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
		24/02/2017

Mr. Justice Lavender:

(1) Introduction

1. The Claimant is serving a life sentence for murder, with a minimum term of 16 years (less time spent on remand in custody). The minimum term will expire on 7 December 2018. He is a category A prisoner. He wishes to be categorised as a category B prisoner. The most recent decision to maintain his category A status was taken on 19 April 2016, and communicated to the Claimant by letter dated 18 May 2016. By this claim, the Claimant makes two complaints about that decision:

(1) The Claimant contends that there should have been an oral hearing before the decision was made.

(2) The Claimant contends that the decision was unlawful because of a failure to take account of a relevant factor.

2. On 20 September 2016 Martin Chamberlain QC gave permission for the Claimant to apply for judicial review.

(2) Review of Category A Status

3. The expression "category A prisoner" is defined as follows in paragraph 2.1 of Prison Service Instruction 08/2013 ("PSI 08/2013"):

"A category A prisoner is a prisoner whose escape would be highly dangerous to the public, or the police or the security of the State, and for whom the aim must be to make escape impossible."

4. The decision whether a prisoner is to be in category A or category B is a significant one. It affects the conditions in which he is held, but it also has implications for his prospects of release. As Rose LJ said in R. v. Secretary of State for the Home Department, ex parte Duggan [1994] 3 All ER 277, at 288d, "So long as a prisoner remains in category A, his prospects for release on parole are, in practice, nil."
5. Section 4 of PSI 08/2013 contains provisions for the regular review of a category A prisoner's status. The case is reviewed in the first instance by a local advisory panel (an "LAP"). Its membership includes the Governor or Deputy Governor of, and others from, the relevant prison. The LAP makes a recommendation, but, save in circumstances which are not relevant for present purposes, the decision whether or not to "downgrade" a category A prisoner is taken by the Deputy Director of Custody High Security ("the DDC").
6. The test to be applied by the DDC when considering whether to recategorise a category A prisoner as category B is that set out in paragraph 4.2 of PSI 08/2013:

"Before approving a confirmed Category A / Restricted Status prisoner's downgrading the DDC High Security (or delegated authority) 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."

7. It was common ground that:

(1) Common law standards of procedural fairness require the DDC to hold an oral hearing in those cases where 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: see R. (Osborn) v. Parole Board [2014] AC 1115 ("Osborn"), at paragraph 2(i), per Lord Reed.

(2) Although it concerned the processes of the Parole Board, the decision of the Supreme Court in Osborn sets out propositions of law which are applicable to the question whether the DDC is obliged to hold an oral hearing in any particular case. (Indeed, paragraphs 4.6 and 4.7 of PSI 08/2013 seek to give guidance as to the practical effect of Osborn for the DDC. I need not address the detail of that guidance, since it was not suggested that it would make any difference to the result of this case.)

(3) When an issue arises as to whether the DDC should have held an oral hearing, it is for this Court to decide whether such a hearing was required. This is an application of the general rule that the Court must determine for itself whether a fair procedure was followed: see Osborn at paragraph 65, per Lord Reed.

(3) The Reviews of the Claimant's Categorisation

8. I was shown documents from four reviews of the Claimant's categorisation, which I will refer to as the First, Second, Third and Fourth Reviews. Before doing so, however, it is appropriate to say more about the Claimant's offending.

(3)(a) The Claimant's Offending

9. The Claimant had a history of offending before on 4 December 2002. On that date, he was the passenger in a car which deliberately boxed in a car being driven by a Mr. Crawford. The Claimant got out of his car and fired repeatedly at Mr. Crawford from as little as 8 feet away. Mr. Crawford, who tried to run away, was shot 11 times and killed. A 14-year-old boy was shot in the leg by a stray bullet.
10. Initially, the Claimant refused to accept responsibility for his offending. This remained the case until 2012, although during that period he completed various courses in prison: in 2006 he completed the ETS (Enhanced Thinking Skills) course; and in 2011 he completed the CALM (Controlling Anger and Learning to Manage) course. Eventually in 2012 the Claimant accepted responsibility for his offence. He then went on to complete the SCP (Self Change Programme) course.

(3)(b) The First Review

11. In 2013 the Claimant was in HMP Long Lartin. The LAP's report, dated 17 June 2013, included the following recommendation:

"The Panel discussed the fact that Mr Cummings has had positive reports from all departments over the last two years and there has been a marked improvement in his attitude. He still remains a high risk to the public and there are concerns noted by the Security Department about anti-western views.

Mr Cummings has completed SCP and is still submitting his journal. The Panel agreed that Mr Cummings needed to further demonstrate skills learnt on completed offending behaviour programmes as there were still some concerns remaining.

The Panel felt that these concerns could be managed in the Category B estate.

The Panel recommended that if the downgrade recommendation is agreed Mr Cummings should remain in the High Security Estate for a minimum of six months to continue to demonstrate the skills learnt on offending behaviour programmes. With a view thereafter if good behaviour continues to transfer to a suitable Category B Establishment.

The Panel conclude that Mr Cummings downgrade to Category B."

12. It will be noted that the LAP's recommendation was not that the Claimant be downgraded to category B immediately, but only after 6 months of continuing to demonstrate the skills learnt on his offending behaviour programmes and only if his good behaviour continued.
13. On 9 July 2013 the DDC decided that the Claimant should remain in category A. The reasons given for this decision were as follows:

"The Director noted that there had been some recent encouraging signs of progress in terms of Mr Cummings discussing and address his violent offending through intervention. He also noted the good reports from this work and his more positive attitude and engagement with staff.

But in view of the very serious nature of his offending, the Director considered that his successful application of the new skills needed be sustained and assessed over a substantial period. The Director noted that Mr Cummings' completion of work on his use of violence and his positive behaviour were both relatively recent. He also noted that the LAP had itself recommended that Mr Cummings needed to demonstrate skills more clearly due to outstanding concerns. It was also acknowledged his risk to the public was assessed as high.

The Director noted that the LAP had suggested that Mr Cummings could be further monitored and tested in less secure conditions however, whilst the Director noted that Mr Cummings was making good progress on the process of personal change as evidenced by his recent behaviour and completion of the SCP, he was not satisfied that he had at this time made the level of change that was indicative of a significant reduction in risk and that Mr Cummings' demonstration of significant risk reduction should precede his downgrading and a period of consolidation was required that would allow him to apply his new skills.

Having regard to the serious nature of the present offences which evidenced a propensity for extreme violence, his offending history and the lack of sufficiently cogent evidence at present, through offence related work or otherwise, that the risk Mr Cummings re-offending in a similar way if unlawfully at large had significantly diminished, the Director concluded that he must still be regarded as potentially highly dangerous to the public.

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

14. Given the qualified nature of the LAP's recommendation, the DDC's decision was perhaps not surprising. The Claimant sought to challenge it by judicial review, but subsequently withdrew his application.

(3)(c) The Second Review

15. Between the First and Second Reviews the Claimant was transferred to HMP Full Sutton. On 20 December 2013 an LAP produced a report on the Claimant. This recommended that the Claimant should remain a category A prisoner. That recommendation was accepted by the DDC. However, the recommendation and the decision were based on concerns arising from a period of segregation, but it was subsequently found that there was nothing to warrant the Claimant's segregation.

(3)(d) The Third Review

16. Prior to the Third Review, a trainee forensic psychologist prepared a report dated 21 October 2014, which contained the following:

"Future Treatment Path

During his time in custody Mr Cummings has completed the appropriate offence related interventions related to his level of risk of violent offending in order to address the treatment needs associated with this area. As highlighted in the reviewed HCR-20 and VRS post treatment assessments Mr Cummings has made good progress in both developing his understanding of his treatment needs and working to address them. It is not felt necessary for Mr Cummings to complete any further structured intervention work at this time. It is my opinion that Mr Cummings would benefit from being assessed for his suitability for a Psychologically Informed Planned Environment (PIPE Unit). A PIPE Unit aims to offer a supportive, enabling and challenging environment in which offenders can practice and develop skills learned from treatment, and reflect on and evaluate their progress with trained staff. The PIPE Unit would provide Mr Cummings with the opportunity to consolidate and evidence what he has learnt from offence related interventions to date, whilst also supporting him and affording him the opportunity to further develop in areas that remain outstanding. It is therefore recommended that Mr Cummings liaise with his offender supervisor regarding a referral to the PIPE Unit at HMP Frankland.

Conclusion and opinion in relation to specific areas of instruction

…

Mr Cummings has previously completed the ETS (2009), CALM (2011) and SCP (2012). A HCR-20 and VRS assessments were completed in 2009 and then reviewed in 2011. Since this time Mr Cummings has accepted full responsibility for his index offence and so both assessments have been reviewed in order to determine the progress made in addressing areas associated with his risk of violence through completion of SCP. Both assessments show that there are areas that would benefit from further consideration however overall a reduction in risk has been shown and the positive progress made has been highlighted.

It is recommended that Mr Cummings seek a referral to a PIPE unit. If Mr Cummings was assessed as suitable and accepted, this would provide him with a supportive yet challenging environment, in which he could consolidate and evidence what he has learnt from offence related interventions to date, whilst also providing him with support and the opportunity to further develop in areas that remain outstanding."

17. The PIPE unit at HMP Frankland is exclusively for category A prisoners. However, there are PIPE units at other prisons for category B prisoners.
18. On 4 December 2014 the LAP involved in the Third Review produced its report. This recommended that the Claimant be re-categorised as category B, for the following reasons:

"Mr Cummings is currently an Enhanced prisoner on the IEP scheme, working in the Computer Assisted Design (CAD) workshop and attending education regularly. Over the reporting period he has had several positive comments on Cnomis which are work related. He has also received positive feedback from his programmes tutors. His Personal Officer has noticed a positive change in Mr Cummings behaviour describing him as polite and well mannered. He interacts with staff more and has been known to help out on the wing when required.

The panel noted that he has made good progress in addressing his offending behaviour through completion of the ETS (2009), CALM (2010) and the SCP (December 2012) as per his representations. In his last OASys report using the OVP scale, Mr Cummings has been assessed as presenting a 'low' risk of proven reoffending for non-sexual violent offences. The OGP assessment suggests that Mr Cummings presents a 'medium' risk of future re-offending and the OGRS3 risk predictor assesses Mr Cummings as 'medium' risk of reconviction. Based on the risk of serious harm classifications, Mr Cummings is assessed as presenting a medium risk of serious harm to the public in the community and low to others in the community and custody as noted in his representations.

Mr Cummings latest sentence plan was held on 03/04/2014 and the following targets were set:

To apply for and fully participate with the assessment and treatment phases of any intervention considered appropriate to address your current offending behaviour – VICTIM AWARENESS

Continue to use skills learnt from previous programmes to maintain a positive custodial behaviour

Fully participate in the establishment regime, adhering to all requirements concerning work and education sessions

To develop Educational or Work skills through qualification processes

Remain at ENHANCED IEP Level

Mr Cummings fully participated in the sentence plan process and his level of engagement was a satisfactory standard.

It is reported that Mr Cummings would benefit from being assessed for his suitability for a Psychologically Informed Planned Environment (PIPE Unit). A PIPE Unit aims to offer a supportive, enabling and challenging environment in which offenders can practice and develop skills learned from treatment, and reflect on and evaluate their progress with trained staff. The PIPE unit would provide Mr Cummings with another opportunity to consolidate and evidence what he has learnt from offence related interventions to date, whilst also supporting him and affording him the opportunity to further develop in areas that remain outstanding.

Mr Cummings has no proven adjudications and only one negative entry on CNOMIS during the reporting period. There is no evidence of drug or alcohol misuse whilst in custody.

Mr Cummings has an ongoing application to his country of birth (Grenada) for repatriation. As yet there has been no decision by either party (Secretary State/Grenada Government) to if this will be granted.

There are IR's regarding Mr Cummings associations and will not be used in isolation to determine the outcome of the review.

Mr Cummings should be downgraded to category B.

Mr Cummings has completed the offending behaviour work identified and has demonstrated what he has learned and an insight into his offending. The panel also noted the good custodial behaviour and the progress achieved by Mr Cummings in the area of risk reduction.

The panel recommends that he should be assessed for the PIPE Unit which can be done in the Category B environment."

19. On 9 February 2015 the DDC decided that the Claimant would remain a category A prisoner, for the following reasons:

"The DDC High Security recognised Mr Cummings's overall behaviour had been acceptable, that he had accepted responsibility for his present offence and had engaged in suitable intervention. He noted Mr Cummings had now had two recommendations for downgrading. Set against this however he noted several factors which suggested Mr Cummings had yet to achieve lasting and significant risk reduction.

The DDC High Security noted that, while Mr Cummings had made progress on most of his identified risk factors, the reports nonetheless conclude he continues to pose a medium risk of reconviction and of serious harm in the community. Taking into account the serious nature of Mr Cummings's offending he considered this did not provide reliable evidence he had significantly reduced his risk if unlawfully at large. He noted the reports recommend Mr Cummings works further on certain areas, and also have his application of skills tested and monitored through a PIPE unit. He noted also that although some negative intelligence has not been substantiated, there has been other intelligence undermining the otherwise positive reports.

The DDC High Security concluded that Mr Cummings had made some recent progress. But he considered there was sufficient information to suggest that, before significant risk reduction could be properly determined, further progress was needed in addressing outstanding issues and in the demonstration of skills.

The DDC High Security therefore considered evidence of a significant reduction in Mr Cummings's risk of similar reoffending if unlawfully at large was not available at this time, despite his cooperation with necessary intervention. He was satisfied Mr Cummings must therefore stay in Category A at this time."

20. The Claimant was unsuccessful in his attempt to challenge this decision by way of judicial review.

(3)(e) The Fourth Review

21. The psychologist's report prepared for the Fourth Review noted that the Claimant had had limited recent contact with the Psychology and Interventions Department. However, he was spoken to, and an addendum report dated 1 March 2016 stated as follows:

"It is noted however that Mr Cummings had a 'heated argument' with another prisoner whilst on accumulated visits, which related to the use of the phone on the landing. It is reported that Mr Cummings 'challenged' the other offender to come to his cell. On disclosing this report to Mr Cummings he stated that he did not challenge the person involved. He acknowledged that there had been an argument, however stated that he felt he had made progress as in the past this would have turned into a fight."

22. On 2 March 2016 the LAP recommended that the Claimant be recategorised as category B, for the following reasons:

"Mr Cummings is currently employed in the Auto Cad workshop and timetabled sessions in Education Staff note that he interacts well and has been known to help out on the wing when required and they describe him as polite and well mannered. However in July 2015 he was placed into segregation for a short period of time following allegations that he was involved in the alleged assault on another prisoner, however it is important to note that he was returned to the wing with no further action. His IEP level was reduced to Basic as a result of investigation into the incident and he was upgraded to Standard IEP in August 2015. His level was further raised to Enhanced in February 2016.

The panel noted his previous progress in addressing his offending behaviour through completion of the ETS (2009), CALM (2010) and the SCP (December 2012) identified in his representations. In his last OASys report using the OVP scale, he has been assessed as presenting a 'low' risk of proven reoffending for non-sexual violent offences. The OGP assessment suggests that he presents a 'medium' risk of future re-offending and the OGRS3 risk predictor assesses him as 'medium' risk of reconviction. Based on the risk of serious harm classifications, Mr Cummings is assessed as presenting a medium risk of serious harm to the public in the community and low to others in the community and custody as noted in his representations.

Mr Cummings latest sentence plan was held on 21/04/2015 and the discussion centred on good custodial behaviour and achieving repatriation to Grenada as he is aware that he will be deported to Grenada at the end of his sentence and would rather be repatriated. As yet there has been no decision by the Secretary State / Grenada Government if this will be granted.

It has been reported that Mr Cummings would benefit from being assessed for his suitability for a Psychologically Informed Planned Environment (PIPE Unit), as this would allow opportunity to consolidate and evidence what he has learnt from offence related interventions to date, whilst also supporting him and affording him the opportunity to further develop in areas that remain outstanding.

Mr Cummings has no proven adjudications/warnings/negative NOMIS entries during the reporting period. There is no evidence of drug or alcohol misuse whilst in custody.

There are IR's regarding Mr Cummings associations and behaviour however they are minimal and will not be used in isolation to determine the outcome of the review.

The panel recommend Mr Cummings be considered for re-categorisation.

The panel noted that Mr Cummings has engaged in an appropriate breadth of intervention work to target his risk factors, including the high intensity Self-Change Programme to help address his use of violence. The panel also noted the improvement in Mr Cummings custodial behaviour over recent years. The panel share the recommendation of the CAT of last year which outlined the benefits of a PIPE by way of consolidating and safely practising his coping strategies and felt that this work could be achieved as a Category B prisoner."

23. The DDC considered this recommendation, but decided that the Claimant would remain a category A prisoner. His reasons were as follows:

"The Director noted no significant changes in his circumstances since the last review. The Director accepted that Mr Cummings has participated in relevant intervention work through SCP.

The Director noted that Mr Cummings has previously been recommended for downgrading and is approaching the completion of his tariff. However, the Director noted that at the time of last downgrading recommendation there were continuing concerns over his effective application of skills related to self-management and use of aggression following the SCP. The Director considered that the current reports provide no convincing evidence that Mr Cummings has significantly improved or developed in the reporting period.

The reports, in fact provide negative information that Mr Cummings still struggles to manage his emotions and relations with others and is not making effective use of skills from intervention work.

The Director considered there continues to be no convincing evidence of significant risk reduction, and that Mr Cummings' testing through a PIPE unit first remains a valid recommendation."

24. The DDC also explained in that letter why he did not consider that an oral hearing was necessary.

(4) Was an Oral Hearing Required?

25. The question for me to decide, in the words of Lord Reed in paragraph 2(i) of his judgment in Osborn, is whether "fairness require[d] [an oral] hearing in the light of the facts of the case and the importance of what is at stake." Paragraph 2 of Lord Reed's judgment summarises the factors which are relevant to this question. It was acknowledged that many of these factors are applicable to decisions by the DDC, although they refer to the Parole Board, and I have considered all of them. Mr. Southey relied in particular on those set out in sub-paragraphs 2(ii)(b), 2(ii)(c), (iv), (v) and (ix). I address these factors in turn, but I begin with sub-paragraph (2)(ii)(a).

(4)(a) Significant Explanation or Mitigation

26. In paragraph 2(ii)(a) of his judgment in Osborn, Lord Reed said as follows:

"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."

27. The DDC's reasons included reference to "negative information" that the Claimant "still struggles to manage his emotions and relations with others and is not making use of skills from intervention work." It emerged in the course of argument that the "negative information" referred to appears to be the information contained in the psychologist's addendum report of 1 March 2016 about the "heated argument" involving the Claimant.
28. This was a matter in respect of which the Claimant had advanced an "explanation or mitigation". In effect, the Claimant was saying that the incident was a positive one from his point of view, or at least not a negative one, since it showed him preventing an argument from escalating into violence. Although Mr. Southey did not present it as such, it seems to me that this could arguably be seen as a circumstance of the type described by Lord Reed in paragraph 2(ii)(a) of his judgment in Osborn.
29. However, it is relevant to note that the DDC's reference to negative information was additional to his other reasons, including his statement that:

"The Director considered that the current reports provide no convincing evidence that Mr Cummings has significantly improved or developed in the reporting period."

(4)(b) Characteristics of the Prisoner

30. In paragraph 2(ii)(b) of his judgment in Osborn, Lord Reed identified the following as circumstances in which an oral hearing may be necessary:

"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."

31. Mr. Southey contended that this was a case where the assessment of risk depended on the view formed of the Claimant's characteristics which could best be judged by seeing him in person. This is perhaps another way of putting the point which I have already mentioned in the context of paragraph 2(ii)(a) of Lord Reed's judgment.
32. This is not a case where there is a disputed psychological assessment, nor does it appear to be a case where the DDC would be materially assisted by hearing evidence from a psychologist or psychiatrist. The DDC has not disagreed with, but has relied on, the psychologists' reports, and in particular the report of 21 October 2014 which recommended that the Claimant be assessed for his suitability for a PIPE unit. That report stated that:

"The PIPE Unit would provide Mr Cummings with the opportunity to consolidate and evidence what he has learnt from offence related interventions to date, whilst also supporting him and affording him the opportunity to further develop in areas that remain outstanding."

33. That was the basis for the DDC's statement in his decision in the Third Review that:

"He noted the reports recommend Mr. Cummings works further on certain areas, and also have his application of skills tested and monitored through a PIPE unit."

34. I note that the PIPE unit was being recommended both as a means of consolidation and as a means of development. In those circumstances, I do not accept Mr. Southey's argument that all that was required of the Claimant between the Third and Fourth Reviews was consolidation. Development, or progress, was also required. This was set out in the DDC's decision on the Third Review, as follows:

" … before significant risk reduction could be properly determined, further progress was needed in addressing outstanding issues and in the demonstration of skills."

35. By the time of the Fourth Review, the Claimant had not been placed on the PIPE unit in HMP Frankland. In those circumstances, it is perhaps unsurprising that the DDC reached the following conclusion in his reasons for his decision of 19 April 2016:

"The Director considered there continues to be no convincing evidence of significant risk reduction, and that Mr Cummings' testing through a PIPE unit first remains a valid recommendation."

(4)(c) Questioning those who have Dealt with the Prisoner

36. In paragraph 2(ii)(c) of his judgment in Osborn, Lord Reed identified the following as circumstances in which an oral hearing may be necessary:

"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."

37. This was one of the factors: (a) referred to by Lord Bingham in R. (West) v. Parole Board [2005] 1 WLR 350, at paragraph 35; and (b) relied on by Cranston J. in The Queen on the application of H v. Secretary of State for Justice [2008] EWHC 2590 (Admin), at paragraph 24.
38. It was also the principal matter relied on by Mr. Southey. Three LAPs have recommended that the Claimant be re-categorised as category B, in 2013 (albeit conditionally), 2014 and 2016, as part of the First, Third and Fourth Reviews. (He discounted the Second Review because it proceeded on a false factual basis.) He contended that the stage has been reached where the questioning of those who have dealt with the Claimant is necessary to test their views, which have been so consistently expressed.
39. However, Mr. Southey did not identify any specific area in respect of which it would be necessary for the DDC to question those who dealt with the Claimant. When I asked him what questions he envisaged would be put at such a hearing to those who dealt with the Claimant, he suggested simply that they would be asked for details of why they thought that the Claimant had changed sufficiently to merit re-categorisation. This strikes me as rather general. Indeed, this reasoning could arguably lead to the conclusion that in all cases it is necessary for the LAP members to be examined on their recommendation before the DDC can disagree with it. That would be going too far.

(4)(d) Participation in the Process

40. In paragraph 2(iv) of his judgment in Osborn, Lord Reed said as follows:

"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."

41. That is a relevant factor in the present case, especially given the history of the four reviews. On the other hand, the PIPE unit was proposed by the psychologist, and endorsed by the DDC, as a means for the Claimant to evidence what he has learnt from his various courses. In terms of participation by the Claimant in the process leading to his recategorisation, it is perhaps participation in that unit which is more significant than attendance at an oral hearing before he has participated in the unit's activities.

(4)(e) Likelihood of Release

42. In paragraph 2(v) of his judgment in Osborn, Lord Reed said as follows:

"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."

43. It is unnecessary to elaborate on this point.

(4)(f) Length of Time

44. In paragraph 2(vi) of his judgment in Osborn, Lord Reed said as follows:

"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."

45. The Claimant is not a post-tariff prisoner, but he is approaching the expiry of his minimum term and has been in prison for 14 years. Paragraph 4.7(c) of PSI 08/2013 rightly recognises that "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."

(4)(g) Cases of Doubt

46. In paragraph 2(xi) of his judgment in Osborn, Lord Reed said as follows:

"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.

47. This too is a factor on which no elaboration is necessary.

(4)(h) Oral Hearing: Summary

48. Considering all of these factors in the round, I am not persuaded that this is a case in which fairness required an oral hearing in the light of the facts of the case and the importance of what was at stake.

(5) Did the DDC Fail to Take Account of a Relevant Matter?

49. Mr. Southey contended that in reaching his decision on the Fourth Review the DDC failed to take account of a relevant factor because:

(1) what was required of the Claimant between the Third and Fourth Reviews was a successful period of consolidation; but

(2) the DDC instead focused on whether there had been progress since the Third Review, and limited himself to a consideration of the period since the Third Review.

50. I do not accept either limb of this submission:

(1) I have already referred to the fact that both the psychologist's report of 21 October 2014 and the DDC's decision on the Third Review noted a need for development as well as consolidation.

(2) The DDC's reasons were not limited to a consideration of the period since the Third Review. In particular:

(a) The DDC repeatedly referred to the SCP course, which had been undertaken by the time of the First Review.

(b) The DDC referred also to the position at the time of the Third Review.

(c) Those matters set the context for the DDC's consideration of the period since the Third Review.

(d) All of those matters contributed to the DDC's conclusion in the final paragraph of his reasons quoted above, which addressed, as it must, the question whether there is now convincing evidence that the Claimant's risk of reoffending if unlawfully at large has significantly reduced.

51. Mr. Southey submitted that a decision of this nature should be subject to a particularly intense level of review. He referred to paragraphs 94 and 98 of Lord Mance's judgment in Pham v. Secretary of State for the Home Department [2015] 1 WLR 1591; paragraph 126 of Lord Reed's judgment in R. (King) v. Justice Secretary [2016] AC 384; and paragraph 133 of Lord Neuberger's judgment in R (Keyu) v Foreign Secretary [2016] AC 1355. I do not find it necessary to determine this point. On any view, the DDC was entitled to reach the conclusion he did.

(6) Summary

52. For these reasons, I dismiss this application for judicial review.