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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Green, R (On the Application Of) v Secretary of State for Justice [2023] EWHC 626 (Admin) (22 March 2023) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2023/626.html Cite as: [2023] EWHC 626 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE KING on the application of THOMAS GREEN |
Claimant |
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- and - |
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SECRETARY OF STATE FOR JUSTICE |
Defendant |
____________________
WILL HAYS (instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
____________________
Crown Copyright ©
HHJ KAREN WALDEN-SMITH:
Introduction
The Grounds
5.1 Ground 1: The Claimant alleges the Defendant has failed to comply with published policy – namely the Prison Service Instruction (PSI) 08/2013 on the basis that, it is said, there were multiple factors weighing in favour of an oral hearing in the Category A review for the Claimant;
5.2 Ground 2: Procedural unfairness at common law by reason of the lack of oral hearing.
Factual Background
The Policy Framework
"Before approving a confirmed Category A/Restricted Status 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 skill to help prevent similar offending."
24.1 Where there is a significant dispute on the expert materials. These 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;
24.2 Where the length of time involved in a case are significant and/or the prisoner is post-tariff. In the policy, the fact that a prisoner has been Category A for a significant time or is post tariff suggests that an oral hearing would be appropriate, but the longer someone has been Category A, the more care needs to be taken as to whether the categorisation continues to remain justified and "it may also be that much more difficult to make a judgment 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 and where there is an impasse which has existed for some time;
24.3 Where the prisoner has never had an oral hearing before.
Oral Hearings
"(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 can 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.
"What the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates"
29.1 The Parole Board has been established as a judicial body independent of the Secretary of State; the requirements of fairness to be observed are high; on the other hand the CART/director are officials of the Secretary of State carrying out management functions in relation to prisons – they 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;
29.2 It is also appropriate to take into account 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: 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;
29.3 The question which the Parole Board seeks to answer is whether a prisoner can 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; the far starker question for CART/director is 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;
29.4 The decisions made by the Parole Board are judicial determinations of rights, those made by the CART/director are administrative decisions with particular focus on ensuring the administration of prisons is carried out properly and effectively in the public interest.
Failure to hold an oral hearing contrary to policy/failure to engage with the considerations (Ground 1)
The lack of an oral hearing made the decision procedurally unfair at common law (Ground 2)
Conclusion