QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy High Court Judge)
| R (on the application of Keith ROSE)
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
Ivan Hare QC (instructed by the Government Legal Department) for the Defendant
Hearing date: 28 June 2017
Crown Copyright ©
See Order at foot of this judgment.
Karen Steyn QC :
The Claimant's offences
The Local Advisory Panel's Recommendation
"The Local Advisory Panel (LAP) considered that Mr Rose does not still pose a risk of reoffending in a similar way if unlawfully at large and did evidence the significant reduction in risk that would warrant a recommendation for downgrade."
"Recommendation – Downgrade to Category B"
"The LAP was advised that in relation to the kidnapping offence he has shifted in accepting his responsibility, although Mr Rose still denies the murder. During the last year Mr Rose has engaged in the RESOLVE programme to further address his risk related to violence. He demonstrated good progress in developing insight into the kidnapping offence. Although Mr Rose did not directly explore and address the murder offence during the course, many of the risks associated with the kidnapping offence are also associated with the murder offence. Therefore, Mr Rose has developed some insight into the murder offence indirectly. He has also engaged in an HCR-20 post course risk assessment, which indicated he presents a moderate risk in the community, low in custody."
"The LAP noted that custodial reports are positive describing him as being a polite and compliant prisoner who interacts well with staff and prisoners alike. Although Mr Rose remains to have a negative attitude towards Psychology he has engaged with them and has increased his engagement with sentence planning. Mr Rose has had no proven adjudications since 2005, his last negative entry was in 2013 and no concerns have been raised from Security. Mr Rose has also produced work for the chaplaincy which has encouraged positive feedback."
"The LAP acknowledges that Mr Rose has made progress in all areas. His attitude and response to treatment has shifted. He has increased engagement in the sentence planning process, and daily prison life in a pro-social way which is indicative in applying new skills. His protective factors are his supportive family and his strong identity as a grandfather. He has positively engaged in some work with the Chaplaincy and he is about to become a peer support worker for RESOLVE. He has developed appropriate post treatment plans that would support ongoing risk reduction."
"The LAP is encouraged that parallels between the kidnap and the index offence highlighted in the RESOLVE have developed some insight. The LAP is also further encouraged with Mr Rose pro-social attitude and mature consistent behaviour."
"The LAP considers this demonstrates progress and recommends downgrading to category B." (Bold emphasis in the original; underlining added.)
i) A programme treatment report dated 10 September 2015, following Mr Rose's completion of the RESOLVE programme on 20 August 2015.
ii) A psychological risk assessment completed in January 2016, at the request of the Parole Board, by Ms Jamie Colaço, a forensic psychologist employed by HMP Whitemoor. This assessment is referred to in various documents as the "HCR-20" report, as a result of Ms Colaço's use of HCR-20, a guide to violent risk assessment. (HCR denotes historical, clinical and risk management factors.)
iii) A psychological report by Mr John Cordwell, forensic psychologist, dated 1 March 2016. Mr Cordwell was instructed by Mr Rose's solicitors. Like Ms Colaço, Mr Cordwell produced his report for the Parole Board, rather than for the Director directly.
"moderate intensity cognitive-behavioural intervention that aims to reduce violence in medium risk adult male offenders. The programme includes group and individual sessions and is suitable for offenders with a history of reactive or instrumental violence."
"Insight and Awareness"
" Throughout the programme, Mr Rose demonstrated development in his insight and awareness, both in his risk factors at the time of the kidnap offence and what may be risk factors for him in the future. … He discussed how he had previously stated that the victim was involved in the offence and was aware of this for an insurance fraud. It is positive that he has now begun to take responsibility for his offence, stating that within ten minutes of the offence he realised that this was not the case and the victim was not aware of what was occurring."
"Overall, Mr Rose has demonstrated development in his insight and awareness. … He has recognised key risk factors for the future which he will need to manage to avoid relapse to aggressive or violent behaviour."
"Throughout the programme, Mr Rose completed a number of self-monitoring diaries. These demonstrated that he is actively using his skills to manage his emotions and challenge his thoughts to avoid acting impulsively and escalating conflicts. Of note, Mr Rose reported using self-talk, counting to 10 and using a Time Out to manage situations where he experienced frustration or anger. It is positive that he is using these skills effectively to manage these situations."
"Attitudes and Beliefs"
"Overall, Mr Rose has begun to identify his personal rules and evaluate the usefulness of these. He has demonstrated his ability to reflect upon this and adapt and change these personal rules when he identifies that these are not effective for him to hold. He will benefit from continuing to recognise and reflect upon his personal rules that he holds currently and has held in the past, so that he is able to apply the skills he has developed to avoid conflict in the future."
"Overall, Mr Rose has reflected on times he has experienced ruminating and hostile thoughts. He has noted how this affected him at the time and led to him using aggression and violence. He has considered how he could use self-talk to manage these thoughts. He is encouraged to combine this with other skills to develop further in his management of these, so that he is able to effectively manage hostile thoughts in future."
"He demonstrated an understanding of skills which he could use to manage his arousal. … During the practice he demonstrated real development in his ability to use the skill of self-talk, focusing on his grandchildren. … It is positive that in his skills practice Mr Rose noted that he would also use a Time Out skill to give himself time to use the self-talk skill effectively."
"Mr Rose has demonstrated development in using his skills to manage his emotions. He is encouraged to consider how he can use the skills from the programme in combination so that he can manage them effectively and avoid conflict. He will benefit from continuing to practice his skills so that he is confident in his ability within high risk situations in the future."
"Interpersonal skills/Conflict reduction"
"Mr Rose developed significantly in his insight and awareness of his communication style."
"Mr Rose demonstrated development in his perspective taking. He completed a skills practice of this considering the perspective of his daughter. Initially he appeared to find this quite difficult but was able to reflect on the consequences his offending had upon her."
"Overall, Mr Rose has developed three Relapse Prevention Plans and considered appropriate skills that he can use to manage high risk situations. He demonstrated a theoretical understanding of how to apply the skills and is now encouraged to continue to practise the skills to further develop his ability to implement them to manage his risk factors."
"5.2 The 2012 assessment considered Mr Rose to have definite lack of insight at the time.
5.4 During the last year, Mr Rose engaged in the RESOLVE course to further address his risk related to violence. He demonstrated good progress in developing his insight into the kidnapping offence. … He is now taking more responsibility; acknowledging that within 10 minutes into the offence he realised that the victim was not aware of what was occurring to him, as opposed to his previous account that the victim was fully aware and was party to the offence. … In interview Mr Rose demonstrated his learning well; he was able to identify and explain how key factors contributed to the kidnapping offence, the impact the offence had on different parties, and key things he needs to do in the future to ensure he does [not] increase his risk again.
5.5 Although Mr Rose did not directly explore and address the murder offence during the course, many of the risks associated with the kidnapping offence are also associated with the murder offence, therefore to some degree Mr Rose has developed some insight into the murder offence indirectly. … Mr Rose has further developed his insight into his risk of violence so at this current time I would consider him to have less serious lack of insight.
5.6 The 2012 assessment considered Mr Rose to have less serious negative attitudes at the time.
5.7 Since the 2012 assessment, Mr Rose has continued to demonstrate the presence of continued negative attitudes. For example, he received negative behaviour entries in April 2013 regarding comments he made about psychologists and prison ministers being 'nazis' during the Victim Awareness Day event. … During the last year, Mr Rose has continued to demonstrate similar negative attitudes. For example, in a general application to the RESOLVE team (15/09/2015) he wrote 'Devon and Cornwall police on wacky baccy?'. … At his sentencing planning board this year he commented that 'psychology is the biggest con on earth' and used the phrase 'psychobabes'. In interview Mr Rose explained that his negative views of psychologists stem from the experience of previous psychologists repeatedly recommending him for offending behaviour programmes despite him having already been assessed as unsuitable for those programmes. On reviewing past records, there does appear to be some merit in what Mr Rose describes. … Although it is Mr Rose that has placed barriers to engaging in treatment to reduce risk (denying the murder offence), he is choosing to challenge the Category A decisions via judicial reviews, which can be construed as demonstrating a negative attitude towards the risk management process.
5.8 In contrast to the above, Mr Rose has demonstrated a positive attitude in other aspects since the 2012 assessment and during the last year. He is noted as polite in his dealings with staff and other prisoners, shows a good proactive approach to his work in shop 10 and the chapel, uses correct procedures for addressing concerns, generally shows a good attitude and patience when dealing with concerns and is a compliant prisoner. There does not appear to have been a significant change in this area since the 2012 assessment, so at this current time I would consider him to have less serious negative attitudes.
5.10 The 2012 assessment considered Mr Rose to have no impulsivity. Since the 2012 assessment, there are no indications that impulsivity is a concern relating to violent behaviour. Therefore, at this current time I would consider Mr Rose to have no impulsivity.
5.11 The 2012 assessment considered Mr Rose to have definite unresponsiveness to treatment. His response to problems have been to take an adversarial approach rather than a more positive approach, such as making numerous formal complaints, threatening legal action and threatening judicial reviews, and believing that he does not need to engage in any work to address his risk.
5.12 Since the 2012 assessment, Mr Rose is still displaying some of this kind of behaviour. For example, in interview he confirmed he is still pursuing judicial reviews regarding his category A status. … In contrast to this, Mr Rose has engaged in the RESOLVE course to start addressing his risk of violence and has responded well to treatment. His treatment report outlines that he engaged well in the course, actively contributed to discussions and completed all assignments, developed his openness, discussed the kidnapping offence in detail, and responded well to feedback and challenges from course facilitators. As outlined earlier in this report, he also appears to have progressed significantly in developing his level of insight into his risk in relation to the kidnapping offence. Mr Rose has not yet responded to treatment in relation to his murder offence. At this current time I would consider Mr Rose to have less serious unresponsiveness to treatment.
5.13 In summary, since 2012 Mr Rose has made good progress in the clinical aspects related to his risk, which is very positive to see.
5.15 The 2012 assessment considered Mr Rose to have a high probability that plans will not succeed in custody and in the community.
5.16 Since the 2012 assessment Mr Rose has been focussing his efforts on starting to reduce his risk. During the last year he fully participated in and completed the RESOLVE course to start addressing his risk of violence in relation to his kidnapping offence, receiving a very positive treatment report on progress. … Mr Rose is also more realistic about his future custodial plans.
5.17 When exploring his plans upon release, Mr Rose appeared to be realistic in his considerations and indicated that he has been carefully thinking about this and looking into his options. This is really positive. He outlined how he wants to start up a non-profit website for dealing with Christian music DVDs – ones he produces which churches can use, and also ones which churches produce and want to make available to others through his website. …
5.18 … At the sentence planning board this year it was established that accommodation on release would not be an issue as he has a strong family network to support him. … Mr Rose explained that his plan regarding his non-profit website is also ideal as it is not location specific, so this allows the flexibility to comply with his release conditions, whatever they may be in future. Mr Rose's future plans appear to be more realistic and more thought through than previously, which shows good progress from Mr Rose. At this current time I would consider there to be a moderate probability that his plans will not succeed in custody (his continued denial of the murder offence may present ongoing barriers to risk reduction and progression) and a low probability that his plans will not succeed on release.
5.19 The 2012 assessment considered Mr Rose to have a low probability of future exposure to destabilisers in custody and a moderate probability of future exposure to destabilisers in the community. … His previous plans to run his own business on release would require initial investment putting financial pressure on him again.
5.20 Since the 2012 assessment, as outlined above, Mr Rose appears to have considered how to manage his risk much more, indicating he has also benefitted from his increased level of insight gained from the RESOLVE course. In interview Mr Rose was able clearly to identify his key destabilisers and how he intends to realistically manage his risk in relation to these.
5.22 Mr Rose has yet to explore his destabilisers directly in relation to the murder offence, however, as mentioned earlier, many of his destabilisers appear to be similar to those of the kidnapping offence. Therefore, Mr Rose has started to address this indirectly. At the current time I would consider there to be a low probability of future exposure to destabilisers in custody and a moderate probability of future exposure to destabilisers in the community.
5.23 … Records indicate that Mr Rose continues to have a good level of personal support from family members. He receives visits on family days and has good regular contact with them by phone and letter. During his post course review for RESOLVE, family members attended his review to show him support. This was really positive. There are no indications that this personal support will reduce in future. At the current time I would consider there to be a low probability of future lack of personal support in custody and on release.
5.24 The 2012 assessment considered there to be a moderate probability of future non-compliance with remediation attempts in custody and on release. At the time Mr Rose had not engaged in any treatment work to address his risk and did not appear to have any internal desire to change.
5.25 Since 2012 Mr Rose has shown good progress by engaging and responding well [to] the treatment on the RESOLVE course. He has fully complied with course, completed his post course objectives within the specified time scales, and continues to comply with the rules and regime of custody. He also fully engaged and complied with the recommended work with his offender supervisor in 2013. His internal motivation to change seems to have grown too. … When asked about his views on potential future recommendations of remediation on release, such as community based courses, Mr Rose appeared happy and willing to comply, saying that he 'quite enjoyed' the RESOLVE course and wouldn't mind doing something like that in the future if it was recommended. … At the current time I would consider there to be a moderate probability of future noncompliance with remediation attempts in custody (if it relates to the murder offence) and a low probability of future noncompliance with remediation attempts in the community.
5.26 The 2012 assessment considered Mr Rose to have a low probability of future stress in custody and a high probability of future stress if released.
5.27 Since 2012 Mr Rose has engaged in 1:1 work with his offender supervisor and spoken about his kidnapping offence in detail. He was able to manage his risk effectively to complete this 1:1 work. … Mr Rose has been in custody for a significant time so if he were to be in the community now there are likely to be many changes/differences to daily life which Mr Rose would need to adjust to, which may present challenges and may act as stressors. Mr Rose would benefit from considering what these daily differences may be and how he would cope with them when going back out into the community. At the current time I would consider Mr Rose to have a low probability of future stress in custody and a moderate probability of future stress in the community." (Underlining in the original; bold emphasis added.)
"7.2 If Mr Rose were to be released into the community today, I consider him to be at moderate risk of future violence. Whilst he still maintains his innocence of the murder conviction and is aware this may be an ongoing barrier to his progression and risk reduction, Mr Rose is keen to progress and demonstrate reduction in risk where possible. He has engaged positively with the RESOLVE programme to address his risk in relation to the kidnapping offence and has made good progress with reducing his risk, including exploring and identifying how he can manage his risk more effectively in the community in future. Although many of the risk factors for the kidnapping offence are similar to the risk factors considered relevant for the murder offence, Mr Rose has yet to directly address his murder offence and fully address all risk areas relating to this, such as what led to him going beyond the kidnapping stage to commit murder. He has therefore not fully demonstrated a reduction in risk relating to the murder offence.
7.3 At the current time I am not recommending release or open conditions for Mr Rose. I would, however, support a progressive move being considered for Mr Rose once he has been downgraded, as he has demonstrated that he can manage well within custody and there are no indications he would present a management problem in the Category B estate. There is also no further recommended offending behaviour work for Mr Rose to undertake within the high security estate." (Emphasis added.)
"1.4 In respect of Mr Rose, it is my opinion, based upon the HCR-20 assessment that he falls within the 'low' level of future interpersonal violence based on this assessment being scored for future institutional based violence."
"1.7 It is my opinion that Mr Rose no longer requires the nature and degree of security and containment that a category A establishment offers. He has successfully completed the only treatment intervention that was assessed as being available and suitable for his needs, and therefore I suggest that a progression to a category C prison is an appropriately responsive and proportionate pathway for him."
"8.5.1 It is my opinion that Mr Rose no longer requires the nature and degree of security and containment that a category A establishment offers. He has successfully completed the only … treatment intervention that was assessed as being available and suitable for his needs. A progression to category D conditions at this stage is unrealistic given the length of time he has remained in the High Secure prison Estate. Therefore, I suggest that a progression to a category C prison is an appropriately responsive and proportionate pathway for him."
"8.5.2 It is evident that Mr Rose has remained a category A prisoner throughout his sentence as a result of his level of reputational risk."
Supervising Officer's report
"Mr Rose had developed a negative view of Psychology due to feeling hindered by varying assessments of him and has voiced this quite publicly. However, he approached the RESOLVE programme with an open mind and subsequently received a positive post-programme report. Mr Rose attended his post-programme review in October 2015 and his daughter and son-in-law were also there. Both his programme Keyworker, Roisin Orchard, and Mr Rose were surprised by the progress he had made. Mr Rose is said to have applied himself well to the work on the programme and became increasingly open about his offence (the kidnap) in individual sessions with Roisin. He had previously blamed his wife's lavish lifestyle for the motivation for his offence and also said the victim was complicit. He now accepts that it was his choice to offend and that he was quickly aware the victim was not complicit in the offence but chose to continue to hold him and demand a ransom. … During the programme Mr Rose was able to give concrete examples of how he applied the tools/skills he had gained in a variety of situations and continued to do so as part of his post-programme objectives."
"Mr Rose has produced a DVD aiming to promote RESOLVE to other inmates and has also applied to become a peer mentor for the programme, which I have supported. Completion of the RESOLVE post-programme objectives and applying to become a peer mentor were sentence planning targets set in October which Mr Rose has completed."
"Mr Rose has also co-operated with the completion of his HCR-20 as per his sentence plan. The conclusion of the HCR-20 is that Mr Rose has successfully begun to address his risk factors and is encouraged to continue to apply the learning from RESOLVE. The HCR-20 report's only apparent recommendation for further/outstanding work for completion is to explore interventions as and when Mr Rose takes responsibility for the offence of murder; it is my view that Mr Rose is highly unlikely to admit culpability. However, the personal awareness and skills he has developed by undertaking RESOLVE would apply to many of the risk factors associated with both the murder and kidnap offence."
"Mr Rose still highlights any grievances he might have and challenges aspects of 'the system' but does this by legitimate means." (emphasis added)
i) The assessments showed that "Mr Rose's insight and progress on his offending as a whole are both recent and relatively modest";
ii) His insight and progress "also remain limited and difficult to determine as a result of his unwillingness to accept responsibility for his murder offence";
iii) Whilst the reports suggested "aspects of the murder may have been addressed indirectly", "the most serious aspects of his offending and its motivations (i.e. his capacity to commit extreme instrumental violence) remain completely unaddressed";
iv) It was "too great a risk to conjecture, without clearer evidence, that recent work addressing his less serious offending has significantly reduced his risk relating to the most serious aspects";
v) Although "regime compliant, Mr Rose still in some ways presents as an angry man who tends to put the blame for his situation on everyone but himself";
vi) Ms Colaço's report "states Mr Rose remains at times unwilling to discuss his offending, and that this currently prevents reliable assessment of his response to pressures outside his present secure environment";
vii) Although Ms Colaço's report stated there were no indications Mr Rose could not be managed in Category B, she "also states unequivocally Mr Rose has not demonstrated a reduction in risk relating to his murder offence";
viii) Mr Cordwell's recommendation was based on an inaccurate view that Mr Rose's Category A status "results from his reputation, possible threat of escape or risk of violence in custody", and his report contained "no assessment of his risk if unlawfully at large";
ix) Although Mr Rose "poses no major disciplinary problems and keeps himself fully occupied" this did not "provide cogent evidence Mr Rose would not still pose a high level of risk when subjected to pressures and temptations on the outside"; and
x) "He accepted Mr Rose has made some plans for the future, but considered his need to address the most serious aspects of his offending, and thereby show significant risk reduction if at large, must take priority".
"The DDC High Security considered there are in the meantime no grounds for Mr Rose's present review to undergo an oral hearing. He accepted Mr Rose is over tariff and has been in prison for some years, but considered these facts alone are not grounds for an oral hearing. He considered the conclusions of the reports and LAP are readily understandable in written form and do not require an oral hearing to fully explore or resolve. He accepted there are no further specific courses recommended for Mr Rose and that his risk assessment remains hampered by his denial of guilt of murder. He considered however that an oral hearing is not needed to understand or to resolve these issues. He considered there are also no other issues relevant to Mr Rose's review and risk assessment that can be resolved only through an oral hearing."
The Legal Framework
"Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 3."
"must have convincing evidence that the prisoner's risk of re-offending if unlawfully at large has significantly reduced, such as evidence that shows the prisoner has significantly changed their attitudes towards their offending or has developed skills to help prevent similar offending."
"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:
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) Where the prisoner has never had an oral hearing before; or has not had one for a prolonged period." (Original emphasis)
"Where a prisoner is placed in Category A, that will affect the conditions of detention to which he is subject, as the Secretary of State has to take special care to prevent his escape. It is also likely to affect his prospects of being granted parole, as it would only be in a very rare case that the Parole Board would order release of a prisoner from Category A detention without his suitability for release first being tested in more open conditions as a Category B, C or D prisoner: R v Secretary of State for the Home Department, ex p. Duggan  3 All ER 277 (DC), 280 and 288; R (Williams) v Secretary of State for the Home Department  EWCA Civ 498  1 WLR 2264, -."
"It is common ground that a prisoner in category A endures a more restrictive regime and higher conditions of security than those in other categories. Movement within prison and communications with the outside world are closely monitored; strip searches are routine; visiting is likely to be more difficult for reasons of geography, in that there are comparatively few high security prisons; educational and employment opportunities are limited. And as, by definition, a category A prisoner is regarded as highly dangerous if at large, he cannot properly be regarded by the Parole Board as suitable for release on licence." (280h-j)
"So long as a prisoner remains in category A, his prospects for release on parole are, in practice, nil. The inescapable conclusion is that which I have indicated, namely, a decision to declassify or continue the classification of a prisoner as category A has a direct impact on the liberty of the subject." (288d)
"We are not surprised to be told that, with the exception of the release of three prisoners under the "Peace Process" in Northern Ireland, no Category A prisoner serving a sentence of life imprisonment has been released. Certainly, as far as the panel is concerned, the conclusion of the categorisation committee or review team inevitably has a direct and marked impact on its decision."
"61. Some of the factors highlighted by Lord Reed [in Osborn] will have some application in the context of decision-making by the CART/Director, but will usually have considerably less force in that context. However, it deserves emphasis that fairness will sometimes require an oral hearing by the CART/Director, if only in comparatively rare cases. In particular, if in asking the question whether upon escape the prisoner would represent a risk to the public the CART/Director, having read all the reports, were left in significant doubt on a matter on which the prisoner's own attitude might make a critical difference, the impact upon him of a decision to maintain him in Category A would be so marked that fairness would be likely to require an oral hearing."
"69. I would add that even in a case where there is a significant difference of view between experts, it will often be unnecessary for the CART/Director to hold a hearing to allow them [to] ventilate their views orally. This might be so because, for example, there may be no real prospect that this would resolve the issue between them with sufficient certainty to affect the answer to be given by the CART/Director to the relevant question, and fairness does not require that the CART/Director should hold an oral hearing on the basis of a speculative possibility that that might happen: see Downs at ."
"Where a prisoner refuses to accept responsibility for an offence of which he has been found guilty … that is likely to have an effect on the relevant risk assessment made in relation to him for the purposes of a Category A review decision, as explained by Elias J in R (Roberts) v Secretary of State for the Home Department  EWHC 679 (Admin) at -."
i) The LAP has clearly and unequivocally recommended that Mr Rose's security categorisation should be downgraded to Category B.
ii) The psychological reports were produced for the Parole Board, and so it is fair to say that they do not directly address the question before the Director, namely, the risk presented by Mr Rose if he were unlawfully at large.
iii) Nevertheless, the clear thrust of Ms Colaço's report was that in respect of the factors that are dynamic and expected to change over time, namely clinical and risk management factors (as opposed to historical factors, which are static): (i) Mr Rose had "made good progress in the clinical aspects related to his risk, which is very positive to see" (§5.13); and he had made "good progress" in risk management, carefully thinking about and looking into his options upon release, and developing realistic plans which have a low probability of failure on release, which was described as "really positive" (§§5.17-5.18).
iv) The Decision acknowledges that Ms Colaço stated there were no indications that Mr Rose could not be managed in Category B, but then records her as having stated "unequivocally" that "Mr Rose has not demonstrated a reduction in risk relating to the murder offence". This is inaccurate. Ms Colaço's report acknowledged that many of the risks associated with the kidnapping offence are also associated with the murder offence and so he has "to some degree … developed some insight into the murder indirectly" (§5.5 and §5.22). The conclusion Ms Colaço reached at §7.2 was that although many of the risk factors for the kidnapping offence are similar to the risk factors considered relevant for the murder offence, "Mr Rose has yet to directly address his murder offence and fully address all risk areas relating to this … He has therefore not fully demonstrated a reduction in risk relating to the murder offence" (emphasis added).
v) Ms Colaço's support for a "progressive move being considered for Mr Rose once he has been downgraded" and indication that he would not present a management problem in the Category B estate, read in the context of her report as a whole, is clearly supportive of Mr Rose being down-graded to Category B.
vi) Mr Cordwell's report was also supportive of down-grading Mr Rose, but the Director was entitled to give it relatively little weight for the reasons he gave in his decision and, in particular, because it focused on the risk Mr Rose presents in custody which is not the risk which the Director was assessing.
Upon hearing Counsel for the Claimant and leading Counsel for the Defendant:
IT IS ORDERED THAT:
1. The Claimant's claim for judicial review is allowed;
2. The Defendant's decision of 14th June 2016, to refuse to hold an oral hearing of the Claimant's Category A review, is quashed;
3. The Defendant shall hold an oral hearing of the Claimant's Category A review on the first available date, using the most up-to-date reports which are available;
4. The Defendant shall pay the Claimant's costs of the judicial review claim on the standard basis, to be assessed if not agreed;
5. The Claimant's costs of the claim be the subject of a detailed assessment in accordance with the Civil Legal Aid (Costs) Regulations 2013 and CPR, r. 47.18.
6. The Defendant to file, if so advised, submissions for leave to appeal, for a stay of paragraph 3 of this order, pending any such appeal, and on costs set-off (of £4,010 for the costs ordered to be paid by the Claimant to the Defendant in respect of action CO/4280/13) within seven days of hand down of judgment;
7. The Claimant to file any submissions in response within seven days thereafter.
Dated 19 July 2017