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
		23/12/2015

Mrs Justice McGowan :

1. These are two claims which are being heard together for practical reasons. They arise out of the decisions of the Defendant, through the relevant Category A Review Team, ("CART"), to refuse to allow each of the Claimants an oral hearing to determine their continued need to be held in Category A, the highest security category during their substantial prison sentences.
2. Patrick Hassett was convicted, after trial in 1992, of the rape and murder of a 13 year old girl in 1978. He continues to deny his guilt. He was sentenced to a life sentence with a "tariff" period of 14 years. The tariff is that period which the sentencing judge orders must be served before the prisoner can be considered for release. Mr Hassett has therefore been eligible to be considered for release since 2006. Mr Hassett has also been convicted of a number of other violent sexual offences against women and children. He admits committing those offences. He has been designated a Category A prisoner.
3. He seeks to challenge the decision of the Defendant of 19 September 2014, refusing him an oral hearing on the issue of his categorisation. In his case there has been another decision of 12 June 2015, which has in some respects improved his position. Nonetheless he seeks to pursue his challenge to the original challenge. The parties agreed that this was the better course.
4. Simon Price was convicted of being concerned in the importation of £35m worth of cocaine. He continues to deny that he knew it was cocaine and claims only to have played a minor role. His sentence was reduced on appeal to a term of 25 years. He has recently been sentenced to an additional term of 10 years in default of meeting a confiscation order in the sum of £2.34m.
5. He seeks to challenge the decision of the Defendant of 1 October 2014 refusing an oral hearing on the issue of his categorisation.

BACKGROUND

6. The Secretary of State for Justice, as the Minister responsible for prisons, administers a scheme for the categorisation of all prisoners. There are grades which measure risk to the public of re-offending if at liberty. The grade will affect the conditions of a prisoner's detention in the broadest terms. Many of the matters raised in written and oral submissions are common to both Claimants and can be dealt with before dealing with the detail of each case separately.
7. Some categorisation decisions are reached after an oral hearing many are not. In July 2014 a more detailed policy, PSI 08/2013, came into effect. It did apply to the decisions subject to this review. It is accepted within the policy document that following the Osborn ruling, that there might well be a larger number of oral hearings in such categorisation cases in the future, particularly relating to Category A prisoners but it does not set out a policy that such hearings must take place.
8. It is not the function of this court to design or suggest policy to the Defendant, nor is it the courts function to audit policy except to the extent that any aspect of that policy arises on the facts of any particular cases. The court will review these decisions and can intervene only if these decisions have been shown to be unfair.
9. These challenges are brought following the ruling of the Supreme Court in Osborn and Booth [2013] UKSC 61, [2013] 3 WLR 1020 which dealt with the circumstances in which the Parole Board must hold an oral hearing when considering the release from detention or the transfer to open conditions of prisoners. Lord Reed said;

i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.

ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:

a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.

b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.

c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.

d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.

iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.

iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.

v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.

vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.

vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.

viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.

ix) The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.

x) "Paper" decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.

xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.

xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness.

xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty.

10. The question raised by the Claimants, in its most simplistic formulation is; do any or all of the same requirements that apply to the Parole Board when considering release apply to an internal Prison Board, the CART, when considering conditions of detention? Rather than have his position considered by the CART in his absence, should the prisoner be allowed to attend an oral hearing?
11. On the wider Osborn point it should be noted that there are significant differences in the function and status of the Parole Board and the CART.

i) CART is an internal, administrative body.

ii) It receives reports and submissions from the prison and the prisoner.

iii) CART assesses and then decides whether to categorise the prisoner as Category A based on the risk to the public if the detained person were to escape from custody during the sentence.

iv) The Parole Board deals with whether a person is released from custody or not.

v) The Parole Board is therefore a court for Article 5 purposes.

vi) The Parole Board is made up of persons from outside the prison service who are obliged to consider rehabilitation.

12. The categorisation of a prisoner does not have a direct bearing on his release date but it may have an indirect effect on the release of someone serving an indeterminate sentence. It will be a piece of the evidence which the Parole Board would consider when reviewing the position. The lower the risk to the public the more likely they would be to grant release. Categorisation has no influence on the release date of a prisoner serving a determinate sentence. Categorisation does however have consequences for conditions of detention.
13. It must be noted that not having an oral hearing does not deny the prisoner any right to participate in the process. Reports are compiled by the prison staff on the basis of information gathered and following interviews with the prisoner. The report is served on the prisoner for his submissions by way of response, argument or correction. A prisoner is entitled to legal representation in the process. Once concluded the report goes to Governor level consideration by a Local Advisory Panel which reaches a conclusion. That conclusion is then reviewed by the CART, the review team will also consider any submissions made by the prisoner or his representatives.
14. The point to be determined by this Court is much more limited than the Claimants seek to argue. The level of scrutiny that should be applied to the release of a prisoner, its importance to him and the wider public are factors which distinguish the function carried out by the Parole Board from the CART. The Supreme Court in Osborn did not recommend that the increase in the number of oral hearing in release cases should also extend to categorisation cases. It remains a matter for the Defendant to consider when deciding policy. There are no sufficient grounds for this court to interfere and extend the requirement to decisions which are at their heart matters of prison administration. That is not to under-estimate the importance to an individual and his desire to play a part in determining the conditions of his detention. There are however good reasons of practice and principle why it is not for this court to impose a requirement on the Defendant to ensure that each and every prisoner whose status is under consideration is entitled to an oral hearing. It is the purpose of this review to consider whether in each Claimant's case there should have been an oral review. Dealing with each in turn.

PATRICK HASSETT

15. The claim for review of the decision of 19 September 2014 to refuse an oral hearing is brought on two grounds.

i) That the dispute of opinion between Ms Tock and Mr Matthews, expert psychologist witnesses, is sufficient to require an oral hearing to determine and

ii) That the prisoner has served 30 years in Category A, was at the date of the decision more than 8 years past the end of the tariff period and has never previously had an oral hearing

In his case there is a report dealing with the Claimant's contact with the Psychology Department compiled by Sharon Griffiths, that report is marked "this document is NOT A RISK ASSESSMENT and cannot be used to determine any reduction in risk". It is difficult to see what part that report should have played in the decision making process which is aimed only at deciding risk. Accordingly that cannot provide the support which the Claimant seeks. The Defendant had to consider the reports provided by Gemma Tock, who felt that Mr Hassett might, after further assessment, need to repeat some part of his SOTP (Sexual Offenders' Treatment Programme) and Rhys Matthews, instructed on behalf of the Claimant, who felt it was unnecessary as there was "no reason to suppose that further progress would be made".

The Claimant submits that this divergence or difference of opinion is enough to meet the test as is now set out in the new guidance at paragraph 4.7 (b). The test is whether "there is a real and live dispute on particular points of real importance to the decision". How wide the gap between the two experts actually is does not have to be determined by the court in this case. This is an expert panel who have experience of resolving these sorts of issues. The Claimant's position is protected by the instruction of his own expert and by the provision of submissions by specialist solicitors acting for him. It cannot be maintained that the refusal to allow him to actually participate in this process by his physical presence was unreasonable or that it operated to his disadvantage.

16. He also argues that the approach goes further than offering oral hearings in cases in which the Claimant can actively participate. It is said that paragraph 2(iv) of Lord Reed's speech has a bearing.

"The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute."

On the facts of this case it is difficult to see what Mr Hassett could have contributed to the debate. He would no doubt have expressed a genuine willingness to co-operate fully in future work. The issue to be determined was not his willingness to co-operate in the future but whether he was currently less of a risk if at large. It must be remembered that this is someone who still denies having committed the index offences. In addition, it cannot be reasonable that every prisoner should be able to participate, in the sense of an oral hearing, in every decision which has consequences for the conditions of their imprisonment. It was not unreasonable in the circumstances of this review that Mr Hassett was, at that stage, refused an oral hearing. That remains the position even though Mr Hassett has served a very long time already and has long ago completed the tariff portion of his sentence. The longer a term an individual has served is an important factor but it cannot be determinative. Such cases are primarily fact specific. This is in no way to diminish the importance of his desire to be present but that alone, in these kinds of decisions, is not sufficient to render a decision to refuse unreasonable.

SIMON PRICE

17. The claim for review of the decision of 1 October 2014 is based on the following grounds.

i) That the level of dispute of opinion between the prison service psychologist experts and the psychologist experts instructed on behalf of the Claimant, is sufficient to require an oral hearing to determine,

ii) The alleged lack of insight on Mr Price's part, which gives rise to that dispute, could be better explored at an oral hearing and

iii) That because there is no way open to the Claimant to demonstrate a reduction in risk an impasse has arisen and therefore there should be a hearing. At the time of the claim he was likely to have been released in December 2016. The position has now changed and the additional sentence for the confiscation element of his offence now means he still has a considerable amount of time to serve.

18. As in the case of Mr Hassett, it is a significant feature of Mr Price's case that he continues to deny his true role on the jury's verdict. He denies playing a major role and having any knowledge that the product being imported was cocaine. Those are important features in assessing his attitude and the risk he might pose on escape. Unlike Mr Hassett there is a greater area of dispute between the experts. The issue in his case is whether that amounts to "a real and live dispute on particular points of real importance to the decision" sufficient to render the decision not to hold an oral hearing unfair. Both parties have gone through the reports and sought to demonstrate the width or narrowness of the gap by a line by line analysis. It remains the position that the panel that assessed the expert evidence are experts themselves; they apply experience and expertise in a way that this court cannot. Mr Price continues to deny his true involvement on the jury's verdict; both experts recognise that feature as important in assessing risk. The prison expert, Jo Elliott and the Claimant's expert, Professor David Crighton agree that this is a relevant feature. The Professor says that, "other than this, (the denial of knowledge of cocaine), there is little evidence that Mr Price is seeking to minimise his role or responsibility". The Defendant describes this as unanimity on the key point. Whether that description is wholly correct in anything more than a semantic sense, it does show substantial and significant agreement. The disagreement left between the experts is a matter eminently within the panel's remit. In any event this is not a matter, given his consistent denial of guilt to which Mr Price could make a useful contribution in the Osborn sense.
19. As to any contribution which could be made by the Claimant being cross-examined on his own lack of insight it is difficult to imagine what that contribution could be unless he were to suddenly admit responsibility. This is not a case in which any elucidation by him could help his cause. If there does come a time when what he has to say changes then that no doubt will be produced by way of further expert interview or even straight forward admissions to the authorities through his representatives. Neither this point nor the suggestion that the impasse it causes are factors which demonstrate an arguable unreasonableness in the Defendant's approach.
20. In each case nothing has been demonstrated which shows the reasoning used by the Defendant in refusing to hold an oral hearing to be so flawed or lacking as to be wrong. Accordingly the claims must fail.