QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Secretary of State for Justice
Mr David Pievsky (instructed by GLD) for the Defendant
Hearing dates: 15 December 2015
Crown Copyright ©
Mr Justice William Davis:
- In May 2005 Morgan was asked by the Psychology Department at Frankland if he wished to be assessed for the Enhanced Thinking Skills programme. He said that he was not prepared to undertake any course as he was denying the offence of murder and that he was not prepared to engage in a course on the basis of previous convictions since they already had been addressed. This latter reference must have arisen when it was suggested that he could engage in a programme with his previous offending being the starting point.
- In October 2012 Morgan was asked if he was willing to participate in the Thinking Skills programme for which he had been assessed as suitable. He said that he was not prepared to participate and that the assessment had been completed on false information. The suggestion that he could engage in the programme by reference to his earlier offending was repeated. His response was the same as in 2005. Morgan also said that he would not engage in any sex offender treatment programme. His position was that he only could complete such a programme if he had been convicted of a sexual offence – which he had not. He could not address something he had not done.
- In December 2013 Morgan was reported as saying that he was unwilling to address any aspect of his offending behaviour in case it compromised any future appeal. (It should be said that no further appeal appears to be in prospect.)
- In March 2014 Morgan was invited in writing by the Psychology Department at Frankland to attend a meeting for assessment for a sexual offender treatment programme. He declined the invitation. In the space on the form provided for setting out the reasons for non-attendance he wrote "too long to list here."
- In January 2015 further consideration was given to Morgan engaging in a thinking skills programme. His reported response was that he was innocent of the offence for which he was serving his sentence and that he was not prepared to engage by reference to his previous convictions because these concerned his behaviour as a child and were not similar to the offence of murder.
The CART system
The decisions in this case
"(CART) considered your offending showed you would pose a high level of risk if unlawfully at large and that before your downgrading could be justified there must be clear and convincing evidence of a significant reduction in this risk……While your behaviour has been acceptable for some time, your total denial of the present offence has prevented effective exploration of the suggested risk factors and, therefore, also of a reduction in your capacity to reoffend in a similar way….(CART) remained of the view….your close adherence to the regime, even if sustained over many years, did not alone provide convincing evidence of a change in your risk of reoffending similarly if unlawfully at large. It still also needed evidence of significant offence-related insight and change in the risk factors suggested by your serious offending."
Thus, the decision on the substantive merits of the review accepted that Morgan's behaviour had been most satisfactory within the prison regime. However, because of the nature of the offence committed by Morgan, CART, which had to assume that the original conviction was properly sustained, concluded that good behaviour alone was not sufficient.
"(CART) considered your present reports were entirely suitable for the purposes of the review and for the submission of effective representations. It did not accept that an additional oral hearing was appropriate or necessary either to enable an effective risk assessment to take place or to allow you to explain your progress and suitability for downgrading verbally. It considered there were also no other issues that could be resolved only through an oral hearing."
It follows that the reasoning of the decision followed the language of PSI 08/2013 as it then stood. No reference was made to the judgment in Osborn although the judgment had been handed down in October 2013.
"The DDC…..recognised Mr Morgan's continued good conduct in custody but remained satisfied that this alone provide (sic) no convincing evidence of a significant reduction in his risk if unlawfully at large. He also needed evidence Mr Morgan had addressed and achieved some level of progress amending the risk factors relating to his serious offending.
The DDC noted there continued to be no evidence Mr Morgan had achieved any progress on the risk factors suggested by his offending due to his denial of guilt of his present offence and his lack of engagement in assessments or interventions to explore and address these risk factors……..
The DDC…..considered evidence of a significant reduction in Mr Morgan's risk of similar reoffending if unlawfully at large was not available despite his settled behaviour and cooperation with the regime."
The language used in 2015 by the DDC was different to that used in 2014. The substance of the decision was the same. One difference in the language which it is argued on behalf of Morgan is of significance is the conclusion that there was "no evidence" of any progress in relation to risk. That may have been implicit in the decision made in 2014 but it was not stated expressly.
"This instruction has been revised at paragraphs 4.6 and 4.7 to reflect changes in policy on oral hearings for security category reviews, following a recent Supreme Court judgment relating to Parole Board oral hearings."
"4.6 The DDC High Security (or delegated authority) may grant an oral hearing of a Category A / Restricted Status prisoner's annual review. This will allow the prisoner or the prisoner's representatives to submit their representations verbally. In the light of the clarification by the Supreme Court in Osborn, Booth, Reilly of the principles applicable to determining whether an oral hearing should be held in the Parole Board context. The Courts have consistently recognised that the CART context is significantly different to the Parole Board context. In practical terms, those differences have led to the position in which oral hearings in the CART context have only very rarely been held. The differences remain; and continue to be important. However, this policy recognises that the Osborn principles are likely to be relevant in many cases in the CART context. The result will be that there will be more decisions to hold oral hearings than has been the position in the past. In these circumstances, this policy is intended to give guidance to those who have to take oral hearing decisions in the CART context. Inevitably, the guidance involves identifying factors of importance, and in particular factors that would tend towards deciding to have an oral hearing. The process is of course not a mathematical one; but the more of such factors that are present in any case, the more likely it is that an oral hearing will be needed. Three overarching points are to be made at the outset:
First, each case must be considered on its own particular facts – all of which should be weighed in making the oral hearing decision.
Secondly, it is important that the oral hearing decision is approached in a balanced and appropriate way. The Supreme Court emphasised in Osborn that decision makers must approach, and be seen to approach, the decision with an open mind; must be alive to the potential, real advantage of a hearing both in aiding decision making and in recognition of the importance of the issues to the prisoner; should be aware that costs are not a conclusive argument against the holding of oral hearings; and should not make the grant of an oral hearing dependent on the prospects of success of a downgrade in categorisation.
Thirdly, the oral hearing decision is not necessarily an all or nothing decision. In particular, there is scope for a flexible approach as to the issues on which an oral hearing might be appropriate.
4.7 With those three introductory points, the following are factors that would tend in favour of an oral hearing being appropriate:
Where important facts are in dispute. Facts are likely to be important if they go directly to the issue of risk. Even if important, it will be necessary to consider whether the dispute would be more appropriately resolved at a hearing. For example, where a significant explanation or mitigation is advanced which depends upon the credibility of the prisoner, it may assist to have a hearing at which the prisoner (and/or others) can give his (or their) version of events.
Where there is a significant dispute on the expert materials. These will need to be considered with care in order to ascertain whether there is a real and live dispute on particular points of real importance to the decision. If so, a hearing might well be of assistance to deal with them. Examples of situations in which this factor will be squarely in play are where the LAP, in combination with an independent psychologist, takes the view that downgrade is justified; or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds. More broadly, where the Parole Board, particularly following an oral hearing of its own, has expressed strongly-worded and positive views about a prisoner's risk levels, it may be appropriate to explore at a hearing what impact that should or might have on categorisation.
It is emphasised again that oral hearings are not all or nothing – it may be appropriate to have a short hearing targeted at the really significant points in issue.
Where the lengths of time involved in a case are significant and/or the prisoner is post- tariff. It does not follow that just because a prisoner has been Category A for a significant time or is post tariff that an oral hearing would be appropriate. However, the longer the period as Category A, the more carefully the case will need to be looked at to see if the categorisation continues to remain justified. It may also be that much more difficult to make a judgement about the extent to which they have developed over the period since their conviction based on an examination of the papers alone.
The same applies where the prisoner is post-tariff, with the result that continued detention is justified on grounds of risk; and all the more so if he has spent a long time in prison post-tariff. There may be real advantage in such cases in seeing the prisoner face-to-face.
Where there is an impasse which has existed for some time, for whatever reason, it may be helpful to have a hearing in order to explore the case and seek to understand the reasons for, and the potential solutions to, the impasse.
Where the prisoner has never had an oral hearing before; or has not had one for a prolonged period."
The Claimant's submissions
"Before recommending early release on licence, the Parole Board shall consider whether:
(1) the safety of the public will be placed unacceptably at risk. In assessing such risk the Board shall take into account:
(b) whether the prisoner has shown by his attitude and behaviour in custody that he is willing to address his offending behaviour by understanding its causes and its consequences for the victims concerned, and has made positive effort and progress in so doing…."
"There is, in my view, a real risk that the decision of the Board was taken only on the basis of the denial of guilt and the consequences which inevitably flowed from that denial. The letter reads as if risk is only capable of being assessed as low if the conditions set out in sentences 3 and 5 of the letter are established. I repeat part of sentence 3:
"… there is no evidence to show that he has gained insight or understanding about the offences, and there is little in consequence to indicate that he has modified his behaviour and attitudes, shown victim empathy and developed strategies to avoid re-offending."
That sentence closely echoes the language of paragraph 2(1)(b) of the direction. It indicates a frame of mind in the decision maker that it is only by the stated route that the respondent is able to persuade the Board that the present risk is a low one. That, in my view, is an erroneous approach. Having regard to the previous good character and the other circumstances referred to, a change of lifestyle was in this case a possible way of producing a conclusion that the risk was a low one. Sentence 3 suggests a mechanistic approach to paragraph 2(1)(b). Moreover, in the letter the expression "in consequence" appears on three occasions. That too suggests that the "consequences" in mind follow from the denial of guilt and the Board, rather than assessing the circumstances in the particular case, has had regard only to a situation in which the prisoner is able to achieve the consequences desired by reason of an acceptance of guilt.
In my judgment the Board has taken too narrow a view of paragraph 2(1)(b) of the direction. Moreover, as Mr Kovats accepts, and rightly accepts in my view, the test is a general one. The test is as to the current level of the risk to the public and it is essential in applying that test that all the circumstances of the particular case are considered. There is nothing in the decision letter to indicate that the evidence of the proposed change in lifestyle was a factor considered by the Board in reaching their decision."
It is said that the DDC made the same error in this case. Morgan was a prisoner with a good behaviour record over much of his time in custody. This factor did not play a proper part in the decision in which the denial of the offence effectively acted as a bar to any progress. Read as a whole the passage in the decision letter as set out in paragraph 19 above demonstrates invalid reasoning.
"(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 on 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.
(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.
(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…….
The response of the Secretary of State
- The categorisation decision must be rational i.e. it must take into account all relevant matters.
- Denial of the offence may be relevant. Indeed, it may be a very significant factor. It is not necessarily a conclusive factor.
- All cases are different and context is all. Where the case involves very serious and otherwise unexplained violence, denial of the offence may make it impossible to find that there has been any reduction in the level of risk.
"We consider that the Supreme Court should now accept the Fourth Section's conclusion (in James), that the purpose of the sentence includes rehabilitation, in relation to prisoners subject to life and IPP sentences in respect of whom shorter tariff periods have been set. We also consider that the Supreme Court can and should accept as implicit in the scheme of article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public."
The extent of the duty was further developed at paragraphs 41-42 and 91-92 of the judgment. What is reasonable will depend in part on resources.
Lawfulness of the decisions – significance of denial of the offence
Refusal to hold an oral hearing