QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
Leeds LS1 3BG |
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B e f o r e :
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THE QUEEN (on the application of JOHN WILSON) |
Claimant |
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- and - |
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SECRETARY OF STATE FOR JUSTICE |
Defendant |
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Benjamin Seifert (instructed by Government Legal Department) for the Defendant
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Crown Copyright ©
MR JUSTICE FORDHAM:
Introduction
[T]he issue of whether the Claimant has demonstrated a reduction in risk is clearly at issue. He has never previously had an oral hearing and there is a clear dispute on the expert materials. He may be able to argue an impasse has been reached. In my view the claim is clearly arguable.
The mode of hearing before me was by MS Teams. That mode of hearing had been organised by the Court, in conjunction with the parties, in the context of the pandemic. The mode of hearing eliminated any risk to any person from having to travel to, or be present in, a courtroom. Both Counsel were satisfied, as was I, that the remote mode of hearing involved no prejudice to the interests of their clients. The open justice principle was secured: the case and its start time were published, together with an email address usable by any member of the press or public who wished to observe the public hearing. I should explain at the outset two acronyms. Under the applicable legal and procedural framework, Category A review decisions are sometimes made by the Director and sometimes by a Category A Team ("CAT"), decisions being informed by a dossier including a reasoned recommendation by a local advisory panel ("LAP").
Relevant law
i) The test for Downgrading is whether the Director has "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": see Prison Service Instruction 08/2013 ("the PSI") at §4.2. This Downgrading test reflects that need for "cogent evidence in the diminution of risk" which has been endorsed by the Courts as "plainly a proper requirement": see R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331 [2017] 1 WLR 475 at §70.
ii) The PSI records (§2.1) that a Category A prisoner is "a prisoner whose escape would be highly dangerous for the public, or the police or the security of the State, and for whom the aim must be to make escape impossible". The focus (§2.2) is on "the prisoner's dangerousness if he did escape, not how likely he is to escape". The PSI goes on to describe the review procedures applicable, inter alia, in the context of Category A review.
iii) Oral hearings are addressed in the PSI at §§4.6 and 4.7. These can be seen set out, in full, in Hassett at §21. The PSI has been revised and updated, including in the years subsequent to the October 2013 decision of the Supreme Court in R (Osborn) v Parole Board [2013] UKSC 61. At §4.6, the PSI discusses the extent to which there are parallels and differences between Category A review decisions and Parole Board decisions, as does Hassett at §51. At §4.6 the PSI says "this policy recognises that the Osborn principles are likely to be relevant in many cases in the [Category A review] context", referring to the PSI as "guidance [which] involves identifying factors of importance, and in particular factors that would tend towards deciding to have an oral hearing".
iv) At §4.6 the PSI identifies three "overarching points". (i) The first, in essence, is that each case must be considered on its own particular facts. (ii) The second, in essence, is that the decision as to whether to hold an oral hearing must be approached "in a balanced and appropriate way", which includes (quoting Osborn) the decision-makers being "alive to the potential, real advantage of a hearing both in aiding decision making and in recognition of the issues to the prisoner" and not making "the grant of an oral hearing dependent on the prospects of success of a downgrade in categorisation". (iii) The third, in essence, is that there is scope for flexibility and tailoring: the decision is "not necessarily all or nothing".
v) At §4.7 the PSI identifies four factors which would tend in favour of an oral hearing being appropriate, under headings on which (in the case of the first three) the text then elaborates. The four headings are: (a) "where important facts are in dispute"; (b) "where there is a significant dispute on the expert materials"; (c) "where the lengths of time involved in a case are significant and/or the prisoner is post-tariff"; and (d) "where the prisoner has never had an oral hearing before; or has not had one for a prolonged period". It is appropriate to consider these four factors "in the round, by considering them cumulatively" (R (Nduka) v Secretary of State for Justice CO/617/2019 (25 October 2019) at §34), that being a point made at §4.7 of the PSI ("the more of such factors that are present in any case, the more likely it is that an oral hearing will be needed").
vi) Hassett at §56 endorsed the guidance in R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522 and R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422. Within this line of authority are to be found the following points. (1) The common law principles identified in the parole context in Osborn do not apply with the same force to Category A review decisions (Hassett §§59-61). (2) The general guidance in the PSI is lawful and not apt to mislead a decision-maker as to the applicable legal standards, a point decided in the specific context of a challenge to factor (b) (Hassett §66). (3) A Category A review decision "has a direct impact on the liberty of the subject and calls for a high degree of procedural fairness" (Mackay §25). (4) 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" (Mackay §28). The decision-maker may need to "exercise a judgment on whether an oral hearing would assist in resolving issues and assist in better decision making" and the question for the Court is whether the CAT "was wrong to decide against an oral hearing" (Downs §45). (5) Where a prisoner denies the offending of which they were convicted, which may in consequence mean ineligibility or unsuitability for participation in courses relevant to satisfy the decision-maker that the risk to the public has been significantly reduced, the decision-maker's "starting point can only be the correctness of the jury's verdict" and the denial "may in many cases severely limit the practical opportunity of demonstrating that the risk has diminished" (Mackay §27). (6) Although it has been said that "oral hearings will be few and far between" (Mackay §28) and "comparatively rare" (Hassett §61), that is prediction rather than principle: there is "no requirement that exceptional circumstances should be demonstrated" (Mackay §28). (7) The fact that there is a "difference of professional opinion" between two experts (eg. two psychologists), the fact that the decision-maker has "two clear, opposed views to consider", and the fact that the decision-maker's "task was to decide which view it accepted" does not in and of itself make an oral hearing necessary (Downs §§44-45, 50; Hassett §69).
i) The PSI states that reports prepared for the decision-maker should provide "a comprehensive summary of the prisoner's behaviour and progress to date", to "enable an assessment of any reduction in the prisoner's level of risk" (§4.17); and that a psychologist's report should address whether the prisoner has "demonstrated any evidence that the risk of serious reoffending has reduced, including through offending behaviour programmes" (Annex B of the PSI, at p.29).
ii) As the Court of Appeal (Gross LJ) explained in MacKay at §25: "Self evidently, categorisation as a Category A prisoner has serious consequences for the prisoner. Not only is he subject to a more restrictive regime and higher conditions of security than prisoners in other categories but, given the meaning of categorisation as a Category A prisoner, so long as he remains such, his prospects of release on parole are nil Accordingly, the decision as to continued classification of the prisoner as Category A has a direct impact on the liberty of the subject and calls for a high degree of procedural fairness".
iii) As Cranston J explained in R (H) v Secretary of State for Justice [2008] EWHC 2590 (Admin) at §23: where an LAP "has recommended that the claimant should be re-categorised", if Category A status is maintained by the Director, the position is as follows. "There is an inconsistency between, on the one hand, the approach of the [LAP] and, on the other hand, that of the Director " Although that is not "an impasse", and although the recommendation of downgrading by the LAP is "not the same as a decision of the Parole Board", nevertheless "this inconsistency supports the case for an oral hearing to explore it in greater depth", even if ultimately "there may be no inconsistency but simply a difference of opinion, and for very good reasons".
Context and circumstances of the present case
John Wilson and his associates planned and carried out an attack on a man and his family who ran a cannabis farm, killing the man and inflicting extreme violence on others. They ambushed the victims, bound them and either inflicted or oversaw extreme and prolonged torture to gain access to their money. They suspended the murder victim from a beam, forced into watch the torture of his son and daughter, and killed him by beating and the insertion of stables and a metal bar into his body. The sentencing judge accepted John Wilson was not physically present but had been deeply involved in directing the attack and subsequent events.
The sentencing judge described the acts of violence as "extreme and sadistic". They took place over a period of more than three hours, and the deceased victim was found to have 123 external physical injuries. The context was said at the trial to be a £20,000 drug debt owed by the deceased victim to the Claimant. The Claimant was linked, on the evidence, by virtue of prior telephone contact with the perpetrators. His case was that he had given information about the whereabouts of the victim who they went on to kill, but maintained that he did not know or intend that any act of violence would take place. The sentencing judge referred to the Claimant as having been "directing operations from afar", and as having been in the relationship of "master and servant" to those whose actions he was directing. The Claimant has continued to deny his guilt of the offences for which he was convicted.
i) The Previous Review 2019. On the Claimant's previous annual security review, the Director decided on 11 September 2019 not to Downgrade him. That was notwithstanding the following: (a) a psychologist's report (from an "S MacDonald") dated 25 April 2019, recommending Downgrading ("the MacDonald Report"); and (b) a reasoned recommendation by an LAP ("LAP Report 2019") also recommending Downgrading. In the 2019 decision, the Director reasoned as follows:
The Director acknowledged Mr Wilson's positive engagement with staff and with the regime. There is no evidence of offence-paralleling behaviour and Mr Wilson has engaged in one-two-one work on his lifestyle. He noted Mr Wilson has nonetheless engaged in no offence-focused work that might provide evidence of significant insight and risk reduction relating directly to his offending and associated risk factors. He noted the recommendation for Mr Wilson's downgrading is mainly based on his age, ill health and regime adherence, rather than evidence of significant offence-related progress. He did not accept a suggested manageability within Category B provides such evidence. While he noted Mr Wilson's age and ill-health, he considered there is no evidence these significantly affect his capacity to similarly reoffend, or show his escape can be made impossible in less secure conditions. The Director considered evidence of a significant reduction in Mr Wilson's risk of similar reoffending if unlawfully at large is not yet shown. He is satisfied Mr Wilson therefore must stay in Category A at this time.
ii) The Mitchinson Report 2020. A further psychologist's report dated 30 July 2020 (by Hayley Mitchinson) explained the use of an assessment method called the Historical, Clinical and Risk Management-20 version 3 ("HCR-20"). In her report ("the Mitchinson Report"), Ms Mitchinson said this:
I have utilised the HCR-20 in order [to] provide an assessment of Mr Wilson's risk of future violence at either Category A or Category B security status. I would assess Mr Wilson as a moderate risk of future violence and a high risk of serious physical harm, though this is considered to be of low imminence whilst he remains in custody. I would not consider that Mr Wilson's risk would be significantly increased if he were to be downgraded to Category B security status. Based upon the available information, the outcome of Mr Wilson's risk assessment has determined that his risk would not be significantly increased if his security status were to be downgraded. Therefore, it is my view that he could be managed in lower security conditions as a Category B prisoner
iii) The LAP Report 2020. By a reasoned recommendation of a LAP dated 5 October 2020, a six-person panel (also described as a "board"), including a psychologist (Gemma Tock), said this:
The board noted Mr Wilson's good custodial behaviour and compliance with the wing regime. He has engaged with psychological services for the purposes of an assessment (include within the dossier). He has been recommended for some bespoke work to explore his attitudes to violence/condoning lawbreaking. Mr Wilson has expressed willingness to complete this work and is on the waiting list, however in the current circumstances it is not possible to provide a start date for such work. Given the outcome of the current (and previous psychological risk assessment) it is not considered that this work must be completed prior to downgrading. The board noted that Mr Wilson's risk is not manifesting, he has consistently displayed good custodial behaviour without any adjudications and his age and health now should come to the forefront of a significant reduction in risk. The outstanding bespoke work can be completed in lower security conditions and would not serve to reduce his risks but to explore attitudes only. The board felt no reason to depart from their previous decision and to recommend a downgrade.
The Director considered Mr Wilson'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 again accepted Mr Wilson has abided by the regime for many years and poses staff no problems. He took into account also Mr Wilson's age and health problems. He considered the reports nonetheless provide no real evidence Mr Wilson has achieved offence -related insight or progress despite these good points. The reports in fact show Mr Wilson has achieved no effective insight into his high potential risk shown in the sentencing remarks and by his tariff. He noted Mr Wilson acknowledges some previous criminal behaviour, but effectively denies any serious or risky behaviour. Mr Wilson also denies the serious risk factors suggested by his present offences, of which he has been lawfully convicted. He recognised Mr Wilson's sustained regime adherence might suggest he could be managed insecure category B. But he confirmed that this is not convincing evidence of a significant reduction in risk if unlawfully at large. In the meantime, he had no evidence Mr Wilson's health or mobility are so impaired they would significantly reduce his risk The Director considered evidence of a significant reduction in Mr Wilson's risk of similar reoffending if unlawfully at large is still not shown, despite his continued adherence to the regime. He is satisfied Mr Wilson therefore must stay in Category A at this time'.
The Director considered also an oral hearing is not necessary for Mr Wilson's present review. He considered the available information and assessments are readily understandable and that there are no issues that need further resolution through an oral hearing. He did not believe his disagreement with the LAP or reports in itself represents a dispute warranting an oral hearing. He considered Mr Wilson is also free to show further evidence of insight and progress by discussing the offences of which he has been lawfully convicted, as recommended in the current reports and by the LAP. He considered there is accordingly no impasse. He noted also Mr Wilson is some years from tariff expiry, and therefore his Category A status is not presenting a barrier to his progression. There are also no alternative assessments, such as from the Parole Board, suggesting Mr Wilson has achieved significant risk reduction.
The challenge
i) The first factor relates to the appropriateness of a closer scrutiny, which an oral hearing could bring, given the "inconsistency" (as identified by Cranston J in H) between the favourable reasoned recommendations, of Ms Mitchinson, and (in particular) in the LAP Report 2020. Ms Mitchinson's report was a careful and detailed 'structured risk assessment' based on more than four hours of interviews with the Claimant. Included within it was a clear and positive recommendation in relation to Downgrading, alongside a clear assessment utilising HCR20. The LAP Report 2020 recommendation was a clear and positive recommendation of Downgrading. It clearly involved grappling with the relevant question, given the test for Downgrading, and it answered the relevant question favourably to the Claimant. In particular, that can be seen from the LAP Report 2020's reference to "a significant reduction in risk", based on a number of features: the fact that the claimant's "risk is not manifesting"; his consistent display of good custodial behaviour; his age and his health. Both the Mitchinson Report and the LAP Report 2020, in terms, recognised that the outstanding "bespoke work" could be completed in Category B conditions. Those two reports had been written in the following circumstances: in a context, and under a framework, where experienced individuals were involved in producing or overseeing the reports; where the question needing to be answered by the Director (the Downgrading test) is clear from the PSI; where reports are to be prepared using the guidance given in the PSI. To refuse the Claimant's Downgrading, in light of these Reports and recommendations, and in circumstances where there had been similar previous favourable recommendations in 2019 by both another psychologist (the MacDonald Report) and an earlier LAP (the LAP Report 2019), gave rise to the H "inconsistency" as a feature which "supports the case for an oral hearing to explore it in greater depth".
ii) The second factor is the Claimant's age (71, at the time of the hearing before me) and the passage of time, involving more than 16 years (now more than 17 years) in prison. This is an important feature. It links to the well-recognised difficulties in assessing risk 'on the papers', after a substantial passage of time in custody.
iii) The third factor is the relevant and straightforward fact that the Claimant has never had an oral hearing.
iv) The fourth factor was a point which Mr Stanbury introduced at the substantive hearing. He was able to link it to the Claimant's solicitors' representations which had been made to the Director (on 18.9.20), and which the Director had summarised in the impugned decision (18.11.20). Mr Stanbury accepted that unlike the first three factors the fourth had not as such been identified in the grounds for judicial review, nor in the skeleton argument. The fourth factor came to this. Mr Stanbury submitted that there is in this case a 'present material uncertainty' as to the availability to the Claimant of courses and programmes, which an oral hearing would have assisted in resolving. Ultimately, Mr Stanbury advanced two contentions. (i) First, that the Resolve course had previously been assessed as inappropriate in the light of the claimant's denial of guilt, but a 'material extant uncertainty' arose as to whether Resolve would remain unavailable to the Claimant even if the Claimant were now to accept his guilt. Mr Stanbury characterised this as part of a broader 'present material uncertainty' as to 'what difference it would make' if the Claimant did now accept his guilt of the offences for which he was convicted. (ii) Secondly, that it is unclear that the "bespoke work" clearly said in both Reports to be available in Category B conditions is in fact available to the Claimant in Category A conditions (so that expecting him to undertake it before Downgrading to Category B would be a 'catch-22' impasse, requiring resolution). Mr Stanbury submitted that these were matters which alongside the other three factors called for probing at an oral hearing.
Post-permission events
Discussion