ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT);
Mr Justice Bean
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE GROSS
|- and -
|Secretary of State for Justice
Mr Hugh Southey QC (instructed by Michael Purdon) for the Respondent
Hearing dates : 05.04.11
Crown Copyright ©
Lord Justice Gross:
i) In law, in concluding that the Parole Board's expression of view in its decision dated 23rd July, 2009 ("the 23rd July decision"), after an oral hearing, that moving the Respondent to a Category B training prison "may be a constructive move", sufficed (or effectively sufficed) to require CART to convene an oral hearing before the SSJ's 26th November decision, refusing re-categorisation.
ii) In fact, insofar as the learned Judge mis-quoted the Parole Board's expression of view contained in its 23rd July decision; at  of the Judgment, the Judge recorded that expression of view as follows: "a down-grading of his categorisation would [emphasis added] be a 'constructive move'"; by contrast and as already recorded, the Parole Board said only that it "may" [emphasis added] be a constructive move.
" 19. Donald Mackay was convicted of murder in December 1989 and sentenced to life imprisonment with a tariff set at 20 years. The offence came to light when police discovered the decomposing remains of the victim in a bin-bag in the Claimant's flat. She was a prostitute who had visited his flat sometime earlier. Death was due to asphyxiation following the infliction of multiple injuries to the face and severe injuries to the other parts of the body. The police had called at Mr. Mackay's flat following a complaint of assault, false imprisonment and forcible buggery from another prostitute who had come to the flat after the death of his first victim; he was also convicted of offences against her.
20. At the trial his defence to the murder charge was that the victim had arrived at his flat complaining of assault by a client. He went out to the shop in the morning and returned to find her dead. In the case of the complaints by the prostitute who survived he denies committing offences against her. He alleged that they had intercourse by consent.
21. Mr. Mackay had previous convictions for offences of violence culminating in a conviction for manslaughter in 1984; he had killed a man with a sword in a drunken brawl and was sentenced to five years imprisonment.
22. In Mr. Mackay's case….there was an oral hearing before a panel of the Parole Board in 2009. The Board had before them a report commissioned by the Claimant's solicitor from a consultant psychiatrist, Dr David Somekh, who considered that there was no good evidence to support the notion that the Claimant should remain in category A conditions. They also heard oral evidence from Mr. Mackay himself, a psychologist, Tracey Brookes, and his offender supervisor, Karen Ferraby. The Claimant was represented by his solicitor, Mr. Michael Purdon, who also acts for him in this court and who has substantial experience of prison law. Mr. Purdon did not seek a direction for release or a recommendation for transfer to open conditions: neither of these propositions would have been realistic given that Mr. Mackay still had a Category A classification…. Mr. Purdon did, however, invite the Panel to comment on his client's progress.
23. The Board wrote to Mr. Mackay on 23 July 2009 with a decision (unsurprisingly) that he should remain in closed conditions. They wrote:-
'You are an enhanced level prisoner and have been adjudication free for many years.
You have consistently denied your guilt for the index offences, saying that the deceased victim died of natural causes.
In relation to the second victim you claimed that all sexual activity was consensual.
The panel were concerned that, during your evidence, whilst accepting some of the facts of the case, your own description of events minimised your culpability to a disturbing degree.
Similarly, your accounts of your previous offending showed a lack of insight into the nature and degree of your violent behaviour.
The panel were also of the view that you saw yourself as the principal victim of events are concerned that such grievance thinking may impact on your motivation to change.
Whilst acknowledging that since the last review period you have done some work to address some of your risk factors and have behaved well in prison the panel felt that there has been no significant reduction in your level of risk.
Ms. Brookes informed the panel that the criteria for admission to the core SOTP had changed so that a denial of sexual offending was no longer a barrier as long as there was some acceptance of sexual contact.
The panel would support any work that might be achieved in this area.
Ms. Ferraby said that she supported a proposal that you be moved to a Category B training prison.
The panel felt that this may be a constructive move.
In conclusion the panel concluded for the reasons set out above that you should remain in closed conditions to complete more work aimed at reducing your risk.'
24. Following the Parole Board's review a sentence planning review was held. It concluded that the only fresh offending behaviour work needed to undertake was the SOTP. It noted that the Claimant had previously refused to undertake that program as he maintained that he was not a sex offender. However, it appeared that he was now willing to discuss the possibility with a psychologist. (I was told by Mr. Southey QC that Mr. Mackay has more recently been assessed as unsuitable for the SOTP.
25. In advance of the sentence planning review the Claimant's solicitors argued that an oral hearing should be held. By a decision of 26th November 2009 the Secretary of State rejected the representations made in support of re-categorisation and decided that the Claimant should remain at Category A. The letter stated:-
'The Category A Team noted your representations requested an oral hearing, but was satisfied there were no special circumstances that warranted such an exceptional procedure…. The Category A Team noted Parole Board reviews relate to your suitability for supervised release or transfer to open conditions. It noted that they are also perhaps dynamic or idealistic in nature and will seek to promote a prisoner progress through testing in less secure conditions.' "
" 26. The sentence just quoted seems to me to show a rather patronising attitude to the Parole Board….."
With respect and though nothing of significance may turn on it, I am not sure that stricture was justified. The sentence in question needs to be read together with the passage in the SSJ's decision which next followed:
" The Category A Team noted your security category reviews however in contrast relate directly to the conditions of security in which you should be held, based on an objective assessment of the risk you would pose if unlawfully at large. It considered that an appropriate reduction in your risk must precede your downgrading, and that your downgrading could not be approved solely to test you in less secure conditions."
To my mind, despite its rather awkward drafting, this passage serves to contrast the role of the Parole Board on the one hand, with that of CART on the other; read as a whole, it dispels the element of apparent condescension that the preceding sentence (in isolation) may otherwise have conveyed.
" Mr. Mackay's insight into his offending behaviour still warrants further development and he has a long term target to address his sexual offending behaviour. Should Mr. Mackay escape from lawful custody, no matter how unlikely that may be, he will still pose a significant risk to the public.
Mr. Mackay should remain Cat A."
As to "areas of risk", these included but were not confined to "alcohol misuse". Other areas of risk identified were accommodation, emotional well-being, thinking and behaviour and attitudes. It was said that the "sexual and violent" elements of the Respondent's offending still warranted further exploration. It may be noted that Ms Brookes, a psychologist who had given evidence at the Parole Board's oral hearing, was an "attendee" at the Advisory Panel.
" The Category A Team was however satisfied the overall assessment showed you had still to achieve significant progress, either in acknowledging full responsibility for your present offences, or in achieving insight and change in relation to your use of extreme violence.
The Category A Team did not accept that your alcohol abuse alone provided a full or convincing explanation for the serious nature of your present offences…….
The Category A Team was therefore satisfied that your good custodial behaviour and work to address your alcohol problems could not alone provide evidence of a significantly reduced risk of re-offending in a similar manner. "
" The Category A Team was also satisfied that there was no impasse in relation to your ability to address and reduce your level of risk. It noted recommended intervention work was fully available to you in your present security category, and was satisfied that your downgrading was not necessary to allow you to take part in such work. It considered that your current unsuitability for intervention work to address your capacity for extreme violence against females was self-imposed by your unwillingness or inability to acknowledge and discuss the related issues. "
" The Category A Team considered that your current progress, even though maintained over some years, was insufficient on its own to show you had significantly reduced your capacity to act in the same way given the opportunity. On that basis it was satisfied that convincing evidence of significant risk reduction if unlawfully at large was not available, and you should remain in category A at this time. "
THE JUDGMENT UNDER APPEAL
" 27. There was no dispute between counsel about the principles to be applied. The common law duty of procedural fairness may require the decision makers to hold an oral hearing. Such a hearing is not required in every case, and what fairness requires in a particular case is fact specific. It is for the court to decide what fairness requires, and the issue on judicial review is whether the refusal of an oral hearing was wrong, not whether it was unreasonable or irrational."
" 37. Mr. Mackay is …a post-tariff lifer in Category A whose further progress is being hampered by a degree of impasse. ….. Mr. Mackay has already had an oral hearing before the Parole Board; and the Board, after hearing oral evidence and considering Dr. Somekh's [a pscyhiatrist's] report, has expressed the view that a down-grading of his categorisation would be a 'constructive move'.
38. Mr. Slater [counsel for the SSJ] submits that inconsistencies of decision between the Parole Board and CART are far from exceptional. He points to the observation of Judge LJ in Williams that such inconsistencies are an inevitable consequence of the two distinct processes of the Board and CART. That is, of course, correct; but, in the passage to which Mr. Slater refers, Judge LJ was considering inconsistencies of outcome. For present purposes I am concerned with fairness of the process, not of the outcome.
39. It is not for me to say on this judicial review that CART are bound to downgrade Mr. Mackay's categorisation; Mr. Southey [counsel for the then Claimant, now Respondent on the appeal] has not contended that they are. But I do hold that the circumstances of Mr. Mackay's case, in particular the view expressed by the Board, make it necessary that CART should hold an oral hearing at which the Claimant will have the opportunity to put his case for re-categorisation. (I agree with what Cranston J said in H about the nature of that hearing.) "
THE RIVAL CASES
" …erred by concluding that the inconsistency between the Parole Board's decision and that of the Secretary of State is sufficient to justify holding an oral hearing."
Bean J had correctly decided that it was. The present context called for a high standard of procedural fairness; moreover, there was an impasse. An oral hearing would not only assist the quality of decision-making by CART (and the SSJ) but it would also assist in the resolution of the impasse.
" …. 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. "
Self evidently, categorisation as a Category A prisoner has serious consequences for the prisoner. Not only is he subject to a more restrictive regime and higher conditions of security than prisoners in other categories but, given the meaning of categorisation as a Category A prisoner, so long as he remains such, his prospects of release on parole are nil: see, R v Secretary of State for the Home Department, ex parte Duggan  3 All ER 277, esp., at pp. 280 and 288, per Rose LJ. Accordingly, the decision as to continued classification of the prisoner as Category A has a direct impact on the liberty of the subject and calls for a high degree of procedural fairness.
"29. The views of the panel [i.e., the Parole Board] on categorisation, however strongly expressed, are not and cannot be determinative of the categorisation decision…..
30. This does not produce the lamentable consequences that the recommendations of the panel are irrelevant to the categorisation decision, or indeed the decision-making process. It was rightly accepted that these must always be considered by the review team [i.e., CART]…..
31. Apart from the disquieting impression that the two decision-making bodies concerned with this claimant were not working with the same material, the risk highlighted by this appeal is circularity. The post-tariff discretionary life prisoner may be trapped in an unending process. This risk is mitigated by recognising that there are exceptional cases in which (subject to public immunity issues) the material available to the review team, in particular the reports on him, rather than their gist, should be disclosed and the prisoner permitted an oral hearing.
32. ……Once notice of the panel's decision had been received, the review team should have recognised an obvious prospect of a major inconsistency between their respective conclusions. An oral hearing would have enabled the reasons for the contradictory views to be examined on behalf of the claimant and for the contents of any adverse reports to be directly addressed. In the final analysis the review team would, of course, have reached its own decision, but an oral hearing, and proper disclosure, would have ensured that the decision was the result of a better informed process, and the conclusions, and the reasons for them, would then have been received with correspondingly greater confidence. "
" …by being in denial they [i.e., prisoners] limit – and in many cases severely limit – the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates that they have not accepted that the risk was ever present."
i) As to the common law duty of procedural fairness and the holding of an oral hearing, Lord Bingham of Cornhill said this in the distinct if not altogether unrelated context of the recall to prison of a prisoner on licence:
" 35. The common law duty of procedural fairness does not….. 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 certainly is 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."
R (West) v Parole Board  UKHL 1;  1 WLR 350, at .
In helpful observations on this passage, Cranston J, in R (H) v Sec of State for Justice  EWHC 2590 (Admin), said this, at :
" Lord Bingham's statement of principle makes clear that common law standards of procedural fairness affecting an oral hearing are flexible, may change over time, and in general terms depend on the circumstances of the case. Clearly oral hearings are not required in all or even most cases, but importantly the context in which procedural fairness is being considered is determinative. There is no test of exceptionality. One considers the interests at stake and also the extent to which an oral hearing will guarantee better decision-making in terms of uncovering of facts, the resolution of issues, and the concerns of the decision-maker. Cost and efficiency must also be considered, often on the other side of the balance."
Earlier in the same judgment, at , Cranston J had remarked on the "greater confidence" given by an oral hearing that the "relevant standards" had been properly applied; he also observed:
" It is clear that procedural fairness does not impose the straitjacket of a quasi-judicial process and more informal procedures than what one expects before the courts or even tribunals may be acceptable. An oral hearing does not necessarily imply the adversarial process."
ii) By way of examples from the field of categorisation decisions, in Williams (supra), this Court held that an oral hearing was required. The Parole Board had made a clear recommendation in favour of the prisoner – a post-tariff discretionary life prisoner - but CART had decided to maintain his security classification. CART had available to it reports which had not been before the Parole Board and had declined to disclose the reports to the prisoner or his representatives, although the gist of those reports had been made available. In H (supra), Cranston J held that an oral hearing was required, in circumstances which included an inconsistency between the local prison review panel (which recommended downgrading the prisoner's categorisation) and CART (which decided in favour of maintaining his categorisation). For completeness, the Secretary of State appealed from the judgment of Cranston J but, by the time the case of H reached this Court, subsequent events had rendered the appeal academic: see,  EWCA Civ 83.
iii) The impasse capable of arising when a prisoner continues to deny the commission of the offence/s in question has already been discussed. A potential impasse may also arise where a prisoner needs access to opportunities to demonstrate that he can be trusted in a lower category, as otherwise he will have an almost impossible task in persuading the Parole Board that he should be released; see: Roberts (supra), at . However, keeping him as a Category A prisoner may mean that he does not have access to such opportunities - and, for its part, CART (rather as it observed in the present case), with its own particular interest in the risk of escape, may be unwilling to risk downgrading the prisoner's security categorisation without prior evidence of significant risk reduction.
iv) Although the existence of an impasse or inconsistency (for example, between the Parole Board and CART) may increase the likelihood of an oral hearing being required, it should not be thought that the mere existence of an impasse or inconsistency means that an oral hearing will be warranted. Moreover, for my part, the Court should not be too ready to conclude that there is an impasse or even an inconsistency when there may be no more than a difference of view, perhaps for very good reasons: see, Cranston J, in H (supra), at .
" …erred by concluding that the inconsistency between the Parole Board's decision and that of the Secretary of State is sufficient to justify holding an oral hearing."
The two qualifications are:
i) It should not be assumed that there was an inconsistency between the two decisions; the question of whether there was an inconsistency and, if so, its significance, is a matter very much in issue.
ii) Strictly, the question for CART ought to be whether prior to the 26th November decision but in the light of the Parole Board's 23rd July decision, it should have seen the need for an oral hearing; Mr. Southey's question, by contrast, looks at the position subsequent to and in the knowledge of the 26th November decision. That said, I am satisfied, at least in this case, that the same answer should be reached whether the position is analysed prior or subsequent to the 26th November decision; but that may not be so in all cases.
" Whilst acknowledging that since the last review period you have done some work to address some of your risk factors and have behaved well in prison the panel felt that there has been no significant reduction in your level of risk."
"The panel felt that this may be a constructive move."
As already highlighted, it is upon this single observation that Bean J's conclusion essentially rested.
i) It is true that the Parole Board had the benefit of a number of views in favour of downgrading the categorisation of the Respondent. These emanated from Dr. Somekh, a Consultant Forensic Psychiatrist, various probation officers and a prison officer. I am not persuaded that procedural fairness required an oral hearing on the part of CART so as to furnish an opportunity for some (or all) of these views to be developed orally. To the extent that the statement from the probation officers went beyond speculation, their opinion was plain; so too was that of the prison officer. Dr. Somekh's conclusion was likewise clear but his report hinged on the proposition that alcohol abuse was the key to the Respondent's offending – a proposition which made, at best, limited headway with the Parole Board, given its own conclusion as to "no significant reduction" in risk. Further, the proposition was addressed in terms and rejected by CART. Still further, Dr. Somekh's conclusion at no stage represented an undisputed "expert" view; evidence from psychologists (including Ms. Brookes, to whom reference has already been made) before both the Parole Board and the Advisory Panel, painted a different picture and spoke of risk factors which needed to be addressed before the Respondent could be considered for re-categorisation.
ii) I turn next to Mr. Southey's submission that the view as to downgrading the Respondent's categorisation contained in the Parole Board's 23rd July decision carried particular significance, given the Parole Board's terms of reference, by which it was constrained. It is common ground that the case of the Respondent reached the Parole Board by way of a referral by the SSJ pursuant to s.28(6)(a) of the Crime (Sentences) Act 1997. It is further plain from the referral that the task of the Parole Board was to consider whether it would be appropriate to direct the Respondent's release and, if not, whether he should be transferred to open conditions; the Parole Board was also invited to comment on the degree of risk involved in transferring the Respondent to open conditions and on the continuing areas of risk which needed to be addressed. Additionally, the referral to the Parole Board said this:
" 5. In any event 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…."
This submission requires careful consideration but I am, with respect, unable to accept it. It does not appear that either the contributors to the Parole Board's hearing or the Parole Board itself were unduly constrained by the terms of the referral. Dr. Somekh, for instance (and he was not alone), expressly canvassed the Respondent's security categorisation. The Parole Board itself did not say that it was constrained from making observations in this regard; it expressed its view on the risks which continued to attach to the Respondent, subject only to the tentative rider already discussed. Even looking at the Parole Board's 23rd July decision through the prism of the terms of the referral, I am not persuaded that it would be right to reach the conclusion urged by Mr. Southey; it is simply not how the Parole Board's 23rd July decision reads.
iii) In supporting the Judge's decision to order an oral hearing, Mr. Southey additionally relied on the fact that the Respondent was now a post-tariff life prisoner (i.e., in more contemporary terminology, he had completed his minimum term) and that he had not yet had an oral hearing before CART. Having regard to the expectation that oral hearings will be few and far between, it does not seem to me, with respect, that either of these points carries weight. Granted that there is no "exceptionality" test, these submissions, if anything, prove too much; if alone they justified an order for an oral hearing, such hearings would be the rule rather than a rarity. What is lacking here, which these undisputed facts cannot supply, is a proper foundation for an oral hearing; consider, by way of contrast, the position which would have arisen had the Parole Board concluded that there had been a significant reduction in risk.
iv) I come next to the question of the suggested "impasse", occasioned by the Respondent's continued denial of guilt, mindful that the Judge spoke of a "degree of impasse" (at  of the Judgment). With respect, I am not persuaded. First, the 26th November decision held in terms that there was no such impasse; although, even with the benefit of Mr. Slater's oral submissions, the position was not as clear as might have been wished, I am unwilling to go behind the express wording of the 26th November decision. While I share, with respect and to some extent, the concern ventilated by the Judge, I am not persuaded that an impasse has indeed been reached; on all the material, the case seems to fall somewhat short of that. Secondly, even if wrong thus far, it must be recognised that, however regrettably, impasses of this nature will some times be unavoidable: see the discussion in Roberts (supra). Thirdly, it may be noted that the impasse which concerned this Court in Williams (supra) was of a different nature, going to the sharply contrary views held by the Parole Board and CART in that case.
v) For reasons already fully discussed and which need not be belaboured, the conduct of CART in undertaking the 2011 determination without an oral hearing gives much cause for disquiet. I do not think, however, that this disquiet reflects to such an extent on the 26th November decision that it would be right to maintain the order for an oral hearing on this ground alone; nor do I think that it would be right to require an oral hearing by way of a rebuke to CART for its subsequent conduct. The order for an oral hearing must stand or fall on its own merits.
Lord Justice Sullivan:
The President of the Queen's Bench Division: