England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/04/2013

Mr Justice Stadlen:

1. In this claim for judicial review the Claimant, a serving prisoner convicted of two murders on separate occasions challenges the Defendant's decision not to downgrade him from category A ("Cat A") security classification within the prison estate. The decision was taken on behalf of the Secretary of State by the Director of High Security Prisons ("the Director") on 18 April 2011, albeit reasons were only provided to the Claimant on 20 May 2011 and to his solicitors Bhatt Murphy ("BM") on 1 June 2011.
2. The claim is advanced on two grounds. First procedural unfairness: it is alleged that the Director's decision was procedurally unfair, for lack of disclosure of the report prepared by the local advisory panel ("LAP"), and because it raised a new issue as a basis for refusing re-categorisation not raised, or even hinted at, in the Cat A review reports which were made available to the Claimant. Second the lack of an oral hearing: it is alleged that the circumstances of this case were such that an oral hearing was necessary as a matter of fairness and natural justice.

FACTUAL BACKGROUND

3. The Claimant, who was born in 1968, is a serving prisoner who has been convicted of two murders, one in the community and one in prison, for both of which he was sentenced to life in prison. In respect of the first offence, which occurred in the course of a robbery, he was given a penal tariff of 15 years. As recorded in a Cat A report, the circumstances of that offence were that the Claimant distracted the victim, a shopkeeper, by talking to him in the backroom of his shop while the co-defendant looped a length of cable around his neck, pulled him to the floor and strangled him. The Claimant watched while the co-defendant continued to throttle the victim until all signs of life were absent, then punched and stamped on the solar plexus area of his body to ensure that all of the air had been expelled from his body. The Claimant and the co defendant then stole the victim's wallet and cheque book and items of hi fi equipment from the shop. The sentencing judge said that the motive for the killing appeared to be one of avoiding identification, that the co-defendant was the prime mover in the offence and that the Claimant, who was aged 19 at the time of the offence went along with it partly no doubt due to the co-defendant's dominant personality. The murder was described by Mitchell J, the sentencing judge in the second murder, in his report to the Home Secretary, as horrific. The Claimant was sentenced for that offence in 1987 so that the penal tariff expired in 2002.
4. In respect of the second offence, which occurred in 1993, whilst the Claimant was in prison, and for which he was sentenced on 5 July 1995, the Claimant was given a minimum tariff of 25 years by the Home Secretary which was revised to 15 years by MacDuff J on a review in April 2010. The victim in the second murder was serving a long prison sentence in HM Prison Whitemoor for sexually abusing and killing boys. He was murdered by the Claimant and another prisoner, John Brooks, who were inmates in the same prison. The victim was strangled by Brooks who was said by Macduff J to have been found by the trial judge to have taken the leading role and whose initial sentence and revised sentence were significantly higher than those of the Claimant, reflecting what Macduff J said had been acknowledged to be his greater degree of moral culpability. Macduff J's reasons are recorded at [2010] EWHC 885 (QB).
5. In his report to the Home Secretary dated 4 August 1995 the sentencing judge Mitchell J described the Claimant as an exceptionally dangerous man and said that the likelihood of further grave offences was in his judgment high. In his view the length of detention needed to meet the requirements of retribution and deterrence was 25 years. In his written comments dated 26 August 1995 Taylor LCJ described it as a very nasty killing and said that, although he thought that strictly for punishment and deterrence the recommendation of 25 years was too long and recommended 14 years instead, he had no doubt that the trial judge was right in suggesting that the Claimant was dangerous and that risk might be the critical factor in considering possible release. As a result of Macduff J's decision, which was communicated to the Claimant on 6 May 2010, the Claimant's tariff in respect of the second offence expired on 15 July 2010. The Claimant had thus been in prison for some 24 years when the decision under challenge was taken.
6. In a Cat A report dated 12 August 2008 Ms Edmonson, a forensic psychologist in training, referred to a 2006 Cat A report which had noted very little manifestation of risk in the previous 12 years, but had been unable to ascertain whether that was due to a reduction in risk or to the fact of the Claimant having been at Full Sutton for 12 years and being settled. She had also noted that some negative attitudes towards sex offenders were still apparent. Ms Edmonson conducted an HCR-20 assessment for risk of violence. Based on that assessment she said that the Claimant did not demonstrate the vast majority of risk factors which had been shown to predict future violent offending. He did indicate a few items of concern but they were mainly historical in nature and would not change. Although the assessment indicated that the Claimant's risk was likely to be manageable in a Category B establishment, that finding had to be balanced against the possible consequences of making a wrong decision, in terms of the severity of his past violence. In another passage in the report she expressed the risk more equivocally: "consideration could be given to the Claimant being managed in Category B establishment." (Emphasis added).
7. As to the HCR-20 findings, Ms Edmonson said that four factors were found to be protective, with only one being of some concern. As with the clinical factors the risk management items seemed to indicate that the Claimant's risk of future violence was not high and could be managed in less secure conditions. She noted that the Claimant had been exposed to sex offenders in Full Sutton and had not been noted to have involved himself in any bullying or violence. He had applied to work with vulnerable prisoners, including sex offenders, in the gym and had been cleared to complete that work. However she said that, although the clinical and risk management items seemed to be overwhelmingly protective for the Claimant, he demonstrated some historical factors associated with a risk of future violence and there were some caveats to consider when reviewing his case.
8. In particular she noted that the second murder had not been explored with the Claimant due to his continuing denial, which made it difficult to identify risk factors specific to his individual case. It was difficult to ascertain whether his risk had reduced or was simply not manifesting itself in a way that might be expected. Due to the difficulty which that presented when considering the Claimant's risk, coupled with the fact that he had committed such a serious offence in high security conditions, professionals involved in his assessment seemed to have erred on the side of caution thus far in not recommending a downgrade. The Claimant seemed to be an unknown quantity. There was conflicting information: he had killed while in prison and yet his behaviour was excellent and he had not received an adjudication since 1996.
9. A complicating factor was that there were no ways for him to address his offending behaviour, which had precluded him the opportunity of demonstrating any reduction in risk that he might have made autonomously. In particular, and of relevance to the Claimant's grounds of challenge, Ms Edmonson recorded that the Claimant had been found unsuitable for the Controlling Anger and Learning to Manage it ("CALM") which he had applied for. He had also been found unsuitable for the Cognitive Self Change Programme ("CSCP") by a Chartered Psychologist at the Offending Behaviour Programmes Unit due to there being an absence of interpersonal violence in the first murder since he was not the main protagonist and a denial in the second murder.
10. Ms Edmonson concluded that the consequences of making a false negative assessment of risk were severe considering the Claimant's offending history. However the HCR-20 assessment indicated that he did not require high security conditions to manage his risk.
11. The Claimant was first recommended for downgrading from Category A status whilst at Full Sutton prison in 2008. That recommendation was not accepted by the Director at the time, and the Claimant remained in Cat A. However the Director did recommend that the Claimant be moved within the Cat A estate "to assess his response in a new environment including vulnerable prisoners" (as it was later put in the decision under challenge). The Claimant was moved to Frankland in January 2009.
12. During the course of 2009, some 16 years after the second murder, the Claimant was recorded as having come to accept his involvement in and culpability for it, something which he had hitherto denied, although he had admitted his involvement in the first murder long before then. On 4 August 2009 he asked to meet a member of the prison Psychology Department and admitted to being involved in the offence as a "look-out" and expressed a motivation to engage in whatever treatment was deemed necessary to address his needs and in an interview two weeks later expressed a particular interest in transferring to a therapeutic community. This development occurred before the reduction of his penal tariff for the second murder from 25 years to 15 years so that when it happened the Claimant was still facing a further 11 years before he would be eligible for release on licence.
13. The Parole Board considered the Claimant's case at the end of his minimum term in mid-2010. The Claimant's solicitors' representations had indicated that he recognised that it would not be appropriate for him to be released or transferred to open conditions but had asked the Board to comment on the continued areas of risk. The Board did not recommend open conditions or direct release but did make the following observations:

Risk factors

"Your risk areas are seen to include lifestyle and associates, thinking skills and behaviour and violent offending."

Evidence of Change During Sentence

"You remain a category A prisoner and your attempts to have yourself re-classified have failed. In recent years your behaviour has been good and there have been no adjudications since 1996. You have recently completed the Thinking Skills Programme to good effect but there has been very little opportunity for offending behaviour work prior to this. This is [sic] partly been due to your previous denial of the second murder. However, your recent acceptance of this offence will hopefully now lead to greater opportunities for assessment and progress in addressing your risk factors. There should now be opportunities for you to address your violent offending and other areas of risk. The thinking skills programme is seen to be a positive start but clearly, more needs to be done." (Emphasis added).

Panel's Assessment of Current Risk of Re-offending and Serious Harm

"Taking into account the formal risk assessments and the views of report writers, the panel consider that you present a high risk of harm to the public and a medium risk of re-offending…."

Conclusion and Decision of the Panel

"The panel are pleased to comment positively on the progress that you have made, in particular your reported willingness to address your offending behaviour, your acceptance of responsibility for the second murder and your behaviour in recent years. As a result of the assessments you have undertaken there is a clear path of recommended interventions which seem to be frustrated by your category A classification. Many of the interventions that may be beneficial, such as a period in a Therapeutic Community, are not currently available to you and it is hoped that you are successful in achieving re categorisation."

The panel commend you for your realistic approach to your situation and encourage you to continue to address your risk areas. As mentioned previously, the reports and assessments in the dossier indicate clearly the areas of risk and how they might be addressed. (Emphasis added).

14. The Claimant completed the "Thinking Skills Programme" ("TSP") in September 2010.
15. Cat A review reports were prepared by HMP Frankland for the review of the Claimant's category status in 2011.
16. In a report dated 20 November 2010, Officer Barry Palmer observed as follows:

"Michael has an exemplary prison record having only accrued one adjudication in 1996. His attitude towards staff and his compliance with the Prison regulations and routines is always befitting of his status as an Enhanced IEP regime prisoner.

The reporting period demonstrates another excellent year for Michael in this area and I would encourage him to continue this.

...

Michael maintains positive relationships with a selection of his peers at HMP Frankland. The company he keeps is appropriate i.e. similarly behaved and mature prisoners who encourage positive behaviour.

His position as a Gymnasium orderly results in prisoners regularly approaching him; subsequently, he is always helpful and approachable and thus is well liked by other prisoners.

He has not shown any aggressive, threatening or anti-social behaviour throughout the reporting period.

It remains a grave area of concern that, having been sentenced for murder committed during the course of a robbery in 1987, Michael was further convicted of murder after a fellow prisoner was strangled to death in HMP Whitemoor in 1993.

...

As mentioned previously, Michael has no adjudications in the reporting period and none since 1996. This as [sic] an excellent achievement in such a volatile environment and I would congratulate him on this and encourage him to maintain this behaviour in the future. (Emphasis added).

...

17. In a report dated 21 December 2010, Tracy Richardson, a prison officer/offender supervisor, observed:

"Prior to the sentence planning board, Mr Cain successfully completed the TSP (Thinking Skills Programme) in September 2010, and he has now exhausted all offence related programmes available here at HMP Frankland."

"CSCP (Culmative Self Change Programme) and CALM (Controlling Anger and Learning to Manage it) have been found to be unsuitable for Mr Cain's treatment needs. However, he has completed R and R (Reasoning and Rehabilitation) in 1998 and The Sycamore Tree Programme (victim awareness) in 2009."

"Mr Cain has expressed an interest in treatment at a prison that offers a Therapeutic Community. However, this is not possible in the HSE (High Security Estate) at this time. "

...

"Treatment in a Therapeutic Community may be of benefit to Mr Cain's progress."

18. A report dated 29 December 2010 prepared for the LAP by a psychiatric nurse noted "no psychiatric history".
19. In a report of 18 January 2011, Joanne Wood, Forensic Psychologist in training, (supervised by Donna Orr, Forensic Psychologist), said:

"This [TSP] report states that Mr Cain actively participated in group discussions and used the programme as an opportunity to talk openly about the factors leading to his index offence and the thoughts that he had at the time in relation to this. This is encouraging as it shows willingness to work towards and reflect upon his previous risky behaviour. Mr Cain was however reported to have struggled at times to identify how risk areas relating to his offending behaviour currently applied to him as he felt that he has "grown up" and that he is a very different person to that who offended. It is therefore recommended that Mr Cain develops his insight into his offending behaviour further by applying his learning from the programme to potential risky situations in the future. As outlined in the attached Parole report Mr Cain has recently had his tariff reduced by 10 years which has implications in relation to priority for treatment and ultimate plans for release. A previous HCR20 report that was completed for Mr Cain assessed that his current level of risk does not necessarily warrant dispersal conditions. Mr Cain's progression is ultimately based on his security category as the interventions that are available to him will be based on which establishment it is felt that he is most appropriately managed. Should the decision be made to downgrade Mr Cain from category A status in the future I would recommend that he is referred to a therapeutic community as I feel that this would be the most appropriate avenue for Mr Cain to address his risk should his security category warrant it. Should it be maintained that Mr Cain remains as a category A prisoner it is my recommendation that one to one work is conducted (should resources allow) which begin to address Mr Cain's violent offending, it should be noted however that this work would not be accredited so therefore would not necessarily have the benefit of extensive empirical validation i.e. we would not necessarily know how effective this would be at significantly reducing his risk of re-offending. " (emphasis added).

20. In the attached parole report prepared by Ms Wood dated 28 June 2010 Ms Wood stated that a decision as to whether the Claimant's category should be downgraded to category B would impact on the treatment available to him because therapeutic communities would only accept prisoners who have category B status or below and have maintained that status for more than six months.
21. In that report Ms Wood stated the Claimant had recently begun to accept responsibility for the second murder. During an interview with him on 18 June 2010 she said that he had stated that he acted as a "look-out" while his associate went into the cell to beat up the victim and strangled him with a sling. He explained that the victim was a well known sex offender and had been targeted for that reason. The Claimant said that he agreed to go along with that and acknowledged that he did not think of the implications of this action at the time, citing "stupidity". She said that during her interview with him the Claimant had accepted full responsibility for both offences and agreed with official documentation relating to them. He said that in relation to the first offence there had been no intention to commit murder whereas with the second offence both he and the co-accused had planned to murder the victim.
22. In her interview Ms Wood recorded that the Claimant had told her that an 18 month sentence in custody which he received in 1986 when he was 17 for seven offences including burglary had not acted as a deterrent to his decision to commit the robbery which ultimately led to his conviction of murder. He attributed the escalation in his offending from burglary to robbery to his feeling that he had not had any prospect of employment following his release from custody and the fact that he was approached by the co-defendant whom he had previously met in prison.
23. In her report Ms Wood referred to the full HCR-20 risk assessment which had been completed for the Claimant in 2008. She said it was important to note that at that time the Claimant had been maintaining his innocence in relation to the second murder. The factors that were considered to place him at an increased risk of future risk were his historical factors (previous violence, young age at first violent incident and prior supervision failure), clinical factors (lack of insight) and risk management (plans lacked feasibility). Since he had subsequently changed his stance in relation to the second murder and accepted full responsibility for its commissioning she stated that she had used the Violence Risk Scale (VRS) as a guide to formulating an updated risk assessment. However she said that a full VRS assessment had not been completed so that those factors should not necessarily be considered exhaustive.
24. Ms Wood said that the fact that the Claimant acknowledged that the second murder was planned demonstrated in her opinion an escalation in his offence related attitudes. It was encouraging that he had recently begun to accept responsibility for the commissioning of the second murder. He acknowledged that in the past he wanted to fit in and be involved with the crowd which had left him feeling good. Although he had completed the Reasoning and Rehabilitation Programme in January 1998 that was before he accepted full responsibility for the second murder. As a result that area of risk had yet to be fully addressed. She therefore recommended that he should complete the TSP as part of him beginning to address the risk factors associated with his offending behaviour.
25. When asked in interview why he had not accepted responsibility for commissioning the second murder until 24 August 2009 and why he had maintained his innocence for such a significant period of time, she recorded that the Claimant said that he had held the belief for many years that due to the nature of the crimes for which the victim had been sentenced to custody he did not consider them to be a victim. Ms Wood said that that would again evidence risk within that area in that he was able to rationalise his violent behaviour. It was encouraging that the Claimant had now accepted full responsibility for the commissioning of the offence which in her opinion indicated that progress was much more possible in that area now.
26. Ms Wood stated that the Claimant had demonstrated further progress by receiving security clearance to work alongside the vulnerable prisoners at HMP Full Sutton as part of his employment as a gym orderly. However, although that was a trusted position and could suggest a shift in his attitude towards sex offenders, she said that had to be treated with caution due to him remaining supervised throughout, whereas the offence of murder had been planned and committed when the Claimant and his co-defendant were alone. It was also important to note that he had yet to complete offence focused work aimed at specifically addressing criminal attitudes. She was therefore unable to suggest a reduction of risk within that area at that time.
27. Further, while it was encouraging that the Claimant had maintained employment throughout his period in custody Ms Wood felt that that was an area of risk which needed to be addressed through offence focused work in order to establish the extent to which employment had driven his previous offending.
28. Ms Wood referred to an Offender Group Reconviction Scale version 3 static risk assessment completed on 30 October 2009 as part of the Claimant's OASys report which had placed him within a group of offenders deemed to have a likelihood of any proven-reoffending within one year of 13% (medium) and a likelihood of any proven reoffending within two years of 24% (medium). Because he presented as a medium risk of future reconviction the Cognitive Self Change Programme ("CSCP") had been found not to be suitable for his treatment needs because he presented as a medium risk of future reconvictions. That limited the extent to which his violent offending could specifically be addressed within the dispersal estate.
29. Ms Wood stated that should the decision be made to downgrade the Claimant from category A status in the future she would recommend that he be referred for a therapeutic community which provides specialist intervention for prisoners addressing offence related risk. It was her opinion that would be the most appropriate avenue for him to address his risk should his category status warrant it. Should it be maintained that he remain as a category A prisoner it was her recommendation that following successful completion of TSP one to one work should be conducted should resources allow which would begin to address his violent offending. However she said it should be noted that work would not be accredited so that it would not necessarily have the benefit of extensive empirical validation ie it would not necessarily be known how effective that would be at significantly reducing his risk of re-offending.
30. Ms Wood stated that during her interview the Claimant presented as an individual who was motivated to address his offending behaviour. He had begun to demonstrate an understanding of his risk factors and the work he needed to do in order to reduce his risk of re-offending. That motivation could act as a preventive factor and was demonstrated further by his positive custodial behaviour, stable employment within prison and his achievement of various qualifications through the education department. Once offence focused work was completed a better understanding would be formulated as to the prevalence of factors associated with his risk and the factors that he could put in place to protect against that.
31. By way of summary Ms Wood stated that because his previous HCR-20 dynamic risk assessments had been completed while he was still maintaining his innocence of the second murder, an up-to-date risk assessment was required to identify all areas that were pertinent to his risk.
32. Due to the limited offence focused work that he had completed to date she was unable to suggest significant change within the identified areas of risk. The fact that he had been found unsuitable for CSCP due to his medium risk of violent re-offending limited the extent to which his violent offending could specifically be addressed within the dispersal estate. If it were decided that the Claimant should remain as a Category A prisoner the one to one work which she recommended, following the successful completion of TSP, should resources allow, would begin to address his violent offending.
33. Due to his still having outstanding areas of treatment need which had yet to be addressed through offence focused work Ms Wood had been unable to recommend parole at that time.
34. On 19 January 2011 the CAT A clerk at HM Prison Frankland sent a copy of the Claimant's Cat A Report to the Claimant's solicitors Bhatt Murphy ("BM") informing them that his review would take place on 24 February 2011 and that any representations they wished to make should be submitted by 18 February 2011.
35. On 16 February 2011 the Claimant's Solicitors Bhatt Murphy ("BM" made written representations on the Claimant's behalf to HMP Frankland, in relation to his forthcoming Cat A review and enclosed a copy of the outcome of his parole review to which I have referred above. The representations submitted that the Parole Board's comment that it hoped that the Claimant would be downgraded from Category A could only be read as recognition in its view that such status was no longer warranted. It was also submitted that the decision of the Parole Board reflected the reality that there was no further offending behaviour work that could be done to reduce risk in the high security estate and that what was recognised as the appropriate intervention–transfer to a therapeutic community – could not take place without downgrading.
36. BM asked that, if the LAP were not minded to recommend downgrading, consideration of the case should be adjourned so that there could be an oral hearing. Reliance was placed on R (Wilkinson) v The Secretary of State for Justice [2009] EWHC 878 as identifying a conflict between a Parole Board recommendation for downgrading and a prison recommendation against and the existence of an impasse as to available offending behaviour work as crucial issues when identifying when fairness requires an oral hearing to consider whether a prisoner should remain in Category A.
37. Reference was made to a comment in the last decision of the Category A Review Team dated 5 May 2010 which concluded that the Claimant should remain in Category A that "this acknowledgment of responsibility [for the second murder] now needed to be consolidated by close contact with intervention staff to fully determine the attitude and behaviours contributing to your offending and your suitability for intervention work to amend these issues." It was submitted that there had now been such consolidation. The Claimant had admitted responsibility for the second murder in August 2009, more than 18 months previously and he had completed the TSP in September 2010 and had also been assessed as unsuitable for both CALM and CSCP. In the words of the Offender Supervisor he had exhausted all offence related programmes available and his sentence planning board held in November 2011 [sic] had confirmed that the only "clear path" (as the Parole Board it) for further addressing of offending behaviour was attendance at a therapeutic community following downgrading.
38. As to the current reports it was submitted that they clearly demonstrated that the Claimant could no longer be assessed as so "highly dangerous to the public" as to warrant Category A conditions. Reference was made to the very positive comments as to the Claimant's custodial behaviour which for a very long and sustained period had been excellent. While it was accepted that that in itself might not be sufficient to warrant downgrading it was clearly relevant to the assessment of risk. The Claimant had engaged positively with staff in identifying interventions that might be suitable to reduce risk and had completed the TSP. Reference was made to the HCR-20 report completed some time earlier which confirmed that the Claimant's current level of risk did not necessarily warrant dispersal conditions. Reliance was also based on the comment of the psychologist that referral to a therapeutic community would be the most appropriate avenue for the Claimant to address his risk.
39. It was submitted that since he had first been recommended for downgrading in 2008 the Claimant had continued with the progress previously demonstrated and had demonstrated a further reduction in risk through his admission of guilt for the second offence and his willingness fully to engage with the programmes department in relation that matter including participation and completion of the Sycamore Tree course on victim awareness and the TSP.
40. The representations requested that the recommendation of the LAP should be forwarded when available to BM so that, if appropriate, further representations could be made to the Director before the final decision was taken.
41. On 28 February 2011, the Governor of HMP Frankland, on behalf of the HMP Frankland Panel, signed a form stating that the Panel recommended that the Claimant should be downgraded from Cat A status ("the LAP recommendation"). The panel was attended among others by three members of the psychology department of the prison. Governor Robson observed:

"The panel were pleased to comment positively on the progress that Mr Cain has made, in particular his reported willingness to address his offending behaviour and his acceptance of responsibility for the second murder. The panel also noted that Mr Cain remains Adjudication free. It was the panel's view that although Mr Cain still has outstanding risks involving his criminal lifestyle, violence, anger, psychopathy and victim empathy, in view of his sustained cooperation with sentence planning and the regime; he should be given the opportunity to address these in conditions lower than Security Category A.

In reaching a conclusion, the Panel recommends that Mr Cain completes assessment for the following the courses CALM, CSCP, and could possibly be referred to HMP Grendon, where he may benefit from the Therapeutic Community (as recommended by the Parole Board)."

42. There is some doubt surrounding the timing of the meeting of the Panel and the communication of its written decision and reasons to the Claimant. The form signed by the Governor, as well as being dated 28 February 2011 stated that the date of the Panel was 28 February 2011, which suggests that that was the day on which the Panel met. However in a letter dated 3 March 2011 BM wrote to the Category A Clerk at HMP Frankland stating that they understood that the LAP had considered the Claimant's case on 24 February 2011 and in a reply dated 14 March 2011 the Cat A Clerk responded that the recommendations had not been signed off yet. In fact, as already mentioned, the date of the Governor's signature on the recommendations form was 28 February 2011.
43. In their letter dated 3 March 2011 BM asked to be provided with a copy of the LAP recommendation which was to be sent to the Director stating that it was necessary so that they might make further representations to the Director before the final decision was taken. They stated that they awaited hearing from him as soon as possible. In his reply dated 14 March 2011 the Cat A Clerk stated that as soon as the recommendations were complete a copy would be sent to BM. It is clear that by 11 April 2011 BM had not received a copy of the LAP recommendation because in a letter of that date they wrote to the Category A Clerk asking for confirmation whether the recommendation to the Director was now complete and if so for a copy to be forwarded to them.
44. In the Statement of Facts and Grounds for Judicial Review dated 19 July 2011 Mr Buley of Counsel on behalf of the Claimant asserted that "it now appears" that the LAP recommendation was made by the Governor on 28 February 2011 and further asserted that the recommendation was not notified either to the Claimant or BM at the time so that the final decision of the Director was made without an opportunity for representations to be made to him. In the Defendant's detailed Grounds dated 13 December 2011 Mr Slater on behalf of the Secretary of State asserted that the LAP recommendation was forwarded to the Claimant in early March 2011 by Alison Gallagher, a CAT A Clerk and VDT Co-ordinator based at HMP Frankland and a copy of an email from Ms Gallagher was attached to the detailed Grounds. That email was dated 10 August 2011 from Ms Gallagher to Shahzad Jawaid of NOMS. The email was in these terms:

" Shahzad

Ref CAIN A4205AE

I sent a copy of the Governor's recommendation to him at the beginning of March. A copy was later sent to his solicitors, BHATT MURPHY on the 9/5/11.

Hope this helps

From

Alison

Alison Gallagher

CAT A Clerk BDT Co-ordinator (Based on the back of "A Wing") HMP Frankland "

45. On its face that email is consistent with the LAP recommendations having been signed on 28 February 2011 but does not sit very easily with the letter dated 14 March 2011 from the A Cat A Clerk to BM stating that the recommendations had not yet been signed off and that as soon as they were complete a copy would be sent to BM. There was no witness statement from Ms Gallagher confirming the accuracy of the contents of her email. On the other hand there was in the papers before me no indication of any denial either by the Claimant or by BM at any time after receipt of the Defendant's Summary Grounds of the assertion in Ms Gallagher's email that she had sent a copy of the LAP recommendations to the Claimant himself in early March. Nor were there any assertions that the Claimant had not himself received a copy of the LAP recommendations before the Director reviewed his case on 18 April 2011 and sufficiently before then to enable him to instruct BM to make representations.
46. What is clear is that BM did not receive a copy of the LAP recommendation to the Director before he reviewed the Claimant's case and decided that he should remain in Category A on 18 April 2011. That emerges from BM's letter to the Category A Clerk dated 11 April 2011 asking for confirmation whether the recommendation to the Director was now complete, from their letter dated 3 May 2011 to the Category A Review Team in London stating that they understood there had been a recent decision that the Claimant should remain Category A, their letter to the Category A Clerk also dated 3 May 2011 expressing concern that the Claimant had informed them that a decision from the Directorate had now been made and noting that the LAP recommendation had never been forwarded to them so that they could make further representations to the Director and asking urgently to be supplied with a copy of the recommendation and finally from the letter dated 5 May 2011 from the Category A Team to BM stating that the Director had reviewed the Claimant's security category on 18 April and decided that he should remain in category A. That letter attached a copy of the LAP's recommendation. It also asserted that, in accordance with PSI 03/2010 there was no obligation to await representations relating to a local advisory panel recommendation before completing a prisoner's review. It stated that the Director had completed the Claimant's review on the basis of reports received from Frankland Prison on 18 March which included representations from BM dated 16 February to the local advisory panel.
47. On 11 May 2011 a Cat A Clerk wrote to BM enclosing a further copy of the LAP recommendation stating that it had been held on 28 February 2011, which is consistent with the assertion in Ms Gallagher's email dated 10 August 2011 that she had sent a copy of the recommendation to the Claimant at the beginning of March. At any rate it is not inconsistent with that statement.
48. On 18 April 2011, the Director refused to downgrade the Claimant. The Claimant was told orally of this decision by 20 April 2011 (but no reasons were communicated). BM wrote requesting written reasons for this decision, and it was said that these would be provided in writing on 20 May 2011.
49. The LAP recommendation was provided to BM on 11 May 2011.
50. On 17 May 2011, BM wrote pre-action correspondence setting out reasons why it was contended that the decision was unlawful (substantially the arguments pursued in this claim, but subject to sight of the reasons which they had not yet seen.).
51. The Category A Team wrote to the Claimant on 20 May 2011 informing him that the Director had reviewed his case on 18 April, had taken into account the reports prepared by prison staff and any submitted representations and had decided that he was to remain in Category A (Standard Escape Risk). A report was enclosed which was said to be a summary of the information considered and the reasons for the decision. A further copy was sent to BM under cover of a letter dated 1 June 2011.
52. The Summary of the information considered by the Director and the reasons for his decision stated that the date of the review was 18 April 2011. It recorded that the downgrading recommendation from Full Sutton Prison in 2008 which the Director had declined had been based principally on sustained good behaviour. It was recorded that the Claimant's behaviour had been good for many years and that he had received no adjudications since 1996. It was said that his relations with staff and other prisoners were good and that he was involved in employment and education. Reference was made to the fact that until recently the Claimant had been unwilling to admit the second offence but that in 2009 he had contacted staff and admitted his involvement on the basis of being a look-out while the offence was being committed.
53. It was further recorded that earlier in his sentence the Claimant had completed the R and R Thinking Skills Programme and Sycamore Tree project but further work was hard to identify due to the Claimant's partial denial. Reference was made to the 2008 HCR-20 assessment which had accepted those difficulties but suggested downgrading as the Claimant did not show risk factors predicting future violence.
54. It was said that the current psychology report showed that although the Claimant admitted responsibility for both offences and was willing to discuss related issues there was still some evidence of rationalisation. The Claimant showed some insight into risk factors and was motivated to make further progress but now needed to move from acceptance to specific work on his violent offending including through the TSP, one-to-one work or therapy. It was said that the CSCP was deemed unsuitable due to the Claimant's OASys assessment of a medium risk of future reconviction. The Claimant had since completed the TSP in September 2010 showing good levels of participation and an understanding of the issues covered.
55. The summary summarized BM's representations dated 16 February 2011 as follows. The tariff had been reduced in 2010 to 15 years and it expired in July 2010. The Parole Board in January 2010 had commented favourably on the Claimant's good behaviour and acknowledgment of responsibility and suggested that his treatment path was frustrated by his Category A status. An oral hearing was needed if there was a difference between the Parole Board and the LAP to explore those issues. The Claimant had consolidated his progress since his last review in 2009 through the TSP. Both the CSCP and CALM had been assessed as unsuitable and therapy was the only further recommended treatment. The Claimant had continued to progress since being recommended for downgrading in 2008 through his behaviour, engagement and acceptance of full responsibility. The HCR-20 in 2008 had recommended downgrading and the current psychologist recommended therapy as the most appropriate way to further reduce risk.
56. The LAP recommendation was summarized in these terms:

"He has completed several programmes and vocational work, admitted his offending fully and maintained a good standard of behaviour. He has outstanding issues to address through assessment for the CALM, CSCP and therapy but his sustained co-operation with sentence planning suggests that these can now be completed in less secure conditions."

57. The reasons for the Director's decision were summarized as follows:

"The Director acknowledged Mr Cain's sustained good behaviour and co-operation with sentence planning. He carefully took into account Mr Cain's successful move from Full Sutton to Frankland Prison, his tariff expiry, and the small signs of greater disclosure relating to his second offence. He accepted further specific programmes had not been identified, and that favourable recommendations have been made by the LAP and Parole Board were factors to be taken into account.

But the Director remained deeply concerned that the specific nature of Mr Cain's offending: in that he had been involved not just once but twice (including once in custody) in the deliberate killing of a victim by strangulation. He considered that despite Mr Cain's co-operation with the regime and the passage of time, there are still important unresolved questions about the attitudes and thinking underlying his offending and the extent to which he understands them or has addressed them.

The Director considered that, despite positive points in Mr Cain's favour, further exploration was needed to reach the core of his motivations and his continuing potential for similar behaviour. While Mr Cain now admitted greater involvement in the second murder offence, this was relatively recent, and there remained elements of minimisation. Although he noted Mr Cain had recently taken part in the Thinking Skills Programme, and been recommended for future placement in a therapeutic community, he noted the current reports also state Mr Cain has not begun addressing his violent offending.

The Director considered that a further period of assessment and exploration of the motives underlying Mr Cain's offending should take place within the same security category. This should include an assessment of whether psychopathic traits or a personality disorder have played a part in his actions.

In summary the Director considered there was still no clear and convincing evidence of a significant reduction in Mr Cain's risk of re-offending in a similar way if unlawfully at large. Specifically he considered there was no clear and convincing evidence Mr Cain had achieved substantial progress identifying and amending the risks underlying his violent offending.

The Director did not accept that the recommendations of the LAP and Parole Board should in the meantime compel Mr Cain's downgrading. He noted the LAP accepted there were important outstanding issues Mr Cain had yet to address, despite his good conduct and involvement in some intervention work.

The Director noted the Parole Board's observation that identified programmes had not been identified within high security conditions. But he considered this in itself could not be sufficient grounds for downgrading, when, as in this case, the risks underlying subject's violent re-offending had demonstrably not been fully identified and addressed. He noted further means of addressing Mr Cain's violent offending and evaluating suitable further treatment had in any case been suggested in the reports through one-to-one work and specialist assessment. He also noted the Parole Board made no assessment of Mr Cain's risk if unlawfully at large, the specific purpose of the present review.

For the same reasons the Director did not accept that an oral hearing was required in this review. He considered the information to be reviewed was fully open to assessment and submission of representations through the normal means.

The Director did not accept that favourable recommendations from the LAP and/or Parole Board obliged an oral hearing of security category reviews. He also did not accept that an oral hearing was necessary solely on the basis of disagreement with or different interpretations of the information available."

58. The Director also indicated that in his view an oral hearing was not required "for the same reasons" as led him to conclude that downgrading was not required, and because he considered that the information to be reviewed was fully open to assessment.

RELEVANT LAW AND PRACTICE APPLICABLE TO CATEGORY A REVIEW

59. The practice and procedure applicable to reviews of confirmed Category A status prisoners are set out in chapter 4 of PSI 03/10. That provides for annual review of the security category of a Category A prisoner on the basis of progress reports from the prison. The annual reviews are completed by the Category A Team or the Director and an advisory panel. However the Director remains solely responsible for approving a downgrading of a confirmed Category A prisoner.
60. Chapter 4 provides that before approving a confirmed Category A prisoner's downgrading the Director must have convincing evidence that the prisoner's risk of re-offending if unlawfully at large has significantly reduced. That reflects the dictum of Elias J, as he then was, in R (Roberts) v Parole Board [2005] 2 AC 738, [2004] EWHC 679 (Admin) at para 39:

"Where the index offences are so grave, as they will inevitably be in Category A cases, the review team can justifiably require cogent evidence that that risk has diminished."

61. That dictum was approved by the Court of Appeal in R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422: see per Aikens J at para 49 where, referring to a statement in a CART decision letter that there was a lack of any evidence to show that the risk of re-offending in a similar way if unlawfully at large had "significantly diminished", he said that "the emphasis must be on those last two words".
62. As mentioned by Elias J in Roberts the principle of security categorisation is that

"Every prisoner must be placed in the lowest security category consistent with the needs of security and control." (Paragraph 4).

63. The definition of Category B is "prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult."
64. Chapter 4 provides for the preparation by prison staff of reports for the prisoner's annual review and for disclosure of the completed reports to the prisoner to allow representations to be submitted to the prison's LAP. That reflects a change in practice following the decision of Munby J as he then was in R (Lord) v The Secretary of State for the Home Department [2003] EWHC 2073 (Admin).
65. The former practice was that ordinarily the prisoner was not shown the Category A reports but rather a document summarizing a gist of their content. That practice stemmed from R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 (per Lord Mustill at P560G). As Munby J said in Lord at paragraph 6 it was in effect endorsed by the Divisional Court in R v Secretary of State for the Home Department ex parte Duggan [1994] 3 All ER 277 and was explicitly approved by the Court of Appeal in R v Secretary of State for the Home Department ex parte McAvoy [1998] 1 WLR 790.
66. In ex parte Duggan Rose LJ said that "on the first and subsequent annual reviews, fairness, in my view, requires that the gist of the reports be revealed in order to give the opportunity for comment." (T288f). He made clear at p288g that what the prisoner is entitled to is "to be informed of the gist of any matter of fact and/or opinion relevant to the determination of his security category."
67. In R (Williams) v The Secretary of State for the Home Department [2002] EWCA Civ 498 [2002] 1WLR 2264 the Court of Appeal held that the risk of circularity whereby a post-tariff discretionary life prisoner may be trapped in an unending process was mitigated by recognising that there are exceptional cases in which (subject to public interest immunity issues) the material available to the review team, in particular the reports of the prisoner, rather than the gist, should be disclosed and the prisoner permitted an oral hearing. (Paragraph 31 per Judge LJ, as he then was).
68. In Lord Munby J posed the question why fairness required the type of disclosure referred to in ex parte Duggan and ex parte McAvoy. The answer he said was because, as Lord Mustill put it in Doody at page 560G:

"The person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests."

69. In that context Munby J drew attention also to what Rose LJ said in R v Secretary of State for the Home Department ex parte Creamer and Scholey [1992] in a passage "wholly endorsed" by Lord Woolf MR in ex parte McAvoy at page 798C:

"A prisoner's right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies and which result in continuing loss of liberty are, or should be, anathema in a civilised, democratic society" (paragraph 14).

70. The importance of the disclosure of the Category A reports to the prisoner is reflected in the statement in chapter 4 of PSI 03/2010 under the heading "Timings of Annual Reviews" that the preparation for each annual review will need to take into account among other things the time needed for disclosure of the reports to the prisoner. (Paragraph 4). Paragraph 6 states that the reports should produce a comprehensive summary of the prisoner's behaviour and progress to date that will enable an assessment of any reduction in the prisoner's level of risk. Where applicable it is said that the reports should record and assess any exceptional circumstances that suggest that the prisoner may not require the highest level of security. It provides that any further relevant documents may also be included or referred to in the Category A reports including in particular psychological and psychiatric assessments. Paragraph 6 provides that all reports are normally disclosed to the prisoner. Any sensitive or confidential information that is unsuitable for disclosure should be included in section 7 of the reports. Those will only be disclosed to the LAP and the Category A Team or Director in completing the reviews.
71. Paragraph 7 states that the reports are disclosed to allow the prisoner to submit representations to the prison's LAP. The prisoner is allowed four weeks to submit representations, although an extension may be granted at the prison's discretion if requested. Records should be kept when the prisoner was given his reports and was informed of the date of the LAP. (Paragraph 7).
72. Paragraph 8 deals with LAP Consideration. The LAP will include the prison's Governor or Deputy Governor and a range of appropriate report-writing staff including wing, specialist and security staff. It is said to be unnecessary for an individual prisoner's report-writers to attend and also unnecessary for prisoners or their representative to attend as prisoners have the appropriate opportunity to submit written representations to the LAP. It is said that the LAP will recommend whether the prisoner should remain in Category A or Restricted Status. The recommendation should also record and comment on any representations or any factual inaccuracies in the reports that have been taken into account or resolved. The reports, representations and the LAP's recommendations will then be sent to the Category A Team as soon as possible for the final decision to be made.
73. Paragraph 9 provides that the Category A Team will consider the prisoner's reports, representations and LAP recommendations on receipt from the prison and either complete the review itself or forward the case to the Director for the final decision. It will also take into account or forward to the Director any representations received following the prison LAP's consideration. Paragraphs 10 and 11 provide that if the Category A Team supports the LAP's recommendation that the prisoner shall remain Category A it will normally complete the review and send the prisoner a decision notification confirming that the prisoner should remain Category A. The decision notification will provide detailed reasons for the decision, taking into account any progress the prisoner has made reducing risk, and addressing any relevant points made in the prisoner's representations. If on the other hand the LAP or Category A Team recommends the prisoner should be downgraded the Category A Team will refer the case to the Director and the next available monthly panel.
74. Paragraph 12 provides that the Director will review the prisoner's security category assisted by a similar advisory panel present in first formal reviews. The Category A Team will send the prisoner a decision notification four weeks after the date of the Director's Panel and that notification will include a summary of the information taken into account and detailed reasons for the Director's decision.
75. Paragraph 2 of chapter 4 deals with oral hearings. It provides that the Director can grant an oral hearing of a Category A prisoner's annual review. That will allow the prisoner or the prisoner's representatives to submit their representations to the Director verbally. It provides that 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. The suitability and the format of an oral hearing it states will however remain at the Director's discretion.
76. I deal with the law on oral hearings in detail below but observe for present purposes that the formulation in paragraph 2 in relation to exceptional circumstances is ambiguously worded. As appears below it was held by the Court of Appeal in R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522 that, 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. However 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 costs 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. Moreover 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 and not whether it was unreasonable or irrational. Whether an oral hearing is required in an individual case will be fact specific. (Per Gross LJ at paragraph 28).

THE PARTIES' SUBMISSIONS

(i) Ground 1: Procedural Fairness

77. On behalf of the Claimant Mr Buley submitted that the two grounds are closely interrelated, both being aspects of natural justice and procedural fairness, and overlap to a high degree. In particular, the discrete matters relied upon under ground 1 are highly relevant to the overall fairness of deciding this case without a hearing, and hence to ground 2.
78. Categorisation as a Cat 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 his categorisation, so long as he remains Cat A, his prospects of release on parole are nil: see, ex parte Duggan [1994] 3 All ER 277, esp., at pp. 280 and 288, per Rose LJ.
79. Thus, "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", per Gross LJ in Mackay [2011] EWCA Civ 522 at paragraph 25.
80. Mr Buley submitted that whether or not there has been a breach of natural justice is a question for the court (see the cases cited below in relation to oral hearings). A fair procedure generally requires that the party affected by the decision should be made aware of what is said against him, and have access to the materials on which the decision maker will base his decision, at least where there is no good reason, such as security, for keeping it from him. It generally requires that he should have an opportunity to comment on the matters on which the decision maker will base his decision, so that, where a decision maker considers that some new factor arises, on which the individual has not previously had an opportunity to comment, it is very likely to require that some such opportunity be given (see Edwards v Environment Agency [2007] Env LR 9, and the cases cited at paragraphs 94 and 103). The context of Edwards was a large scale public consultation and what holds in that context must hold, a fortiori, in the present context, where the liberty of the individual is at stake and, as already observed, a particularly high level of procedural fairness is required.
81. This being so, the Director's decision is flawed by the following individual matters (and, a fortiori, is flawed when those factors are considered together).
82. First, the comments of the LAP were not disclosed to the Claimant, and thus it was not possible for him to address them via his solicitors. That is, prima facie, in breach of the basic rule of natural justice, that an individual should have access to the material before the decision maker, and there was clearly no good reason to depart from this principle in circumstances where there was no objection to providing the recommendation at a later stage (i.e. there was no security related reason for non-disclosure).
83. Mr Buley acknowledged that it is right to say that here the LAP recommendation was for downgrading, and hence was favourable. However he submitted that, although that is so, the LAP recommendation also included a specific recommendation that the Claimant should now undertake various offending behaviour management courses, including CALM and CSCP. In fact, the Claimant had previously been assessed as unsuitable for these courses, and the Claimant would have wished to raise this with the Director in order to ensure that he was properly apprised of it. The Director's view that further work might be undertaken whilst the Claimant remained in Cat A was suggestive of his having placed some reliance on these comments by the LAP.
84. Second and crucially, at the heart of the Director's decision to refuse to downgrade was the passage from his reasoning set out above in which he took the point that the Claimant had "not begun addressing his violent offending". Mr Buley submitted that that was troubling because ordinarily the Claimant would have been expected to address his violent offending via offending behaviour work and it was common ground that there was no further suitable offending behaviour work available to him while he remained in Cat A. But, crucially, the Director then concluded that downgrading was not appropriate until there was assessment for psychopathic traits and personality disorder.
85. Mr Buley relied on the fact that none of the Cat A Review report writers had suggested that this was appropriate, including the forensic psychologists who had provided reports. Moreover the report of 29 December 2010 indicated that the Claimant had "no psychiatric history". This part of the Director's reasoning was therefore unsupported by any evidence, and was, from the Claimant's perspective, a "bolt from the blue", and wholly unanticipated. It was precisely the kind of point, following Edwards, which called for an opportunity for comment. Had the Claimant had any inkling that such a point would be considered relevant, let alone crucial, to whether he should be downgraded, BM would certainly have made strong representations on this issue.
86. Mr Buley said that the Defendant's Detailed Grounds of Defence ("DG") were at some pains to demonstrate that the view taken by the Director was rational, and consistent with the views of various report writers who considered that there was a need for further assessment of the Claimant's risk of re-offending. In his submission that missed the point. It was implicit in the fact that the Claimant was held in Category A conditions that his level of risk would need further assessment before any question arose as to his release from prison, but the view of both the Parole Board and the LAP (which was consistent also with the views of report writers) was that that assessment should now continue in lower security conditions, and indeed that Category A classification was a barrier to this further assessment because of the nature of the work that was available. It was in this context that the Director's decision that the Claimant should remain in Category A for further assessment was at odds with the views of the report writers, the LAP and indeed the Parole Board, so that fairness required that the Claimant be given an opportunity to address it (either by being told the Director's provisional views, or at an oral hearing) before a decision was taken.
87. In the circumstances, the Director's decision was procedurally unfair.
88. In response to the complaint that the LAP report was not disclosed Mr Slater on behalf of the Secretary of State submitted that there were two answers. First the LAP report was in fact forwarded to the Claimant in early March by Ms Gallagher, so that if he had wanted to make representations with the assistance of BM to the Director based on the LAP's recommendation to supplement the detailed written representations already made by BM on 16 February 2011 he could have done so. Second there was nothing in the points which the Claimant now said he would have wanted to make. As the Claimant acknowledged the LAP report was favourable to him in that it recommended a downgrade.
89. The only point of substance arising out of the LAP report on which the Claimant said he would have wished to make representations related to the LAP's recommendation that he should complete assessment for the CALM and CSCP Courses. In fact, the Claimant had previously been assessed as unsuitable for these courses, and he contended that he would have wished to raise this with the Director in order to ensure that he was properly apprised of it.
90. Mr Slater's response was that the Defendant was well aware of this fact. Indeed, the decision letter specifically referred to it on three occasions. (i) "The CSCP is deemed unsuitable due to [the Claimants'] OASys assessment of a medium risk of future reconviction'. (ii) "The Parole Board…suggested his treatment path was frustrated by his category A status. An oral hearing is needed if there is a difference between the Parole Board and the LAP to explore these issues" and (iii) "Both the CSCP and the CALM have been assessed as unsuitable and therapy is the only further recommended treatment." References (ii) and (iii) were references to BM's written representations.
91. Moreover, the Category A Reports, prepared specifically for the purpose of informing the Defendant, contain several references to the Claimant having previously been assessed as unsuitable for CSCP. Thus Ms Richardson's report, having stated that the Claimant, who had successfully completed the TSP, had exhausted all offence related programmes available at HMP Frankland, said that CSCP and CALM had been found to be unsuitable for the Claimant's treatment needs. Ms Woods' report twice stated the CSCP had been found not to be suitable for the Claimant's treatment needs due to him presenting as medium risk of re-conviction and violent re-offending. That therefore limited the extent to which his violent offending could specifically be addressed within the dispersal estate.
92. In response to the Claimant's complaint that the Director's conclusion, which was said to have been crucial to his reasoning, that downgrading was not appropriate until there was assessment for psychopathic traits and personality disorder was unsupported by any evidence, and was, from the Claimant's perspective, a "bolt from the blue", and wholly unanticipated, Mr Slater submitted first that the Director was not saying that such an assessment for psychopathic traits and personality disorder was in any sense a condition precedent for downgrading.
93. He submitted that the reason why the Claimant was not downgraded was because, as the decision letter clearly indicated, he had not, at the time of the Director's assessment of his risk, shown the cogent evidence of significant reduction in risk which is justifiably required. What was said about exploration and assessment generally (and the inclusion of an assessment for psychopathic traits and personality disorder) was the Director's suggestion as to the Claimant's future treatment needs.
94. The Director's reasoning on current risk (as opposed to his suggestions about future assessments) was that there was insufficient evidence of the requisite significant reduction in risk: 'Despite Mr Cain's co-operation with the regime and the passage of time, there are still important unresolved questions about the attitudes and thinking underlying his offending, and the extent to which he understands them or has addressed them...... While Mr Cain now admitted greater involvement in the second murder offence, this was relatively recent, and there remained elements of minimisation.'
95. The Director, responding to the Claimant's recent admission of involvement in the second murder and responding to Ms Joanne Woods' statements that he was only just beginning to undertake offence-related work and that suitable treatment options were not entirely clear, reached the view that such exploration and assessment were appropriate and should, again reasonably, include 'an assessment of whether psychopathic traits or a personality disorder have played a part in [the Claimant's] actions.'
96. Mr Slater submitted that further representations would have served no useful purpose. It cannot be doubted that C would benefit from further assessment to determine the best path for future treatment and offence-related work.
97. If the Claimant's case was that he and his legal representatives might have made the point that, although general assessment was called for, any specific assessment for psychopathic traits and personality disorder was not, then the Defendant's answer was that such more specific assessments were:

(1) merely a suggestion made by the Director, whose institutional competence and mandate extends only to assessing risk, certainly not to making anything more than informal suggestions about future treatment needs, and

(2) a part of a full assessment called for in the Claimant's case.

98. Furthermore, it could not be in the Claimant's own interest for the assessment to be limited: he was better served by a detailed assessment which would enable the fullest picture to emerge of how his risk could most appropriately be addressed and by what specific treatment. The Director's suggestion of further assessment and exploration was a straightforward and rational response to the problem that there was little evidence of the Claimant's levels of risk.
99. Rather than simply leave the Claimant in limbo by concluding that he had failed to demonstrate a significant reduction in risk, the Director had taken the extra step of suggesting a means by which, at the next categorisation review, the Claimant might be better equipped with the evidence to demonstrate whether his risk factors had reduced or not.

(ii) Ground 2: Oral Hearing

100. Mr Buley submitted that Williams and MacKay are authority for the proposition that the requirements of procedural fairness may require an oral hearing to determine Category A status.
101. Mackay confirmed that 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. He accepted that, as Mackay confirms, cases where an oral hearing are required will be "rare", but cited it as authority for the proposition that there is no test of exceptionality. The mere fact that hearings are "rare" is unlikely to provide much of an answer in any individual case.
102. It follows that whilst the weight to be attached to relevant considerations is a matter for the Defendant when the question is whether the Defendant was entitled to reach a particular conclusion of substance, such as whether to downgrade, where, as here the issue is whether fairness required an oral hearing, the court must assess for itself the extent to which for example the views of the Parole Board or other report writers impacted upon whether an oral hearing was required. The assessment of the matters relevant to that question is a question for the court to decide for itself, giving appropriate weight to the factors identified as relevant in the case law. In this case he submitted that important elements were the existence of various kinds of impasse, given the Parole Board and LAP views, and given also the difficulty about the Claimant accessing further offending behavior work whilst he remains in Category A .
103. Advantages of oral hearings may be improved decision-making, bringing the decision maker into contact with those who have direct dealings with the offender and the offender himself, and an oral hearing may also assist in the resolution of disputed issues of fact or judgment, especially where there is disagreement amongst professionals: Mackay (para 28).
104. In Mackay, Bean J, at first instance, had held that an oral hearing was required, and Mr Buley submitted that, as analysed in the Court of Appeal's judgment, that was held to be on the sole basis that he regarded the Defendant's decision not to downgrade as being at odds with a recommendation by the Parole Board that the claimant there should be downgraded. The Parole Board had described such a move as "constructive", and the Court of Appeal held that this alone, and without more, could not be a sufficient basis on which to say that an oral hearing was required, thus allowing the Secretary of State's appeal against the order of Bean J, because it did not regard this as giving rise to an inconsistency with the latter decision of the Secretary of State. It held that the Parole Board's observation had been more nuanced than Bean J had recognised. The court did not make clear what the position would have been if there had been a clearer recommendation by the Parole Board for downgrading. It did however make clear (at paragraph 28(iv)) that "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", albeit the existence of such an impasse will not, per se, necessarily mean that such a hearing will be required, especially where, as in Mackay itself, there was no true inconsistency.
105. Further, in MacKay, the Court of Appeal commented positively on the observations of Cranston J in R (H) v Sec of State for Justice [2008] EWHC 2590 (Admin), on the relevance of the House of Lords decision in R (Smith and West) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350. Mr Buley relied on the following passage from Mackay, incorporating passages from the other two cases:

"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 ..."

106. H was appealed to the Court of Appeal but, as was noted in Mackay, the appeal became academic before it came on. There was no suggestion in Mackay itself that H was wrongly decided, and hence it provides a useful benchmark against which to set the present case, with which it has a number of features in common. Mr Buley relied on Cranston J's summary of the features which led him to conclude that an oral hearing was required in H. As set out in the report in the Administrative Cases Digest([2009] ACD 44):

In the context of this case, the consequences of the categorisation decision were sufficiently important that they required a standard of procedural fairness whereby the claimant was able to put his case at an oral hearing. That context involved five particular factors:

i) he was a Category A prisoner;

ii) his tariff had expired. Both factors were significant because their combination meant that delay in moving from Category A conditions was highly likely to delay his eventual release. Liberty was obviously affected. Since the consequences of an adverse Category A decision were so serious, these two factors pointed in the direction of a particularly high standard of procedural fairness;

iii) on two occasions the local prison had recommended that the claimant be re-categorised. As a consequence, there was an inconsistency between the approach of the local prison and that of [the Director]. The matter was different from that in Williams, since the recommendation of a local prison on categorisation was not the same as a decision of the Parole Board. Nonetheless, this inconsistency supported the case for an oral hearing to explore it in greater depth. At the end of the day there could well be no inconsistency but simply a difference of opinion, and for very good reasons, but it was as well that the matter be explored at an oral hearing.

iv) the approach of the Category A Review Team could well have benefited from the closer examination which an oral hearing could provide. The local prison had responsibility for the care of the claimant and its views on risk and its management were matters which might be better tested by way of an oral hearing.

v) the claimant was in a Protected Witness Unit. That had a bearing on various factors such as risk and his ability to undertake work which could have an impact on a reduction in that risk. An oral hearing may better explore the special factors appertaining to the claimant's location in the unit.

107. Mr Buley submitted that four of the factors considered important by Cranston J in H are also present in this case (the first three unequivocally so). He accepted that the last is not, in so far as the factual element of a Protected Witness Unit is not present here, but submitted that the underlying reasoning, relating to the Claimant's inability to undertake work towards a reduction in his risk, is present. Indeed, viewed in the round, the factors in the present case are, if anything, stronger than those in H. He submitted that the following strongly indicated the need for an oral hearing:

(i) The Claimant is a Cat A prisoner serving life sentences for murder and has now been in prison for over 24 years (just as in H).

(ii) He is now post-tariff (again, as in H).

(iii) He was previously recommended for downgrading by the LAP at Full Sutton in 2008, although the Director rejected this recommendation.

(iv) He was recommended for downgrading by the LAP at Frankland in the current review in light of a set of reports that recognised both his progress and the lack of any available interventions to reduce risk in the high security estate. Thus, as in H, there was more than one recommendation from the LAP that he should be downgraded.

(v) The Parole Board when it considered his case in his tariff expiry review stated that it was "pleased to comment positively on the progress that you have made…there is a clear path of recommended interventions which seem to be frustrated by your Category A classification…it is hoped that you are successful in achieving re-categorisation". That is a factor which was not present in H's case. In effect, therefore, whereas in H's case there was an impasse as between the LAP and the Director, but no conflict with the Parole Board, in the present case there was a double impasse, or inconsistency, as between the Director, on the one hand, and both the LAP and the Parole Board on the other. That must strongly increase the case for an oral hearing if the Director was minded to reject downgrading.. Mr Buley accepted that strictly it might not be right to characterise the Parole Board's comments as a "recommendation" in favour of downgrading, but submitted that they regarded it as an appropriate next step, in respect of which they expressed the hope that it would now occur.

(vi) The Claimant is unable to access further offending work in Cat A conditions, and it is therefore unclear, if he remains in Cat A, how he is to advance his case for downgrading. It was striking, in light of these comments, that when the Defendant made his decision as to the timing of the Claimant's next parole review on 7 January 2011, he did not suggest that there were any interventions to further reduce risk available in the high security estate. It was submitted that that is equivalent to the fifth factor which weighed with Cranston J in H. This too has been described in the cases as giving rise to an "impasse": see per King J in R (Lynch) v SSJ [2012] EWHC 1597 (Admin), at §15. The court has made clear that the presence of "inconsistency" (of the kind identified in (v)) above) and "impasse" of any kind while not in themselves such as automatically to give rise to a need for an oral hearing, will "increase the likelihood of an oral hearing being required" (per King J in Lynch, at paragraph 16, citing Mackay). In this case the combination of a double "inconsistency", with the Parole Board and the LAP, and further an impasse in terms of the Claimant's ability to access further appropriate coursework, collectively gave strong grounds for concluding that an oral hearing was required.

(vii) Mr Buley also relied on the discrete factors relied upon under ground 1. In particular he said that it is highly troubling, from the point of view of fairness, that the Director based his decision on a matter not previously suggested to him, namely as to the need for assessment of psychopathic traits or personality disorder. The Director must keep the need for an oral hearing under review, and having, in effect, reached a "minded to" decision on the basis of this new factor, he should have realised that this necessitated an oral hearing, precisely in order that the Claimant might wish to comment upon it, and might well have useful observations to make about it (especially in circumstances where he did not think it appropriate to provide an opportunity for this in writing). This is also precisely the kind of point on which the Director would have benefited from exploring matters with those with most knowledge of the Claimant, including mental health professionals from Frankland, to consider whether a case for such assessment was really made out prior to downgrading.

108. Mr Buley relied on the decisions in R (Flinders) v Secretary of State for Justice [2011] 1630 (Admin) and R (Fox) v Secretary of State for Justice [2012] EWHC 2411(Admin) in each of which he submitted that very similar analyses to that of Cranston J in H, including in particular the presence of an impasse of one kind or another, led to the conclusion that an oral hearing was required.
109. On behalf of the Secretary of State Mr Slater submitted that the Director and the Category A Review Team are responsible for determining whether a Category A prisoner has demonstrated a significant reduction in risk of re-offending if that prisoner were to escape and therefore become unlawfully at large to justify re-categorisation.
110. 'Where the index offences are so grave, as they will inevitably be in category A cases, the review team can justifiably require cogent evidence that that risk has diminished': see Roberts'), [39] (Elias J), approved by the court of Appeal in Mackay [27]-[28].
111. In this case the Director concluded, as he was entitled to on the material before him, that the Claimant had not shown the cogent evidence of substantial reduction in risk which was required before a decision could be made to downgrade his category.
112. The procedure adopted in assessing risk is a matter for the Director and the Category A Review Team. Oral hearings may be required to meet the demands of procedural fairness but, given the Defendant's recognised institutional competence, they will be rare.
113. It is now settled law that such oral hearings will be 'few and far between': Mackay, [13]. That is because the courts appreciate that the Director and the Category A Review Team will, in the great majority of cases, be able to assess risk on the basis of the detailed written representations which prisoners are entitled to submit and which the Claimant in this case, with the assistance of BM, submitted in this case. In assessing risk, the Director and the Category A Review Team are assisted by a panel with includes a psychologist.
114. A judicial review court will only interfere with the decision whether to hold an oral hearing if, despite the Defendant's expertise in risk assessment, it nonetheless concludes that the Defendant was 'wrong' not to hold such an oral hearing: Mackay, [12].
115. The Claimant had only relatively recently and after 16 years of denial come to accept involvement in the second murder. He was therefore very much at the start of addressing his risk in relation to that offence. As Ms Woods, the psychologist stated in her report, 'this area of risk has yet to be fully addressed' because the Claimant was for long in denial about the second murder. Such a situation was discussed by Elias J in Roberts, at [42]: '…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.'
116. Both the Parole Board's decision and the detailed psychological report of Ms Woods indicated that the Claimant was only just beginning the work needed to enable him to demonstrate a significant reduction in risk. They regarded the Thinking Skills Programme which the Claimant had completed only 6 months before the Director's decision as a start but nothing more.
117. The TSP was described by Ms Woods as being a 'part of [the Claimant] beginning to address risk factors in relation to his offending behaviour': indicating:

(i) that this was a preliminary step only, TSP being something from which the Claimant would benefit 'in the first instance' and a 'good starting point';

(ii) that it was part only of the wider process of addressing risk; and

(iii) that, in Ms Woods' words, because he 'maintained his innocence for such a significant period of time (approximately 16 years)..... this would again evidence risk within this area, in that Mr Cain was able to rationalise his violent behaviour'- for 16 years he did not regard the second murder victim, a sex offender, as actually being a victim at all."

118. Supporting the proposition that the Claimant was only starting the process, the Parole Board, in reaching its conclusion that he presented a 'high risk of harm to the public and a medium risk of re-offending' likewise regarded the TSP as 'a positive start but clearly, more needs to be done'
119. The Defendant was not alone in believing that the Claimant was at an early stage in addressing his offending behaviour, that 'there are still important unresolved questions about [the Claimant's] attitudes and thinking underlying his offending' and that he might therefore benefit from further assessment. The Defendant's views were consistent with the overwhelming majority of views expressed by a wide range of informed parties, for example:

i) The Summary of Progress following the Claimant's completion of TSP was equivocal about his progress, noting that 'at times it appeared to facilitators that Mr Cain found it difficult to apply the skills to personal situations, particularly in dealing with emotions'.

ii) Ms Woods, in her psychology report stated, that 'Although Mr Cain completed the Reasoning and Rehabilitation programme (15/01/1998) this was before he accepted full responsibility for the index offence. Therefore this area of risk has yet to be fully addressed.'

iii) The Thinking Skills Programme which the Claimant completed only months before was, as mentioned above, described by Ms Woods, as being a 'part of [the Claimant] beginning to address risk factors in relation to his offending behaviour' and as being a 'good starting point for Mr Cain in beginning offence focused work' (para. 7.5.2).

iv) Ms Woods concluded that because the Claimant has now accepted responsibility for the second murder 'progress is much more possible within this area now' (para. 7.3.2). This comment once more indicated that his offending behaviour work is at an early stage. At such an early stage, assessment is called for to ensure that the most suitable treatment options are selected.

v) The Claimant had, as Ms Woods noted, 'yet to complete offence related work aimed at specifically addressing criminal attitudes.'

vi) TSP was useful, Ms Woods believed, 'in the first instance': para. 7.3.4.

vii) Ms Woods concluded that, in relation to the Claimant's attitude to employment, 'I do however feel that this area of risk should be addressed further through offence focused work, in order to establish the extent to which unemployment drove his previous offending.'

viii) Expressing her conclusion on the risk factor of 'violence during institutionalisation', Ms Woods stated that 'due to Mr Cain only recently accepting responsibility for [the second murder] he has yet to complete offence focused work aimed at addressing this area of risk and therefore I am unable to suggest progress within this area as yet' .

ix) As to factors (known as 'protective') which can limit a person's risk, Ms Woods was unable to reach a definite conclusion: 'Once the offence focused work is completed a better understanding will be formulated as to the prevalence of factors associated with Mr Cain's risk and the factors that can be put in place to protect against this' (para. 9.1).

x) Ms Woods herself was uncertain as to the appropriate treatment options, making it all the more important that, as the Defendant recommended, further exploration and assessment were undertaken. Ms Woods stated that although she recommended one-to-one work 'should resources allow', nonetheless it might not be clear 'how effective this would be at significantly reducing his risk of re-offending'.

120. Mr Slater submitted that what strikes the reader of Ms Woods' report was how little was known about the Claimant's risk factors and how strongly she concluded that further work and further exploration was called for in the Claimant's case. He said that that was not of course surprising: '…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': per Elias J in Roberts, at [42]. At the Claimant's last review his representations placed emphasis on the previous HCR-20 assessment (which stated he did not need high security), but that was when Claimant was still in denial.
121. Mr Slater submitted that this was almost a matter of common sense – a prisoner who has relatively recently admitted involvement in a murder which he has denied for 16 years and who has not undertaken offending behaviour work should undergo assessment to determine which specific areas should be the focus of future treatment attention.
122. Mr Slater accepted that the Parole Board stated that 'there is a clear path of recommended interventions which seem to be frustrated by your category A classification'. However he submitted that it went almost without saying that the Parole Board is assessing a markedly different type of risk (namely of risk when on licence), whereas the Defendant is assessing risk on escape: R (Williams) v SSHD [2002] EWCA Civ 498, [25], making it 'important to differentiate between the Parole Board and CART. While they are linked and both address the issue of public safety, there is a difference of substance between them': see Mackay, [26].
123. Plainly, the views expressed by the Parole Board were a relevant consideration for the Director and he plainly so regarded them and took them into account, as shown by his decision letter in which he accepted 'that favourable recommendations have been made by the LAP and Parole Board [and] were factors to be taken into account.'
124. Equally plainly, the weight to be attached to relevant considerations, in this case to the views of the Parole Board and other report writers, was a matter for the decision-maker: Tesco Stores v Secretary of State [1995] 1WLR 759, 780 (Lord Hoffmann).
125. Certainly, there is no authority for the proposition that an oral hearing is called for when the Defendant reaches a decision different to the views expressed by the Parole Board or the Local Advisory Panel. Quite the contrary.
126. As Mackay makes clear, the Defendant can be expected to reach his own conclusion, without an oral hearing, in circumstances where, as commonly happens, there is a difference of views between report writers and/or the Parole Board and/or the Local Advisory Panel: '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': Mackay, [28 (iv)]. This proposition – that CART may, except in 'rare' cases, resolve disputes on the papers without any unfairness – has been accepted in R(Downs) v SSJ [2011] EWCA Civ 1422, [49]-[50]; and the test on judicial review is, as the Claimant asserts, 'whether the refusal to permit an oral hearing was wrong': ibid., [7].
127. Further there was no need for further oral representations to enable the Claimant to challenge the Director's suggestion that he should be offered further exploration and assessment in order to get to the bottom of his offending, what risks still existed and what treatment needs he still had. That suggestion was not crucial to the Director's decision on risk but was an attempt to ensure that, before the Claimant's next categorisation review, a clearer picture could emerge of his risk and the best way of treating it. It was not credible that procedural fairness required the Claimant to have the opportunity of submitting orally that he should not be allowed the opportunity to be subject to a thoroughly appropriate assessment.

Discussion

128. It is now well established that a decision as to whether a prisoner should continue to be classified as Category A calls for a high degree of procedural fairness. This flows directly from the fact that it has a direct impact on the liberty of the subject and from the serious consequences for the prisoner of remaining in Category A. Not only is he subject to a more restrictive regime and higher conditions of security than prisoners in other categories but so long as he remains a Category A prisoner his prospects of release on parole are nil. (Per Gross LJ in Mackay at paragraph 25 and per Rose LJ in Duggan at pp 280 and 288).
129. In H Cranston J observed that where a categorisation review takes place in respect of a Category A prisoner whose tariff has expired, those two factors point in the direction of a particularly high standard of procedural fairness because their combination means that delay in moving from Category A conditions is highly likely to delay the prisoner's eventual release (see paragraph 22). What is required to be done in order to comply with these high standards of procedural fairness in any particular case will depend on the facts of the individual case. There is no one-size fits all formula. It is for the court to decide what fairness requires. Thus in the context of a challenge to the failure to allow an oral hearing the issue on judicial review is whether the refusal was wrong and not whether it was unreasonable or irrational. (Per Gross LJ in Mackay at paragraph 28).
130. In my judgment that principle applies not only to the challenge in this case to the failure of the Director to allow the Claimant an oral hearing but also to the challenge based on the alleged procedural unfairness in not making available to him the LAP report and not giving him an opportunity to make representations on the Director's statement in his reasons for not downgrading, that the further period of assessment and exploration of the motives underlying the Claimant's offending which he considered should take place within the same security category should include an assessment of whether psychopathic traits or a personality disorder had played a part in his actions.
131. The reason why the expiry of the penal tariff of the Category A prisoner points in the direction of a particularly high standard of procedural fairness is in my judgment partly because there is no longer any penal justification for the prisoner's detention and partly because the expiry of the penal tariff means that any delay until the ultimate day of release caused by the prisoner's continued detention in Category A conditions is likely to be more serious since the only remaining barrier to release on licence is satisfying the Parole Board that the prisoner no longer presents a danger to the public if released on licence.
132. Leaving aside the question of whether there should have been an oral hearing, the Claimant relies on two matters said to constitute a breach of the requirements of procedural fairness. The first is the failure to disclose to him the comments of the LAP thereby preventing him from addressing them via his solicitors.
133. PSI 03/2010 makes no express provision for the disclosure to the prisoner of LAP recommendations prior to the review and decision by the CART Team and/or the Director. However all the reports prepared by the local prison for the LAP review are normally disclosed to the prisoner, subject to excluding any sensitive or confidential information that is unsuitable for disclosure to the prisoner. The requirement for the disclosure of Category A reports (albeit in the original more limited form of gist reports) was said by Munby J in Lord to arise because, as Lord Mustill put it in ex parte Doody [1994] 1AC 531 at 560G

"The person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests."

134. Munby J also drew attention to the following extract from the decision of Rose LJ in ex parte Creamer and Scholey [1992] which was "wholly endorsed" by Lord Woolf MR in ex parte McAvoy [1998] 1WLR 790 at 798C:

"A prisoner's right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies and which result in continuing loss of liberty are, or should be, anathema in a civilised, democratic society. "

135. It was not suggested by Mr Slater on behalf of the Defendant in this case that there were any considerations of security or confidentiality which justified withholding the LAP recommendation from the Claimant. On the contrary the Category A Team sent a copy of the LAP recommendation to BM dated 5 May 2011 and according to her email dated 10 August 2011 Ms Gallagher, the Cat A Clerk at HMP Frankland sent a copy to the Claimant at the beginning of March.
136. Did the LAP recommendation identify factors which might weigh against the Claimant's interests of which he was otherwise unaware or contain damaging inaccuracies which might result in continuing loss of liberty? As Mr Buley was bound to accept, the LAP recommendation was for downgrading and hence favourable to the Claimant. The only part of the contents of the recommendation report in respect of which Mr Buley submitted that the Claimant would have wished to make representations to the Director was the recommendation that the Claimant complete assessment for CALM and CSCP courses. The only point arising from that reference which Mr Buley said that the Claimant would have wished to make to the Director, if he had been made aware of it, was the fact that the Claimant had previously been assessed as unsuitable for those courses. Mr Buley said that the Claimant would have wished to raise that with the Director in order to ensure that he was properly apprised of it.
137. That is in my judgment a hopeless point. As pointed out by Mr Slater, there was no need for representations from the Claimant ensure that the Director was properly apprised of the fact that he had previously been assessed as unsuitable for those courses. The Director referred explicitly in the reasons for his decision to the fact that in their representations dated 16 February 2011 BM had relied on the fact that both courses had been assessed as unsuitable. He was thus already well aware of the fact.
138. The Director was also aware of the fact that the CSCP was deemed unsuitable due to the Claimant's OASys assessment of a medium risk of future reconviction because he referred to that as well in his decision. He also referred to the fact that BM had in their written representations relied on the fact that the Parole Board had suggested that the Claimant's treatment path was frustrated by his Category A status. In addition there were the references in the Category A reports prepared by Ms Richardson and Ms Wood to which I have referred above. The former stated that those two courses had been found to be unsuitable for the Claimant's treatment needs. The latter reported that statement in relation to CSCP and stated that that limited the extent to which his violent offending could specifically be addressed within the dispersal estate.
139. As I have already explained, there was an unfortunate opacity in the evidence of the question whether and if so when the LAP recommendation was in fact sent by Ms Gallagher to the Claimant. It might be said, adopting a strict approach, that Ms Gallagher's assertion in her email dated 10 August 2011 that she had sent a copy to the Claimant at the beginning of March 2011 having been annexed to the Defendant's Summary Grounds on 13 December 2011, it is to be inferred from the absence of any witness statement or even letter from the Claimant denying receipt by the Claimant of the LAP recommendation from Ms Gallagher in early March before the Director made his decision on 18 April 2011 gives rise to inference that in fact he did receive it.
140. On the other hand the assertion in Ms Gallagher's email that she sent a copy of the recommendations to the Claimant in early March does not sit easily with the response by the Cat A Clerk at HMP Frankland dated 14 March 2011 to BM's 3 March 2011 request to be provided with a copy of the LAP recommendation that they had not been signed off yet and that as soon as they were complete a copy would be sent to BM. In addition, whatever may be the position in relation to whether and if so when Ms Gallagher sent a copy of the LAP recommendation to the Claimant, the fact is that HMP Frankland were on notice by BM's letter dated 3 March 2011 that they had asked for a copy which they considered necessary to enable them (as distinct from the Claimant) to make further representations to the Director before the final decision was taken. HMP Frankland was further on notice by the BM letter dated 11 April 2011 that BM not only did not yet have a copy of the recommendation but did not know whether it was yet complete. The clear inference from that was that whether because the Claimant had not received a copy or because he had not sent it to BM, BM had not yet received a copy and wished to have a copy to enable them to make representations to the Director before the final decision was made.
141. In those circumstances, given the requirement of a particularly high standard of procedural fairness to reflect the fact that the Claimant was a Category A prisoners whose penal tariff had expired, if the LAP recommendation had contained a point of real substance of which the Claimant was unaware and which was not reflected or contained in the Category A reports which the Claimant had and which might have had a material influence on the Director's decision, I might have been inclined to the view that in the circumstances outlined above the requirements of procedural fairness required HMP Frankland either to send a copy of the LAP recommendation to BM or to inform them, if it was the case, that they had already sent a copy to the Claimant, in time to enable any representations arising out of the contents of the recommendation to be made before the Director made his decision. As it is, however, in my judgment Mr Buley did not identify any such point of material substance and it is accordingly unnecessary to reach a definitive conclusion on this point.
142. Mr Buley's second point was that the Director had concluded that downgrading was not appropriate until there had been assessment for psychopathic traits and personality disorder and that that part of his reasoning, being unsupported by any evidence and coming as a bolt from the blue from the Claimant's perspective, was precisely the kind of point following Edwards which calls for an opportunity for comment and that if the Claimant had had any inkling that such a point would be considered relevant, let alone crucial as to whether he should be downgraded, BM would certainly have made strong representations on the issues.
143. In Edwards Auld LJ referred to the following extract from Lord Diplock's speech in Bushell v Secretary of State for the Environment [1981] AC75 at 96D:

"Fairness…also requires that the objectors should be given sufficient information about the reasons relied on by the Department as justifying the draft scheme to enable them to challenge the accuracy of any facts and the validity of any arguments on which the departmental reasons are based."

144. Auld LJ concluded that if in the course of decision making a decision-maker becomes aware of a new factor or some internal material of potential significance to the decision to be made fairness may demand that the party or parties concerned should be given an opportunity to deal with it. (Paragraph 94). However he added that in general, in a statutory decision-making process, once public consultation has taken place, the rules of natural justice do not, for the reasons given by Lord Diplock in Bushell, require a decision-maker to disclose its own thought processes for criticism before reaching its decision. (Paragraph 103).
145. I observe that Lord Diplock's formulation refers to enabling a challenge to the accuracy of any facts and the validity of any arguments on which the reasons are based. Similarly Auld LJ in his formulation referred to a factor of potential significance to the decision to be made.
146. Thus in my judgment the first question which arises is whether the Director's statement that the further period of assessment and exploration of the motives underlying the Claimant's offending which he considered should take place within the same security category should include an assessment of whether psychopathic traits or a personality disorder had played a part in the Claimant's actions was an opinion on which his reason for refusing to downgrade the Claimant was based or a new factor of potential significance to the decision as to whether the Claimant should be downgraded.
147. In my judgment the answer to that question is no. It is true that the paragraph in which the Director expressed that opinion appeared immediately before the paragraph in which he summarized his conclusion that there was still no clear and convincing evidence of significant reduction in the Claimant's risk of re-offending in a similar way if unlawfully at large and specifically that there was no clear and convincing evidence that he had achieved substantial progress identifying and amending the risks underlying his violent offending. However in my judgment read in the context of the reasons document as a whole, it is apparent that the latter conclusion was not based on the former opinion and was not of potential significance to the decision as to whether the Claimant's category should be downgraded. I accept Mr Slater's submission that the Director was not saying that an assessment for psychopathic traits and personality disorder was in any sense a condition precedent for downgrading.
148. In my judgment the critical decision which the Director was required to make and did make was whether there was clear and convincing evidence of a significant reduction in the Claimant's risk of re-offending if unlawfully at large, or using the language emphasised by Aikens LJ in Downs as important, whether there was some cogent evidence that the risk had significantly diminished. (See paragraph 49).
149. The Director's conclusion that there was still no such clear and convincing evidence was based on his conclusion that, despite the positive points in the Claimant's favour to which he drew attention, further exploration was needed to reach the core of his motivations and his continuing potential for similar behaviour. While he had now admitted greater involvement in the second murder offence, that was relatively recent and there remained elements of minimisation and, although he had recently taken part in the Thinking Skills Programme and been recommended for future placement in a therapeutic community, the current report also stated that he not begun addressing his violent offending. In my judgment those conclusions were not based on his opinion that the further period of assessment and exploration of the motives underlying the Claimant's offending which he considered should take place in Category A conditions should include an assessment of whether psychopathic traits or a personality disorder had played a part in his actions. Whether or not such an assessment took place in the future and if so whether or not it revealed that psychopathic traits or a personality disorder had played a part in the Claimant's actions, in my judgment the Director was plainly stating that in his opinion, as matters stood, there was as yet still no clear and convincing evidence of a significant reduction in his risk of re-offending if unlawfully at large. He remained deeply concerned at the specific nature of the Claimant's offending.
150. The Director's conclusion that there were still important unresolved questions about the Claimant's attitudes and thinking underlying his offending and the extent to which he understood them or had addressed them reflected opinions expressed in the Category A reports to which I have referred.
151. Mr Buley submitted that the Director's decision that the Claimant should remain in Category A for further assessment was at odds with the views of the report writers, the LAP Panel and the Parole Board so that fairness required that he be given an opportunity to address it either by being told the Director's provisional views or at an oral hearing before a decision was taken. I deal with the oral hearing below. As to the submission that the duty of fairness required to be told the Director's provisional views that he should remain in Category A for further assessment so that he could have an opportunity to address them, I would refer to Lord Diplock's conclusion in Bushell, referred to by Auld LJ in Edwards that in general the rules of natural justice do not require a decision-maker to disclose its own thought processes for criticism before reaching its decision. BM had already submitted in their written representations that the Claimant had demonstrated a further reduction in risk since his first recommendation for downgrading in 2008 through his admission of guilt for the second offence and his willingness fully to engage with the programmes department in relation to that matter. Subject to the question of an oral hearing in my judgment there is nothing in this third point relied on in support of the first ground.

Ground 2: Did fairness require an oral hearing?

152. The general principles by reference to which the court must approach a claim for judicial review of a decision not to hold an oral hearing before the Director or CART decide to refuse to downgrade a Category A prisoner are not in doubt. They are based on the principles laid down by the House of Lords in ex parte Doody and the Court of Appeal in ex parte Duggan and ex parte McAvoy and the House of Lords in Smith. As applied to the particular context of decisions whether to maintain Category A status they are as stated by the Court of Appeal in Mackay, which approved certain of the dicta of Cranston J in H. The relevant passages are set out earlier in this judgment.
153. The decision as to whether to continue Category A status calls for a high degree of procedural fairness. That will sometimes require CART or the Director to convene an oral hearing when considering whether or not to downgrade a Category A prisoner. The question on judicial review for the court is whether the refusal of an oral hearing was wrong. There is no requirement that exceptional circumstances should be demonstrated. But oral hearings will be few and far between. There can be no single or even general rule save perhaps for the recognition that oral hearings will be rare.
154. As Gross LJ said in Mackay:

"… It is plain that the common law duty of procedural fairness will sometimes require CART to convene an oral hearing when considering whether to downgrade a Category A prisoner. The critical question, to which the answer must be fact specific, is whether this was such a case." (Paragraph 29).

155. A particular question which has attracted judicial discussion and comment is whether, and if so in what way the existence of different views expressed by the Parole Board and/or the LAP and/or the unavailability or limited availability of offence related courses in Category A and/or the prisoner's denial of responsibility for his index offence should affect an assessment of the fairness or unfairness of a refusal to allow an oral hearing.
156. In Williams 5 years after the expiry of the tariff of a prisoner who had been categorised as a Category A prisoner whose escape would be highly dangerous to the public, the Parole Board after an oral hearing attended by the prisoner recommended that a move to conditions of lower security was justified in terms of acceptable risk and so that the further work necessary for his progress towards eventual release could be done. Six months later his categorisation was reviewed by the Category A Committee which refused his request to attend the hearing (and to receive full disclosure of the reports before the Committee rather than their gist). The Committee decided to retain his Category A classification. Allowing his appeal against the refusal of his application for judicial review of the Committee's decision, Judge LJ, giving the judgment of the court, referred to the Parole Board letter which concluded that whilst a Category A prisoner the appellant was unable to access opportunities to demonstrate reduced risk but that unless he demonstrated such a reduction he was unlikely to be re-categorised and expressed concern that that impasse should come to an end.
157. Judge LJ expressed the court's concerns that the Category A Committee had ignored the clear recommendation from the Parole Board that the appellant should be re-categorised and that what he described as the impasse or deadlock identified by the Parole Board was unbroken. Unless the Parole Board misdirected itself the next application for release was bound to fail. Judge LJ commented that the Parole Board is concerned with the protection of the public following a supervised conditional release of the prisoner whereas the Category A Committee or review team concentrate on the risks to the public posed by an escape. He described that as a difference of substance. They address the same broad issue – public safety – but they are resolving a different problem. In the view of the court it was an inevitable consequence of two distinct processes, addressing linked but different questions, that apparent inconsistencies of decision might occasionally happen. The court did not therefore accept that if the information available to the categorisation committee is not markedly different to that available to the Parole Board panel it must act in accordance with the views expressed by the panel. The views of the panel on categorisation, however strongly expressed, are not and cannot be determinative of the categorisation decision.
158. However, Judge LJ held that that does not produce the lamentable consequence that the recommendations of the panel are irrelevant to the categorisation decision or indeed to the decision-making process. It was rightly accepted that those must always be considered by the review team.
159. Focusing on the adequacy or otherwise of the process adopted in that case, Judge LJ stated that apart from the disquieting impression that the two decision-making bodies concerned with the appellant were not working with the same material, the risk highlighted by the appeal was circularity. The post-tariff discretionary life prisoner may be trapped in an unending process. He held:

"This risk is mitigated by recognising that there are exceptional cases in which (subject to public interest 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. The successful operation of this system depends on the review team, and since January 2001 the head of the Category A review team, correctly identifying the case or cases which should be regarded as exceptional.

Mr Owen submitted that the decision that this was an ordinary or normal rather than an exceptional case was wrong. Unlike Harrison J we agree that the review team failed to recognise the special circumstances of this case. At the risk of repetition, the claimant was a post-tariff life sentence prisoner. An open hearing before the panel, which had resulted in conclusions favourable to him was followed by a closed hearing before the review team. On the basis of reports which had not been available to the panel or made available to the claimant or his legal advisers, the review team reached conclusions adverse to him which were seriously damaging to his prospects of release. In rejecting the application for an oral hearing, the review team misdirected itself by elevating the theory of the panel's statutory jurisdiction disproportionately above the practical realities, and over emphasising the differences between its own functions and those of the panel, without sufficiently recognising the link between them. The likely recommendation of the review team was foreshadowed by the "gist" document. 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." (Paragraphs 31-32).

160. I would draw attention to a number of matters. First, the Court of Appeal in that case held that there was an obvious prospect of a major inconsistency between the decision of the Parole Board panel and a decision by the Category A Committee if it refused a downgrade. Second, the Parole Board panel in that case recorded its view that the prisoner "had made such progress as had been possible in addressing [his] offending behaviour in Category A conditions … and a move to conditions of lower security was justified both in terms of acceptable risk and the need for [him] to access further opportunities to undertake work to achieve greater insight into his offending. (Paragraph 15). Third, in that case the Parole Board conclusions were favourable to the prisoner. Fourth, the Category A Committee reached its decision on the basis of reports which had not been available either to the panel or to the prisoner or his legal advisers. Fifth, the Court of Appeal held that the recommendations of the Parole Board panel, although not determinative of the categorisation decision, must always be considered by the Category A team.
161. Judge LJ's conclusion that the risk of a post-tariff life prisoner being trapped in an unending process is mitigated by recognising that there are exceptional cases in which subject to public interest issues the material available to the review team, in particular the reports on the prisoner rather than their gist, should be disclosed and the prisoner permitted an oral hearing must be seen against the background of those matters, and also of the fact that, following Lord, Category A reports themselves rather than a gist are routinely sent to the prisoner, subject to excluding sensitive material.
162. In Roberts Elias J, as he then was, said that the court in Williams recognised that there may be real difficulties facing a prisoner in circumstances where the Parole Board recommends a period in a lower category, but the category review team rejects that approach. He referred to the fact that in Williams the court held that the risk of different assessments would be mitigated if the prisoner were provided with the full reports rather than their gist, as he said was now the case following the Lord decision, and if the prisoner were permitted an oral hearing. Ultimately however he said that the question of re-categorisation is still a matter for the review team and its function cannot be fettered or controlled by the Parole Board. The procedural safeguards identified in Williams therefore did not eradicate the possibility that a decision of the prison authorities might still effectively frustrate the wishes of the Parole Board. (Paragraph 56).
163. Elias J referred to passages of the decision of the Court of Appeal in R v The Parole Board and Secretary of State for the Home Department ex p Oyston (unreported, 1 March 2000), in which Lord Bingham of Cornhill MR summarised the difficulties faced by the Parole Board when dealing with prisoners in denial. It included the following:

"Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted present the Parole Board with potentially very difficult decisions. Such prisoners will probably not express contrition or remorse or sympathy for any victim. They will probably not engage in programmes designed to address the causes of their offending behaviour. Since they do not admit having offended they will only undertake not to do in the future what they do not accept having done in the past. Where there is no admission of guilt, it may be feared that a prisoner will lack any motivation to obey the law in future. Even in such cases, however, the task of the Parole Board is the same as in any other case: to assess the risk that the particular prisoner if released on parole will offend again. In making this assessment the Parole Board must assume the correctness of any conviction. It can give no credence to the prisoner's denial. Such denial will always be a factor and may be a very significant factor in the Board's assessment of risk, but it will only be one factor and must be considered in the light of all other relevant factors. In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole." (Paragraph 33).

164. Elias J also held that a number of principles enunciated by Laws J, as he was, in an unreported decision in 1997, R v Secretary of State for the Home Department, ex p Hepworth and Others, approved by the Court of Appeal in Oyston apply equally to categorisation. They were as follows:

"(1) The Parole Board must assume the prisoner's guilt of the offence or offences of which he has been convicted.

(2) The Board's first duty is to assess the risk to the public that the prisoner might commit further offences if he is paroled.

(3) It is therefore unlawful for the Board to deny a recommendation for parole on the ground only that the prisoner continues to deny his guilt.

(4) That in some cases, particularly cases of serious persistent violent or sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation." (Paragraph 34).

165. Having drawn attention to the difference between the nature of the risk assessed by the Parole Board and that assessed by those determining whether a prisoner should remain in Category A, Elias J held that nonetheless, as the parole cases show, it is not the denial itself which is relevant, but the effect which that has on the ability of the prisoner to come to terms with his offending behaviour and to demonstrate the necessary reduction in risk. That must equally be so in the categorisation process. (Paragraph 36).
166. Elias J accepted a submission that without a recognition of guilt and some understanding as to why the crime was committed it was difficult to be satisfied that there was a sufficient reduction in the risk that it might occur again. Having assumed the guilt of the prisoner, the review team had to assess the nature of the risk in the event of an escape. That was the context in which he held that where the index offences are so grave as they will inevitably be in Category A cases, the review team can justifiably require cogent evidence that that risk has diminished, a conclusion which, as I have already indicated, was approved by the Court of Appeal in Downs. (Paragraph 39).
167. Elias J went on to say that such evidence will in the normal way be most cogently demonstrated by the prisoner participating in courses and programmes which are directed to the specific offences so that there can be some self-awareness into the gravity and consequences of his conduct. However, it is a condition of a number of them that the prisoner must admit his guilt. That was so he was told for the CALM and CSCP courses. By not participating in such courses or programmes he said that the prisoner inevitably makes the task of the review team more difficult and in some cases practically impossible.
168. He held that it must be recognised that that compounds the injustice for anyone who has suffered the grave misfortune to be wrongly committed of such terrible crimes and that there will inevitably be such people. It puts pressure on the innocent to admit guilt in order to facilitate release, or, alternatively to serve a longer sentence than they would have had to do had they committed the crime and felt properly able to admit guilt. But that seemed to him to be inevitable. The system could not operate unless the verdict of the jury is respected.
169. Moreover, on very very many more occasions defendants deny guilt for offences which they have in fact committed for a whole variety of reasons. Given that the danger must be presumed from the nature of the index offence it is plainly a proper requirement that there should be cogent evidence in the diminution of risk if the safety of the public is to be secured. No doubt to those in denial the recitation by a review team that being in denial does not of itself preclude re-categorisation may appear to have something like a mantra-like quality. There is no doubt that if they disqualify themselves from the courses which address their specific offending, it will be considerably more difficult for them to be able to satisfy the review team that re-categorisation is justified. That is not however a punishment meted out to them because they have not admitted the offences, but it is because by being in denial they 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. (See paragraphs 39-42 which Gross LJ in Mackay described as a most valuable discussion of this particular concern (paragraph 27)).
170. Elias J described a change in the approach to the assessment of risk and its reduction by specialist courses which had developed significantly since 1994. Whereas formerly the determination of whether or not there was a reduction in risk was carried out, at least in significant part, by focusing on behaviour in prison, it was now a much more sophisticated process. Behaviour in prison figured as one factor in the assessment, but the successful participation in offender focussed courses was now seen as very important. Those changes operated to the detriment of those who would not render themselves eligible for those courses. It was plainly going to be extremely difficult for some prisoners to satisfy the authorities that the risk had reduced if they failed to do the specific offence directed courses. Good behaviour over a period and growing maturity would not, in the vast majority of cases, be likely to be considered enough to demonstrate reduction of risk for understandable reasons. Whether there was scope for more one-to-one work with specialist staff than currently existed and whether that was a satisfactory alternative Elias J said he did not know, but the tenor of the reports he had seen in that case suggested to him, maybe mistakenly, that that possibility might not be widely appreciated by some staff in the prison. (Paragraphs 44-47).
171. Elias J's observation on the significance of denial of an index offence to the assessment of risk and the importance of completing courses such as CALM and CSCP in satisfying the Category A decision-maker that there has been a significant reduction in risk are relevant in this case, as I mentioned below.
172. In H on two occasions the local prison had recommended that the Claimant should be re-categorised, whereas the Director on both occasions decided to maintain Category A. Cranston J held that as a consequence there was an inconsistency between on the one hand the approach of the local prison and on the other hand that of the Director. However he did not accept the Claimant's submission that resulted in an impasse. He said that the matter was also different from that considered in Williams because the recommendation of a local prison on categorisation is not the same as a decision of the Parole Board. Nonetheless he held that that inconsistency supported the case for an oral hearing to explore it in greater depth. He said that at the end of the day there might be no inconsistency but simply a difference of opinion, and for very good reasons, but it was as well that the matter be explored at an oral hearing. Gross LJ referred to this passage of Cranston's judgment in paragraph 28 (iv) of his judgment in Mackay – see below.
173. In H the Parole Board said that there was no obvious way forward and that it was not in a position to comment on the means by which any reduction in risk could be achieved. Cranston J held that the Director was entitled to conclude that an appropriate reduction in the Claimant's risk had to take precedence over a downgrading of his security category. He also held that on the facts the evidence was that there was some work which the Claimant could undertake to reduce risk so that this was not a Catch 22 situation where the Claimant was unable to access opportunities to demonstrate reduced risk but was unlikely to be re-categorised unless such reduction in risk was achieved through undertaking those opportunities. (Paragraph 30).
174. In Mackay there was an oral hearing before a panel of the Parole Board. In its decision the panel referred to the fact that the prisoner's offender supervisor said that she supported a proposal that he be moved to a Category B training prison. The panel said that it felt "that this may be a constructive move." The prisoner sought judicial review of the refusal by CART to convene an oral hearing before the decision on re-categorisation. Bean J allowed the claim, holding that the circumstances of the case and in particular the view expressed by the Parole Board, made it necessary that CART should hold an oral hearing at which the Claimant would have the opportunity to put his case for re-categorisation.
175. In allowing the appeal Gross LJ held that the sense of the Parole Board's decision, taken as a whole was clearly that there had been no significant reduction in the risk attaching to the prisoner. It had stated that while acknowledging that since the last review period the prisoner had done some work to address some of his risk factors and had behaved well in prison the panel felt that there had been no significant reduction in his level of risk. It also pointed out that he had consistently denied his guilt for the index offences and stated that it was concerned that his own description of events minimised his culpability to a disturbing degree. (Paragraphs 4, 33 and 34).
176. Gross LJ said that he was unable to accept that the statement that the panel felt that a move to a Category B training prison might be a constructive move, which he described as being at most a tentative isolated rider as to the benefits of downgrading provided any or sufficient foundation for concluding that the case should be one of those few in which an oral hearing is required. Unlike Williams there was no clear recommendation in the prisoner's favour from the Parole Board. Nor was there any disclosure issue – all the relevant reports were available to the prisoner. Further and by contrast with H there was no disagreement between the LAP and CART. The LAP's conclusion was unequivocal and adverse to the prisoner. (Paragraph 34).
177. Gross LJ said that in reaching his conclusion he took into account the fact that the Parole Board had had the benefit of a number of views in favour of downgrading the categorisation of the prisoner.
178. In his review of the law Gross LJ also drew attention to the fact that in Williams CART had had available to it reports which had not been before the Parole Board and had declined to disclose them to the prisoner or his representatives, although their gist had been made available.
179. He also referred to concerns occasioned by the impasse capable of arising in the case of a prisoner who maintains a denial that he committed the offences of which he has been convicted:

"On the one hand he may need to complete various courses to satisfy CART that the risk to the public has been significantly reduced were he to be unlawfully at large; on the other hand, he may be ineligible or unsuitable for participation is such courses while he continues to deny guilt. While, plainly, continued denial of guilt cannot of itself preclude re-categorisation, a matter which would compound injustice in the case of anyone wrongly convicted of (necessarily in this context) grave offending, denial of guilt will very likely be relevant as undermining any acceptance of responsibility for the harm done. Moreover the CART's starting point can only be the correctness of the jury's verdict. Still further and realistically, there will be "very very many more occasions" where prisoners "deny guilt for offences which they have in fact committed"; see Elias J (as he then was) in [Roberts] in the course of the most valuable discussion of this particular concern at [39 – 42]. As it seems to me it is necessary to be alert to the possibility of injustice occasioned by an impasse of this nature; but it must be accepted that on occasions such impasses will, unavoidably, occur – given the important public interest in risk reduction before an offender is released on a controlled basis into the community or a re-categorisation decision is taken increasing the risk of an escape. As Elias J observed in Roberts, again at [42]:"

" …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." (Paragraph 27).

180. Later in his review of the law Gross LJ referred to:

"A potential impasse [which] 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, maybe unwilling to risk downgrading the prisoner's security categorisation without the prior evidence of significant risk reduction.

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]." (Paragraph 28 (iii) and (iv).)

181. On the facts of the case Gross LJ was not persuaded that an impasse occasioned by the prisoner's continued denial of guilt had been reached. The case seemed to fall somewhat short of that. However he added that even if he were wrong on that point it must be recognised that however regrettably impasses of this nature will sometimes be unavoidable – see the discussion in Roberts. Further he noted that the impasse which concerned the Court in Williams was of a different nature, going to the sharply contrary views held by the Parole Board and CART in that case. I take that to be an indication that in his judgment an impasse arising out of sharply different assessments as to risk as between the Parole Board and the Category A decision taker may be a stronger indication, depending on the facts of the case, that fairness requires an oral hearing than an impasse arising out of a Category A's prisoner's continuing denial of guilt.
182. It is also noteworthy that Gross LJ did not consider that either the fact that the prisoner was now a post-tariff life prisoner or the fact that he had not yet had an oral hearing before CART carried weight. Even though there is no "exceptionality" test, if those two factors alone 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." (Paragraph 37 (iii)).

183. It follows in my view that of the five factors which, cumulatively Cranston J considered were sufficiently important to require a standard of procedural fairness whereby the Claimant was able to put his case at an oral hearing, Gross LJ considered that the first two, namely the fact that the Complainant was a Category A prisoner and that his tariff had expired would not of themselves have required an oral hearing. Cranston J's third factor was the fact that the local prison had recommended that the Claimant should be re-categorised as a result of which he held that there was an inconsistency between the approach of the local prison and the Director. Gross LJ appears to have considered that to be an important factor which he contrasted with the fact that in Mackay so far from their being a disagreement between the LAP and CART the LAP conclusion was unequivocal and adverse to the prisoner. (Paragraph 34). On the other hand as already mentioned he also expressed the view that it should not be thought that the mere existence of an impasse or inconsistency means that an oral hearing will be warranted. I also observe that Cranston J in H implied that a positive recommendation by the Parole Board is likely to carry greater weight when considering whether fairness requires an oral hearing than one from the local prison.
184. In R (Flinders) v Secretary of State for Justice [2011] 1630 EWHC (Admin) Wyn Williams J applied the principles laid down by Gross LJ in Mackay to the facts of the case before him and concluded that fairness demanded that that was one of the rare cases when the Director should have convened an oral hearing before determining whether to maintain or downgrade the Claimant's categorisation. The factors which, taken cumulatively, pointed unequivocally to that conclusion were in his view the following. First the Claimant had been a Category A prisoner throughout the period of his imprisonment. Second his tariff period had expired 3½ years earlier. Third he had been an exemplary prisoner. Fourth his mental illness was controlled and capable of being controlled while he remained in prison. Fifth there were difficult issues to be addressed about whether he was eligible for offender courses. The Director had openly acknowledged in correspondence that the reports before him were ambiguous about the Claimant's IQ and whether he was eligible for courses. He acknowledged that that issue needed clarification. What better way to seek clarification the judge asked than by convening an oral hearing? Sixth the psychological assessment available suggested that there had been some reduction in the risk of future violence. However that view was put forward in terms which invited further exploration. Seventh the LAP had recommended that he be downgraded. In its report LAP identified the Claimant's main risk factor as being his mental health. However it also recognised that his health was stable. The LAP considered that if his category was downgraded he could transfer to a medium secure unit where he could address his mental health issues further. Eighth the recommendation that he be downgraded to Category B was reiterated in a sentence planning and review report.
185. Wyn Willaims J held that as a consequence of his conclusion that the Director should have convened an oral hearing before determining the Claimant's categorisation the decision fell to be quashed unless he was satisfied that the holding of an oral hearing would have made no difference to the Director's decision. He was not so satisfied. He considered that there was at least a reasonable prospect that information would have emerged at an oral hearing which might have persuaded the Director to re-categorise the Claimant.
186. There is of course a limit to which assistance may be derived from the way in which the general legal principles laid down in the authorities to which I have referred have been applied in other cases. The effect of the application of those general principles in any particular case must necessarily depend on the relevant facts of that case. As Gross LJ said in Mackay the answer to the question whether the duty of fairness requires an oral hearing in any case is fact specific.
187. I turn to consider whether the application of those general principles to the facts of this case leads to the conclusion that the high degree of procedural fairness which was called for by reason of the adverse consequences of a decision to maintain the Claimant's Category A status required the Director to hold an oral hearing before making his final decision.
188. I have set out earlier the eight features said by Mr Buley on behalf of the Claimant strongly to indicate the need for oral hearing. The first two were that the Claimant was a Category A prisoner who had been in prison for over 24 years, just as in H, and who was now post-tariff, again as in H. As Cranston J observed in H in remarks which were not disapproved by the Court of Appeal in Mackay those two factors point in the direction of a particularly high standard of procedural fairness. However, as held by Gross LJ in Mackay, taken alone, even when added to the fact that the Category A prisoner has not yet had an oral hearing before CART (or I would add, the Director) they do not justify an order for an oral hearing because if they did such hearings would be the rule rather than a rarity. Accordingly in my judgment they are a relevant part of the overall context to be taken into account but are not in themselves sufficient to require an oral hearing.
189. Next Mr Buley relied on the fact that the Claimant, as was the case in H, was recommended for downgrading on two occasions by respectively the LAP at Full Sutton in 2008 and the LAP at Frankland in the current review. The Frankland recommendation was said by Mr Buley to have been made in the light of a set of reports that recognised both the Claimant's progress and the lack of any available interventions to reduce risk in the high security state.
190. The recommendation for downgrading by the Full Sutton LAP in 2008 was said by the Director in his reasons for maintaining the Category A status to have been based principally on sustained good behaviour. It was on the face of it a surprising recommendation given that at that time the Claimant was still in denial over his responsibility for the second murder. I was not shown the 2008 LAP recommendation. In the Cat A report of the trainee psychologist Ms Edmonson, although she said that, having done an HCR-20 risk assessment, the risk management items seemed to indicate that the Claimant's risk of possible violence was not high and could be managed in less secure conditions, she also registered a number of caveats to consider when reviewing the Claimant's case. One of those was that his denial of the second murder made it difficult to identify risk factors, specifically his individual case.
191. Although there did not seem to be any manifestation of holding negative attitudes towards certain groups of people in his behaviour in prison, it was difficult to ascertain whether that meant that he had reduced his risk or whether his risk was simply not manifesting in a way that might be expected. She described him as an unknown quantity and said that there was conflicting information. He killed in prison which might be expected to be associated with serious risk manifestations yet his behaviour was excellent. He had not received an adjudication since May 1996. An added complication was that there were no identified ways for the Claimant to address his offending behaviour which had precluded him from the opportunity of demonstrating a reduction in risk that he might have made autonomously. Although Ms Edmonson said that the HCR-20 assessment indicated that the Claimant did not require high security conditions to manage his risk that was qualified by her statement that the consequences of making a false negative assessment of risk were severe considering the Claimant's offending history. She said that the finding that the assessment indicated that the Claimant's risk was likely to be manageable in a Category B establishment had to be balanced against the possible consequences of making a wrong decision.
192. Indeed earlier in her report she described the indication from the HCR-20 assessment as being no more than that consideration could be given to the Claimant being managed in a Category B establishment, although in her summary she said that based on that assessment the Claimant did not demonstrate the vast majority of risk factors which have been shown to predict future violent offending.
193. At all events, at any rate as described by the Director in his reasons, the 2008 LAP recommendation for downgrading appears to have been made not on the basis of a conclusion that there had been a significant reduction in risk but principally on sustained good behaviour. Good behaviour may be an indication of but does not of itself necessarily establish a reduction of risk let alone a significant reduction. The Full Sutton LAP recommendation in 2008 is in my judgment of limited weight both for that reason and because both the recommendation and the HCR-20 assessment available to the Full Sutton LAP in 2008 preceded the Claimant's belated admission of responsibility for the second murder in August 2009.
194. As to the recommendation of the Frankland LAP in favour of a move to Category B the Claimant had by then accepted responsibility for the commissioning of that offence. However the LAP recommendation appears to have been based not on a conclusion that there had been a significant reduction in the risk of further offending but rather on the opinion that, in view of his sustained cooperation with sentence planning and the regime, the Claimant should be given the opportunity to address his outstanding risks in conditions lower than Security Category A. On the question of risks the LAP said that they were pleased to comment positively on the progress the Claimant had made in particular his reported willingness to address his offending behaviour and his acceptance of responsibility for the second murder but also expressed the view that he still had outstanding risks involving his criminal lifestyle, violence, anger, psychopathy and victim empathy. In my view, the fact that it recommended that he should complete assessment for CALM and CSCP courses implied that there remained significant risks.
195. That certainly in my judgment is reflected in the report of the trainee psychologist Ms Wood. She noted that a full Violence Risk Scale risk assessment had not been completed so that her risk assessment should not necessarily be considered exhaustive.
196. Critically in my judgment Ms Wood stated in her report that due to the limited offence focused work that the Claimant had completed by the date of her report (28 June 2010), she was unable to suggest significant change within the identified areas of risk. That was not a view with which the LAP in its recommendation expressed disagreement. Because the Claimant had yet to complete offence focused work aimed at specifically addressing criminal attitudes by the time of her report Ms Wood said that it was important to note that she was therefore unable to suggest a reduction of risk within that area at that time. A fortiori, it follows that she was unable to suggest a significant reduction of risk within that area.
197. In my judgment there was force in Mr Slater's submission that a feature of Ms Wood's report was the limited information as at that time as to the Claimant's risk factors and that in her view his offending behaviour work was at an early stage. See her recommendation that the Claimant complete the Thinking Skills Programme as part of him beginning to address the risk factors associated with his offending behaviour and her opinion that his belated acceptance of full responsibility for the second murder indicated that progress was much more possible within the area of criminal attitudes and in particular minimising the significance of his offending. The fact that he explained his maintenance of his innocence for sixteen years as being due to a belief that because of the nature of his own crimes he had not considered the victim to be a victim was evidence of risk within the area of criminal attitudes in that it showed that he was able to rationalise his violent behaviour. It is my judgment significant that implicit in what she wrote was an opinion that even after the Claimant's admission of responsibility for the second murder there remained an element of minimisation, which may have explained his 16 year denial.
198. See also her opinion that the area of risk based on acquisitive offending should be addressed further through offence focused work in order to establish the extent to which unemployment drove his previous offending. See also her reference to the Thinking Skills Programme which the Claimant completed only months before the Category A review as being a part of beginning to address risk factors in relation to his offending behaviour and a good starting point in beginning offence focused work.
199. See also her recommendation that if it were decided that the Claimant should remain as a Category A prisoner he should conduct one-to-one work "which begins to address Mr Cain's violent offending". It is also in my judgment significant that she commented that because such work would not be accredited and therefore would not necessarily have the benefit of extensive empirical validation it would not necessarily be known how effective it would be at "significantly reducing his risk of re-offending". It is of course precisely cogent evidence that risk has diminished which Elias J held that the review team can justifiably require where the index offences are so grave, as they will inevitably be in Category A cases (paragraph 39 in Roberts). It is also precisely the lack of any evidence to show that the risk of the prisoner's re-offending in a similar way if unlawfully at large had significantly diminished which Aikens LJ emphasised in Downs (paragraph 49).
200. Undoubtedly it can be said that the Director reached a different conclusion on whether there should be a downgrading to that reached by the Frankland LAP. However in my judgment the critical question is whether and if so to what extent an exploration of what lay behind those different conclusions at an oral hearing was necessary in the interests of fairness. In particular did either the LAP recommendation or the reports on which it was in part based raise issues on whether the risk of re-offending had significantly diminished which required an oral hearing to resolve them? (ibid).
201. As appears from his reasons the Director acknowledged the Claimant's sustained good behaviour and co-operation with sentence planning and carefully took into account his successful move from Full Sutton to Frankland prison, his tariff expiry and what he described as the small signs of greater disclosure relating to his second offence. He also noted that the Claimant had received no adjudications since 1996, that his relations with staff and other prisoners were good, that he was involved in employment and education and that, since the current psychology report he had completed the TSP in September 2010 showing good levels of participation and an understanding of the issues covered. To that extent there was no difference between his approach and that of the LAP.
202. There is in my view no difficulty in identifying the factors which led the Director to conclude that there was still no clear and convincing evidence of a significant reduction in the Claimant's risk of re-offending in a similar way if unlawfully at large. They were

(1) the fact that he remained deeply concerned at the specific nature of the Claimant's offending in that he had been involved not just once but twice, including once in custody, in the deliberate killing of a victim by strangulation;

(2) that he considered that there were still important unresolved questions about his attitudes and thinking underlying his offending and the extent to which he understood them or had addressed them;

(3) that further exploration was needed to reach the core of his motivations and his continuing potential for similar behaviour;

(4) that his admission of greater involvement in the second murder was relatively recent and there remained elements of minimisation;

(5) that the current reports stated that he had not begun addressing his violent offending and

(6) specifically that he considered that there was no clear and convincing evidence that the Claimant had achieved substantial progress identifying and amending risks underlying his violent offending (my emphasis).

203. By contrast it is not easy to ascertain from the LAP recommendation what view the LAP, if any, reached as to either the extent to which the Claimant's current risk of re-offending had already reduced or why they considered, if they did consider, that his continuing risk of re-offending could safely be managed in Category B conditions. Although they referred to the Claimant's willingness to address his offending behaviour and his acceptance of responsibility for the second murder as progress, it does not follow that they took the view that that constituted in itself evidence of a significant reduction in his risk of re-offending. If anything their recommendation that he should complete assessment for the CALM and CSCP courses and their view that he still had outstanding risks involving his criminal lifestyle, violence, anger psychopathy and victim empathy tend to suggest that, like the Director and Ms Woods, the Panel took the view that although the Claimant's belated admission of responsibility for the second murder represented a vital first step in addressing the reasons for his offending, the risk factors which it identified would remain until and unless more work was done to address them.
204. It is true that there were three references in the Director's reasons which put an interpretation on passages in the Category A reports with which the LAP and/or members thereof may not have shared. As to that the Director said that he did not accept that an oral hearing was necessary solely on the basis of disagreement with or different interpretation of the information available.
205. The three references are his description of the signs of greater disclosure relating to the Claimant's second offence as being "small", his statement that there remained elements of minimisation in relation to the second offence (as distinct from the minimisation which had been present for sixteen years) and his statement that the current reports stated that the Claimant had not begun addressing his violent offending, as distinct from having begun to do so but still having a great deal more to do. I have considered these references carefully and do not consider that, when one looks at the passages of the reports to which they refer and its observations of the LAP, that those passages led the LAP to conclude that there had been a significant reduction in the Claimant's risk of re-offending or that there is any realistic prospect that an oral hearing would have persuaded the Director.
206. The fifth factor relied on by Mr Buley was the Parole Board's statement that it was "pleased to comment positively on the progress that you have made…there is a clear path of recommended interventions which seem to be frustrated by your Category A classification…it is hoped that you are successful in achieving re-categorisation." He submitted that the fact there was double impasse or inconsistency as between the Director on the one hand and both the LAP and the Parole Board on the other, whereas in H's case there was in impasse as between the LAP and the Director but no conflict with the Parole Board must strongly increase the case for an oral hearing if the Director was minded to reject downgrading.
207. Mr Buley realistically anticipated that the Director might resist the characterisation of the Parole Board's comments as a recommendation and accepted that that might be right in a strict sense. However he submitted that they regarded re-categorisation as an appropriate next step in respect of which they expressed a hope that this would now occur. It is true that the Director in his decisions referred to the Parole Board's "recommendation". However in my judgment the comments of the Parole Board were of a completely different order to those in Williams. In that case the Parole Board Panel expressed the explicit view that a move to conditions of lower security was justified in terms of acceptable risk. Moreover, unlike in this case, it followed an oral hearing at which the Claimant was present throughout and represented by Counsel. Further, and again in contrast to the present case, there were available to the Director reports which had not been available or made available to the claimant or his legal advisors. That was the context in which Judge LJ concluded that once notice of the Panel's decision had been received the review team should have recognised an obvious prospect of what he described as "a major inconsistency" between their respective conclusions and that 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. 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.
208. In this case by contrast the Parole Board Panel, under the heading "Panel's Assessment of Current Risk of Re-offending and Serious Harm" stated that they considered that, taking into account the formal risk assessments and the views of report writers, the Claimant presented a high risk of harm to the public and a medium risk of re-offending.
209. Moreover even though the Parole Board Panel report was written after the Claimant had completed the Thinking Skills Programme (to good effect in the Panel's opinion) the Panel stated that there had been very little opportunity for offending behaviour work prior to that partly as a result of his previous denial of the second murder. They added that his more recent acceptance of the offence would hopefully lead to greater opportunities for assessment and progress in addressing his risk factors and that there should now be opportunities for him to address his violent offending and other areas of risk. The Thinking Skills Programme was seen to be a positive start "but clearly more needs to be done". While commending the Claimant for his realistic approach to the situation and encouraging him to continue to address his risk areas the Panel stated that the reports and assessments in the dossier indicated clearly the areas of risk and how they might be addressed.
210. In my judgment there is a considerable overlap between these expressions of opinion in the Parole Board Panel's report and those contained in the Director's decision. In themselves they do not in my judgment lead to the conclusion, unlike in Williams that once notice of the Panel's decision had been received the Director and his team should have recognised an obvious prospect of a major inconsistency between their respective conclusions.
211. In reality the thrust of the Parole Board Panel's report appeared to be to highlight its concern that there was a clear path of recommended interventions which might in future reduce the Claimant's risk of re-offending which seemed to be frustrated by his Category A classification because many of the interventions that might be beneficial such as a period in a therapeutic community were not currently available to the Claimant. Their hope that the Claimant was successful in achieving re-categorisation appeared to be a hope that the Claimant would be able to satisfy the Director and/or CART that his risk had diminished sufficiently to justify a move to Category B so that more interventions would be available to him, as distinct from an expression of opinion that they were themselves satisfied that there was cogent evidence that a significant reduction in risk of re-offending had already occurred.
212. I remind myself that Gross LJ in Mackay said that 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. So far as the Parole Board is concerned, in my judgment there was certainly no impasse and no inconsistency in view as to whether there was cogent evidence of an existing significant reduction of risk of re-offending. Indeed I think it doubtful that on this critical issue there was even a material difference of view.
213. That brings me to Mr Buley's sixth factor. He submitted that the Claimant was unable to access further offending work in Category A conditions and that it was therefore unclear if he remained in Category A how he was to advance his case for downgrading. When the Director made his decision as to the timing of his next parole review on 7 January 2011 he did not suggest that there were any interventions to reduce risk further available in the high security estate. Mr Buley submitted that that was equivalent to the fifth factor which weighed with Cranston J in H, namely that the fact that the Claimant in that case was in a Protected Witness Unit bore on various factors such as risk and his ability to undertake work which could have an impact on a reduction in that risk. He submitted that the court has made clear that the presence of an inconsistency of the kind identified in his fifth factor (difference of a view between the Director and the Parole Board) and "impasse" of any kind while not in themselves such as automatically to give rise to a need for an oral hearing will "increase the likelihood of an oral hearing being required" for which proposition he relied on King J in Lynch at paragraph 16 citing Mackay. Here the combination of a double inconsistency with the Parole Board and the LAP and further an "impasse" in terms of the Claimant's ability to access further appropriate course work collectively he submitted give strong grounds for concluding that an oral hearing was required in this case.
214. In fact Mr Buley inadvertently but materially mis-stated the effect of Gross LJ's holding on this point. What he said was that 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, although it should not be thought that the mere existence of an impasse or inconsistency means that an oral hearing will be warranted. (Paragraph 28 (iv)).
215. Nonetheless this is a potentially important point. The Parole Board panel undoubtedly placed considerable weight on its perception that the Claimant's continued Category A classification seemed to be frustrating a clear path of recommended interventions and that many of the interventions that might be beneficial such as a period in a therapeutic community were not currently available to him and the LAP concluded that the Claimant should be given the opportunity to address his outstanding risks in conditions lower than Category A. The reference to a therapeutic community was no doubt based on Ms Wood's opinion that a therapeutic community which provides specialist intervention for prisoners addressing offence related risk would be the most appropriate avenue for the Claimant to address his risk "should his category status warrant it" and her recommendation that if the decision were made to downgrade the Claimant from Category A status in the future he should be referred for such a community.
216. It is not clear to me what were the other recommended interventions which the panel stated seemed to be frustrated by the Claimant's Category A classification. Ms Wood in her report stated that the fact that the CSCP course had been found not to be suitable for the Claimant's treatment needs due to him presenting as a medium risk of future re-conviction limited the extent to which his violent offending could specifically be addressed within the dispersal estate.
217. However in my judgment the evidence on this aspect fell short of establishing that there was an impasse of the kind described by the Parole Board panel in Williams. In that case the panel recorded that the Claimant had made such progress as had been possible in addressing his offending behaviour in Category A conditions and that a move to conditions of lower security was justified not only in terms of acceptable risk but also in terms of what it described as the need for him to access further opportunities to undertake work to achieve greater insight into his offending. It concluded that while he remained a Category A prisoner he was unable to access opportunities to demonstrate reduced risk but unless he did demonstrate such a reduction he was unlikely to be re-categorised. The panel said it was concerned that that impasse should come to an end. (Paragraph 15).
218. By contrast in this case Ms Wood's opinion that a therapeutic community would be the most appropriate avenue for the Claimant to address offence related risk was critically qualified by the caveat "should his category status warrant it" She also recommended that if the Claimant's Category A status were maintained, then, following successful completion of TSP, one-to-one work should be conducted should resources allow "which begins" to address the Claimant's violent re-offending. Although she noted that because that work would not be accredited it would not necessarily have the benefit of extensive empirical validation so that it would not necessarily be known how effective it would be at significantly reducing his risk of re-offending, she nonetheless recommended it as something which would begin to address the Claimant's violent offending. Indeed it is again noteworthy that implicit in that recommendation was yet another acknowledgement in the Category A report that the Claimant had not yet begun to address his violent offending.
219. It is also in my judgment highly material that whereas in Williams the Panel considered that a move to Category B was justified not only in order to break the impasse represented by the Claimant having exhausted all opportunities for addressing his offending behaviour in Category A conditions but also in terms of acceptable risk. In this case, as I have said, there was no explicit statement by the panel that a move to Category B was justified in terms of acceptable risk and, if anything, the panel's comments as to current risk were broadly similar to those made by the Director in his decision.
220. In H Cranston J accepted a submission that a higher degree of risk may be acceptable if a prisoner needs training and there is a higher risk associated with steps facilitating such training, although he also held that where the Director concluded that the Claimant had not adduced convincing evidence of a reduction in risk he was entitled to conclude that an appropriate reduction in his risk had to take precedence over a downgrading of his security category. (Paragraph 30).
221. It is clear that the Director specifically addressed his mind to the impact of the more limited opportunities for offence related work in Category A than in Category B conditions on the decision whether to downgrade. It is also clear that he was firmly of the view that the former did not justify a downgrade because they did not outweigh the lack of cogent evidence of a significant reduction in existing risk. Thus he said that although he noted that the Claimant had recently taken part in the TSP and been recommended for future placement in the therapeutic community he also noted that the current reports stated that the Claimant had not begun addressing his violent offending. He further noted the Parole Board's observation that identified programmes had not been identified within high security conditions but said that he considered that that in itself could not be sufficient grounds for downgrading when, as in this case, the risks underlying the subject's violent re-offending had demonstrably not been fully identified and addressed. He further noted that means of addressing the Claimant's violent offending and evaluating suitable further treatment had in any case been suggested in the reports through one-to-one work and specialist assessment. He also noted that the Parole Board had made no assessment of the Claimant's risk if unlawfully at large which he correctly identified as the specific purpose of the present review.
222. As to his reference to the suggestion of specialist assessment, insofar as that was a reference to the LAP recommendation that the Claimant should complete assessment for CALM and CSCP courses, I repeat my earlier observation that, as appears from his reasons, he had well on board the fact that the Claimant had previously been assessed as unsuitable for those courses.
223. It is in my judgment clear that this is not a case in which there was a genuine impasse in the sense of an irreconcilable conflict between the lack of cogent evidence of a significant reduction of risk of re-offending on the one hand and the lack of opportunities in Category A conditions for the prisoner to make progress in addressing his offending behaviour. Ms Woods made a clear recommendation of one-to-one work to address the Claimant's violent re-offending, of the kind referred to by Elias J in Roberts, if should his Category A status be maintained.
224. This was not a case in which the Claimant had for many years admitted his offence and made efforts to address his offending behaviour, but had now exhausted all opportunities available in Category A conditions for addressing it and thereby putting himself in a position to show a significant reduction in risk of re-offending. While the availability of opportunities to address offending behaviour is undoubtedly very important, in this case I do not consider that there was an impasse. Further this was not a case, such as Williams, in which the Parole Board had clearly expressed the view that the current level of risk of re-offending was acceptable. Thus this was not one of those difficult cases where the lack of significant reduction in risk points to maintaining Category A status while the lack of opportunities in Category A to address re-offending means that there is a Catch 22 situation.
225. In any event it is in my judgment clear that had this issue been canvassed at an oral hearing there is no realistic prospect that the Director would have changed his mind on maintaining Category A status. He had the issue very well in mind and was clearly of the view that the lack of cogent evidence of a significant reduction of risk of re-offending and the serious nature of the risk posed by the Claimant in the event of escape were such that a downgrading could not be justified at that time. There had of course been no Wednesbury challenge to that substantive judgment formed by the Director. In my judgment on analysis this sixth factor taken on its own did not engage a requirement as a matter of fairness for an oral hearing.
226. Mr Buley's final point was his reliance on the factors relied on under ground one. In particular he submitted that it was highly troubling that the Director based his decision on a matter not previously suggested to him, namely as to the need for assessment of psychopathic traits or personality disorder. I have already expressed the view that the Director's decision not to downgrade the Claimant was not dependent on his view that the further period of assessment and exploration of the motives underlying the Claimant's offending which he considered should take place within the same security category should include an assessment of whether psychopathic traits or a personality disorder had played a part in his actions. His decision in my view was clearly based on his very clear view that there was still no clear and convincing evidence of a significant reduction in the Claimant's risk of re-offending in a similar way if unlawfully at large or that he had achieved substantial progress identifying and amending the risks underlying his violent offending.
227. Even if he could have been persuaded at an oral hearing that there was no need for an assessment of whether psychopathic traits or a personality disorder had played a part in the Claimant's actions, in my judgment reading the decision as a whole it is clear that he would have reached the same decision against downgrading.
228. Having analysed the factors relied on by Mr Buley as showing that fairness required an oral hearing individually and concluded that none of them do show that, it is necessary to stand back and ask the question whether cumulatively they show that fairness required an oral hearing and that the Director was wrong to refuse one. At first sight when read together the list of factors undoubtedly gives one pause to reflect. The Claimant was a Category A prisoner whose penal tariff had expired some 18 months before the decision. The LAP had recommended a downgrade twice and the Parole Board panel, while not expressly recommending a downgrading, made comments which the Director appears to have interpreted as recommending a downgrade. The Claimant had been adjudication free since 1996, had been a well-behaved prisoner and had in 2009 acknowledged his responsibility for the second murder. The opportunities for addressing his offending behaviour and existing risks appeared to be significantly greater in Category B than in Category A conditions.
229. However it is necessary to remind oneself first that the purpose of a re-categorisation review is, as the Director pointed out, to assess the Claimant's risk of committing similar offences if unlawfully at large. Where the index offences are so grave as they will inevitably be in Category A cases the decision taker can justifiably require cogent evidence that the risk in the event of an escape has diminished (per Elias LJ in Lord) and indeed "significantly diminished" (per Aikens LJ in Downs). In the latter case Aikens LJ held that an oral hearing would not assist on that point because either there was already some cogent evidence that the risk had decreased or there was not.
230. For the reasons which I have given in my judgment there was no material to which the Claimant or his representatives could have pointed at an oral hearing which could realistically have persuaded the Director that such cogent evidence existed. One reminds oneself that the Claimant committed two murders, one of them while in custody in circumstances which, by reason of pre-planning, had been described as arguably an escalation. The sentencing judge in that case described the Claimant as an exceptionally dangerous man and the likelihood of further grave offences as being high and the Lord Chief Justice of the day said that he had no doubt that the judge was right in suggesting that he was dangerous and that risk might be the critical factor in considering possible release.
231. Of course those opinions were expressed a very long time ago and the offences took place a very long time ago. Nonetheless they illustrate why in such cases it has been held that the decision maker can justifiably require cogent evidence that the risk of re-offending has diminished. Undoubtedly there was an issue as to the more limited nature of opportunities for addressing the Claimant's offending behaviour in Category B than there was in Category A and that was a matter to be taken into account and which was taken into account by the Director.
232. For roughly 16 years the Claimant was in complete denial over the second murder. His admission of responsibility, which was relatively recent, opened a new area of concern in that it was accompanied by an admission that he had not regarded the victim as a victim. Both the fact of the denial, its length and its subsequent explanation contributed to a general view in the reports that despite the length of his imprisonment the Claimant was only at the beginning of the necessary process of addressing his offending. Neither the Parole Board, nor the LAP, nor any of the reports expressed the view that there had been a significant reduction in the risk of re-offending.
233. I have read and considered very carefully all the views expressed by the authors respectively of the Category A reports, the Parole Board panel and the HMP Frankland LAP as well as those of the Director. In my judgment this was not one of those rare cases where fairness required that there should be an oral hearing. There was in my judgment no realistic prospect that individually or cumulatively any of the matters referred to or views expressed in those documents, even after further exploration and clarification at an oral hearing, would have led to a different result.
234. I recognise that this conclusion will be unwelcome to the Claimant who is plainly to be commended for his good behaviour in prison and his belated admission of responsibility for the second murder and willingness to address his offending behaviour. I have explained why, in my judgment, no impasse in relation to the opportunities for further addressing the risks of further offending in Category A conditions had been reached at the time of the Director's decision. It is very much to be hoped that sufficient progress in that area will lead to or has led to a significant reduction in risk. Should that prove not to be the case as a result of the absence of further opportunities for addressing risk in Category A conditions, that of course would be a matter to be taken into account on any further re-categorisation review.