Lord
Justice
Sales:
- This case concerns the standard of procedural fairness
required
to be observed by the
Secretary
of State's Category A
Review
Team ("the CART") and the Deputy Director of Custody – High Security ("the Director") and his advisory panel when deciding whether to maintain a prisoner's security classification in prison as Category A. The Director is
responsible
for the categorisation and allocation of Category A prisoners, but may delegate decision-making, which for many decisions will be carried out by the CART.
- "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 escape impossible" (PSI 08/2013, para. 2.1;
R
v
Secretary
of State for the Home Department, ex p. McAvoy [1998] 1 WLR 790, CA, at 795). Where a prisoner is placed in Category A, that will affect the conditions of detention to which he is subject, as the
Secretary
of State has to take special care to prevent his escape. It is also likely to affect his prospects of being granted parole, as it would only be in a
very
rare
case that the Parole Board would order
release
of a prisoner from Category A detention without his suitability for
release
first being tested in more open conditions as a Category B, C or D prisoner:
R
v
Secretary
of State for the Home Department, ex p. Duggan [1994] 3 All ER 277 (DC), 280 and 288;
R
(Williams)
v
Secretary
of State for the Home Department [2002] EWCA Civ 498; [2002] 1 WLR 2264, [23]-[24]. This is an approach of the Parole Board as a matter of practice,
rather
than the consequence of any
rule
of law. Nonetheless, it is clear that a decision
regarding
a prisoner's categorisation has significant implications both for the public interest and for the individual interests of the prisoner himself. PSI 08/2013 provides that the CART should normally
review
a prisoner's Category A status annually.
- The CART and the Director and his panel are in law emanations of the
Secretary
of State, on usual Carltona principles (Carltona Ltd
v
Commissioners of Works [1943] 2 All ER 560). They are "internal bodies, part of the Prison Service, administering the prisons and organising their security":
R
(Williams)
v
Secretary
of State for the Home Department, [22]. They are composed of persons with
relevant
expertise and experience in making judgments about prisoner categorisation, as an aspect of prisoner management within the prison estate which is their
responsibility.
The CART and, in
relevant
cases, the Director and his panel address the question of the
risk
posed by a prisoner in the context of his escaping from prison and being at large, on the
run
and not subject to any measures of management and support in the community.
- The status and
role
of the CART and the Director and his panel are to be contrasted with those of the Parole Board. The Parole Board is an independent judicial body which makes judgments about the suitability of prisoners for
release
on licence or parole, among other things. It too is concerned with questions of
risk
to the public, but in the different context of asking whether
release
of a prisoner on licence would pose an unacceptable
risk
of harm, having
regard
to a
range
of management measures which may be put in place to support the prisoner and manage that
risk
if he is
released.
The difference in the function of the CART and the Director and his panel, on the one hand, and the Parole Board, on the other, in assessing
risk
was emphasised by this court in
R
(Williams)
v
Secretary
of State for the Home Department at [22] and [27].
- The Supreme Court addressed the standard of procedural fairness in
relation
to decisions made by the Parole Board in
R
(Osborn)
v
Parole Board [2013] UKSC 61; [2013] 3 WLR 1020. The guidance given by the Supreme Court, discussed in detail below, pointed towards a
requirement
for the Parole Board to hold an oral hearing involving a prisoner in more cases than had been its practice up till then.
- The principal submission of the appellants in the present case is that the same guidance should also govern what happens when the CART (or, as
relevant,
the Director and his panel) decide whether a prisoner should be placed or
remain
in Category A. This submission has been
rejected
in a series of decisions in other cases at first instance, alongside the decision below in this case:
R
(Morgan)
v
Secretary
of State for
Justice
[2016] EWHC 106 (Admin);
R
(Bell)
v
Secretary
of State for
Justice
[2016] EWHC 1804 (Admin); M
v
Secretary
of State for
Justice
[2016] EWHC 2455 (Admin); and
R
(Cummings)
v
Secretary
of State for
Justice
[2017] EWHC 266 (Admin). This is the first occasion on which this court has had to deal with the issue.
- The two appellants (Mr
Hassett
and Mr
Price)
are long term prisoners who were placed in Category A and maintained with that categorisation over a long period through successive
reviews
by the CART and, where
relevant,
by the Director and his panel, without any oral hearing. In these proceedings Mr
Hassett
challenges the lawfulness of a decision by the CART dated 19 September 2014 to maintain him in Category A, on the grounds that fairness
required
that he should have had an oral hearing before that decision was made. Mr
Price
challenges a decision by the CART dated 1 October 2014 to maintain him in Category A, again on the grounds that he should have been given an oral hearing before that decision was made. In both cases, a challenge is also made to the lawfulness of the guidance given by the
Secretary
of State at para. 4.7 of her Prison Instruction PSI 08/2013
regarding
the circumstances in which an oral hearing should take place before the CART (or, as
relevant,
the Director and his panel) make a decision on
review
to maintain a prisoner in Category A.
- Mr
Hassett's
Category A
review
decision of September 2014 has been superseded by further decisions of the CART in June 2015, June 2016 and January 2017. The decision in June 2015 again confirmed Mr
Hassett's
Category A status. It was made shortly before the hearing below in the Administrative Court, but it was agreed that Mr
Hassett's
judicial
review
challenge should proceed by
reference
to the decision of September 2014. The decision in January 2017 has once again confirmed Mr
Hassett's
Category A status, notwithstanding some positive statements
regarding
improvements in Mr
Hassett's
risk
status in
reports
before the CART.
- On the appeal, Mr
Hassett
made an application to adduce fresh evidence about what had happened in January 2017. We dismissed that application at the hearing, with
reasons
to follow. The
reasons
for that decision are set out below.
- Mr Stanbury, who appeared for the appellants, explained that the fact that there had been further Category A decisions in the cases of both Mr
Hassett
and Mr
Price
did not
render
the present appeals in
respect
of the Category A decisions of,
respectively,
September 2014 and October 2014 academic, because if the appellants' submissions of law are correct or if the guidance in PSI 08/2013 is wrong, that will affect how they are treated in the context of the next
review
of their cases by the CART. Mr Slater, for the
Secretary
of State for
Justice,
did not make oral submissions to the effect that the appeals were academic and that we should not determine them.
Application to admit fresh evidence
- The
reasons
for
refusing
Mr
Hassett's
application to admit fresh evidence about what happened in 2017 can be stated shortly. That evidence is irrelevant to whether the judge determining his judicial
review
claim in December 2015 in
respect
of a CART decision in September 2014 erred in her decision to dismiss his claim. Mr Stanbury accepted that it is not the function of this court to conduct a fresh judicial
review
of the decision of January 2017, but wished to adduce the evidence as illustrative of how some useful work can be done to
reduce
risk
despite a denial of the index offence and how
risk
reporting
from
various
sources can change over time. With
respect,
there is nothing in the judgment below to suggest that the judge did not appreciate these obvious points. Certainly this court does understand the points, without the need for evidence to be admitted to illustrate them. The admission of the fresh evidence would not have advanced the arguments we have to determine on the appeal in any material way, and if it had been admitted it would have been an unnecessary distraction from the debate on the points of principle which we are asked to decide. Time would have been taken up at the hearing for no good purpose, and there would have been a
real
risk,
for all Mr Stanbury's assurances that he would not ask this court to conduct a fresh judicial
review
of this later decision, that the parties would have been drawn into exchanges of submissions on the new evidence as if we were conducting such a
review.
Having
regard
to the overriding objective in CPR Part 1 and to maintain proper focus in the appeal, it was appropriate that this new evidence should not be admitted.
Factual background
The Category A
review
process
- The Category A
review
process is explained and guidance
regarding
it is given in Prison Instruction PSI 08/2013.
- The CART typically takes its decisions by
reference
to a dossier of materials compiled by staff within the prison where the prisoner is held, including the prison's psychology services team. The
reports
are compiled following interviews with the prisoner. The
reports
attach any pre-sentence and post-sentence
reports
on the prisoner. The
reports
in the dossier deal with the prisoner's offending history; his behaviour in prison and level of compliance with his sentence plan; offence-
related
work in terms of programmes attended (such as a sex offender treatment programme – "SOTP") and progress in those programmes; his health, insofar as it might be
relevant
to
risk
categorisation; and security information. Other
relevant
material will be included in the dossier.
- The dossier is provided to the prisoner so that he and his advisers have an opportunity to make
representations
in writing about its contents. The prisoner may submit material of his own, such as
reports
from an independent psychologist or psychiatrist as occurred in the cases of Mr
Hassett
and Mr
Price.
- The dossier and any materials submitted by the prisoner are then sent to the Local Advisory Panel ("LAP"), which is composed of
representatives
of the probation service, the prison psychology service, security specialists and the prison governor. The LAP makes a
reasoned
recommendation.
- The package of materials is then sent to the CART. The CART usually completes the
review
itself if the LAP has not
recommended
downgrading the prisoner from Category A and the CART considers that there is no
reason
to downgrade him.
- The CART may forward more marginal decisions to the Director, who considers categorisation with assistance from an advisory panel comprising a police adviser, chartered psychologist, members of the CART and an Independent Monitoring Board member. Cases
referred
to the Director include any
recommendations
to downgrade a prisoner from Category A and so-called five-year cases, to ensure that the Director himself and his panel see each prisoner's case at least every five years.
- The CART and the Director and his panel have a discretion in
relation
to the procedure they adopt for categorisation
reviews
and must act fairly, having
regard
to the context in which such
reviews
are undertaken.
- Paragraph 4.2 of PSI 08/2013 states:
"Before approving a confirmed Category A /
Restricted
Status prisoner's downgrading the [Director] (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."
- This paragraph has to be
read
subject to the definition of a Category A prisoner set out in para. 2.1 of PSI 08/2013, set out above, which governs the whole of PSI 08/2013. Downgrading from Category A pursuant to para. 4.2 will only be appropriate if the significant
reduction
in
risk
takes the prisoner outside that definition.
- Paragraphs 4.6 and 4.7 of PSI 08/2013 deal with the topic of oral hearings in the Category A
review
process. They state:
"4.6 The [Director] (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 [the Osborn case] 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 a 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."
- In these proceedings, the appellants say that the parts of the guidance in para. 4.7(b) in italics are unlawful, in that they do not properly
reflect
the guidance given by the Supreme Court in Osborn which, according to their submission, should govern the question of when the CART and/or the Director and his panel should hold an oral hearing involving the prisoner when
reviewing
his Category A status.
The facts in Mr
Hassett's
case
- Mr
Hassett,
now aged 58, has been a serving prisoner since 1984. He was already serving a sentence for
various
serious sexual or sexually motivated offences involving girls when, in 1992, on the basis of DNA evidence, he was sentenced to a life term with a 15 year tariff (later increased to 17 years) for the murder in 1978 of a 13-year old girl, after
raping
her. His tariff expired in 2006. Mr
Hassett
maintains his innocence in
respect
of the murder, but accepts
responsibility
for the other previous sexual offences for which he was sentenced.
- Mr
Hassett
has been placed within Category A since 1992. He has not had an oral hearing for any
review
of that categorisation, including the
review
resulting
in the September 2014 decision under challenge in these proceedings.
- In prison Mr
Hassett
has completed a number of programmes to address his offending behaviour, including the core and extended
versions
of the SOTP and the programme in
relation
to controlling anger and learning to manage it ("CALM").
- The
reports
included in the dossier for the 2014
review
decision in his case
recognised
some positive elements in his case, but also highlighted negative ones. Gemma Tock, forensic psychologist in training with more than 4 years' experience in the High Security Prison Estate, completed a Structured Assessment of
Risk
and Need
report,
dated 21 January 2013, under the supervision of Aiveen Fox, a Chartered and
Registered
Forensic Psychologist. The
report
was prepared following Mr
Hassett's
completion of SOTP courses, two extended interviews by Ms Tock and her
review
of
relevant
materials.
- Ms Tock noted that Mr
Hassett
had been assessed in June 2012 as presenting a high
risk
of sexual
reconviction.
Her assessment of him from her interviews was that he had difficulty in providing concrete evidence of what he had learned from the
various
programmes he had participated in, so that "it is particularly challenging to accurately assess Mr
Hassett's
understanding of the work that he has engaged in". He had had "difficulties in each treatment programme in expressing his thoughts, particularly his sexual ones" and "he struggles to explain how he is applying skills that he has learnt to himself." For example, he did not acknowledge a preoccupation with sex in his offending behaviour and was less than forthcoming in owning up to feelings of
vengefulness.
Ms Tock's
view
was that he would benefit from carrying out further SOTP work. She also considered that he might need to
revisit
the CALM programme. She also considered that his
refusal
to acknowledge
responsibility
for the murder
required
"significant further exploration".
- In
response
to the dossier for his Category A
review,
Mr
Hassett
submitted a
report
by
Rhys
Matthews, a chartered forensic psychologist, dated 27 May 2013, which had been prepared for the purposes of a Parole Board
review
of his case. Mr Matthews conducted an interview with Mr
Hassett
and
reviewed
and commented on Ms Tock's
report.
- Although Mr Matthews's assessment about the progress being made by Mr
Hassett
was more positive, it also
reflected
some of the concerns which Ms Tock had. Some examples follow. In his interview with Mr Matthews, Mr
Hassett
again had difficulty in acknowledging the sexual motivation of his offending: "To direct questioning he told me that he has committed sexual offences but does not see himself as a sexual offender." He denied
responsibility
for the murder. Mr
Hassett
was not good at explaining what he had gained from the programmes he had attended: it
required
"persistence" to conduct a satisfactory interview. Although Mr
Hassett
in interview denied a sexual interest in young girls, Mr Matthews'
view
was that he "should be managed on the basis that he has the capacity to be aroused by young girls", though no further programme work was indicated (presumably on the basis that Mr Matthews did not think that Mr
Hassett
would benefit from it, despite his concern). Mr Matthews, like Ms Tock, found that Mr
Hassett
had feelings of inadequacy and poor self-confidence, but these were deep-seated and unlikely to change as a
result
of
repeating
programme work; instead Mr
Hassett
needed "the opportunity to put what he has learnt into practice and to gain confidence by progressing through his sentence." Mr Matthews noted that concerns about Mr
Hassett
being suspicious, angry and
vengeful
were longstanding, and Mr
Hassett
acknowledged such feelings to some degree in interview; but although Mr Matthews noted that a
report
from the psychology team which supervised the CALM programme attended by Mr
Hassett
said that at times he could not answer the questions asked and went off at a tangent, so that it was difficult to gauge his progress, he did not consider that further programme work was necessary. Mr Matthews's overall
recommendation
was that it was not necessary for Mr
Hassett
to
repeat
SOTP or CALM programmes;
rather,
"What is
required
is for Mr
Hassett
to have the opportunity to practise the skills he has learnt and to test his emotional management skills in prisons of a lower security category where he will face different challenges."
- A number of points may be made about Mr Matthews's
report:
(i) it was prepared for Parole Board purposes, and looked to a situation in which there would be ongoing management of Mr
Hassett,
which obviously would not be the case if he simply escaped; (ii) as noted, in significant
respects
Mr Matthews corroborated areas of concern already identified in Ms Tock's
report,
the main difference between them being in their
views
whether Mr
Hassett
would or would not benefit from carrying out further programme work; (iii) Mr Matthews was
very
far from saying that Mr
Hassett
would present no significant
risk
to the public if he escaped – on the contrary, he thought that he
required
management in
relation
to his capacity to be aroused by young girls and his
recommendation
to the Parole Board was not that Mr
Hassett
should be
released,
i.e. as presenting no significant threat if managed in the community, but that he should continue to serve his sentence in prison, albeit at a lower categorisation to enable him to practise self-
restraint
and test his emotional skills; (iv) Mr Matthews made no comment about how Mr
Hassett's
denial of
responsibility
for the murder affected the
risk
he would present to the public.
- In May 2014 the CART
reviewed
and confirmed Mr
Hassett's
Category A status.
- By letter dated 18 September 2014, Mr
Hassett's
solicitors
requested
the CART to
recomplete
his security category
review
with an oral hearing, on the grounds that an oral hearing was
required
because Mr
Hassett
was well past the expiry of his tariff and in light of Mr Matthews's
report.
- In the decision letter dated 19 September 2014, which is the decision under challenge in Mr
Hassett's
case, the CART confirmed that it had considered the
request
for an oral hearing in light of the guidance in PSI 08/2013, but had decided that no oral hearing was
required.
The CART did not consider that the expiry of the tariff, of itself,
required
an oral hearing to be held. The CART did not consider that Mr Matthews's
report
provided evidence "of a significant dispute on matters
relevant
to Mr
Hassett's
security category
review."
The CART correctly noted that Mr Matthews's
report
did not address the
relevant
test in
relation
to security categorisation (i.e. in
relation
to the
risk
a prisoner would pose if he escaped from prison). The CART also considered that areas of concern which were confirmed by Mr Matthews's
report,
as noted above, tended to confirm the appropriateness of Mr
Hassett's
categorisation. Its
view
was that:
"… apart from
recommending
Mr
Hassett
should practise skills
rather
than undertake the SOTP, Mr Matthews's
report
does not significantly differ from prison
reports.
It considers his
report
provides no evidence that prison
reports
were wrong in their assessments of Mr
Hassett's
progress and suitability for downgrading. It considers his
report
provides no evidence of key issues
relevant
to Mr
Hassett's
progress that need closer examination."
The facts in Mr
Price's
case
- Mr
Price,
now aged 71, was sentenced on 15 July 2005 to imprisonment for 28 years (amended on appeal to 25 years) for his
role
in the evasion of import taxes in
respect
of the importation of 690 kilos of cocaine with a
value
of Ł35 million. Mr
Price
had sought to minimise his
responsibility
by (i) maintaining that he thought that it was cannabis
rather
than cocaine being imported; and (ii) maintaining that he had a minor
role
in the arrangements made. However, the trial judge found, according to the criminal standard of proof, that he knew that the drugs were cocaine and that he had a "major"
role
in the importation ("I
regard
you as the brains or at least a prime mover in this operation"). Mr
Price
has extensive previous convictions dating from 1959 for a wide
range
of offences, including housebreaking, theft, using false pretences, shop-breaking,
robbery
(armed with an offensive weapon), possession of dangerous drugs, assault on police, impeding the prosecution of an offender (in a case of murder), impeding apprehension of a criminal, handling stolen goods, possession of a document with intent to deceive, forgery, bribery, conspiracy to fabricate evidence, uttering a forged document, obtaining property by deception and possession of a false listed instrument. He has been placed in Category A from the outset of his imprisonment.
- In 2007 a confiscation order in the sum of Ł2,340,000 was imposed on Mr
Price,
which Mr
Price
failed to pay. The Crown Prosecution Service pursued the imposition of an additional default sentence of 10 years' imprisonment, and that sentence was imposed in May 2015. Mr
Price
has commenced judicial
review
proceedings in
relation
to this order.
Reports
have been prepared on Mr
Price
periodically in the usual way. He has been
reluctant
to discuss his intentions on his
release
or his judicial
review
challenge to the confiscation order.
- In December 2011, Dr G. Gregory in the psychology department at HMP Long Lartin prepared a psychology
report
on him. We were not provided with that
report,
but with a
report
dated 13 February 2013 by forensic psychologist in training Katie-Jo Elliott, under the supervision of a
registered
forensic psychologist, Donna Orr, which
referred
back to Dr Gregory's
report
for a comprehensive assessment. Ms Elliott's
report
was based on a 45 minute introductory interview at HMP Frankland directed to gauging Mr
Price's
level of insight into his offending, and did not purport to be a comprehensive
risk
assessment. Ms Elliott's assessment was that Mr
Price's
offence account minimised his involvement in the offence, using justifications to limit his
role,
such as that he was "
really
acting as a guide". This meant that the psychology team had
very
little understanding of his offending
risk
factors and whether he had addressed them, leading to Ms Elliott's conclusion: "I cannot with any certainty confirm Mr
Price
has
reduced
his
risk
in terms of specific
risk
factors linked to his index offence at this time." Ms Elliott's assessment was that criminal lifestyle, criminal peers and criminal attitudes were influential in Mr
Price's
behaviour at the time of the offence. In summary, Mr
Price
had maintained the same strategy of denial of
responsibility
for the cocaine importation as he used at his trial, on which he was comprehensively disbelieved.
- Mr
Price
commissioned an independent psychology
report
dated 30 May 2013 from Prof. Crighton, a consultant forensic psychologist, for his Category A
review
in 2013. Prof. Crighton conducted two interviews with Mr
Price.
- In his
report,
Prof. Crighton was more positive about Mr
Price
than Ms Elliott. But as in Mr
Hassett's
case, points also emerge from the
report
which support aspects of Ms Elliott's assessment. Mr
Price
confirmed that he had had a criminal lifestyle and had been involved in a network of criminal associates and activities over a long period. He had moved into fraud and deception offences as a form of specialist offending (para. 31). Although Prof. Crighton said at one point that the account of the importation offence given by Mr
Price
was consistent with the judge's sentencing comments (para. 29, first sentence), even he confirmed that Mr
Price
denied that he was aware that the drugs were cocaine
rather
than cannabis (latter part of para. 29, para. 32), leading him to say "Other than this there was little evidence that Mr
Price
was seeking to minimise his
role
or
responsibility"
(emphasis added). Prof. Crighton did not set out exactly what account Mr
Price
had in fact given; nor did he address the other dimension of minimisation of
responsibility
in terms of the extent of his
role
in the offence which Ms Elliott had identified in her 2013
report.
In fact, it is clear from Prof. Crighton's
report
that Mr
Price
went into elaborate detail to minimise his
responsibility,
by trying to argue that he saw cannabis at the time as a
relatively
harmless
recreational
drug (paras. 32 and 33); and even on Mr
Price's
own account, he identified greed as a motivating factor for him (para. 32, para. 42).
- Mr
Price
has been studying psychology in prison, and Prof. Crighton observed at para. 34:
"It is possible that Mr
Price
is simply
repeating
academic learning and that [his account of the harmfulness of cannabis and
recognition
of its effects on
victims]
did not
reflect
any genuine empathy or insight. It is difficult to effectively assess this area since this depends to a large extent on judgments about the quality of self
report
information. The other major source of information is behavioural observation, either direct or indirect. Ms Elliott and Ms Orr will have faced this difficulty in conducting their assessment. Given that they were not able to conduct a full psychological assessment of Mr
Price
making an accurate determination in this area would be
very
difficult."
The same limitations obviously applied to Prof. Crighton's own assessment.
- Mr
Price
told Prof. Crighton that he had "few qualms about deceiving the
revenue
and customs service" at the time of the importation offence (para. 42), and Prof. Crighton does not
record
that Mr
Price
expressed any change of heart on that score. Prof. Crighton considered that Mr
Price's
increasing age is likely to have significantly
reduced
his
risk
of
reconviction
and serious harm (paras. 51, 54 and 75), but made that point only by
reference
to what appear to have been studies
regarding
general
rates
of
reoffending
and did not explain why this should be so with a career criminal specialising in fraud and deception. Prof. Crighton's
view
was that overall "There is little evidence of lack of insight" and that "There is little evidence of negative attitudes" (para. 54), but his
report
itself showed that there was some evidence on both counts.
- Prof. Crichton's conclusion was that "there are no psychological grounds which
require
continued detention in conditions of high security and Mr
Price
could now be appropriately detained in Category B conditions" (paras. 65 and 83). Although Prof. Crighton was aware that he was producing a
report
in
relation
to a Category A
review,
he did not specifically say there would be no significant
risk
that would arise if Mr
Price
escaped, but only that there had been a diminution in
risk.
- A decision was made in 2013 to maintain Mr
Price
in Category A.
Reports
were then prepared for his next security categorisation
review
in 2014. Ms Elliott prepared a further
report
dated 18 February 2014, this time supervised by Jennifer Cottam. She had three interviews with Mr
Price
before finalising her 2014
report,
in the course of which Mr
Price
provided her with Prof. Crighton's
report.
He also provided her with a "Statement of
Rebuttal"
in which he took issue with aspects of Ms Elliott's assessment in her 2013
report,
denied that he had minimised his
role
in the importation offence and denied that he lacked insight into his offending.
- Even though Ms Elliott's 2014
report
is stated not to be a comprehensive
risk
report,
it is thorough and even-handed in its appraisal of the psychological
risk
factors in Mr
Price's
case. In interview, Mr
Price
continued to minimise his
responsibility
for his offending in
various
ways, including most notably continuing to offer an account which denied the findings made by the trial judge about his major
role
in the importation operation (p. 5). Mr
Price
also focused on behavioural and legal aspects of the offence in a way which drew attention away from the key psychological issues of identification of cognitions and
risk-factors
in his offending behaviour (pp. 3 and 6). Ms Elliott gave him a further opportunity to describe his insight into his drugs importation offence, and he
remained
unable to do so in a satisfactory way. He gave an account of how he became involved through agreeing to help a friend; through thinking that involvement with importation of cannabis is "not as bad as it could be, it's not the end of the world"; and that his criminal background meant that his moral compass was not as "black and white when it comes to the law" and that this allowed him to transpose his own moral judgment for the law of the land. But he did not acknowledge to Ms Elliott the factor of desire for financial gain which Prof. Crighton had highlighted (pp. 3-4), and Ms Elliott noted that Mr
Price
had also minimised that factor when interviewed by Dr. Gregory at HMP Long Lartin. Mr
Price
also stated to Ms Elliott that he had gained personal insight through his academic studies, but declined to discuss this in any further depth. So overall there was no greater clarity
regarding
the factors leading to his offending behaviour through which adequate ways could be worked out for Mr
Price
to address that
risk
(p. 4). Also of concern was that Mr
Price
questioned the need for a
risk
management plan for the future and his assertion that his determination to
remain
risk
free in the future would be sufficient, which indicated that Mr
Price
had no
real
insight into the
risk
factors that had led him to offend throughout his life (pp. 4-5). This concern was especially great "given that Mr
Price
has previously maintained an offence free lifestyle for a number of years and, despite this, chose to engage in offending behaviour in terms of his index offence" (p. 6).
- The LAP's
recommendation,
having
regard
to all the available
reports,
was that Mr
Price
should be maintained as Category A. In its
view,
he should provide clearer and more honest explanations for his offending and also identify more clearly the strategies that would help him avoid similar
reoffending.
- In a categorisation
review
decision dated 10 June 2014 by the Director, with advice from his panel, Mr
Price's
Category A status was maintained. The Director agreed with the
view
of the LAP. The decision letter stated, among other things, that having taken account of all
relevant
reports
and
representations,
the Director:
"… was … not persuaded that Mr
Price
had achieved any further or more convincing progress in
relation
to his offending since his last
review.
He noted Mr
Price
remained
unwilling to accept the most serious aspects of his offending and unable to provide convincing accounts of the influences on his offending or strategies to avoid similar
reoffending.
In addition he noted Mr
Price's
reluctance
to discuss his plans for
release
or his confiscation order. …".
- By letter dated 29 September 2014, Mr
Price's
solicitors
requested
that his security categorisation be
reviewed
by way of an oral hearing involving him. In that
regard,
Prof. Crighton's
report
was said to be a significant factor pointing to the need for an oral hearing.
- In a letter dated 1 October 2014, setting out the decision under
review
in Mr
Price's
case, the CART
refused
that
request.
Again, the CART had
regard
to the guidance in PSI 08/2013. The CART pointed out that despite statements in Prof. Crighton's
report
which suggested that Mr
Price
was not minimising his offending, in fact he clearly was when one compared Mr
Price's
account (including to Prof. Crighton) with the findings by the trial judge. The CART noted that previous psychology
reports
(presumably including Dr Gregory's full
report
from December 2011) "had highlighted that given [Mr
Price's]
current conviction and his offending history, it was clear that his
risk
centred on his motivation to deceive and manipulate, using whatever means he saw fit"; and Ms Elliott in her 2014
report
had confirmed that "whilst he had expressed offence
related
awareness and
remorse
up to a point, he
remains
unable to provide clear explanations for his thinking and attitudes influencing his offending, or to identify convincing ways of avoiding
re-offending
in the future." The letter also noted, in
relation
to the LAP's
review,
that Mr
Price
"was unwilling to discuss the confiscation order, and had stated that he would disappear on
release."
The CART's conclusion was that it
remained
satisfied that Mr
Price
had not made the level of progress in the process of personal change that would indicate there had been a significant
reduction
of
risk
in
relation
to his serious offending and that there was no good ground to hold a
reconsideration
of his case by way of an oral hearing.
Discussion
- In this section I will address in turn (i) the implications of the judgment of the Supreme Court in Osborn for issues of procedural fairness in
relation
to security categorisation
reviews
of Category A prisoners; (ii) whether the guidance in para. 4.7(b) of PSI 08/2013 is unlawful; (iii) whether the decision of the CART of 19 September 2014 in Mr
Hassett's
case, to
refuse
to grant him a
reconsideration
of his Category A status at an oral hearing, was unlawful; and (iv) whether the decision of the CART of 1 October 2014 in Mr
Price's
case to like effect was unlawful.
(i) Osborn and Category A
reviews
- "[W]hat 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": Lloyd
v
McMahon [1987] 1 AC 625, 702H per Lord Bridge; see also
R
v
Secretary
of State for the Home Department, ex p. Doody [1994] 1 AC 531, 560D-G per Lord Mustill.
- 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 inquiry
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 at [1998] 1 WLR 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,
as noted in Osborn at [2(i)], [54]-[63] (especially at [57]: "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") and [112]. 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 procedural standards of fairness in the common law have developed over time as circumstances and social expectations change. The decision of the House of Lords in
Ridge
v
Baldwin [1964] AC 40 is a classic example; and see ex p. Doody at [1994] 1 AC 531, 560E (Lord Mustill). As Lord
Reed
JSC, for the unanimous Supreme Court in Osborn, emphasised in his judgment at [61], the common law continues to develop, including in areas within the scope of the Convention guarantees. Osborn gives
recent
guidance on the
requirements
which fairness imposes in
relation
to decision-making by the Parole Board.
- The standards now applied in
relation
to the Parole Board are more stringent than they were formerly. By the time of
R
v
Secretary
of State for the Home Department, ex p. Duggan [1994] 3 All ER 277 the Parole Board in practice supplied certain
reports
to a prisoner (p. 282). However, in
view
of the impact on prospects for
release
of a prisoner of a decision by the CART/Director, acting for the
Secretary
of State, to maintain him in Category A, the Divisional Court held that as a matter of fairness the
Secretary
of State should supply him with the gist of information about him (
rather
than the categorisation
reports
themselves), apparently on the basis that this would meet the same standard of fairness as would be
required
of the Parole Board (p. 288). Mr Stanbury submitted that this indicates that the CART/Director must now be subject to the same procedural
requirements
as the Parole Board, as set out in Osborn.
- In my
view,
however, this inference cannot be drawn from ex p. Duggan. The procedural standards observed by both the Parole Board and the CART/Director are now more demanding than at the time of Duggan. The common law applicable in each context has developed, so that in each context full
reports
on a prisoner are provided to him to give an opportunity to comment on them (subject to issues of withholding of information on grounds of public interest immunity) before decisions are made which affect him. But with the development of procedural standards, points of difference between the Parole Board and the CART/Director which were of less or no materiality in the context of the less demanding standards in issue at the time of the debate in Duggan have assumed greater significance when exploring what precise procedural
requirements
are to be imposed
respectively
in the two different contexts.
- As the procedural
requirements
for the Parole Board have become more stringent since Duggan, case-law has highlighted the differences between the Board and the CART/Director and has held that it cannot be assumed that the same
requirements
always apply in the two contexts: see in particular
R
v
Secretary
of State for the Home Department, ex p. McAvoy [1998] 1 WLR 790, CA, 798-799 (Lord Woolf MR);
R
(Williams)
v
Secretary
of State for the Home Department, above; MacKay
v
Secretary
of State for
Justice
[2011] EWCA Civ 522, [25]-[28] (Gross LJ, endorsing the summary of principles by Cranston J in
R
(H)
v
Secretary
of State for
Justice
[2008] EWHC 290 (Admin), in which this court held that a
requirement
for an oral hearing before the CART will be
rare
and in the circumstances of that case none was
required);
and
R
(Downs)
v
Secretary
of State for
Justice
[2011] EWCA Civ 1422, [2]-[8] (Aikens LJ, endorsing the guidance in MacKay), in which again this court held that a
requirement
for an oral hearing before the CART will be
rare
and again held in the circumstances of that case that none was
required
(see in particular [45]). These judgments preceded Osborn. I have already
referred
to first instance decisions in the period after Osborn in which a series of judges have held that the guidance in Osborn cannot simply be transposed to the context of decision-making by the CART/Director.
- In my judgment, those first instance decisions have been correct about that. 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.
- Lord
Reed
in his judgment in Osborn helpfully summarised his conclusions
regarding
the circumstances in which the Parole Board would be
required
by common law standards of fairness to hold an oral hearing, at para. [2]:
"(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 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."
- For the purposes of his criticism of para. 4.7(b) of PSI 08/2013 and to support his attack on the lawfulness of the decisions in Mr
Hassett's
and Mr
Price's
cases, Mr Stanbury also called particular attention to para. [86], where Lord
Reed
said this:
"An oral hearing is also necessary when for other
reasons
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."
- In my judgment, it is clear from Lord
Reed's
reasoning
in Osborn that it cannot be taken to apply directly in the context of security categorisation decisions made by the CART/Director. In support of the common law
requirement
for the Parole Board to hold oral hearings in a wider
range
of cases, Lord
Reed
emphasises a
range
of points about that context which distinguish it from the Category A decision-making context: (a) Article 5(4) of the ECHR, applicable to the Parole Board, informs the development of the common law standards laid down by the Supreme Court; (b) the Parole Board has to make its own "independent assessment of
risk",
so the standards of fairness applicable are what is
required
to enable it to decide fairly as an independent adjudicative body, and be seen to do so (see [81] and [86]-[91]),
rather
than as part of an overall process of consideration by the
Secretary
of State, as is the case with the CART/Director; (c) the Parole Board is concerned to consider how the
risk
which it assesses to exist might be "managed and addressed" (see [81], [84] and [86]), including by management measures imposed after the prisoner is
released,
and this will typically
require
a more nuanced examination of the position, including assessment of the extent to which the prisoner might be motivated to co-operate with such management measures, making it more likely that the prisoner could make a useful contribution at an oral hearing, than in
relation
to the different question the CART/Director have to address; (d) the prisoner has a legitimate interest in being able to participate in a decision with important implications for him where he has something useful to contribute (see [68], [82], also [88]-[89] and [96]), but in the context of administrative prisoner management decisions by the CART/Director the legitimate interest of the prisoner in being able to argue that he should be
released
is less directly engaged; further, (e) the extent to which he is likely to be able to make a useful contribution at the stage of consideration by the CART/Director is much less, because of the question being addressed and the nature of the process leading up to that consideration.
- 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.
- 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.
- For these
reasons,
I
reject
the primary submission made by Mr Stanbury. After the Osborn decision, as before it, there
remain
material differences between the decision-making context for the Parole Board and that for the CART/Director, and those differences mean that the procedural
requirements
are different in the two cases.
(ii) The lawfulness of para. 4.7(b) of PSI 08/2003
- In the light of the discussion above, I do not consider that Mr Stanbury's criticism of para. 4.7(b) of PSI 08/2013 can be sustained. The
Secretary
of State is
right
to identify (b) ("Where there is a significant dispute on the expert materials") as a factor tending in favour of an oral hearing. The
remaining
text in para. 4.7(b) is a fair amplification of that basic idea. It is only where there is "a
real
and live dispute on particular points of
real
importance to the decision" that it is likely to be a
requirement
of fairness that an oral hearing be held.
- The thrust of Mr Stanbury's criticism of para. 4.7(b) was that these phrases had the effect of down-playing the significance of the example given - "where a psychological assessment produced by the Ministry of
Justice
is disputed on tenable grounds" – whereas in his submission the paragraph should have
reflected
directly what was said in para. [86] in Osborn, set out above. In my
view,
the criticism is misplaced.
- It is
right
to say that the example should be
read
as subject to the basic guidance earlier in para. 4.7(b), but there is no unlawfulness involved in that. Paragraph [86] of the judgment in Osborn has to be
read
as part of a judgment giving guidance on the procedural
requirements
in the context of decision-making by the Parole Board, and cannot simply be
read
across to the materially different context of decision-making by the CART/Director. Appropriate modification is
required
for guidance
relevant
to the latter context, which is what para. 4.7(b) seeks to give.
- In my
view,
para. 4.7(b) gives lawful general guidance
regarding
procedural
requirements
for the purposes of Category A decisions by the CART/Director. It is unnecessary to consider whether the guidance in PSI 08/2013 is precisely aligned with common law fairness standards. Some differences in expression are to be expected as between internal administrative guidelines and a judgment of a court of law. However, I am satisfied that para. 4.7(b) is not liable to mislead officials into applying a lower standard of procedural protection than the law would
require:
cf Gillick
v
West Norfolk and Wisbech Area Health Authority [1986] AC 112;
R
(Suppiah)
v
Secretary
of State for the Home Department [2011] EWHC 2 at [137] (Wyn Williams J);
R
(S and KF)
v
Secretary
of State for
Justice
[2012] EWHC 1810 (Admin), at [37] (Sales J). Accordingly, this is not a case in which it would be appropriate for this court to strike down or seek to modify para. 4.7(b).
(iii) The decision to
refuse
an oral hearing in Mr
Hassett's
case
- In my judgment, the decision not to hold an oral hearing in Mr
Hassett's
case was lawful. The decision was not taken in
reliance
on any unlawful guidance: see above. There was no breach of the common law
requirements
of fairness in the circumstances of this case.
- The question to be answered was whether Mr
Hassett
would present a
risk
to the public if he escaped from prison. Mr Matthews's
report
did not suggest that he would not;
rather,
it strongly tended to indicate that he would. That was also the
view
of the prison psychology service. On the
relevant
question, therefore, there was no
real
or significant dispute between the expert psychologists which might indicate either that an oral hearing was
required
involving them, to test their
respective
expert opinions in an adversarial oral procedure, or that an oral hearing was
required
involving Mr
Hassett.
Mr
Hassett
had already had a fair opportunity to explain himself to both psychologists and could not
realistically
be expected to provide further assistance on the question being addressed.
- I would add that even in a case where there is a significant difference of
view
between experts, it will often be unnecessary for the CART/Director to hold a hearing to allow them
ventilate
their
views
orally. This might be so because, for example, there may be no
real
prospect that this would
resolve
the issue between them with sufficient certainty to affect the answer to be given by the CART/Director to the
relevant
question, and fairness does not
require
that the CART/Director should hold an oral hearing on the basis of a speculative possibility that that might happen: see Downs at [45].
- Where a prisoner
refuses
to accept
responsibility
for an offence of which he has been found guilty, as Mr
Hassett
has done here, that is likely to have an effect on the
relevant
risk
assessment made in
relation
to him for the purposes of a Category A
review
decision, as explained by Elias J in
R
(
Roberts)
v
Secretary
of State for the Home Department [2004] EWHC 679 (Admin) at [36]-[42]. As Elias J observed at [42], "Given that the danger must be presumed from the nature of the index offence, it is plainly a proper
requirement
that there should be cogent evidence of the diminution of
risk
if the safety of the public is to be secured." There was no unlawfulness in the way in which this factor was taken into account in Mr
Hassett's
case.
(iv) The decision to
refuse
an oral hearing in Mr
Price's
case
- For similar
reasons,
the decision not to hold an oral hearing in Mr
Price's
case was also a lawful one. There was no breach of common law fairness in his case.
- I have
reviewed
above the limitations of Prof. Crighton's
report.
It should also be noted that by the time of the decision under challenge in October 2014 it was
very
out of date. It had been prepared for the purposes of a categorisation
review
in May 2013, and commented on Ms Elliott's
report
of February 2013 for that
review.
But things had moved on to a considerable degree since that
review.
Ms Elliott had produced a new
report
of February 2014 based on new
reports
and further detailed interviews with Mr
Price.
Those interviews gave further grounds for concern
regarding
the
risk
he would present if he escaped. There was no further
report
from Prof. Crighton to dispute the assessment of
risk
by the prison psychology service in the light of this new material. There was, in my
view,
no current
real
and significant dispute between psychological experts in October 2014 which
required
the CART/Director to hold an oral hearing.
Conclusion
- For the
reasons
given above, I would dismiss this appeal.
Lord
Justice
Moylan:
- I agree.
Lady
Justice Black:
- I also agree.