, he points to the quasi-judicial and independent nature of a Parole Board hearing as opposed to the type of review carried out by CART. In any event, he argues that an oral hearing was not necessary or appropriate in this case by whatever criteria the issue is to be judged. This was not a case in which any oral evidence was required. There was no factual dispute e.g. a divergence of opinion between experts. There was nothing in Morgan's case which could not be reduced to writing. Insofar as there was an impasse in the circumstances of this case, it was not something which could be resolved by an oral hearing. The Secretary of State accepts that the issue is whether fairness required an oral hearing and that the issue of fairness is for the court to determine. His case is that a prisoner should put forward some good reason to find the refusal to hold an oral hearing to be unfair. That has not been done in this case.
Although it is a decision which pre-dates Osborn and the revised PSI 08/2013, the Secretary of State argues that the judgment of Mr Justice Lindblom (as he then was) in R (Bourke) v Secretary of State for Justice  EWHC 4041 Admin provides helpful guidance on the issues which arise in this case vis-à-vis an oral hearing. Bourke was a man convicted of double murder who had always denied committing the offences. He was a prisoner who saw himself at an impasse in relation to risk, he had a very good record in custody, he suggested that an oral hearing would enable the DDC to assess for himself the risk posed and he had spent a very long time in custody without ever having had an oral hearing. The Secretary of State suggests that the approach of Mr Justice Lindblom to those issues can be viewed through the prism of Osborn so as to give genuine assistance in this case.
The Secretary of State submits that, in relation to provision of offending behaviour programmes, I need to look no further than to the decision in Kaiyam. He argues that the nature of the duty imposed on him is as set out in paragraph 36:
"We consider that the Supreme Court should now accept the Fourth Section's conclusion (in James), that the purpose of the sentence includes rehabilitation, in relation to prisoners subject to life and IPP sentences in respect of whom shorter tariff periods have been set. We also consider that the Supreme Court can and should accept as implicit in the scheme of article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public."
The extent of the duty was further developed at paragraphs 41-42 and 91-92 of the judgment. What is reasonable will depend in part on resources.
In those circumstances the Secretary of State submits that the suggestion made on behalf of Morgan goes well beyond any duty which lies upon him. In any event it is said that Morgan had made it clear that he did not want to undertake any offending behaviour programme which was currently available. The case of Rangelov – which though cited in argument in Kaiyam was not mentioned anywhere in the judgments – was a discrimination case without the significance placed upon it by Morgan.
Lawfulness of the decisions – significance of denial of the offence
I am satisfied that the argument put on behalf of Morgan in relation to the lawfulness of the decisions falls at the first hurdle. Neither decision fell into the trap of regarding Morgan's denial of the offence as a bar to recategorisation. In 2014 the decision maker took into account his "close adherence to the regime" as part of the balancing exercise. CART concluded that it needed also evidence of offence related insight. Clearly there was none. CART did not ignore any factor which ought to have been included in the balancing exercise. This is to be contrasted with the position in Oyston where there was a clear intention to change his lifestyle, that lifestyle having been the backdrop to and context of his offence. This intention was accepted as genuine. It had direct relevance to the risk of re-offending. The decision maker in Oyston did not refer to that factor at all. As Lord Justice Pill found, the change of lifestyle was a possible way of producing a conclusion in relation to risk favourable to the prisoner.
The decision of the DDC is couched in different terms in that he said that "there continued to be no evidence Mr Morgan had achieved any progress on the risk factors suggested by his offending." I do not accept that this has the significance argued for on behalf of Morgan. The fact that the DDC said that there was "no evidence" did not mean that he ignored Morgan's good behaviour in the prison. Rather, the DDC in the context of Morgan's offending concluded that the good behaviour was of little or no weight in the balancing exercise. That was a view to which he was entitled to come. Morgan was not a man who had offended when he had been beset by behavioural or other problems and/or his general behaviour at the time had been anti-social or otherwise problematic. If that had been the case, sustained good behaviour albeit within a closed environment could have been of significance in terms of his risk. Morgan was a man who had abducted, raped and murdered a teenage girl when working as a lorry driver and living an apparently normal life. He continued his normal life even after the offence and whilst he was dealing with the body of his victim. The fact that he had behaved well in prison gave no indication whether the risk he presented had reduced. His behaviour in prison was in effect the same as his general behaviour at the time he committed the offence.
What mattered to CART and the DDC was not the mere fact of Morgan's denial of the offence. The critical issue was the lack of any evidence to show that Morgan had engaged at all in any attempt to gain insight into his offending behaviour. The denial of guilt was closely related to the absence of insight but it was not the determining factor. Given the overall circumstances Morgan was in effect in the same position as in December 1995 when he murdered his victim. If he had been a young man at the time of the offence – in his late teens or even his early twenties – it would be possible to argue that the passage of time alone would lead to a reduction in risk due to the maturing process. But Morgan was a mature man in his mid-thirties when he committed the offence. The same argument cannot sensibly apply. It follows that both decisions involved a balancing exercise of the kind referred to in Quaddy. Neither was unlawful.
Refusal to hold an oral hearing
Different considerations apply to the decision in 2015 as opposed to the decision in 2014. Both were made when Osborn stated the law in relation to oral hearing before the Parole Board. The revised PSI 08/2013 applied only in relation to the 2015 decision. I shall consider briefly the impact of Osborn on reviews of categorisation by CART but the determinative issue in this case is the effect of PSI 08/2013 as revised.
The observation by Lord Justice Rose in Duggan was in the context of a claim for judicial review of the decision not to disclose to the prisoner the reports relied on by CART when reaching its categorisation decision. At that time all reports considered by the Parole Board (subject to minor exceptions) were provided to all life sentence prisoners prior to any Parole Board consideration of the release of a life sentence prisoner on licence. The prisoner in Duggan sought the same disclosure in the CART process. The Court did not make that order. Rather, it declared that the prisoner was entitled to be informed of "the gist of any matter of fact and/or opinion" considered by CART. Thus, a distinction was drawn between the process involving CART and consideration of release by the Parole Board.
I consider that there is also a distinction to be drawn between the Parole Board and CART in relation to oral hearings. CART is an internal administrative body consisting of officials from the Ministry of Justice. It is not a court for the purposes of Article 5 of the Convention. It receives a report from the panel at the prison where the prisoner is held, the prisoner having direct access to that panel. The Parole Board is a quasi-judicial body with a membership drawn from outside the prison service and the Ministry of Justice. It is obliged to consider issues of rehabilitation.
The terms of the judgment in Osborn make it clear that there cannot be a simply read-over from the principles applicable to the Parole Board to decisions of CART. In paragraph 2(ii)(b) of the judgment reference is made to the prospect of assessment of risk by the Board at an oral hearing, the membership of the Board including those with psychiatric expertise. No such assessment could be contemplated by CART which has to rely on the assessments of others. In more general terms the purpose of a Board hearing will be wide ranging i.e. an assessment of risk and of how any risk could be managed and addressed on release. A CART review will consider only the issue of significant reduction of risk.
I am satisfied that Osborn means that greater consideration than hitherto must be given to any request for an oral hearing in the context of a recategorisation decision by CART. The general principle that CART or the DDC must consider whether fairness requires an oral hearing is a sound one. It is not necessary for me to rehearse the particular circumstances in which an oral hearing is likely to be required since the revision of PSI 08/2013 means that it would be an academic exercise. In relation to the refusal in 2014 to order an oral hearing I am satisfied that fairness did not require such a hearing. Morgan had had a full opportunity to discuss his position with the staff at HMP Frankland and those involved in the local panel process. His solicitors had taken the opportunity to make written representations albeit that they were misconceived. The notion that he could hope to persuade CART at an oral hearing of a significant reduction in risk was and is fanciful. The suggestion that Morgan's credibility could have been assessed at an oral hearing begs the question as to how his credibility was in issue. If it is suggested that he could addressed the credibility of his assertion that he did not present a risk, this is similarly fanciful. CART was bound to proceed on the basis that he had committed the offence. Morgan's case in relation to risk depended on that not being the position.
PSI 08/2013 as revised explicitly recognises that the context of CART recategorisation is different from the exercise conducted by the Parole Board. Thus, the general observations in paragraph 43 above remain valid. The decision of the DDC in 2015 was expressed in simple terms. The evidence concerning reduction of risk and the factors relevant thereto was clear and an oral hearing could do nothing to take the matter any further. This was not a case in which there was any real dispute about the facts or in relation to any expert evidence. Thus, an oral hearing would not advance the position.
I accept the proposition that the DDC did not address the more nebulous potential justifications for an oral hearing i.e. the length of time the prisoner had been in prison and whether there had ever been an oral hearing previously. I do not consider that this absence of consideration rendered the refusal to hold an oral hearing unlawful. All parties agree that it is for me to determine whether fairness required an oral hearing in 2015. I am satisfied it did not. Morgan's position was entirely clear. An oral hearing would not have affected it. The impasse in his case was not one which, on the material available to the DDC, would be amenable to any useful exploration at an oral hearing. PSI 08/2013 states "it may be helpful to have a hearing" not "it will be helpful." If a further request for an oral hearing is made in the future, the DDC or CART may wish to consider whether what is now said by Morgan in his statement lodged in these proceedings changes the position. That is for the future. Considering this case on its own particular facts – which is the primary requirement of the revised instruction – there was no unlawfulness in refusing to hold an oral hearing in 2015.
I deal with the final argument very shortly. The nature of the duty to provide opportunity to those in Morgan's position to undertake rehabilitative work is as set out in Kaiyam. That duty is not extended in the way argued for by reference to Rangelov which is a decision concerning discrimination and which was not referred to in Kaiyam. Morgan has been given "an opportunity reasonable in all the circumstances … to rehabilitate himself." The fact that the National Offender Management Service is considering new initiatives which may or may not assist Morgan cannot mean that there has been any breach of the duty owed to him. The argument put on his behalf is a counsel of perfection.
It follows that Morgan's claim for judicial review fails in respect of all three grounds. Whether there can be some amelioration of his position in the future may depend to some extent on future developments in offending behaviour programmes. However, a significant reduction in risk in his case must involve at least some recognition on his part that there was a relevant risk at some point.
After I had drafted this judgment but before it had been circulated to the parties for suggested corrections, Mrs Justice McGowan handed down her judgment in Hassett and Price v Secretary of State for Justice  EWHC 3723 (Admin). That case involved consideration of whether the refusal by CART to hold an oral hearing in the case of two prisoners, Hassett and Price, was unlawful. Hassett is a man serving a life sentence for rape and murder. Like Morgan he denies that he committed those offences – though he admits that he committed other violent sexual offences against women and children. Price is serving a long determinate sentence for importing cocaine. The decisions in their cases were made in September and October 2014 respectively. When I first read the judgment of Mrs Justice McGowan I mistakenly thought that the decisions were not made under the revised PSI 08/2013. Having re-read the judgment in the light of written submissions made by counsel on both sides since the hearing in these proceedings, I now appreciate that the backdrop to those decisions – Osborn and the revised instruction – was exactly the same as in the case of Morgan.
The Secretary of State invites me to adopt the reasoning of Mrs Justice McGowan as persuasive authority in support of his case against Morgan. On behalf of Morgan it is argued that the approach taken by Mrs Justice McGowan is erroneous for two reasons. First, she did not adopt the approach agreed in this case as the proper one when considering the fairness of the decision. Rather, she engaged in a conventional review of the rationality of the decision of the Secretary of State. Second, she did not refer to the authorities to which reference was made in the course of Morgan's case, most of which are set out above. It is also said that the decision in Hassett and Price does not deal with the terms of PSI 08/2013.
I do not propose to do anything more than note the decision in Hassett and Price. It was a decision on its own facts. I do not consider that it can be persuasive authority in Morgan's case any more than my judgment in these proceedings would have been remotely authoritative had it happened to precede the decision in Hassett and Price. It is not appropriate for me to discuss the approach taken by Mrs Justice McGowan on the issue of fairness or to comment on the absence of any mention of particular authorities by her. I do not know how the case was conducted before her. My judgment reflects the case as it was litigated before me.
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