QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF H
|SECRETARY OF STATE FOR JUSTICE
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Mr P Patel (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
"I do not believe mainstream offending behaviour programmes would meet his needs, however if resources were available he may benefit from some structured one-to-one interventions focussing on developing his insight into his risk factors and developing a realistic relapse prevention plan.
[The claimant's] location in the WPU [I think what is meant is the PWU] also limits the interventions he is able to access."
Moreover, the claimant himself wrote in June 2006 saying that he was unable to participate in offending behaviour work, despite applying.
"The Director noted the reference to the Williams judgment, but did not accept that [the claimant's] status as a tariff-expired life sentenced prisoner automatically entitled him to an oral hearing of his review. He also noted [the claimant's] circumstances were not the same as those of the prisoner referred to in that judgment."
"My view is that whilst he is a Category A prisoner he is being set up to fail by the Prison Service."
"An oral hearing would have enabled the reasons for the contradictory views to be examined on behalf of the appellant 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"(Paragraph 32).
In the court's reasoning it was the exceptional circumstances of the case which led to its finding that there should have been an oral hearing before the Category A Review Team. Those exceptional circumstances were that there were contradictory views expressed by the Parole Board and the Category A Review Team with the obvious prospects of a major inconsistency between their respective conclusions. Moreover, adverse reports had not been disclosed to the claimant or his advisors.
Failure to hold an oral hearing
"The common law duty of procedural fairness does not, in my opinion, require the [Parole] 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." (Paragraph 35).
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 the 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.
Failure to take account of claimant's need for courses