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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> M, R (On the Application Of) v The Secretary of State for Justice [2016] EWHC 2455 (Admin) (06 October 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/2455.html Cite as: [2016] EWHC 2455 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
1 Bridge Street West, Manchester M60 9DJ |
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B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
____________________
THE QUEEN (ON THE APPLICATION OF "M") |
Claimant |
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- and – |
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THE SECRETARY OF STATE FOR JUSTICE |
Defendant |
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Ivan Hare (instructed by Government Legal Department, London WC2) for the Defendant
Hearing date: 16 September 2016
Draft judgment circulated: 22 September 2016
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Crown Copyright ©
His Honour Judge Stephen Davies:
Introduction
The relevant facts
(a) The claimant had displayed progress in relation to a number of his assessed treatment targets, but some behavioural lapses had been noted, suggesting there were occasions when he experienced difficulty applying his learning.
(b) Ongoing treatment may be addressed through additional practice of skills over a sustained period, but in the absence of continued progress in this area further intervention may be required.
(c) Although risk assessment was challenging given the claimant's position in the PWU, nonetheless it was conceivable that a prolonged period of stable and compliant behaviour in this setting could provide credible evidence of skills consolidation.
"With regards to the category A review we have now reflected on the resolution of this matter. We respectfully suggest that an oral hearing would provide procedural fairness to consider the elements of this report, a thorough risk assessment and trust that this will be forwarded to your client for consideration."
It has been confirmed by the respective solicitors that this is the letter which was passed on to CART along with the report from Ms Hunt and, it follows, that it was this letter which prompted CART to consider the question of an oral hearing. The claimant's solicitors have also confirmed that since they were unable to obtain legal aid in connection with the category A review they were unable to prepare or send any more substantial written representations.
"Regarding an oral hearing it accepted these may be appropriate in certain circumstances, including: where there is a factual dispute crucial to risk assessment; there is a dispute on the expert materials, e.g. there are alternative assessments suggesting significant risk reduction; there is an impasse in progression; or the subject has been in category A for many years without an oral hearing.
The category A team considered there are however no grounds for an oral hearing in relation to your present review. It considered first your reports are entirely sufficient for the purposes of your risk assessment and for the submission of effective written representations. While it noted the contents of the private psychology reports, it did not consider this raises any factual disputes or alternative assessments of significant progress needing further resolution or discussion through an oral hearing.
It accepted that your protected witness status restricts your access to mainstream interventions, but considered that for the reason given above your category A status does not prevent you from further addressing your offending and achieving a significant reduction in risk. It did not accept you are in an impasse in terms of your progression, or that an oral hearing is in the meantime appropriate or necessary to discuss or resolve the availability of coursework. It accepted you have never had an oral hearing but consider this fact could not be determinative. It noted you were sentenced a relatively short time ago and many years from tariff completion. It considered there are also other issues compelling an oral hearing in your case, or that can be resolved only through an oral hearing."
The relevant legal principles
"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. …"
"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.
(a) Whereas Parole Boards have members with professional expertise in psychology and psychiatry, so that the Parole Board may be able to form a view based on a professional assessment from personal observation or questioning, that is not the position with CART.
(b) Although CART does not have the same express power to make recommendations as does the Parole Board as regards transfer to open conditions nonetheless, as Mr Southey submits, it is likely that CART will or may in an appropriate case make observations as to what further interventions may be necessary or helpful to enable the prisoner to demonstrate a significant reduction in risk at the next review hearing.
(c) Mr Hare emphasises that in paragraph (iv) the prisoner's legitimate interest in being able to participate arises only where he has "something useful to contribute"; see also [97].
"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 re-categorisation 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."
The arguments and my conclusions