QUEEN'S BENCH DIVISION
B e f o r e :
Sitting as a Deputy Judge of the High Court
| REGINA (on the application of EDWIN HOPKINS)
|- and –
|SECRETARY OF STATE FOR JUSTICE
Mr Robert Cohen (instructed by Government Legal Department) for the Defendant
Hearing dates: 19th July 2019
Draft Judgment supplied on 25th July 2019
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His Honour Judge Gosnell:
On 30th January 1997 the Claimant was sentenced to life imprisonment with a minimum term of eighteen years subsequently reduced to sixteen years and 290 days (having taken into account the period spent in custody on remand) following his conviction for murder. He was 19 years old when he committed the unpleasant murder of a 15-year-old girl. She suffered severe stab wounds and her body was mutilated with sexual overtones. The Claimant has always denied responsibility for this offence, but he was convicted and there are no outstanding appeals. His minimum term expired on 16th November 2013.
A prisoner may lawfully be confined to such prison as the Secretary of State directs: s.12 of the Prison Act 1952. The Secretary of State has the power to make rules for the classification of prisoners (s.47 of the Prison Act 1952), and he has done so in the Prison Rules (SI 1999/728).
"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."
A relevant issue in this case is that the decision was preceded by a decision of the Parole Board which recommended recategorisation. How should CART treat a previous recommendation of the Parole Board? This issue was explored in R (Williams) v Secretary of State for the Home Department [ 2002] EWCA Civ 498 when Lord Justice Judge (as he then was) said:
"The views of the DLP (Discretionary Lifer Panel of the Parole Board) on categorisation, however strongly expressed, are not and cannot be determinative of the categorisation decision. On this aspect of their decision, as Harrison J concluded, the review team was right.
This does not produce the lamentable consequence that the recommendations of the DLP are irrelevant to the categorisation decision, or indeed the decision-making process. It was rightly accepted that these must always be considered by the review team. Our attention was focused on the adequacy, or otherwise, of the process adopted in this case."
"In rejecting the application for an oral hearing, the review team misdirected itself by elevating the theory of the DLP'S statutory jurisdiction disproportionately above the practical realities, and over emphasising the differences between its own functions and those of the DLP, without sufficiently recognising the link between them. The likely recommendation of the review team was foreshadowed by the 'gist' document. Once notice of the DLP's decision had been received, the review team should have recognised an obvious prospect of a major inconsistency between their respective conclusions. An oral hearing would have enabled the reasons for the contradictory views to be examined on behalf of the appellant and for the contents of any adverse reports to be directly addressed. In the final analysis the review team would, of course, have reached its own decision, but an oral hearing, and proper disclosure, would have ensured that the decision was the result of a better informed process, and the conclusions, and the reasons for them, would then have been received with correspondingly greater confidence."
Counsel for the Defendant has correctly pointed out that in this case there had also been a failure to disclose various reports on which the decision was based to the prisoner in advance of the hearing (which was usual then) which added to the unfairness of the decision and may well have influenced the court's view.
"28. Fourthly, the common law duty of procedural fairness will sometimes require CART to convene an oral hearing when considering whether or not to downgrade a Category A prisoner. As Bean J rightly observed (at  of the Judgment), it is for the court to decide what fairness requires, so that the issue on judicial review is whether the refusal of an oral hearing was wrong; not whether it was unreasonable or irrational. Whether an oral hearing is required in an individual case will be fact specific. Given the rationale of procedural fairness, there is no requirement that exceptional circumstances should be demonstrated – there will be occasions when procedural fairness will require an oral hearing regardless of the absence of exceptional circumstances. But oral hearings are plainly not required in all cases; indeed, oral hearings will be few and far between. Advantages may be improved decision-making, bringing CART into contact with those who have direct dealings with the offender and the offender himself; an oral hearing may also assist in the resolution of disputed issues. Conversely, considerations of cost and efficiency may well tell against an oral hearing. There can be no single or even general rule, save, perhaps, for the recognition that oral hearings will be rare"
"34. It is here that, very respectfully and with some regret, I find myself parting company with Bean J. To my mind, the sense of the Parole Board's decision, taken as a whole, was clear: there had been no significant reduction in the risk attaching to the Respondent. At the most, there was a tentative rider as to the benefits of downgrading the Respondent's security categorisation. I am unable to accept that this isolated rider provides any or sufficient foundation for concluding that this case should be one of those few in which an oral hearing is required. Unlike Williams (supra), there was no clear recommendation in the Respondent's favour from the Parole Board; nor was there any disclosure issue – all the relevant reports were available to the Respondent in the present case. Further and by contrast with H (supra), there was no disagreement between the (local) Advisory Panel and CART; in this case, the Advisory Panel's conclusion (set out above) was unequivocal and adverse to the Respondent"
In the current application, like Mr Williams there is a clear recommendation in the prisoner's favour by the Parole Board but, like Mr Mackay, the Local Advisory Panel came to a conclusion adverse to the Claimant.
"37 (ii) Granted that there is no "exceptionality" test, these submissions, if anything, prove too much; if alone they justified an order for an oral hearing, such hearings would be the rule rather than a rarity. What is lacking here, which these undisputed facts cannot supply, is a proper foundation for an oral hearing; consider, by way of contrast, the position which would have arisen had the Parole Board concluded that there had been a significant reduction in risk."
The Claimant would say in this case that the Parole Board did conclude that there had been a significant reduction in risk.
"4. The status and role of the CART and the Director and his panel are to be contrasted with those of the Parole Board. The Parole Board is an independent judicial body which makes judgments about the suitability of prisoners for release on licence or parole, among other things. It too is concerned with questions of risk to the public, but in the different context of asking whether release of a prisoner on licence would pose an unacceptable risk of harm, having regard to a range of management measures which may be put in place to support the prisoner and manage that risk if he is released. The difference in the function of the CART and the Director and his panel, on the one hand, and the Parole Board, on the other, in assessing risk was emphasised by this court in R (Williams) v Secretary of State for the Home Department at  and ."
"56. The guidance given by the Supreme Court in Osborn was clearly fashioned in a manner specific to the Parole Board context and factors given particular weight in that context either do not apply at all or with the same force in the context of security categorisation decisions by the CART/Director, because of the differences in context which I have highlighted above. In my view, the guidance given by this court in Mackay and Downs regarding when an oral hearing is required before the CART/Director continues to hold good. The cases in which an oral hearing is required will be comparatively rare."
"61. Some of the factors highlighted by Lord Reed 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."
"39. There is a very real difficulty facing the review team in cases of this nature. The guilt of the prisoner must be assumed. That is what the review team properly did here. The review team must then assess the nature of the risk in the event of an escape. Where the index offences are so grave, as they will inevitably be in category A cases, the review team can justifiably require cogent evidence that that risk has diminished.
40. That evidence will, in the normal way, be most cogently demonstrated by the prisoner participating in courses and programmes which are directed to the specific offences, so that there can be some self-awareness into the gravity and consequences of his conduct. However, it is a condition of a number of these courses that the prisoner must admit his guilt. That is so, I am informed, for the Sex Offences Treatment course, the CALM course (controlling anger and learning to manage), and the CSCP course (cognitive self change programme). By not participating in such courses or programmes the prisoner inevitably makes the task of the review team more difficult, and in some cases practically impossible.
41.It must be recognised that this compounds the injustice for anyone who has suffered the grave misfortune to be wrongly committed of such terrible crimes, and there will inevitably be such people. It puts pressure on the innocent to admit guilt in order to facilitate release, or, alternatively, to serve a longer sentence than they would have had to do had they committed the crime and felt properly able to admit guilt. But that seems to me to be inevitable, the system cannot operate unless the verdict of the jury is respected.
42. Moreover, on very, very, many more occasions defendants deny guilt for offences which they have in fact committed, for a whole variety of reasons. Given that the danger must be presumed from the nature of the index offence, it is plainly a proper requirement that there should be cogent evidence in the diminution of risk if the safety of the public is to be secured. No doubt to those in denial the recitation by a review team that being in denial does not of itself preclude re-categorisation may appear to have something like a mantra-like quality. There is no doubt that if they disqualify themselves from the courses which address their specific offending, it will be considerably more difficult than to be able to satisfy the review team that re-categorisation is justified. This is not, however, a punishment meted out to them because they have not admitted the offences, but it is because by being in denial they limit - and in many cases severely limit - the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates that they have not accepted that the risk was ever present. In the circumstances, therefore, I do not consider that the review team can be criticised on this ground."
On 12th February 2018 a panel of the Parole Board considered the Claimant's case at an oral hearing at HMP Full Sutton. They considered a victim's personal statement from the victim's brother and explored the Claimant's case through oral examination of a forensic psychologist (Ms Cathy Wordie), the Offender Supervisor (Mr Broderick Taylor), the Offender Manager and the Claimant himself. All of the witnesses agreed that the Claimant had completed all the necessary core risk reduction work in order to progress and supported the Claimant's progression to open conditions. The forensic psychologist and Offender Supervisor went further and agreed that the Claimant's risk could be managed in the community.
A report had been prepared by Ms Becky Triffitt a trainee psychologist supervised by Catherine Wordie a forensic psychologist in June 2017 to assist both the Parole Board and the categorisation review. The purpose of the report was said to be "to consider whether there is convincing evidence the prisoner's risk of re-offending if unlawfully at large has significantly reduced". She found that the Claimant was at low risk of general violence and a low risk of sexual violence; his risk was not imminent; and he had shown good insight into his attitudes, thinking and his behaviour linked to his use of violence. Overall, " there has been a significant reduction in risk in Mr Hopkins case". This report was available to the Parole Board before they reached their decision and Cathy Wordie was present at the oral hearing to speak to the report if required. She confirmed that the Claimant's static risk assessment was too low to qualify for the Horizon course and that even if the Claimant admitted his guilt at this late stage it would not affect his risk or access any different treatment. Having heard the Claimant give evidence to the Parole Board she remained of the opinion that he should be moved to open conditions but went a little further to say that it would not be a mistake to release him. I deduce from this that the Claimant's evidence to the Parole Board must have impressed Ms Wordie.
" the panel conclude that Mr Hopkins has yet to provide any insight into the violent sexualised offending present within the index offence , and therefore it is difficult to fully establish the level of risk and treatment needed. On that basis, there is still no evidence that Mr Hopkins has significantly reduced his risk of reoffending if unlawfully at large and should therefore remain Cat A"
When recording the best way forward one of the recommendations was:
"provide an account of his offending which is in line with published court documentation"
Other recommendations involved: maintaining a positive working relationship with his Offender Supervisor (who had recommended his downgrading); continue dialogue with psychology and interventions team to identify the most appropriate treatment pathway (there was no further work required according to them) and maintain positive custodial behaviour. I can personally understand why the Claimant may have been disappointed in this decision, but it is only fair that I record it as it was available to the CART team.
The decision letter dated 21st September 2018 correctly records the Claimant's offending history and his exemplary behaviour whilst a prisoner. It says however that satisfactory behaviour whilst in custody should not by itself determine the level of risk. The Claimant's denial of the offence for which he was imprisoned was recorded but the decision makers rightly pointed out that they have to proceed on the basis that he was rightly convicted. It acknowledged that the Claimant had completed the following courses:
• Enhanced Thinking Skills
• Drug and Alcohol Awareness
• Anger Management
• Victim Awareness
• Victim Empathy
• Alternative to violence
• Controlling Anger and Learning to Manage it
" The Category A team considered all available information. It acknowledged your positive custodial behaviour and engagement in some offence-related intervention to date. However it is satisfied that you have yet to provide significant evidence that you have fully explored and addressed the serious risk areas and the motivations for committing your present violent offending, which also indicates a sexual element. It noted information suggests that you have not been fully open about the full extent of your offending and which in turn makes it difficult to accurately assess any change in your level of risk in relation to the present offence.
The Category A Team did not accept that your downgrading could be approved solely to assist your progression. It is satisfied that a significant reduction in risk must precede downgrading and is satisfied that you should show you have achieved a significant reduction in risk of similar offending if unlawfully at large. It considers there are no important factors in dispute going directly to the issues of risk in your case to convene an oral hearing in your case, as your reports are entirely suitable for risk assessment purposes and the submission of representations. It considers that all the information is readily understandable and does not require oral hearing to resolve its conclusions. It is satisfied that the means are available to you to discuss in full the extent of your offending, and to provide insight and progress warranting consideration for downgrading.
The Category A Team considered that you have provided no convincing evidence of a significant reduction in your risk of re-offending in a similar way if unlawfully at large. It agrees with the local advisory panel's recommendations that you should continue to maintain positive dialogue with the professional staff in order to identify the most appropriate treatment path to fully establish your level of risk and treatment need. The Category A Team concluded that there are at present no grounds on which a downgrading of your security category could be justified and that you should remain in category A at this time"
Mr Bunting for the Claimant submitted there were two grounds of challenge:
i) The decision of 21st September 2018 was made in breach of the standards of procedural fairness at common law; and
ii) The Defendant failed to properly or fairly apply PSI 08/2013
On the first issue it was submitted that the central issue in this case was the extent to which the Claimant had demonstrated a reduction in risk, notwithstanding his ongoing maintenance of innocence. The psychology reports were unanimous in confirming a significant reduction in risk. The decision makers appear to have rejected the opinions of the psychologists as to risk assessment without attempting to hear either them or the Claimant to allow them to deal with any points which were troubling the decision makers. The fact that the Parole Board had strongly recommended downgrading (being aware of the appropriate test before doing so) was another factor which should have pointed to the need for an oral hearing before rejecting the recommendation. An oral hearing may have assisted the quality of the decision making and reflected the Claimant's legitimate interest in being able to participate in a decision with important implications for him, where he may have had something useful to contemplate.
Mr Bunting for the Claimant submitted that there is actually a distinction between the two grounds in this case- that common law fairness and failure to follow its own policy are separate issues which may not always lead to the same conclusion. Mr Cohen for the Defendant submitted that the policy published is merely guidance to CART to assist to reach decisions which are procedurally fair, in line with its undisputed common law duty to act fairly. This esoteric discussion is not one I need to resolve in this case as on the facts both analyses lead to the same conclusion. I recognise the fact that this is not a rationality challenge. This court has the obligation to decide whether or not CART were wrong to decide not to hold an oral hearing. It would be convenient to consider first, whether the Defendant complied with the guidance set out in PSI 08/2013.
i) The prisoner has never had a hearing before [ 4.7 (d)];
ii) The prisoner is post-tariff, with the result that continued detention is justified on grounds of risk [ 4.7(c)];
iii) Lengths of time involved in a case are significant – the Claimant has been on category A post-conviction for 22 years: [ 4.7 (c)]
The guidance continues:
"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."
The Defendant submits that this consideration is not "squarely in play" in this case because the LAP did not take the view that downgrading was justified. That is technically correct, but I take the view that in this case a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds. In addition, the Parole Board has in fact expressed strongly worded and positive views about a prisoner's risk levels which might be appropriate to explore at a hearing. Giving the prisoner the opportunity to address the panel about his attitude to issues which might impinge on his risk assessment might also be helpful.
"However, it is a condition of a number of these courses that the prisoner must admit his guilt. That is so, I am informed, for the Sex Offences Treatment course, the CALM course (controlling anger and learning to manage), and the CSCP course (cognitive self change programme). By not participating in such courses or programmes the prisoner inevitably makes the task of the review team more difficult, and in some cases practically impossible"
"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."