QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Wednesday, 31 July 2019 |
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B e f o r e :
(Sitting as a Deputy Judge of the High Court)
Between:
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The Queen on the Application of Welsh | Claimant | |
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Secretary of State for Justice | Defendant |
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THE DEFENDANT was not present and was not represented.
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Crown Copyright ©
THE DEPUTY JUDGE:
Relevant Factual Background
The Decision under Challenge
"You have been convicted of a domestic incident and possession of a firearm. Prior to those convictions, you were convicted of common assault and a POA offence. Further risk reduction work to address your alcohol use, relationships, coping skills and thinking skills is required before a panel of the Board would consider you safe to be released. 4While this work remains outstanding your risk of harm to the public remains too high for release to be directed. You remain subject to the new sentence until April 2019, in any event. The panel considered that, while core risk reduction work remains outstanding, the risk you present to the public outweighs the benefits to you of a progressive move to open conditions. As a result, the panel did not recommend that you go to open conditions. You have not been referred for an oral hearing and your review has been concluded with a paper decision."
"The MCA duty member has considered the UKSC judgment in the case of Osborn, Booth and Reilly and is not persuaded that an oral hearing is appropriate in this case. There is a dossier of 766 pages which provides a great deal of information as to your risk issues and background to your case. You have been convicted of further violent offences about which there are considerable details in the paperwork and the facts of these incidents go directly to your risk of causing serious harm. The MCA duty member notes that the MCA member who considered your case and the substantial dossier identified further outstanding areas of risk evident by your behaviour and determined that these should be addressed prior to your release but to open conditions. There is nothing in the representations that persuade the MCA duty member that this conclusion was not entirely reasonable and appropriate."
Legal Framework
"i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:
a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a 'paper' decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.
iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.
v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.
vi) 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.
vii) …
viii) …
ix) …
x) 'Paper' decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.
xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.
xii) …
xiii) …"
The Submissions of the Claimant
"94 … it is important to understand the provisional nature of a decision made by the single member panel that the prisoner is unsuitable for release. The right conferred on the prisoner, following that decision, to request an oral hearing is not a right of appeal. The prisoner does not have to demonstrate that the decision was (or may have been) wrong: what he has to persuade the board is simply that an oral hearing is appropriate.The unfairness which results from the board's treatment of the request for an oral hearing as an appeal is illustrated by the case of the appellant Booth, in which the ICM assessor identified the critical question as being 'whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper decision'. The request for an oral hearing was thus decided on the basis that the earlier decision was presumptively correct. This is to put the cart before the horse. If fairness requires an oral hearing, then a decision arrived at without such a hearing is unfair and cannot stand. The question whether an oral hearing is required cannot therefore be decided on the basis of a presumption that a decision taken without such a hearing is correct."
It is submitted by Mr Bunting, and I accept, the test is not utility it is fairness. This reflects further Lord Reed at para.6 in Osborn.
Consideration
"The MCA member who considered your case and the substantial dossier identified further outstanding areas of risk evident by your behaviour and determined that these should be addressed prior to your release to open conditions. There is nothing in the representations that persuade the MCA duty member that this conclusion was not entirely reasonable and appropriate."
In my judgment, it shows clearly that the view of the board member was that Mr Welsh had not persuaded her that the previous and, of course, only preliminary, decision of 19 September was erroneous. In other words, she treated the application for an oral hearing as if it had been an application to appeal or review the previous decision in respect of which the prospects of success were determinative. This is an error of law.
"You provided the panel with an in-depth and, in the panel's view, insightful analysis of your risk and, in particular, your emotions with which you could not deal, your alcohol use clouds your judgment and your lack of happiness with yourself. You believe you self-destructed."
"67. There is no doubt that one of the virtues of procedurally fair decision making is that it is liable to result in better decisions, by ensuring that the decision maker receives all relevant information and that it is properly tested, [but] … At least two other important values are also engaged.The first was described by Lord Hoffmann (ibid) as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that 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 … judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken."