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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 >> Royal, R (On the Application Of) v Secretary of State for Justice  EWHC 2862 (Admin) (20 September 2019)
Cite as:  EWHC 2862 (Admin)
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1 Oxford Row
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ROYAL|
|SECRETARY OF STATE FOR JUSTICE|
291-299 Borough High Street, London SE1 1JG
Tel: 020 7269 0370
MISS WARD appeared on behalf of the Defendant
Crown Copyright ©
Dealing with the law as to security categorisation
'2.1. A Category A prisoner is a prisoner whose escape would be highly dangerous to the public, or the police, or the security of the State and for whom the aim must be to make an escape impossible.
2.3. The Deputy Director of Custody (DDC), High Security, is responsible for the categorisation of allocation of Category A prisoners. The DCC High Security may delegate decisions as deemed appropriate in accordance with the provision of this instruction.
• Confirmed Category A: these are prisoners held in a high security prison that have been deemed to be Category A at first formal review (usually following conviction and sentencing).
4.1 Each prisoner confirmed as Category A, at a first formal review, will normally have their security category reviewed two years later, and thereafter annually on the basis of progress reports from the prison. These annual reviews entail consideration by a local advisory panel (LAP) within the establishment, which submits a recommendation about security category to the Category A Team. If the LAP recommends continuation of Category A, and this is agreed by the Category A Team, then the annual review may be completed by the Category A Team without referral to the DDC High Security (unless the DDC has not reviewed the case for 5 years, in which case it will be automatically referred). The DDC High Security (or delegated authority) will remain solely responsible for approving the downgrading of a confirmed Category A prisoner, following consideration at the Deputy Director's panel'.
This is important:
'4.2 Before approving a confirmed Category A prisoner's downgrading the DDC High Security (or delegated authority) must have 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.
4.14 Prison staff must prepare the reports for the prisoner's annual review at the relevant time. A copy of the annual review report forms is enclosed at Annex B (an annex to the Rules).
4.15 The completed reports must be disclosed to the prisoner at least four weeks prior to the prison's LAP to allow representations to be submitted. Taking both the reports and any representations into account, the LAP must in turn make a recommendation to the Category A Team on the prisoner's continued suitability for Category A.
4.20 The review of a prisoner's category A status is an open one and the prisoner must be able to understand why he/she has been placed in a particular category. The reports must be disclosed to allow the prisoner to submit informed representations to the prison's LAP. The prisoner must be allowed four weeks to submit representations, although an extension may be granted at the prison's discretion if requested.
4.22 The LAP must consider the prisoner's reports and any representations after the period of disclosure.
4.23 It is unnecessary for individual report-writers to attend. It is also unnecessary for prisoners or their representatives to attend, as they have the appropriate opportunity to submit written representations to the LAP.
4.24 The LAP must recommend whether the prisoner should remain Category A status and record this recommendation on section 6 of the reports using the guidance provided.
4.26 On receipt from the prison, the Category A Team will consider the prisoner's reports, any representations submitted by the prisoner to the LAP, and the LAP's recommendation, and either complete the review or forward the case to the DDC High Security. It will also take into account or forward to the DDC High Security any representations received following the prison LAP's consideration.
4.27 In cases where the Category A Team supports a recommendation from the LAP that the prisoner should remain Category A it will normally complete the review without reference to the DDC High Security and within four weeks of receipt of the reports send the prisoner a notification of the decision confirming that the prisoner should remain Category A.
4.29 The Category A Team may alternatively refer a case to the DDC High Security and the next available monthly Category A panel if:
• the LAP or Category A Team recommends the prisoner should be downgraded;
• the DDC High Security has made a special request at the previous review that the case should be referred to the DDC High Security;
• the DDC High Security has not reviewed the prisoner's case for five years'.
'4.6 The DDC High Security 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'.
It goes on:
'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 Category A Review Team (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'.
'a. 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.
b. 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.
c. 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.
d. Where the prisoner has never had an oral hearing before; or has not had one for a prolonged period'.
That is the Prison Service Instruction under which the prison was operating in the case of Mr Royal.
'51. Although the CART/Director and the Parole Board all make decisions which have significant effects upon prisoners and their prospects for release, there are material distinctions between the CART/Director and the Parole Board in relation to each aspect of the inquiring regarding the requirements of fairness identified by Lord Bridge:
i). As noted above, the Parole Board has been established as a judicial body independent of the Secretary of State and the prisons management organisation. The requirements of fairness to be observed by an independent judicial body adjudicating on aspects of the right to liberty are high, having regard to the need to promote confidence in the independence and impartiality of the judicial adjudicative process. On the other hand, the CART/Director are officials of the Secretary of State carrying out management functions in relation to prisons, whose main task is the administrative one of ensuring that prisons operate effectively as places of detention for the purposes of punishment and protection of the public. In addition to bringing to bear their operational expertise in running the security categorisation system, they will have other management functions which mean that in striking a fair balance between the public interest and the individual interests of prisoners, it is reasonable to limit to some degree how elaborate the procedures need to be as a matter of fairness for their decision-making. Moreover, in relation to their decision-making, which is part of an overall system operated by the Secretary of State and is not separate from that system, it is appropriate to take account of the extent to which a prisoner has had a fair opportunity to put his case at other stages of the information-gathering processes within the system as a whole. So, for example, in the present cases it is a relevant factor that both Mr Hassett and Mr Price have had extensive discussions with and opportunities to impress a range of officials of the Secretary of State, including significant contact with prison psychology service teams. The decision-making by the CART/Director is the internal management end-point of an elaborate internal process of gathering information about and interviewing a prisoner, whereas the Parole Board has to make its own decision independent of the prison management system.
ii) The kind of decision to be made by the Parole Board is different from the kind of decision to be made by the CART/Director: (a) the question which the Parole Board seeks to answer is whether a prisoner can safely be released at an appropriate point in his sentence, in circumstances where there are possibilities for his management in the community to contain and safeguard against the risk he might otherwise pose; this is a highly fact-sensitive question with a number of dimensions, which contrasts with the far starker question which the CART/Director seek to answer, namely what is the risk to the public interest if the prisoner escapes and is at large in society without any prospect of management in the community? (b) the Parole Board is directly engaged with adjudicating on rights in respect of liberty and the question whether the prisoner should now be released, whereas the CART/Director have to focus directly on the question of what security measures should be put in place in relation to the prisoner in the course of managing him while his sentence continues, and the impact on his eventual prospects for release is an indirect side-product of their determination on that issue (see McAvoy  1WLR 790, 799C); and, related to these points, (c) the decisions made by the Parole Board are judicial determinations of rights, whereas those made by the CART/Director are administrative decisions with a particular focus on ensuring the administration of prisons is carried out properly and effectively in the public interest.
iii) Reflecting and giving further emphasis to the points made above, the statutory framework for decision-making by the Parole Board is very different from that for decision-making by the CART/Director. The Parole Board is a body set up under statute as an independent judicial body with power to make binding determinations on whether a prisoner is entitled to be released. Moreover, the need for the Parole Board to be established and to function as an independent judicial body is underpinned by the requirements of Article 5(4) of the European Convention on Human Rights and fundamental freedoms as noted in Osborn: 'The courts have … been able to take account of [obligations under the Convention] in the development of the common law…Human rights continue to be protected by our domestic law, interpreted and developed in accordance with [the Human Rights Act 1998] when appropriate'). By contrast, the role of the CART/Director in relation to prisoner security classification is laid out by the Secretary of State in Prison Service Instructions and is an aspect of the prison management regime. Article 5(4) does not apply in relation to their decision-making'.
'The guidance given by the Supreme Court in Osborn was clearly fashioned in a manner specific to the Parole Board context and factors given particular weight in that context either do not apply at all or with the same force in the context of security categorisation decisions by the CART/Director, because of the differences in context which I have highlighted above. In my view, the guidance given by this court in Mackay and Downs regarding when an oral hearing is required before the CART/Director continues to hold good. The cases in which an oral hearing is required will be comparatively rare'.
'60. Lord Reed was considering the standards to be expected of the Parole Board as an independent judicial body. Therefore he did not address other reasons why, in striking a fair balance in terms of procedural standards between the public interest and individual interests in the context of decision-making by the CART/Director, it is legitimate to bear in mind that the Director and other officials engaged in the process are not judges required to dedicate their full time and attention to categorisation decision-making, but have wider management responsibilities in running prisons. Lord Reed observes that the Parole Board should guard against any temptation to refuse oral hearings as a means of saving time, trouble, and expense. However, whilst it is no doubt the case that the CART/Director could not lawfully refuse an oral hearing on these grounds if fairness required one, it is a relevant consideration in assessing whether it does that the courts should be careful not to impose unduly stringent standards liable to judicialise what remains in essence a prison management function. That would lead to inappropriate diversion of excessive resources to the categorisation review function, away from other management functions'.
Sales LJ then goes on:
'61. Some of the factors highlighted by Lord Reed will have some application in the context of decision-making by the CART/Director, but will usually have considerably less force in that context. However, it deserves emphasis that fairness will sometimes require an oral hearing by the CART/Director, if only in comparatively rare cases. In particular, if in asking the question whether upon escape the prisoner would represent a risk to the public the CART/Director, having read all the reports, were left in significant doubt on a matter on which the prisoner's own attitude might make a critical difference, the impact upon him of a decision to maintain him in Category A would be so marked that fairness would be likely to require an oral hearing'.
a. Category A report from a wing officer which, under the heading, concerning behaviours, stated that Mr Royal's behaviour was generally good, but there had been two negative reports in the last year when he had displayed inappropriate concerning behaviour towards a female member of staff. He had signed a compact but did not seem to understand the gravity of the situation. He was not currently involved with the assessment intervention centre apart from being assessed as suitable for the Healthy Sex Programme (HSP). There was a concern that he had not engaged fully because that was a requirement of his sentence plan; that is information from his prison wing.
b. An assessment of his current risk, dated 6 October 2017, by a trainee forensic psychologist, Helen Lister who in the report stated that she had been in the prison service for many years. That was compiled under the supervision of Lisa Hewitt a senior forensic psychologist. Ms Lister said that there had been no further treatment gains made by Mr Royal during the reporting period. She said he would benefit from developing more insight and understanding into the risk factors which can contribute towards his offending behaviour. Her recommendation was that Mr Royal had yet to demonstrate the personal changes necessary to indicate a reduction in the risk of his offending. The assessment, she said, was to be read in conjunction with the sentence planning and review report she had prepared, which was dated 10 May 2017; that too was in the dossier. In that she said that she had reviewed the documents within Mr Royal's psychology file, she listed a large number of reports, and she looked at the previous parole decisions, she had also interviewed Mr Royal.
When she referred to the previous parole hearing, she recorded there had been hope that Mr Royal would move to another establishment to undergo the Healthy Sex Programme assessment. She said he was assessed in 2016 by Lisa Hewitt but was found not to be ready to engage in that programme. Her assessment was that his progress in understanding his sexual interests was limited, he did not appear to have a good insight into the future high risk situations he may face, and he could not identify robust risk management strategies in order to be able to deal effectively with these. She said it was a concern in relation to understanding his motivation behind sexual offending. He had completed two high intensity programmes and was not able to express a clearer understanding, in interview, of the risk factors underpinning it. She had significant concerns with him not having insight into potential risks, risky thoughts, and situations. She felt he should undertake further assessment for the Healthy Sex Programme and should he gain any further insight into his offending in the future. She recommended that Mr Royal should be referred to a Psychologically Informed Planned Environment (PIPE), and I shall refer to it hereafter as PIPE unit, which he could access while remaining a Category A prisoner. Depending upon his progress in this unit, and the insight into offending behaviour he could gain, he could then be transferred to a suitable therapeutic community which would entail re-categorisation, preparatory work for the Healthy Sex Programme should also be undertaken.
c. A risk assessment from the Offender Management Unit, dated 12 February 2018. The risk of serious harm summary recorded the risk to the public as high if he were in the community. It gave further detail as to an incident with a healthcare assistant, on 17 January 2018, in which he had been placed on a behaviour compact. It was reported that he had been assessed for the HSP and highlighted for a KAIZEN course but declined to take part in the latter and he rarely spoke to his Case Management Team. The report also highlighted increased risk of offending associated with instability and his accommodation, finance relationship, lifestyle, drug and alcohol misuse were he to find himself in the community.
d. There was a risk assessment from the security department. This also referred to him displaying inappropriate behaviour at the primary care hatch on 18 January 2018.
e. The a current assessment of risk from activities dated 30 November 2017 which seemed to show that he had not been found to have any findings of the taking of drugs.
f. The previous Category A Team review dated 9 March 2016. This recorded the proposal in 2016 to participate in the Healthy Sex Programme but observed that Mr Royal had yet to take part in necessary work on his outstanding offence and related issues and this needed to be completed before further progress could be determined. In considering that evidence, a significant reduction in the risk of similar offending if unlawfully at large was still not shown and it concluded that it was therefore satisfied that the downgrading could not be justified and that he had to stay at Category A.
g. The claimant's most recent Sentence Planning Review Board report dated 27 March 2017 prepared at Wakefield. It recorded the risk of serious harm to the public and the community was high. The review of progress showed that his engagement with members of his Case Management Team, including an offender management was partially achieved. The assessment to take part in the sexual offenders treatment programme showed that it had not been achieved and he was to be assessed for, and to complete, the programme if deemed suitable. This however had been removed as a target as he was found not to be suitable.
The review recommended that he needed to engage with an ongoing assessment for HSP in order for an appropriate decision to be made regarding treatment pathways. It said, 'A move out of the high security estate, subject to his security category being downgraded, would benefit Mr Royal greatly and help to continue his positive moves in his sentence for the possible move to HMP Hull PIPE unit being a target to continue his progressive move'. The report ends, 'Mr Royal has evinced a reduction in the identified risk pertaining to his conviction, although all identified risks will need to be worked on and Mr Royal is currently fully engaging with our assessment intervention centre at HMP Wakefield'. However, the report also says, under transfer recommendations, 'Mr Royal is appropriately allocated at HMP Wakefield in order to complete all identified coursework to help show progression in his sentence by reducing his identified risks'. Additionally, under re-categorisation recommendation, it says, 'Mr Royal's category is to remain Category A'. Under 'Re-categorisation B/C no/yes', it says, 'No'. Underneath that, 'Mr Royal's category is to remain Category A at this time and any reduction in category will need the authority of and approval of Category A Section in London'.
h. the Local Advisory Panel's minutes and recommendations. The Panel noted that Mr Royal had received two negative reports (IEPs) about his behaviour in the last year relating to separate incidents where he displayed inappropriate behaviour towards female members of staff. It was reported that Mr Royal was encouraged to continue being open with members of his Case Management Team and further work was required to explore and develop skills to manage the identified risks which underpinned his offending behaviour. He had not demonstrated the level of personal change sufficient to indicate a reduction in this level of risk. The recommendation was that he remain at Category A.
"Security reported He had demonstrated inappropriate behaviour at a care hatch, January 2018. His last adjudication was 2015. During the offences he forced all the victims to either give or receive oral sex and used violence in the offences including threatening two of the victims with an object they believed to be a knife. He currently denies sexual interest in violence. However, he has admitted previously that he experienced sexual fantasies about rape. He has completed core sexual offender treatment programme March 1998 and extended SATP April 2004 and enhanced thinking skills, ETS, April 2006. He had been found unsuitable for RESOLVE in March 2017. He was transferred to a unit to deal with personality disorder (DSPD) at Whitemore, in 2006 and review confirmed he would likely meet with DSPD entry criteria. At the time of the review he stated that he would only move to DSPD unit if he underwent an independent assessment and therefore he was not offered a place.
He was originally transferred to Wakefield, in January 2016, to undertake assessment for the HSP as this was the recommendation on completion of the extended SATP. He has been assessed by the AIC for the HSP over the last two years. He does meet the criteria, but is not ready to engage at the moment. He needs to be willing to talk about his offending, preparatory work needs to be undertaken prior to the HSP, but he has not done this as yet. There are concerns about ongoing risk, paralleling behaviour regarding female members of staff and issues regarding his fantasies. Short-term sentence planning targets include assessment for KAIZEN to address identified risk. Long-term target is to work towards reducing areas of risk pertaining to his convictions, associated risks linked to his offending and evidence of personality change. This may include work to address sexual/violent offending by an appropriate programme or treatment pathway'.
"They state that if he was not to be downgraded, he should be directed to an oral hearing for a fair and proper review. They submitted that he had reduced his risk based on the work he had undertaken should be removed from Category A. They stated that PIPE consolidation and KAIZEN is untested as risk reduction programmes and he could be managed in Category B conditions. To remain Category A would be irrational without a sentence impasse and a lack of progression and will raise ECR Article 5 issues'.
'He is encouraged to continue to be open with members of the Case Management Team and to maintain his motivation and continue making progress and exploring the identified areas of need. Further work is required in exploring the relevant skills to manage the identified areas of need. Further work is also required in exploring the relevant skills to manage and identify the risk factors which underpin his offending behaviour. He has not yet demonstrated the level of personal change sufficiently to indicate a reduction in his level of risk. NAP recommends Category A'.
'The Executive Director for long-term high security prisons has reviewed Mr Royal's security category and decided that he should remain Category A. In considering Mr Royal's security the Director took into account the serious nature of the present offences which involve the rape and serious sexual assault on a series of women who he attacked in the early hours of the morning, both in the street and in their homes. The Director noted that Mr Royal had been in custody a long time and was now also many years past his tariff. The Director also noted that Mr Royal's general behaviour has been acceptable for some time and he previously made some progress to interventions. The Director did not, however, consider that Mr Royal had achieved significant risk reduction through this work and has since declined to engage with crucial further interventions. There was also some recent possible offence paralleling behaviour. The Director noted that no significant risk reduction could therefore be confidently identified. The Director suggested that manageability in Category B provided no convincing evidence of a significant reduction in Mr Royal's risk, if unlawfully at large, also there were no grounds for the case to be reviewed further through an oral hearing in accordance with the criteria in PSI 08/2013. Having regard to the serious nature of the present offences which evidenced the propensity for extreme violence and the lack of any evidence at present through offence related work or otherwise, that the risk of Mr Royal re-offending in a similar way, if unlawfully at large, was significantly diminished, the Director concluded that Mr Royal must still be regarded as potentially highly dangerous, particularly to women. On the information available the Director concluded that there were at present no grounds on which a downgrading of a security category could be justified and that he should remain in Category A'.
'Mr Royal has engaged in a number of treatment programmes to explore his index offences, most notably the core extended sex offender treatment programmes. However, his current levels of insight into his risk and how he will manage this in the future, do not seem consistent with him undertaking two high intensity programmes. In addition to this, Mr Royal has provided differing accounts of the role sexual fantasy played in the index offences. It is therefore difficult to accurately assess his progress in developing healthy fantasies and his skills at being able to manage any offence related fantasies he may experience in the future. In my assessment, Mr Royal would need to gain further insight and understanding into the factors which contribute to his offending behaviour in order to develop robust risk management skills for the future'.
It is on that basis that she recommended that he had not demonstrated the personal change necessary to indicate a reduction in risk.