QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
| R (on the application of MARK HARRISON)
|- and -
|SECRETARY OF STATE FOR JUSTICE
David Manknell (instructed by Government Legal Department) for the Defendant
Hearing date: 5 November 2019
Crown Copyright ©
Heather Williams QC:
The Claimant in custody
The Programme Needs Assessment
Ms Sales' August 2018 assessments
Ms Graham's entries in the Dossier
The LAP's recommendation
The Director's decision
"The Director carefully considered the wealth of information in this case, including his recent reports and previously submitted assessments in the representations. He recognised the prisoner has completed a long settled period in custody and achieved some progress addressing his risk. He accepted the current assessments suggest the prisoner poses a moderate risk and there are no specific courses identified in high security. He nonetheless remained concerned about the extreme nature of the prisoner's offending, which to a great extent remains unaddressed due to the prisoner's denial of guilt. He noted also the prisoner's past offending, which also involved violence against females. ("The Director's first paragraph.")
Taking into account the serious and escalating nature of this offending he considered the prisoner's assessed moderate risk would still make him highly dangerous if unlawfully at large. He noted the prisoner still needs to complete substantial work on his offending (as shown by the recommendation for a therapeutic community) which is not compatible with an assessment of significant progress and risk reduction at this time. ("The Director's second paragraph".)
The Director carefully considered the reasoning of the LAP for downgrading. He considered however the available assessments show key issues have still not been fully explored and addressed (as also confirmed by the LAP), and therefore he considered Mr Harrison has not achieved significant risk reduction despite his good conduct and engagement. He did not accept that Mr Harrison's downgrading could in the meantime be approved solely to allow him to address these issues further in a TC, and he should be urged. to provide greater disclosure to enable outstanding issues to be addressed more thoroughly in his present environment. ("The Director's third paragraph".)
The Director noted most of the representations (i.e. past psychology reports) have previously been considered and rejected as evidence of significant risk reduction. He recognised the request for an oral hearing (previously unsuccessfully claimed by Mr Harrison through the courts) has now been added to by the LAP recommendation. He recognised also the length of time Mr Harrison has been in custody and his good behaviour. As stated above however he considered the reports show significant offence related issues have yet to be addressed. While he noted different views on suitability for downgrading he did not consider there was a significant dispute on the principal issue that Mr Harrison needs to further address important risk factors. He considered also an oral hearing was not needed to fully understand the strengths of the Mr Harrison's progress or the reasoning in the available assessments." ("The Director's fourth paragraph".)
The Legal Framework
"Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record 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…"
Category A reviews
"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."
"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 parte Duggan  3 All ER 277, 280, 288; R (Williams) v Secretary of State for the Home Department  1 WLR 2264, paras 23 – 24. This is an approach of the Parole Board as a matter of practice, rather than the consequences of any rule of law. None the less, it is clear that a decision regarding a prisoner's categorisation has significant implications both for the public interest and for the individual interests of the prisoner himself."
i) (As regards Ground 2), it is for the Court to determine whether procedural fairness required the Director to agree to an oral hearing in this instance: R (Mackay) v Secretary of State for Justice  EWCA Civ 522, para 28; and R (Downs) v Secretary of State for Justice  EWCA Civ 1422, para 44;
ii) The contents of PSI 08/2013 paras 4.6 and 4.7 (below) addressing when there should be an oral hearing for a Category A classification review reflect the common law requirements of procedural fairness;
iii) (As regards Ground 3), it would be a public law error for the Director not to follow the Defendant's published policy in PSI 08/2013 as to when to hold oral hearings: R (Rose) v Secretary of State for Justice  EWHC 1826 (Admin), para 42.
PSI 08/2013 paras 4.6 and 4.7
a. "Where important facts are in dispute. Facts are likely to be important if they go directly to the issue of risk …
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. 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.
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.
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.
d. Where the prisoner has never had an oral hearing before; or has not had one for a prolonged period."
Case law regarding PSI 08/2013 and common law fairness
"The guidance given by the Supreme Court in Osborn's case 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 different context which I have highlighted above. In my view the guidance given by this court in Mackay's and Down's cases 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."
"Some of the factors highlighted by Lord Reed JSC will have some application in the context of decision-making by the CART/directors, 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."
"(b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or 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…of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or whether a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or whether 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 cases effectively or to test the views of those who have dealt with him."
"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 hand, he may be ineligible or unsuitable for participation in such courses whilst he continues to deny guilt. While, plainly, denial of guilt cannot of itself preclude re-categorisation, 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…Still further and realistically, there will be "very, very, many more occasions" where prisoners deny guilt for offences which they have in fact committed": see Elias J (as he then was) in R (Roberts) v Secretary of State for the Home Department  EWHC 679 (Admin) at , in the course of a most valuable discussion of this particular concern, at  – . 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 that on occasions 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 re-categorisation decision is taken increasing the risk of escape."
"Ultimately, CART had to exercise a judgment 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 had been so well rehearsed, were so well known already and had not changed."
"I would add that even in a case where there is a significant difference of view between experts, it will often be unnecessary for the CART/directors to hold a hearing to allow them to ventilate their views orally. This might be so because, for example, there may be no real prospect that this would resolve the issue between them with sufficient certainty to affect the answer to be given by the CART/director to the relevant question and fairness does not require that the CART/director should hold an oral hearing on the basis of a speculative possibility that that might happen…"
"It may be said that there is no significant difference of view between the experts, The LAP recommended that Mr Rose should be downgraded and their recommendation was consistent with the thrust of the reports from both the prison psychologist and the independent psychologist, as well as the Offender Supervisor. However, in my judgment, the fact that it is not only the LAP in combination with an independent psychologist recommending downgrading, but this is also consistent with the prison psychologist's report, cannot assist the Secretary of State. It renders Mr Rose's case for an oral hearing all the stronger.
As Lord Bingham observed in R (West) v Parole Board  1 WLR 350 at , it "may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker". In circumstances where the LAP concluded Mr Rose had demonstrated a significant reduction in risk and recommended down-grading him to Category B and the evidence could fairly be said to be consistent with and supportive of the LAP's recommendation, the opportunity that an oral hearing allows to discover and address the points that were troubling the decision-maker was particularly vital."
Discussion and conclusions
Grounds 2 and 3
The parties' submissions
Post-tariff, length of time as a Category A prisoner and no earlier oral hearing
A significant dispute on the expert materials
i) That the prisoner's offending "to a great extent remains unaddressed due to his denial of guilt", in the Director's first paragraph;
ii) He "noted the prisoner still needs to complete substantial work on his offending (as shown by the recommendation for a therapeutic community)", in the Director's second paragraph;
iii) He considered "the available assessments show key issues have still not been fully explored and addressed (as also confirmed by the LAP)", in the Director's third paragraph;
iv) He "did not accept that Mr Harrison's downgrading could in the meantime be approved solely to allow him to address these issues further in a TC", also in the Director's third paragraph;
v) "Whilst he noted different views on the suitability for downgrading…", in the Director's fourth paragraph; and
vi) "He did not consider there was a significant dispute on the principal issue that Mr Harrison needs to further address important risk factors", also in the Director's fourth paragraph.
Conclusions on Grounds 2 and 3