England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT MANCHESTER

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		26th July 2012

1. HIS HONOUR JUDGE STEWART QC:

Introduction

2. By claim form sealed on 12th December 2011 the claimant challenges the defendant's decision of 18th September 2011 to refuse to convene an oral hearing in respect of the claimant's Category A review, the grounds being (i) that the defendant wrongly applied an exceptionality test rather than asking himself whether fairness required there to be an oral hearing; (ii) in any event fairness required there to be an oral hearing in the claimant's case.
3. Permission was granted to apply for judicial review at an oral renewal hearing before Foskett J on 23rd April 2012.

Background Facts

4. In 1994 the claimant was sentenced to a discretionary life term for offences of kidnapping and rape. His tariff was reduced to 10 years on appeal. This has since expired. The claimant's victims were all vulnerable women with learning disabilities. The claimant was initially designated a Category A prisoner but was transferred to hospital under the Mental Health Act a few months into his sentence. He remained in hospital for some 14 years, including 7 in conditions of medium security before being returned to prison in 2009 on Category A status. He at present is detained at Her Majesty's Prison Wakefield. During his detention in hospital the claimant underwent various therapies including some 3 years on a Sex Offender Treatment Programme ("SOTP"). He made limited progress on that programme but in 2005 a consultant forensic psychiatrist, Dr David Forshaw, said that the claimant had made progress through other therapeutic interventions and had developed greater insight and empathy. Dr Forshaw regarded the claimant's progress as "significant" and recommended a progressive move to Thornford Park Secure Hospital as a stepping stone towards a low secure facility. The claimant was there from August 2006 until 2009.
5. In a report dated 31st December 2008 Dr Tang, a staff grade psychiatrist to Dr Forshaw said this, prior to the move to Wakefield:

"Mr Fox has not been involved in any serious untoward incidents whilst an inpatient in Thornford Park Hospital. It is the view of the clinical team that he can be safely managed within equivalent conditions to a hospital medium secure unit once settled."

Later:

"The clinical team in Thornford Park Hospital are of the view that the clinical grounds for Mr Fox's ongoing detention in hospital are not sufficient in themselves to warrant ongoing detention. Mr Fox has been unable to sufficiently benefit from extensive psychological treatments to enable the clinical team to envisage an eventual safe community placement. Mr Fox may experience an adjustment reaction or depression on returning to a prison environment and may present an enhanced risk of self harm during the initial period. However, Mr Fox has always been compliant with treatment and it would be expected that a prison healthcare wing should be able to appropriately and safely manage his adjustment reaction or relapse to depression and safely contain any associated risk of self harm providing, of course, there has been a comprehensive 117 handover meeting."

Review 19th July 2010

6. On 19th July 2010 the defendant reviewed the claimant's categorisation on paper and found him to be appropriately categorised. The defendant had before him a report from Dr Mendelson, a consultant forensic psychiatrist. The report was dated 28th May 2010 and was prepared on the instruction of the claimant's solicitors.
7. The opinion and recommendation of Dr Mendelson's report are as follows:

"4.1 Now at the age of sixty-six, Michael Fox is a man without significant mental health issues. I do not find him to be mentally disordered.

4.2. Although the risk of further sexual offending cannot be completely discounted, I cannot understand how it can be considered to be so severe that he warrants further containment with a Category A establishment. Not only was he previously shown to be safely managed within a medium secure psychiatric environment, but he had extensive single escorted leave in the community and therefore spent a considerable period beyond any perimeter security. The risks are far from immediate. Given that his sexual offending occurred relatively late in his life and in the context of relationship problems, it is unlikely that he will rapidly fall into further offending in the early stages of any leaves in the community on licence. The risks are, however, long-term and given the gravity of his offending, he clearly needs to be subject to vigilant and long-term monitoring.

4.3 I also do not believe that even his completion of a full and accredited sex offender treatment programme would substantially further reduce future risks. From my clinical experience, such offenders recall relatively little of what they have undertaken in such sessions even in the relatively short-term, let alone in the more distant future. In my opinion, such treatment interventions cannot be viewed as a robust reassurance against future risk.

4.4. It must also be noted that now Michael Fox is elderly, his sexual needs are reduced and he is not so driven by the same urges. Furthermore, in the mellowness of his greater maturity, he is less troubled by his feelings of sexual and romantic inadequacy and this in turn negates some of the hostility and anger he would have towards partners whom he has perceived as rejecting him. Thus, he would be less likely to inappropriately idolise them or catastrophically react should he feel a sexual failure.

4.5. In conclusion, I can only support the consideration for his moves to less secure conditions. From a psychiatric perspective, I anticipate that he could easily be safely contained within a Category C prison."

8. This report was considered in the decision of 19th July 2010. In counsel for the claimant's argument he said:

"The only reference in the decision to Dr Mendelson's report was his comment that the claimant recognised the enormity of his crimes. There was no attempt to engage in Dr Mendelson's comments in relation to risk and the appropriateness of the SOTP recommendation."

I do not accept this because the decision letter said this:

"Your security category review has been completed and the decision is that you are to remain Category A (Standard Escape Risk).

This decision has been reached following careful consideration of all relevant factors ...

Representations were submitted ... by your solicitors a letter 7th July 2010 which included a psychiatric report dated 28th May 2010. These were not submitted for consideration by the LAP of the prison. The report highlighted that you were safely managed within a medium secure psychiatric environment and had extensive single escorted leave in the community. It was also submitted that completion of SOTP would not substantially further reduce risk. It was noted that you were now elderly and your sexual needs were reduced and you were not driven by the same urges. It was highlighted that you had undertaken extensive therapy and numerous courses in the mental health system and considerably reduced your risk.

The Category A team noted that your tariff had expired and that the independent psychiatric report highlighted that you showed full acceptance of the enormity of your crimes. This was as a result of your solicitor's assertion that you faced being a whole life tariff prisoner who maintains his innocence."

9. The decision having therefore stated much more of Mr Mendelson's report, then goes on to give reasons which at the time I do not regard as challengeable. I shall read one more paragraph:

"The Category A Team noted that you had engaged in a number of treatment programmes whilst in the health care setting and had made some progress. However, the Category A Team noted that you had been taken off group work due to your behaviour and concerns regarding your responsiveness to treatment and due to the limited progress made and as a result were returned to prison."

That paragraph shows that the facts of some progress in the health care setting have been recognised by the Category A Team and reasons were given both there in that paragraph and later in the decision as to why the decision was made that the claimant should remain Category A. [I should add at this stage that another abbreviation is DPSD, which is dangerous and severe personality disorder].

Decision Letter 7th December 2010

10. The claimant's solicitors commissioned a report from Maya Simmons, a clinical psychologist, dated 23rd July 2010. The report is 95 pages long and follows three consultations with the claimant in June/July 2010. At paragraph 5.18 to 5.20 she said this:

"5.18 Mr Fox is required to undertake the core SOTP before he can be transferred to open conditions since the criteria for risk reduction are confined to the satisfactory completion of offence related work. Although he is cognitively able to complete this very important programme, his memory problems will prevent him from having a meaningful learning experience and render any course work he undertakes a 'tick box' exercise unless further aids and compensatory strategies are put in place to assist him in remembering information. Mr Fox may be unable to retain much of the information since he appears to have problems recalling information shortly after exposure to that information as well as after an extended time has elapsed. In addition, he has memory weaknesses for both visually and auditorily presented material. Hence, participation in the core SOTP it is unlikely to benefit him. On the contrary, it will only increase his psychological distress due to memory impairment and learning difficulties.

5.19 His memory deficits may also explain the limited progress he made over a 3 year period in SOTP programme at Chadwick Lodge.

5.20 A fundamental component in his risk reduction strategy has been the therapeutic input he has received at the various secure hospitals. This input appeared to have helped him to take full responsibility for the offences and to acknowledgement the seriousness of his offences and the terrible ordeal that his victims suffered. In this respect, it has helped reduce future risk of him re-offending. Within the therapy, he was also able to successfully address the effects of physical, emotional, and sexual abuse he suffered in childhood."

I shall also read paragraphs 5.28 and 5.29 of that report:

"5.28 His Risk of Sexual Protocol (RSVP) profile suggests that the likelihood of re-offending would be low if supervised in the community. It is very unlikely for the offences to escalate to involve serious or life threatening physical harm. Signs of deterioration in mental health, eg hearing voices telling him to commit offences; abuse of prescribed medication; loneliness; problems with stress and coping; low self-esteem/self worth and feelings of insecurity; problems within intimate relationships such as feeling sexually inadequate/inability to satisfy partner sexually and jealousy, may indicate that the risk is increasing.

5.29 The RSVP profile also indicates that his risk is mitigated by his age and consequently lowered libido. He is also sufficiently empathic and remorseful which would reduce the risk of sexual violence further. Continuation of individual therapy to deal with his own victimization in childhood and his feelings of sexual inadequacy, as well as monitoring any warning signs would be highly beneficial to him. In addition, involvement in meaningful activities would increase his autonomy and personal contacts and reduce any feelings of loneliness, boredom and helplessness."

Finally at 5.33 she said this:

"In my opinion, Mr Fox has demonstrated a sufficient reduction in sexual risk for him to be managed in a less secure prison."

On 7th December 2010 the defendant considered that report. I will not read that Decision Letter. But having considered that report and having received a detailed response from the psychology department at Wakefield Prison, it came to the conclusion, for the reasons given in that letter, that Dr Simmons' report should not be accepted. It is said most importantly on paragraph 2:

"Psychology have submitted that the report focuses heavily on the positive from Mr Fox's point of view and that they did not consider it a reliable re-assessment of the risk presented in Mr Fox's case."

Decision 13th September 2011: Decision Challenge

11. Various reports were prepared in anticipation of the September 2011 decision. I note that in the report from Officer P White dated 15th March 2011 this is stated:

"Mr Fox does not meet the criteria T.S.P or A.S.O.T.P and a referral was put forward to the DSPD Assessment Unit at HM Whitemoor on 26th October 2010. As of now on the advice of his solicitor he is not engaging with DSPD referral."

It will be apparent when I read the September 2011 letter that that short entry from Officer White is something that was very much taken into account by the Category A Team. The source and date of this information in Officer White's report is said to be "15/03/2011 Sentence Planning File/Psychology Department"

12. At some stage in July 2011 the claimant's solicitors submitted representations that the claimant should be downgraded or that his case should be considered at an oral hearing. They enclosed also an assessment from Maya Simmons, dated 15th December 2010. This postdated the last decision of 7th December 2010. It is described as a PCLR, being a psychopathy checklist assessment. The claimant scores 14 out of 20 which according to the report "falls in the low level and normal group of male offenders indicating that he does not meet the criteria for a diagnosis of psychopathy". She also said this:

"3.9 The results indicate that Mr Fox's scores on Factor 1 were higher than his scores on Factor 2. Thus his results on the individual factors further support the findings that he does not meet the criteria for a diagnosis of psychopathy, nor does he appear to have an anti-social personal disorder...

3.11 Mr Fox's low score on Factor 2 suggests that the impulsive and irresponsible behavioural lifestyle as well as the anti-social aspects will be easier to manage as far as future risk is concerned. Additionally, it has been found that socially deviant behaviours such as impulsivity, the need for stimulation, and irresponsible behaviour decrease with age. It appears that the therapeutic input that Mr Fox received over the years has helped him to reduce his impulsive behaviour as well as to take responsibility for his own actions. Further encouragement to use his strengths and abilities to satisfy his needs in more appropriate and pro-social ways would be beneficial in reducing the risk further.

3.12 The overall results obtained using the PCL-R suggest that Mr Fox does not meet the criteria for a diagnosis of psychopathy."

13. It is right that I read the decision of 13th September 2011 in full, it being less than two pages in length:

"Your security category review has been completed and the decision is that you are to remain Category A (Standard Escape Risk)

This decision has been reached following careful consideration of all relevant factors, including the circumstances of the present offence, length of sentence and reports prepared by Wakefield Prison staff.

Representations were submitted by Morgan Brown & Cahill solicitors. Also enclosed was a psychiatric report prepared by Mr Mendelson which was also submitted with representations for your last review and a psychopathy checklist report by Maya Simmons. The Category A Team also noted that an independent psychology report by Maya Simmons was also submitted by your solicitors under a letter dated 9 September 2010 and that a detailed reply was sent to your solicitors on 7 December 2010 which responded in detail to the submissions and conclusions contained within the report.

The Category A Team noted that you were an enhanced level inmate, that you were not considered a control problem and were polite in your dealings with staff and that your custodial behaviour on the wing continued to be of a good standard and gave no cause for concern as far as your security category was concerned. However, good custodial behaviour within the controlled environment of a maximum-security prison could not, by itself, be conclusive in determining a prisoner's level of dangerousness; other factors had to be taken into account.

The Category A Team noted that you were found not to meet the criteria for the TSP or ASOTP and a referral was put forward to the DSPD Assessment Unit at Whitemoor during the currently reporting period, but you were at present not willing to engage in the DSPD referral process on the advice of your solicitors.

In considering your security category, the Category A Team took into account the serious nature of the present offences which involved the kidnap and rape committed against disabled adult females over a number of years.

The Category A Team noted that you had engaged in a number of treatment programmes whilst in the health care setting and had made some progress. However, the Category A Team noted that you [had] been taken off group work due to your behaviour and concerns regarding your responsiveness to treatments and due to the limited progress made and as a result were returned to prison.

The Category A Team again noted the need for you to address the core risk factors relating to your offending remained imperative. The Category A Team also noted that despite your age and length of time you had been in custody, there was no evidence that you had as yet addressed the impulses that led to your serious sexual offending or achieved the level of personal change that was indicative of a significant reduction in risk.

The Category A Team noted that reports had highlighted that you should be encouraged to continue to engage with the DSPD referral process with the DSPD unit at Whitemoor, and to engage in constructive activity and continue to engage with all members of your case management team to discuss your offending behaviour and the benefits of engaging in work to explore it.

The Category A team noted that there were no exceptional circumstances in your case which necessitated an oral hearing in the interest of fairness. The Category A Team noted that the Psychology department at Wakefield had provided a detailed response to the independent report submitted by your solicitors and did not consider that the report provided a reliable re-assessment of the risk presented in your case.

Having regard to the serious nature of the present offences, which evidenced a propensity to commit a serious sexual offences, and the lack of any cogent evidence at present, through offence related work or otherwise including your increased maturity, that the risk of you re-offending in a similar way if unlawfully at large had significantly diminished, the Category A Team concluded that you must still be regarded as potentially highly dangerous to the public.

On the information available, the Category A Team concluded that there were at present insufficient grounds on which a downgrading of your security category could be justified and that you should remain in category A."

Before considering submissions I shall set out a summary of the legal framework.

Legal framework-statutory

14. The Prison Act 1952:

"12 Place of confinement of prisoners.

(1)A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.

(2)Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison."

"47 Rules for the management of prisons, remand centres, detention centres and Borstal institutions.

(1)The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres], and for the classification, treatment, employment, discipline and control of persons required to be detained therein."

The Prison Rules 1999 made under section 47 of the Act provide:

"Classification of the Prison

7(1) Prisoners shall be classified in accordance with any directions of the Secretary of State having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and in the case of convicted prisoners of furthering purpose of training as provided by the Rule 3."

PSO 40/2011, "Categorisation and recategorise of adult male prisoners" came into force on 1st September 2011, ie a few days new date decision challenge. I shall read from paragraphs 5.1 and 5.3:

"5.1 The purpose of the recategorisation process is to determine whether, and to what extent, there has been a clear change in the risks a prisoner presented at his last review and to ensure that he continues to be held in the most appropriate conditions of security....

5.3 Recategorisation to a lower security category is not an automatic progression or right but must be based on clear evidence of reduction in previously identified risk levels to a level that is manageable in an establishment of the lower category.

In reviewing a prisoner's security category it is essential to look at the reasons why, at his last review, the prisoner was placed in the current security category. Only then is it possible to determine whether, and to what extent, circumstances may have changed to warrant a change in category. It is also important to consider the particular characteristics of the estate for which the prisoner is being assessed, taking account of physical security, supervision levels and regime availability."

Mr Karim, quite rightly, relies very heavily, especially on the opening words in paragraph 5.3.

Legal framework: authorities

15 In R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522, Gross LJ (with whom the other members of the court agreed) said:

"25. For present purposes, the legal framework may be set out as follows. First, it is necessary to outline the significance of categorisation as a Category A prisoner. A Category A prisoner is defined in Prison Service Order 1010 ("PSO 1010") as:

" …. 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 [1994] 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....

28. Fourthly, the common law duty of procedural fairness will some times require CART to convene an oral hearing when considering whether or not to downgrade a Category A prisoner. As Bean J rightly observed (at [27] of the Judgment), it is for the court to decide what fairness requires, so that the issue on judicial review is whether the refusal of an oral hearing was wrong; not whether it was unreasonable or irrational. Whether an oral hearing is required in an individual case will be fact specific. Given the rationale of procedural fairness, there is no requirement that exceptional circumstances should be demonstrated – there will be occasions when procedural fairness will require an oral hearing regardless of the absence of exceptional circumstances. But oral hearings are plainly not required in all cases; indeed, oral hearings will be few and far between. Advantages may be improved decision-making, bringing CART into contact with those who have direct dealings with the offender and the offender himself; an oral hearing may also assist in the resolution of disputed issues. Conversely, considerations of cost and efficiency may well tell against an oral hearing. There can be no single or even general rule, save, perhaps, for the recognition that oral hearings will be rare. By way of brief amplification:

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 [2005] UKHL 1; [2005] 1 WLR 350, at [35].

In helpful observations on this passage, Cranston J, in R (H) v Sec of State for Justice [2008] EWHC 2590 (Admin), said this, at [21]:

'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 [1], 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, [2009] 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 [54]. 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 [23]."

Later in paragraphs 29 Gross LJ made it clear that the answer to the question as to whether or not an oral hearing is required for procedural fairness is fact specific.

Analysis: Ground 1

14. Relying on those statements of the Court of Appeal the claimant's ground 1 fixes on these words in the September 2011 decision:

"The Category A team noted there were no exceptional circumstances in your case which necessitated an oral hearing in the interests of fairness."

15. The claimant submits that the wrong test of exceptionality was applied. I have already cited PSI 40/2011. PSI 03/2010 Chapter 4 paragraph 2 which has not been replaced states:

"The Director will grant an oral hearing if there are exceptional circumstances that suggest the submission of oral representations is the fairest means of determining the prisoner's suitability for downgrading."

16. The defendant disputes that the September 2011 decision was based on any exceptionality test and refers to the last two paragraphs of the Decision Letter. However, those paragraphs go mainly to the assessment of the claimant's risk and not to procedural fairness.
17. It seems to me that the team did apply an exceptionality test to the questions as to whether or not there should be an oral hearing. If the court's function on this point was one of deciding whether the decision was unreasonable or irrational based on an erroneous test, the claimant would succeed and the matter would be sent back for a fresh decision on this point. It would not by itself result for an order for an oral hearing. However, as paragraph 28 of Mackay makes clear, the issue for this court is whether the refusal of an oral hearing was wrong. This court must therefore look at the matters before the Category A Team and, applying the correct test and in all the circumstances of the case, determine whether the defendant was right or wrong to refuse an oral hearing. If right, the claim fails, if wrong the claim succeeds and the previous decision will be quashed. I should add in fairness that the Category A Team were perhaps not assisted by the fact that the claimant's solicitors submissions cited only PSI 03/2010 and said:

"We believe that there are exceptional circumstances given the very nature and special circumstances of this case."

Analysis: Ground 2

18. The key issue therefore is that raised by ground 2: did fairness require there be an oral hearing in the claimant's case?
19. Before addressing that I should make clear that though reduction in risk levels are central to recategorisation PSI 40/2011, participation in offender behaviour programmes are not essential to risk reduction. That follows from paragraph 80 of R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin), a decision of Cranston J. Nor does Mr Karim, for the defendant, say otherwise.
20. The claimant's case can be summarised as follows:

(a) The defendant acknowledged receipt of the reports from Mr Mendelson and Maya Simmons but made no attempt to engage with the issue raised by them. No sufficient reasons have ever been given for rejecting Dr Mendelson's view.

(b) In particular Miss Simmons' assessment of 15th December 2010 had not been considered before by the defendant and this was relevant to the issues of whether the claimant was suitable for DSPD services.

(c) An oral hearing was the only fair way of determining:

(i) whether and to what extent the claimant's risk were reduced during his time in hospital;

(ii) Whether there is an impasse in this case and how it might be broken;

(iii) Whether and to what extent the claimant's age, cognitive functioning and memory problems are relevant to his treatability; and

(iv) Whether the claimant's age, attendance and reduction in libido are relevant to his current risk level.

(d) In support of this the claimant submits:

(i) The view of the clinical team at Thornford Park (see the extract of Dr Tang's report in paragraph 5 above) that the claimant could be safely managed within the equivalent conditions to a hospital medium secure unit once settled is relevant to whether his risk has reduced, but the defendant has assessed the claim on the basis that he made no discernible progress whilst in hospital. This, despite the fact, so the claimant says, that Dr Mendelson and Miss Simmons supported the view that progress had been made by the claimant whilst in hospital. The claimant says that an oral hearing is the only fair means of determining whether progress in hospital had reduced the claimant's risk.

(ii) It is a live issue as to whether there is an impasse. As at September 2011 the Category A Team noted that the claimant did not meet criteria of TSP or ASOTP. As to the DSPD referral process, the team noted the reports had highlighted that the claimant should be encouraged to engage with the unit at Whitemoor. However, the merits of this had been challenged by the claimant's solicitors and according to the claimant, the defendant was bound to concede that the claimant's solicitors were right to challenge that recommendation in the light of the subsequent letter dated 19th October from Dr Val Hawes, consultant forensic psychiatrist at Whitemoor, which states:

"When accepting prisoners for assessment here, if at all possible we wish the prisoners to be willing to remain here for the 5 year treatment programme following assessment, ie you would be well into your 70s if you were to undertake such treatment. In view of your past history of treatment in hospital and your current age, we conclude that it is not appropriate for you to be considered for DSPD assessment. Your case with us will therefore be closed."

21. I shall refer to two further letters subsequent to the September 2011 decision,

(a) a letter dated 17th November 2011 from the governor of Wakefield Prison:

"Consultation with the Psychology Department indicates that Mr Fox remains on the waiting list for the SOTP and will be considered for a place on treatment interventions delivered in 2012. It may be the case that Mr Fox requires a place on the Becoming New Me version of the SOTP [due to his dyslexia and recorded memory problems], however this will be confirmed by Psychology Department with their assessment for offence-focused intervention.

It is likely that your client will be interviewed by a member of the SOTP team in early 2012 and firm decisions can then be made as to the appropriate treatment programme for him."

(b) another letter from Dr Hawes dated 24th November 2011:

"Dear Mr Fox

Thank you for your further recent letter, with a copy of report of PCL-R assessment carried out by the independent psychologist and report of independent psychiatrist.

Since receipt of your letter, I have had a further careful look at the reports sent with the DSPD referral form. These included the bulk of the report by the independent psychologist including results of intelligence, reading and memory tests.

From these reports, it seems to me that you do have some traits of personality disorder but it is unlikely that these would amount to severe personality disorder in terms of DSPD criteria.

However, from the reports, it is clear that you have not completed treatment in relation to sexual offending and it is likely that successful completion of SOTP is the main way you can now make progress. From the results of reading and memory tests, I think you would have difficulty with Core SOTP but that the adapted programme 'Better Me' might well be suitable.

I have explained this in a little more detail in an e-mail to Tina Mistry and she will receive a copy of this letter."

I add that Tina Mistry is a forensic psychologist. She had provided a report dated 15th June 2011 for the decision of September 2011. The claimant says the letter of 24th November 2011 shows there is some acceptance of Miss Simmons' tests. I have no further documentation of relevance that postdated that letter of 24th November 2011.

22. My judgment on the claimant's submissions, incorporating the defendant's submissions, is as follows:

(a) The defendant had adequately considered and commented on Dr Mendelson's report and the decision of 19th July 2010. I have already dealt with this at paragraph 8 above. I will only highlight that the Category A Team accepted that some progress had been made in hospital but nevertheless concluded the claimant "must still be regarded as potentially highly dangerous". Similarly the defendantd had adequately considered and commented on the Simmons report of 23rd July 2010. I refer to paragraph 10 above. I do not accept the claimant's submission summarised in paragraph 21(a) and (e) above.

(b) As to Miss Simmons' assessment of 15th December 2010 this has not previously been considered by the defendant. I have cited from this report in paragraph 12 above. It was referred to by the claimant's solicitors in their submissions to Category A Team, on the basis that Miss Simmons' conclusion that the claimant did not have an identifiable severe disorder of personality rendered him unsuitable as a candidate for the DSPD programme, since one of the criteria of admission was assessment confirming such a disorder. It is correct that the decision letter of 13th September 2011 does not make any express reference to Miss Simmons' December 2010 assessment. However, its conclusions as to the DSPD were clearly based on a report from Officer White, to which I have already referred and a report from Tina Mistry dated 14th June 2011. I shall quote certain passages from that report:

"Section 3 Offence-Related Work

Progress to date:

Mr Fox has engaged in work to explore his offending behaviour within the health care setting and appears to have made limited progress in respect of exploring his sexual offending. Please refer to the 'Risk Reduction' section of his attached sentence planning report.

Recommendations:

Mr Fox was referred to the Fens Unit at HM Whitemoor during the reporting period. Mr Fox has had contact with the Assessment and Intervention. Centre indicating that he has been advised by his solicitor not to engage to referral process for the DSPD services. Mr Fox is encouraged to reflect on his engagement and the benefits of assessing work suited his needs in order to help him to further explore his focussed at risks."

Under section 4:

"Psychology.

Conclusion

Mr Fox self report taking full responsibility for his index offence. I have not had any significant contact with Mr Fox during the reported period. I am aware of the various courses that Mr Fox has undertaken in the healthcare setting. Based on the reports following his engagement in offence focused work and concerns about his progress with regards to his explanation of his sexual offending, I believe Mr Fox has yet to undertake further work to address his sexual offending. In my opinion, there is currently insufficient evidence to indicate a reduction in risk. As such, Mr Fox is suitably placed according to his level of risk. With regards to work to explore his offending behaviour, the outcome of the referral to specialist services will highlight the most suitable offence focused work for Mr Fox."

There is then a single sentence planned review of Tina Mistry, in which she goes through a single sentence risk assessment and throughout that she says there is no change. Under "REVIEW OF PROGRESS:

"Previous AIC targets set in the last 12 months and • To comply with the referral process to DSPD services.

• To engage with all members of the case management team."

Then:

"IAC targets achieved in the last 12 months. The referral for Mr Fox's is currently ongoing for Mr Fox."

Then under "Contact summary" repeats that Mr Fox has been advised by his solicitor not to engage in DSPD process and says:

"As such, Mr Fox's motivation to engaging in his sentence planning targets is currently clear."

Under: "Evidence of risk reduction":

"There is currently no evidence of Mr Fox being motivated to engage in personal change and insufficient evidence to indicate a reduction in risk."

Under "RECOMMENDATIONS", there are three of those in short term and one in the long term. One of short term ones:

"To continue to engage with the referral process for the Fens Unit (Whitemoor DSPD)."

Later, she says:

"Factors that heighten risk:

Mr Fox has been diagnosed with Personality and Re-occurring Depressive Disorder (in remission), which may heighten his risk of re-offending. Mr Fox has undertaken PCL-R SV, which is a screening tool for the presence of psychopathy. This assessment indicated a high level of psychopathy."

Finally, under "PLANNING FOR THE FUTURE", under "RECOMMENDATIONS":

"To explore problem solving skills.

To fully participate in assessments for the Thinking Skills Programme (TSP). To complete the programme if deemed suitable.

To explore sexual offending. To fully participate in assessments for the Sex Offender Treatment Programme (SOTP), which will include a review of your personality functioning."

23. It is correct to say that the reason the claimant is deemed to subsequently not to be suitable for DSPD by Dr Hawes is because of age and past history of treatment, and not because of an acceptance that he was not suffering from psychopathy or severe personality disorder. However, in the subsequent report from Dr Hawes of 24th November 2011, she did say, from the reports she had seen, including the report of Miss Simmons:

"It seems that you do have some traits of personality disorder but it is unlikely that these would amount to severe personality disorder in terms of DSPD criteria."

24. Nevertheless Miss Simmons had provided evidence in her December 2010 report using the PCL-R assessment tool used by the Prison Service. On her assessment the claimant was not suffering from psychopathy or a severe personality disorder as of December 2010. This information was not considered by Miss Mistry, nor had she herself done an updated PCL-R, the one she was relying on was from 2009 at the latest and may have been earlier. If, and I emphasise "if", Miss Simmons' testing was accurate, this potentially undermined her whole report. It is clear from her report that Miss Mistry regarded the PCL-R screening tool assessment indicating a high level of psychopathy as a factor that heightened risk. If that factor had indeed diminished by December 2010, her report of no change to risk may not have been correct. Nor does the Category A Team Decision Letter of September 2011 mention or deal with this point. The fact that Miss Simmons' report of July 2010 had not been found reliable for reasons given, was not a sufficient answer to this point. That report had not been relied for reasons of self report or bias. However, the December 2010 report may well have been a different matter. It was an authenticated screening tool. More than that, the main reason for rejecting Miss Simmons earlier report was "given Mr Fox's previous PCL-R assessment."
25. Although Miss Mistry recommended SOTP and TSP programmes in her report [and that is something relied upon by Mr Karim, for the defendants,] the claimant was found by the Category A Team, in their decision September 2011, not to meet the criteria for those programmes. They noted that the reports had highlighted that he should be encouraged to engage with DSPD referral process, which he had refused on solicitor's advice. This was very arguably inappropriate because of the evidence that the claimant no longer suffering from a severe personality disorder.
26. For this reason, and having regard to the lengthy passage which I cited from the Court of Appeal decision in Mackay, there is no doubt in my mind that, faced with this problem, procedural fairness required an oral hearing. Although such hearings should be rare, for the reasons given by the Court of Appeal, in this case this critical flaw in the September 2011 process must in future undermine both the court's confidence and the claimant's confidence in the paper procedure against the background where the claimant is now 68 years old, has served 18 years against a 10-year tariff and where he was being recommended for approval for a programme for which he has been shown subsequently to be unsuitable for reasons additional to the [potentially] valid one in Miss Simmons' report.
27. I shall deal briefly with some other points:

(i) The defendant submits that Dr Hawes' letter of 24th November 2011 has confirmed what the claimant must do to reduce the relevant risk. It is noteworthy that Dr Hawes refers to PCL-R report of Maya Simmons and comments that it is unlikely that the claimant does have a severe personality disorder in terms of DSPD criteria. The fact that Dr Hawes suggests an adapted programme for the claimant to progress does not validate the September 2011 decision. Dr Hawes had to work within the findings made by the Category A Team. She did not pass any opinion (nor is there an update from Tina Mistry) as to whether the December 2010 report evidenced a diminution in risk. The fact of this letter does not detract from the fact of the September 2011 decision was flawed.

(ii) This court does not know if an impasse has been reached in terms of treatment. The critical question, as the defendant submits, is whether there was or has been a reduction in risk. The defendant's decision, because of the flaw, cannot be relied upon.

(iii) The defendant submits that the matter is to be reviewed again in August/September 2012, on paper, and this renders the claim academic. I do not agree. Given the matters I have set out above, I judge that procedural fairness requires that the September 2011 decision be quashed and an oral hearing be held. What one must attempt to avoid at all costs is a further paper hearing with a further challenge with further delay and further costs.

28. Finally, I respectfully adopt, as instructed in the present case, what was said obiter by Edwards-Stuart J in R (Willoughby) v Category A Review Team [2011] EWHC (Admin) 3483, paragraphs 39 and 40.

That is the judgment. You can work together to draft the appropriate order.