QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KEITH
| Gerald Roose
|- and -
|(1) The Parole Board
(2) The Secretary of State for Justice
Ms Samantha Leek (instructed by The Treasury Solicitor) for the First Defendant
Ms Shaheed Fatima (instructed by The Treasury Solicitor) for the Second Defendant
Hearing date: 2 July 2010
Crown Copyright ©
Mr Justice Keith (giving the first judgment at the invitation of Lord Justice Hooper):
The background facts
(i) An OASys assessment carried out in October 2008 concluded that Mr Roose posed a medium risk of serious harm to members of the public. That meant that Mr Roose had "the potential to cause serious harm, but was unlikely to do so unless there was 'a change in [his] circumstances'".
(ii) A consultant clinical and forensic psychologist, Joanna Brook-Tanker, interviewed Mr Roose for three hours in October 2008 in order to provide a SARN (Structured Assessment of Risk and Need) report on him. That was what the Board in October 2007 had asked to be prepared for his next review. Unfortunately, Ms Brook-Tanker had not had an opportunity to read the six volumes of notes on Mr Roose before she interviewed him, and she had only "explore[d] briefly some of the reports contained in the most recent volume". She herself said that in those circumstances any opinion and recommendation she expressed had to be considered as tentative. She was concerned that Mr Roose did not appear to have developed adequate insight into his offending behaviour. She was very concerned about the prospect of him moving to open conditions. She thought that the Board may wish to consider whether Mr Roose should be assessed for his suitability for treatment under the Dangerous and Severe Personality Disorder programme, which is for offenders deemed more likely than not to commit offences in the future which could cause serious harm from which their victim would find it difficult or impossible to recover. This was the first time that such a possibility had ever been canvassed, though it was not as if Ms Brook-Tanker was saying that Mr Roose was eligible, let alone suitable, for the programme. She was simply saying that it was possible that he fulfilled the criteria for the programme because he had been diagnosed as having a personality disorder in the past.
(iii) Jon Denning, the offender supervisor at the prison where Mr Roose was held, provided a report on him in November 2008. We were told that he was the officer who had supported Mr Roose's transfer to open conditions in September 2004, but who had begun to express doubts about that in October 2007. This time he expressed the view that "[t]o move him from [his present] environment … [would] raise his risk of serious harm and highlight his identifiable risk factors". He noted that "when taken out of familiar surroundings or faced with unknown people Mr Roose has an inability to manage his emotional responses in an appropriate manner, thus increasing the risk of serious harm that he poses". Finally, he added: "His apparent infatuation with older ladies … highlights risk factors which are intrinsically linked to the index offence and previous behaviour." He concluded his report by saying that he would not support Mr Roose's transfer to open conditions, and said that he agreed with Ms Brook-Tanker that Mr Roose would benefit from a move to the Dangerous and Severe Personality Disorder Unit. He was unaware or had overlooked that any view which she had expressed was tentative, and he was apparently under the impression that she had actually recommended such a move.
(iv) A senior probation officer also interviewed Mr Roose and prepared a report on him. Her report endorsed the recommendation that he be considered for transfer to the Dangerous and Severe Personality Disorder programme, and she was likewise not prepared to support a move to open conditions at that stage. However, her report was based on a conversation she had with Mr Roose on the telephone for only an hour, and I rather doubt whether the Board would have attached any weight to it.
The dossier containing these reports was sent to Mr Roose's solicitors (since they were on the record as continuing to represent him) and to Mr Roose. They were invited to make such representations as they wished, but none were received.
"You appealed the negative decision on the basis that you hoped that an updated OASys might indicate a reduction in your risk and that if your case went to an oral hearing you would have access to legal representation. You have produced no evidence that might indicate that your risk had reduced. No report writer shares that view. Indeed you have been recommended for an assessment for a DSPD unit to address outstanding risk issues. Current reports suggest that you should comply with any recommendations for further assessment to address your offending behaviour and thereby reduce your risk of re-offending and of harm to the public."
It is questionable whether this is the decision which Mr Roose should be challenging, bearing in mind that it was treating Mr Roose's request for an oral hearing as if it was an appeal on the merits of Mr Roose's release or transfer to open conditions, rather than addressing simply the question of whether his release or transfer to open conditions should be considered at an oral hearing. It was the earlier decision of 18 March 2003 which had done that. That is not simply a technical point because the claim form was filed in the Administrative Court Office on 11 August 2009, and the claim would have been out of time if the real decision being challenged was the one of 18 March 2009, rather than the one of 12 May 2009. However, since the decision of 12 May 2009 was the Board's response to Mr Roose's request for an oral hearing, I would be prepared to treat the decision of 12 May 2009 as refusing that request, even though the Board treated the request as if it was an appeal on the merits.
The legal framework
"(1) Within 14 weeks of the case being listed, a single member panel shall consider the prisoner's case without a hearing.
(2) A single member panel must either
(a) decide that the case should
be considered by a three member oral panelreceive further consideration by an oral panel; or
(b) make a provisional decision
as tothat the prisoner sis unsuitable suitabilityfor release."
The decision of 18 March 2009 was the provisional decision of the single member of the Board that Mr Roose was unsuitable for release, even though the letter did not say that the decision was a provisional one.
"(1) In any case where the single member panel has made a provisional decision under rule 11(2)(b) that the prisoner is unsuitable for release, the prisoner may
require a three memberrequest an oral panel to give consideration to his case with a hearing.
(2) Where the prisoner does so
requirerequest consideration of his case with a hearing, he must serve notice to that effect giving full reasons for the request on the Board and the Secretary of State within 19 weeks of the case being listed.
(3) If no notice has been served in accordance with paragraph (2) after the expiry of the period permitted by that paragraph, the provisional decision shall become final and shall be provided to the parties within 20 weeks of the case being listed."
Although the Board's decision letter of 12 May 2009 referred to Mr Roose's request for an oral hearing as an appeal against the decision of 18 March 2009, the letter of 12 May 2009 was the Board's response to Mr Roose's request. The Rules do not provide for an appeal.
"Decisions on oral hearings will be taken by the ICM member. The member will consider this in all cases, regardless of whether the prisoner has requested one. An oral hearing will normally be granted in two sets of circumstances:
1. Where the ICM member considers there is a realistic prospect of release or a move to open conditions; or
2. In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. This would include a case where a progressive move is not a realistic outcome, but where live evidence is needed to determine the risk factors. It is envisaged that this will be a rare step to take and would normally only be necessary where experts disagreed about a risk factor; for example, whether or not there was a sexual element to an offence that needed exploring. It is only intended to apply this principle where there is a dispute about whether an issue is a risk factor at all, not necessarily whether it has been addressed or not.
An oral hearing will not be granted where there is no realistic prospect of release or open conditions, but where such outcomes are requested by the prisoner, detailed reasons will be given for refusing, in particular where the prisoner is already in category C or D.
Decisions will normally be taken at the ICM stage. In a case where a negative decision has been issued, the prisoner has the right to apply for an oral hearing. These requests will be considered by the duty ICM member. The member who gave a negative decision will not consider the oral hearing request."
ICM stands for Intensive Case Management, and refers to a member of the Board who has been accredited by the Board to manage cases in accordance with the Board's intensive case management system, which seeks to ensure that all relevant information about a prisoner is available to the Board at the earliest stage and is both accurate and up-to-date.
The compatibility of rule 10 of the Amendment Rules with the Convention
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The case which Mr Roose's legal team wishes to advance is that rule 10 of the Amendment Rules, which removed the lifer's entitlement to require the Board to convene an oral hearing when it was considering his or her release on licence, and left it to the Board to decide whether an oral hearing should be convened, is incompatible with Art. 5(4). It is said that the decision of the European Court of Human Rights in Waite v The United Kingdom (2003) 36 EHRR 54 supports that contention. Permission to proceed with this part of the claim was refused by Sales J, and Mr Roose's solicitors have asked for that to be reconsidered at a hearing.
"In matters of such crucial importance as the deprivation of liberty and where questions arise involving, for example, an assessment of the applicant's character or mental state, the Court's case law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant's personality and level of maturity and reliability are of importance in deciding on his dangerousness, Art. 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses." (Emphasis supplied)
Different considerations may arise where the Board is deciding whether a prisoner's licence should be revoked for breach of its terms and when it is deciding whether a lifer's level of risk is such that he can safely be released into the community. But for my part I do not read the court in Waite as adopting the absolutist position that in every case where the prisoner's release or continued detention is ultimately going to depend on what the Board decides, Art. 5(4) requires an oral hearing to be convened. It is going to depend on the issues which are to be addressed. The level of the prisoner's maturity and reliability are the sort of issues which the court in Waite said would require an oral hearing to be convened, presumably because they are issues which can only be properly and fairly resolved by an oral hearing, whether for relevant witnesses to be questioned or for oral representations by lawyers to be made.
"In so far as the submission is to the effect that Art. 5(4) requires an oral hearing in every case where the question is the assessment of risk to the public, I reject it. In the first three cases referred to in the previous paragraph, the court was not dealing with the particular facts of each individual case. It was identifying the characteristics of a hearing which was capable of being Art. 5(4) compliant. I do not read the judgments as dealing with the question of whether in every case without exception there must be an oral hearing. The principle is accurately set out in paragraph 59 of Hussein. The question of whether or not an oral hearing will be necessary in any given case will depend upon the facts. I consider that the position in this respect under Art. 5(4) is no different from the position at common law." (Emphasis supplied)
"In the determinate sentence/Parole Board context an oral hearing is often likely to be required because many such hearings will involve 'matters of [such] crucial importance as the deprivation of liberty' where 'a substantial term of imprisonment may be at stake'. Moreover the decisions will frequently require consideration of:
(i) the prisoner's 'mental state';
(ii) his character;
(iii) his personality; and
(iv) his maturity.
Where the above conditions are satisfied Art. 5(4) may require an oral hearing. The considerations adumbrated above are likely to embrace many (perhaps most) Parole Board hearings." (Emphasis supplied)
Treacy J went on to conclude that both Art. 5(4) and procedural fairness required an oral hearing in the circumstances of that case.
"Art. 5(4) does not in terms require an oral hearing; it creates an implied obligation to hold an oral hearing only where that would serve a useful purpose in allowing proper exploration of a claimant's case. Whether that is so or not will depend on the particular facts of individual cases. The amended rules leaves it to the judgment of the Parole Board to assess that in each case. There is nothing in the rule which prevents the Parole Board from acting to ensure full compliance with Art. 5(4) rights. Structuring the decision-making process in this way is clearly compatible with Art. 5(4)."
I agree with these remarks, and I would dismiss the renewed application for permission to proceed with the part of the claim which alleges that rule 12 of the Rules as amended is incompatible with Art. 5(4).
The requirements of procedural fairness
"There is no absolute rule that there must be an oral hearing automatically in every case. Where, however, there are issues of fact, or where explanations are put forward to justify actions said to be a breach of licence conditions, or where the officer's assessment needs further probing, fairness may well require that there should be an oral hearing. If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the Board should be predisposed in favour of an oral hearing."
But the fullest statement on the appropriate principle came in the speech of Lord Bingham. He said at :
"The common law duty of procedural fairness does not, in my opinion, require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board's task is certainly to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."
The House of Lords concluded that procedural fairness had required oral hearings in those cases.
"It seems to me that the Parole Board should be predisposed to holding an oral hearing in such cases. That would certainly be the case where there is any dispute of fact, or any need to examine the applicant's motives or state of mind. But in the present case, I do not read the Parole Board decision as being one which could have been affected in any way by anything further that the claimant could have said beyond that which he had set out in his written representation."
Accordingly, in a case in which written representations were made to the Board by the prisoner or his representatives, it is necessary for the Board to consider whether in the particular circumstances of the case an oral hearing would have made the Board's consideration of the case any more informed, and its assessment of the risk the prisoner posed any more accurate, than was already the case.
"For fairness to demand an oral hearing there must be something which the oral nature of such a hearing can contribute by reason of the fact that it is oral and held in [the prisoner's] presence or that of his representatives which is of relevance to that hearing or to future potential hearings. I do not rule out that there may be circumstances in which even though there is nothing of such relevance to add there may on the exceptional facts of a case be such a need for the prisoner to see and understand how his case is being considered that procedural fairness demands a hearing in his presence, or that of his representatives: but such cases if they exist will be rare, for by definition from the Board's point of view it is being invited to participate in a process when the prisoner's participation can add nothing of relevance. From the prisoner's point of view, it is a waste of his time to take part in an oral hearing when nothing of relevance may be gained, and may even risk being a hollow charade where he has already responded in writing with all the relevant representations. If there is no obvious relevance, there is no good reason for the Board to bear the additional burdens of arranging and holding an oral hearing. Further, in reaching a decision whether there is such potential relevance, and whether to hold such a hearing, the Parole Board should have regard to the reasons given by or on behalf of a prisoner for seeking an oral hearing."
The application of these principles to Mr Roose's case
"A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions."
"… the Board should note that it is not being asked to comment on or make any recommendation about:
(i) the security classification of the closed prison in which the prisoner may be detained
(ii) any specific treatment needs or offending behaviour work required
(iii) the date of the next review."
Since the Board could not itself make any recommendation about whether Mr Roose should be assessed for his suitability for inclusion in the Dangerous and Severe Personality Disorder programme, there would be no point in an oral hearing being convened to address that issue.
Lord Justice Hooper: