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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shah, R (On the Application Of) v Secretary of State for Justice [2024] EWHC 682 (Admin) (22 March 2024) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2024/682.html Cite as: [2024] EWHC 682 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
The Courthouse, 1 Oxford Row Leeds, LS1 3BG |
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B e f o r e :
____________________
THE KING (On the application of AHMAD SHAH) |
Claimant |
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- and – |
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SECRETARY OF STATE FOR JUSTICE |
Defendant |
____________________
David Manknell (instructed by Government Legal Department) for the Defendant
Hearing date: Friday 23 February 2024
____________________
Crown Copyright ©
Mrs Justice Hill DBE:
Introduction
The factual background
The 16 March 2022 categorisation decision
The 2022 judicial review proceedings
The process leading to the 20 March 2023 decision
"As stated previously, Mr Shah is not able to show a significant reduction in risk through offence focussed work due to a lack of work being available. He has engaged well with the programmes department during the reporting period having completed the My Strengths workbook and the M and E course, he continues to use his time constructively through education. Mr Shah is not a control problem on the wing associating well with his peers, engaging with his keyworker and engaging with other staff.
Behaviour alone being taken into consideration Mr Shah could be managed as a category B prisoner. He has done everything he is able to do to evidence his willingness to engage but whether this shows a big enough reduction in risk would be for the panel to decide.
"Mr Shah does not take any responsibility for the offences for which he has been convicted; minimising any involvement and suggesting he was oblivious to any drug related trade. Mr Shah largely seeks to justify his actions on the basis that he was deceived by Mr Farooq and others".
"Positively, Mr Shah engaged fully with the recommendations from his previous Psychological Category A Report. This is particularly important given his initial hesitation to engaging with the suggested work and his efforts should be commended".
"I recommend that during the coming year Mr Shah continues to demonstrate his learning from the MSR and the M&E programme through interactions with others and by following the goals he outlined. This learning could then be considered in a future risk assessment for the purpose of his Category A review. Additionally, I recommend that Mr Shah maintains his motivation to engage with education and to undertake an industrial cleaning course."
"Due to the nature of his offence, and being unsuitable for interventions, combined with a language barrier Mr Shah has had limited engagement with his Keyworker or POM [Prison Offender Manager]. There is limited interaction or work that can be undertaken with Mr Shah and therefore at this time the LAP have no option but to recommend he remain Category A".
The 20 March 2023 decision
"This decision has been reached following careful consideration of all relevant factors, including the nature and circumstances of your present offence, the length of sentence imposed, your previous offending and the prison reports. You were provided with copies of your latest security category review reports and factual information relevant to the determination of your security category.
Your present offences involved you engaging in large-scale drug trafficking and money laundering. The sentencing judge stated you played a significant role in the conspiracies relating to the importation of massive amounts of heroin into the UK. The Category A Team 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.
The Category A Team noted that your custodial behaviour in the reporting period has been mostly good with you having received one negative IEP warning but no adjudications. You have received some positive IEP entries and you are an enhanced IEP prisoner. It is recorded by staff that you interact well with your peers and staff.
The Category A Team noted that you have completed the MSR and M&E programme. It is noted that you are recommended to continue to demonstrate your learning from the MSR and M&E programme through interactions with others and the goals you have outlined. The reports nonetheless confirm that you still deny or minimise your involvement in the most serious aspects of your offending. There is otherwise no evidence that you have at this time achieved any offence-related insight, or have developed skills to prevent you similarly reoffending in the future.
The Category A team encourage you to continue to demonstrate positive custodial behaviour and to continue to demonstrate your learning from the MSR and M&E programme. The Category A Team considered that at present there is no convincing evidence you have achieved a significant reduction in your risk of similar reoffending if unlawfully at large. It is therefore satisfied that Category A status remains appropriate at this time".
The Defendant's 25 April 2023 letter
"… the decision not to downgrade was rational for the reasons given· and does not require further resolution through an oral hearing. The Category A Team are satisfied the available evidence was entirely clear and there is no evidence an oral hearing is needed to further understand or determine this information. The Category A Team are satisfied the decision to not hold an oral hearing was rational, lawful and reasonable for the reasons given and there is no evidence to suggest otherwise.
In your letter you state Mr Shah's Offender Supervisor suggested he could be managed in Category B conditions. Whilst the Category A Team would have taken this into consideration, they did not agree and are entitled to come to their own conclusion. It also needed evidence of significant progress addressing the risk factors influencing his offending…
The Category A Team noted Mr Shah's behaviour has been mostly good in the reporting in period. He has interacted well with staff and has posed no disciplinary problems. It considered however that his regime adherence alone is insufficient to show a significant reduction in his risk if at large. It is satisfied that Mr Shah's possible manageability in Category B provides no such evidence.
As stated in the decision letter the Category A Team noted that Mr Shah has completed MSR and M&E programme. It noted that Mr Shah is recommended to continue to demonstrate his learning from the MSR and M&E programme through interactions with others and the goals he has outlined. The reports nonetheless confirm that he still denies or minimises his involvement in the most serious aspects of his offending. There is otherwise no evidence that Mr Shah has at this time achieved any offence-related insight, or has developed skills to prevent him similarly reoffending in the future.
The Category A Team consider that there is no evidence of an impasse. The Category A Team are satisfied that there are no other issues relevant to Mr Shah's risk assessment and review that can be resolved or understood only through an oral hearing.
The Category A Team…consider the evidence provided was more than sufficient enough to reach the decision and there would be no additional benefit from verbal representations or from meeting face to face. The Category A Team are satisfied that there are no further grounds for an oral hearing, in accordance with PSI 08/2013. The Category A Team recognise that Mr Shah has been in custody for several years, and has never had an oral hearing, but consider these are insufficient grounds for an oral hearing without other supporting reasons. The Category A Team note the courts accept it does not follow that an oral hearing would be appropriate just because a prisoner has been in custody for a significant time or is post-tariff. The courts have also stated these are the more nebulous potential justifications for an oral hearing.
The Category A Team consider there are no grounds to amend this decision or revisit this review through an oral hearing."
The legal and policy framework
"(1) Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3".
"…convincing evidence that the prisoner's risk of reoffending 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".
"4.6 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:
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".
Relevant case law
(i): R (Hassett & Price) v Secretary of State for Justice [2017] EWCA Civ 331; [2017] 1 WLR 4750
"51.(i) The CAT/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 CAT/Director is the internal management end-point of an elaborate internal process of gathering information about and interviewing a prisoner...
56. 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…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.
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."
(ii): Further general principles
"(1) The common law principles identified in the parole context in Osborn do not apply with the same force to Category A review decisions (Hassett paragraphs 59 to 61).
(2) The general guidance in the PSI is lawful and not apt to mislead a decision-maker as to the applicable legal standards, a point decided in the specific context of a challenge to factor (b) (Hassett paragraph 66).
(3) A Category A review decision "has a direct impact on the liberty of the subject and calls for a high degree of procedural fairness" (Mackay paragraph 25).
(4) It is "for the Court to decide what fairness requires, so that the issue on judicial review is whether the refusal of an oral hearing was wrong; not whether it was unreasonable or irrational" (Mackay paragraph 28). The CAT may need to "exercise a judgment on whether an oral hearing would assist in resolving … issues and assist in better decision making" and the question for the Court is whether the CAT "was wrong to decide against an oral hearing" (Downs paragraph 45).
(5) Where a prisoner denies the offending of which they were convicted, which may in consequence mean ineligibility or unsuitability for participation in courses relevant to satisfy the CAT that the risk to the public has been significantly reduced, the CAT's "starting point can only be the correctness of the jury's verdict" and the denial "may … in many cases severely limit … the practical opportunity of demonstrating that the risk has diminished" (Mackay paragraph 27).
(6) Although it has been said that "oral hearings will be few and far between" (Mackay paragraph 28) and "comparatively rare" (Hassett paragraph 61), that is prediction rather than principle: there is "no requirement that exceptional circumstances should be demonstrated" (Mackay paragraph 28).
(7) The fact that there is a "difference of professional opinion" between two experts (eg. two psychologists), the fact that the CAT has "two clear, opposed views to consider", and the fact that the CAT's "task was to decide which view it accepted" does not – in and of itself – make an oral hearing necessary (Downs paragraphs 44-45, 50; also Hassett paragraph 69).
"PSI 08/2013 does not mandate for an oral hearing either generally, or in specific circumstances. The policy is expressed in terms that provide some guidance to the decision maker as to whether some assistance will be given to the decision maker by holding an oral hearing. …"
(iii): "Impasse" cases
Submissions and analysis
(i): The alleged impasse
(ii): The length of time the Claimant has been in Category A conditions and the lack of a previous oral hearing
(iii): The Claimant's overall case
Conclusion