Leeds Combined Court Centre
1 Oxford Row
B e f o r e :
|R E G I N A|
|ON THE APPLICATION OF STEELE|
|THE SECRETARY OF STATE FOR JUSTICE|
MR SLATER and MR C YONG (Solicitor) appeared on behalf of the Respondent
Crown Copyright ©
"The Board noted that Mr Steele has spent his custodial sentence demonstrating positive engagement with staff/professionals along with his age and maturity. The Board noted that Mr Steele had developed strong protective factors throughout his time in custody which are evidenced through his own representations and reports included with his dossier. Whilst Mr Steele engages with sentence planning, his has not completed any offending behaviour programme works to address the risk factors suggested by his offending, largely due to him maintaining his innocence. However, the Board noted his offences dated back 25 years when Mr Steele had an entrenched criminal attitude/lifestyle, something which he has not evidenced whilst in custody. Mr Steele has been recommended for some one-to-one work prior to completing Resolve, to develop his motivation and insight, something, he has declined to complete whilst located at HMP Frankland as he is unable to work with psychology/programme staff. The Board recommended that given Mr Steele's offences were twenty-plus years ago, his age/maturity along with his exemplary custodial behaviour and his developed protective factors that now would be an appropriate time to afford him the opportunity to be downgraded and placed in less secure conditions with a view that the one-to-one work and Resolve is completed. The Board recognises that his mistrust with psychology will still be present in Category B conditions and it will be a slow process of engaging him but the Board felt he no longer required Category A conditions."
"The Director considered Mr Steele's offending showed he would pose a high level of risk if unlawfully at large and that before his downgrading could be justified there must be clear and convincing evidence of a significant reduction in this risk. The Director carefully noted the LAP recommendation and Mr Steele's representations but considered that there are no grounds to depart from the last decision in 2016. He accepted Mr Steele has been in custody many years and is well-behaved. He noted the reports and nonetheless confirmed Mr Steele remains firmly unwilling to discuss or to address his most serious offending of the related risk factors. He noted that despite having the full opportunity to discuss and address his offending, Mr Steele has consistently declined to engage with relevant staff in prison to enable assessment of offence-related insight and progress, including his recent refusal to take part in the Resolve programme or one-to-one work. This continues to prevent a reliable assessment of significant and lasting change in the risk factors underlying Mr Steele's serious offending, despite his general regime compliance"
'Prisoners should 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, furthering the purpose of their training and treatment as provided by Rule 3'. Adult male prisoners are classified by reference to four security categories, A-D. A Category A prisoner is one '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'.
That is a Prison Service Instruction 08213, paragraph 2.1. This definition is subject to a proviso in 2.2 which may apply where the aim of making escape impossible can be achieved in view of the particular circumstances of a particular prisoner in lower conditions of security but it has not been suggested that provisos are relevant in this case.
4.6 'The DDC High Security (or delegated authority) may grant an oral hearing of a Category A/Restrictive 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  UKSC 61 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 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 Local Advisory Panel, 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'.
'Parliament has entrusted the merits of the decision-making on recategorization to the Secretary of State and the court must consistently bear in mind that it is to the decision maker not the court that Parliament has instructed, not only the making of the decision but also the choices as to how the decision is made. In such circumstances, the only legitimate expectation of a prisoner is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt, provided always that the adopted policy is a lawful exercise of the discretion. That CART is an expert risk assessment body and that the Director and CART is an internal prison service body and the decision-making is an internal management endpoint of an elaborate internal process of gathering information about and interviewing the prisoner and that the Court of Appeal has repeatedly held that in the categorisation context, oral hearings will be rare'.
Those are brief extracts from the leading decision in the Court of Appeal, paragraphs 50-52.
'Justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. It is well-established that a decision maker must follow his own policy unless he has a good reason not to do so. This public law principle is grounded in fairness and more broadly, the requirement of good administration by which public bodies ought to deal straightforwardly and consistent with the public. It is also clear the meaning of a policy is a question of law for the court to determine'.
These basic principles were not in dispute in the course of this hearing.
'The Board discussed Mr Steele's case and highlighted the intended sentence planning has been recommended for some one-to-one work prior to completing Resolve. To date Mr Steele has not completed any offending behaviour programme work and appears to have a number of treatment barriers, including maintaining innocence of the index offence, ongoing legal proceedings and a distrust towards the Psychology and Programmes Department at HMP Frankland. He has been offered one-to-one work to develop his motivation and insight into his treatment need but he has declined to engage. He did say that he would engage and complete this work in a different establishment as he could not work with psychology at HMP Frankland'.
'Miss Wilson had accepted that there was a sexual element in the crimes Mr Downs had committed. There was a dispute between Ms Wilson and Ms Hewitt on whether there was a sexual motivation behind the three offences but to my mind that did not require an oral hearing to resolve it because it was not a dispute that could be resolved with certainty. Ms Wilson took one view (which have not changed) on the suitability of Mr Downs' further participation in the SOTP. Ms Hewitt took the opposite view. CART's task was to decide which view on the risk posed by Mr Downs and his suitability of further SOTP participation. It accepted it did not need an oral hearing to perform that process. Ultimately CART had to exercise a judgement on whether an oral hearing would assist in resolving these issues and assist in better decision-making. I cannot say that CART was wrong to decide against an oral hearing on these points where the views have been so well rehearsed, were so well known already and had not changed'.
'He accepted Mr Steele has been in custody many years and is post-tariff but considered these facts do not find sufficient grounds for an oral hearing without other compelling reasons. He considered there are no such compelling reasons in Mr Steele's case'.
'I accept the proposition that the DDC did not address the more nebulous potential justifications for an oral hearing i.e., the length of time the prisoner had been in prison and whether there had even been an oral hearing previously. I do not consider that this absence of consideration rendered the refusal to hold an oral hearing unlawful. All parties agreed it is for me to determine whether fairness required an oral hearing in 2015. I am satisfied that it did not. Morgan's position was entirely clear. An oral hearing would not have affected it'.
'Thirdly, reference has already been made to the concerns occasioned by the impasse capable of arising in the case of a prisoner who maintains a denial that he committed the offences of which he has been convicted. On the one hand he may need to complete various courses to satisfy CART that the risk to the public has been significantly reduced were he to be unlawfully at large. On the other, he may be ineligible or unsuitable for participation in such courses whilst he continues to deny guilt. Whilst, plainly, continued denial of guilt cannot of itself preclude recategorization, a matter which would compound injustice in the case of anyone wrongly convicted of, necessarily in this context, grave offending, denial of guilt will very likely be relevant as undermining any acceptance of responsibility for the harm done. Moreover, the CART starting point can only be the correctness of the jury's verdict. Still further, and realistically, there will be very, very many more occasions where prisoners deny guilt for offences which they have, in fact, committed in accordance with the decision of Mr Justice Elias, as he then was, in Roberts -v- Secretary of State for the Home Department  EWHC 679 (Admin)
In the course of a most valuable discussion of this particular concern as it seems to me it is necessary to be alert to the possibility of injustice occasioned by an impasse of this nature, but it must be accepted on occasion such impasses will unavoidably occur. Given the important public interest in risk reduction before an offender is released on a controlled basis into the community or a recategorization decision is taken increasing the risk of escape. As Mr Justice Elias observed in Roberts again at paragraph 42, 'By being in denial, they i.e., prisoners, limit, and in many cases severely limit, the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates they have not accepted that the risk was ever present'.
'Although the existence of an impasse or an inconsistency, for example between the Parole Board and CART, may increase the likelihood of an oral hearing being required, it should not be thought the mere existence of an impasse or inconsistency means that an oral hearing will be warranted. Moreover, from my part, the court should not be too ready to conclude that there is an impasse or even an in consistency where there may be not more than a difference of view, perhaps for a very good reason'.