Downs, R (on the application of) v Secretary of State for Justice [2011] EWCA Civ 1422

Case No C1/2010/2909[2011] EWCA Civ 1422
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN’S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE BURTON
CO73522010
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/11/2011
Before
LORD JUSTICE PILLLORD JUSTICE MOORE-BICKLORD JUSTICE AIKENS
Between
THE QUEEN ON THE APPLICATION OF MICHAEL DOWNSAppellantTHE SECRETARY OF STATE FOR JUSTICERespondent
Mr Vijay Jagadesham (instructed by Tuckers Solicitors) for AppellantMr Matthew Slater (instructed by The Treasury Solicitor) for RespondentHearing Hearing date: 13 th October 2011
Judgment
[1]This is an appeal from an order of Burton J dated 23 November 2010, in which he dismissed the appellant’s claim for Judicial Review of one part of two decisions of the Category A Review Team of Her Majesty’s prisons (“CART”), whereby CART refused to allow an oral hearing in respect of the appellant’s annual review of his status as a Category A prisoner. The two decisions were communicated to the appellant’s legal advisors on 22 April and 15 June 2010. On 13 August 2010 HHJ Pelling QC, sitting as a deputy High Court Judge, granted the appellant (“Mr Downs”) permission to apply for judicial review of the two refusals to grant an oral hearing. Burton J heard the application on 23 November 2010 and gave judgment the same day.[2]CART is concerned with evaluating therisks to the public in the event of an escape of particular prisoners who are classified as “Category A” prisoners. Category A prisoners are defined as those “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”. PSI 03/2010 “Category A and Restricted Status Prisoners: Reviews of Security Status” (PSI 03/2010”) Ch 1 para 2. In 2009 and 2010 approximately 950 inmates of prisons in England and Wales were placed in Category A. This figure has remained about the same for many years. A Category A prisoner is, inevitably, subject to a more restrictive regime and higher conditions of security than prisoners in lower Categories. Moreover, a Category A prisoner who remains as such will have no prospects of being released on parole. R v Secretary of State for the Home Department ex parte Duggan [1994] 3 All ER 277.[3]Each Category A prisoner is entitled to have his categorisation reviewed at least once a year. PSI 03/2010 Ch 4 para 1. This process permits the prisoner and his legal representatives to submit representations, including reports from independent specialists such as psychologists, in support of a request that the prisoner should be removed from Category A and re-categorised in a lower Category. These representations must be addressed to the Local Category A Advisory Panel (“LAP”) which will consider them together with reports from the prison. The LAP’s consideration will lead to a “Governor’s Recommendation”. That is then considered by CART, which is the central body for reviewing all Category A prisoners’ categorisation. CART will examine all the materials submitted by the prisoner or his representatives and all other material before it, including the Governor’s Recommendation. It will then make a decision either that the Category A status remains or, if it thinks the prisoner should be re-categorised, it makes a recommendation to a more senior committee, called the Category A Committee. Any final decision to downgrade is made by the Deputy Director General of the Prison Service. The information in these last two sentences is taken from the judgment of Elias J in R (ex p Denis Roberts) v SSHD [2004] EWHC 679 (Admin) at [9] and [10].[4]Normally, a decision on the Category A prisoner’s future categorisation is taken by CART on the papers before it without an oral hearing. However, it is well established that in certain circumstances there should be an oral hearing at which the prisoner’s representatives can make submissions and, if appropriate, witnesses or experts can give oral evidence.[5]The courts have considered the circumstances in which oral hearings should be held by CART before reaching a decision. The basic rule is that CART will be required to convene an oral hearing when common law standards of procedural fairness require one. Each case will depend on its facts. However, oral hearings are not the general rule; they will be rare.[6]In Donald Mackay v Secretary of State for Justice [2011] EWCA Civ 522. Gross LJ stated that Cranston J well expressed the broad underlying principles at [21] of R (H) v Secretary of State for Justice. [2008] EWHC 2590 (Admin). Cranston J referred to and applied statements of Lord Bingham of Cornhill in R (on the application of Smith) v Secretary of State for the Home Department, [2005] 1 WLR 350; [2005] UKHL 1. at [35], where Lord Bingham had set out the principles under which procedural fairness may require that there should be an oral hearing by the Parole Board when prisoners are being recalled for breach of licence conditions. Applying those principles to the context of CART decisions, in relation to oral hearings by CART, Cranston J emphasised that:(i) common law standards of procedural fairness affecting an oral hearing are flexible and may change over time;(ii) oral hearings are not required in all or even in most cases: (I would add that it is clear that they will be rare);(iii) whether one is needed depends on all the circumstances of the case;(iv) the interests at stake and issues of cost and efficiency must be considered;(v) so too must the question of the extent to which an oral hearing will guarantee better decision making in terms of uncovering of facts, the resolution of issues and the concerns of the decision maker;(vi) there is no test of “exceptionality”. Examples of when oral hearings may be required in the CART categorisation review exercise are set out at [28] of the judgment of Gross LJ in the Donald Mackay case. These legal principles were not in issue on this appeal.[7]If CART refuses to hold an oral hearing before making its decision and that refusal is challenged in the courts by judicial review, the issue on that review is whether the refusal to permit an oral hearing was wrong. It is not whether the refusal was unreasonable or irrational.[8]It is important to keep in mind in this case that there is no challenge to the actual decisions taken by CART on 22 April and 15 June 2010 that Mr Downs’ Category A status must continue. The only decision of CART challenged is its refusal to hold an oral hearing prior to making a decision on Mr Downs’ future Category A status. Therefore the only question on this appeal is whether the judge erred in concluding that CART was not wrong in its two decisions which rejected Mr Downs’ requests for an oral hearing.

II. The Chronology of events in this case up to the CART decisions

[9]Mr Downs was sentenced to life imprisonment in July 1989 after a trial in which he had been found guilty of the murder of two elderly women. The first victim was Katherine Weaver, who was murdered on 21 January 1978. The second was Gabrielle Morris, who was murdered on 26 January 1988. At his trial for the two murders Mr Downs pleaded guilty to the aggravated burglary of the home of Mrs Morris. That offence had taken place on 27 November 1974.[10]The facts of the three offences are relevant to the issues that arose concerning Mr Downs’ categorisation. I set out Burton J’s summary, which was not challenged for the purposes of the appeal before us. “4. So far as the aggravated burglary is concerned in 1974, the victim was then 57. The Claimant, who was known to her because he was a laundry roundsman for her private guest house, broke in. He was masked and armed with a hammer and a knife, and a length of washing line. He pressed the line to her throat and hit her with a hammer, although no serious injury was caused, and he did not speak. She offered him £300 in notes, and he seemingly took only £100. And then the learned judge records at one stage he pushed her on the bed and unzipped his flies, but there was no evidence of intercourse or of ejaculation. 5. ….The facts of [the first] murder were that the victim was found in the kitchen dead from stab wounds, two in the back and one in the chest; her pyjama bottoms, and the washing line brought in by the Claimant, on the findings of the jury, were found in the lounge; and there was no theft evident. 6. As for the second murder, he again broke into the victim's house, again cut the washing line, and she was found there with the lower part of her body exposed. Death was due to a stab wound in her back, but there were some 38 minor cuts and bruises, including injuries to the breasts, and again nothing was stolen, even though the Claimant asserted that theft was his motive.”[11]The “tariff” for Mr Down’s sentence of life imprisonment was set, after an appeal, at 23 years. He has now served over 22 years of that “tariff” and he is 65 years old. Since at least 2008 he has been an inmate at HMP Wakefield. Throughout his time in prison he has been classified as a Category A prisoner.Mr Downs continues to deny that he had any involvement in the murder of Mrs Weaver, but he now accepts responsibility for the second murder, viz. that of Mrs Morris. Mr Downs denies that there was any sexual element in the aggravated burglary offence of 1974 or in the murder of Mrs Morris in 1978. It is obviously implicit in his denial of any involvement at all in the murder of Mrs Weaver that he denies that he was guilty of any sexual element in respect of that offence.[12]During the time that Mr Downs has been incarcerated he has completed a significant amount of offending behaviour work. He has completed the Reasoning and Rehabilitation Programme (September 2001), the Controlling Anger and Learning to Manage it programme (December 2005) and the Alcohol Education programme (June 2003). During 2004 Mr Downs undertook four sessions of motivational work designed to explore the sexual element of his offending and he then agreed to participate in the Sex Offender Treatment Programme, known as “SOTP”. He started the course in March 2004 and completed 44 sessions, which amounts to about half the total course. However, Mr Downs withdrew from the course on 14 June 2004 because he stated that there was no sexual motivation behind any of the three offences for which he had been convicted. He therefore insisted that the course was not applicable to his situation.[13]On 29 April 2008 Mr Downs said that he was willing to be assessed once again for SOTP. The “Psychological Contribution” to Mr Downs’ Single Sentence Plan Review for 2009, written by Ms Vikki Bleanch (a Senior Chartered Psychologist) and dated 24 November 2008, indicated that Mr Downs had refused to be interviewed by her and that he had not attended the Assessment and Intervention Centre (AIC). Ms Bleanch stated in her report that it would be beneficial for Mr Downs “to be assessed for the Enhanced Thinking Skill programme (ETS) and complete if deemed suitable. To engage with the SOTP team to assess suitability for the Sex Offender Treatment Programme (SOTP) and complete if deemed suitable (this will be dependant on his level of acceptance of responsibility)”.[14]That recommendation was reflected in the “Short Term Objectives” recorded in the Report of the Sentence Planning Meeting concerning Mr Downs which was held on 27 November 2008. The “Long Term Objectives” identified in the same Report were to “Engage in recommendations made from SOTP and address outstanding treatment needs in relation to use of violence dependant on completion of SOTP”.[15]In early 2009 Ms Sally Wilson, a Forensic Psychologist in Training employed by Psychological Services UK Ltd, wrote a psychological assessment of Mr Downs upon the instructions of Tuckers, Mr Downs’ solicitors. It was intended that this report would be used as part of the representations to be made on behalf of Mr Downs at the 2009 annual review of his Category A Prisoner status.[16]Ms Wilson’s report (“the Wilson Report”) is dated 27 April 2009. It is countersigned by Ms Wilson’s supervisor, Mrs Kerry Manning, who is a Chartered Consultant Forensic Psychologist and is the principal of Psychological Services UK Ltd. The Wilson Report runs to 58 pages. I have set out what I regard as the relevant passages in an Appendix this judgment. I will simply describe the main features of it here.[17]At sections 4.6 and 6.1 of the report, Ms Wilson states that there are “conflicting views amongst report writers” regarding the extent to which Mr Downs’ offences were sexual in nature and thus with regard to his subsequent need to confront the risk of sexual offending by having treatment. At section 6.1 Ms Wilson concluded that, given the circumstances of the three offences, “…it is, perhaps, reasonable to conclude that there was some sexual element in these offences”. In section 6.5 Ms Wilson stated that she had concluded, following an assessment of the dynamic risk factors associated with Mr Downs’ sexual offending using the Structured Assessment of Risk and Need (“SARN”), that Mr Downs’ had only one strong characteristic risk factor. This was “Not Knowing How to Solve Life’s Problems”, which, she said, fell within “the Self-Management Domain”. In section 6.8 Ms Wilson assessed Mr Downs as having an overall “low level of dynamic risk and a low level of treatment need in the area of sexual offending”. In section 7.2 Ms Wilson noted that she had been instructed specifically to comment on Mr Downs’ level of treatment need in relation to the Sex Offender Treatment Programme (ie. SOTP). In section 7.4 Ms Wilson stated her view that Mr Downs’ offending was more likely to have been driven by “poor problem solving” and “out of control emotions and urges” and “beliefs of women having wronged him” in the past, coupled with heavy use of alcohol. In section 7.14 Ms Wilson said that, in her view, Mr Downs’ offending “was not sexually motivated”.[18]In section 7.19 Ms Wilson noted that she had been specifically instructed to consider the appropriateness of the SOTP. The report continued:
“It is important to note that I am not in a position to definitively assess Mr Downs’ need for SOTP; an SOTP treatment team would be qualified to do this. However, I am accredited in the use of the SARN assessment tool, the outcome of which, in my view, should be the fundamental consideration when assessing individuals for sex offender treatment.”
[19]In section 7.20 Ms Wilson again acknowledged that there may have been “some sexual element” in Mr Downs’ offending but also re-stated that, in her view, the offending was not “sexually motivated” and that there was a “low level of need in the area of sexual offending”. Lastly, in section 7.25 Ms Wilson stated that, in her view, Mr Downs’ assessed level of risk “is not such that it requires high security conditions”. She added that Mr Downs was “…ostensibly being held [in high security conditions] in order to undertake SOTP, which I view as an inappropriate treatment”. He was being precluded from having access to “…other, more appropriate treatment options such as a therapeutic community, located in the Category B Estate”.[20]The Wilson Report was apparently sent to CART under cover of a “pre-action” letter from Tuckers dated 28 May 2009. See the CART decision letter of 22 April 2010. I infer from this that the Wilson Report was therefore not considered by the LAP and CART at the 2009 review of Mr Downs’ Category A Prisoner status (ie. the one before that under consideration). CART’s decision in 2009 was to maintain Mr Downs’ Category A Prisoner status. I do not know whether there was any request for an oral hearing in 2009.[21]Tuckers also sent the Wilson Report to the HMP Wakefield’s prison psychology department where Ms Lisa Hewitt, a Chartered Forensic Psychologist worked. She had been working at HMP Wakefield as the Treatment Manager of the SOTP since 2007. At some time after May 2009 Ms Hewitt contacted Ms Wilson by email to say that she had read the Wilson Report and that she had written a letter to Tuckers with various comments on it. That letter was attached to the email. The letter stated that Ms Hewitt had “…concerns with the methodology used within the report and the conclusions that have subsequently been drawn, particularly with regards to the future risk management and appropriate placement of [Mr Downs]”. Ms Hewitt suggested that it would be in Mr Downs’ best interests if Ms Wilson and she met to discuss her concerns directly. I do not know if any meeting took place between the two psychologists.[22]However, after CART’s review in April 2009, Governor Howard of HMP Wakefield wrote a letter dated 24 July 2009 to Tuckers raising concerns about various conclusions in the Wilson Report. I have not seen a copy of that letter. Governor Howard appears to have raised eight specific issues. The letter was passed onto Ms Wilson.[23]Ms Wilson wrote a letter to Tuckers dated 5 November 2009. In that letter, which was countersigned by Ms Manning, Ms Tucker dealt with the eight specific points raised by Governor Howard in his letter dated 24 July 2009. Ms Wilson accepted that it was reasonable to conclude that there was “a sexual element” in both the murders, but she assessed “the motivation” (her italics) for the offences as being not primarily sexual. Ms Wilson answered criticisms over her use of assessment tools called SARN and RM2000. Ms Wilson repeated her view that Mr Downs’ offending was “…more likely driven by poor problem solving and out of control emotions and urges, within the context of an unstable lifestyle and beliefs of women having wronged him in the past” and that Mr Downs had an overall low level of dynamic risk and a low level of treatment need in the area of sexual offending. Therefore Ms Wilson suggested that Mr Downs would “…benefit more from cognitive skills and schema-based interventions that directly address these areas, rather than sex offender treatment per se”. Lastly, Ms Wilson reiterated the point made in the report at paragraph 7.25 that Mr Downs was “…arguably being precluded from accessing other, more appropriate treatment options such as a therapeutic community, by the ongoing insistence upon his engagement with SOTP”.[24]That letter was sent by Tuckers to Governor Howard at HMP Wakefield under cover of a letter of 4 December 2009. It was thereafter passed on to Ms Hewitt. She in turn wrote a response at some time in late 2009 or early 2010, dealing with each point of Ms Wilson’s letter. In summary, Ms Hewitt said:(i) the nature and pattern of Mr Downs’ offending needed further exploration and it was reasonable and appropriate for those behaviours to be explored within national sex offender treatment.(ii) The Treatment Need Analysis framework (suggested by Ms Wilson) was not, in her view, an appropriate tool to establish potential treatment needs of an individual who did not regard there to be a sexual element in his offending behaviour.(iii) Further detailed assessments of Mr Down’s personality should be undertaken.(iv) In her view there was “not the evidence to be able to conclude that there was not a sexual element or motivation to either of the murder offences or the previous offence against one of the victims in 1974”. The two murder offences themselves evidenced that his risk to the public was high.(v) Because of the recent conclusions of CART that Mr Downs remained “potentially highly dangerous”, he could not be transferred to a therapeutic community as recommended by Ms Wilson.[25]The upshot of this exchange was that:(i) Ms Wilson accepted that there was some “sexual element” in the 1978 murder.(ii) Ms Hewitt considered that the nature and pattern of Mr Downs’ offending needed to be explored further.(iii) In Ms Hewitt’s view it was reasonable and appropriate that this exploration be done within national sex offender treatment programmes; the SOTP work was appropriate for Mr Downs.(iv) Ms Hewitt considered that there was no evidence to conclude that there was not a sexual element or motivation (my emphasis) to either of the murders or the aggravated burglary.(v) Ms Hewitt considered that the risk of harm to the public by Mr Downs remained high.(vi) Ms Hewitt agreed with the recommendation of Ms Wilson that further work was needed on other areas, but in Ms Hewitt’s view that would be ineffective at this stage because “…it appears that other factors may be interfering or precluding Mr Downs from being fully able to engage with and benefit from this type of intervention”.(vii) Ms Hewitt disagreed with Ms Wilson’s recommendation that Mr Downs could and should be transferred to a therapeutic community at that stage.[26]On 19 February 2010 Mr Downs’ solicitors, Tuckers, lodged written submissions with CART for its consideration during the 2010 review of Mr Downs’ Category A Prisoner status. It was submitted that he should be re-graded as a Category B prisoner. The thrust of the submissions was set out in the Introduction to the representations. That stated that: “Mr Downs has been a Category A Prisoner for 22 years and we submit that his escape is impossible as he has no means by which to do so; if he were to escape, he would not be highly dangerous to the public, police or the security of the state as he presents as a very ill individual who is unable to walk far distances and requires a lot of medical attention. During his incarceration, he has participated in numerous offending behaviour programmes and therefore reduced the risk he poses to the public and of re-offending”.[27]The representations then set out various matters and referred to the fact that Mr Downs had participated in 44 sessions of SOTP and stated the reason why he had not completed the course. The submissions then continued: “An independent psychologist, Ms Sally Wilson, has assessed Mr Downs as unsuitable regarding the SOTP course. A copy of her report is enclosed within these representations. Mr Downs has recently been given the assessment forms for the SOTP course which he has completed and returned however he has no intention of completing the SOTP course as he has not been convicted of any sexual elements within the index offences”.[28]The representations also stated that Mr Downs was a 65 year old suffering from angina, mobility problems and curvature of the spine and that he was taking various medications. It was submitted that he was “…a very ill individual who is low risk due to his medical conditions. He would benefit from progressing through the system at this stage, as it would allow him to prepare for re-integration back into the community”.[29]Lastly, the representations stated:
“If Mr Downs is not granted a downgrade in security category at this stage, we respectfully request that consideration is granted for an oral hearing in order to assess the risk further. We refer you to the recent judgement in the case of R (Riley) v Gov HMP Frankland where it was held that failure to hold an oral hearing to review an inmate’s Category A status was unlawful”
. I have taken that last passage to be a request that there be an oral hearing of Mr Downs’ 2010 Category A Prisoner status review.[30]The Wilson Report was sent with the representations. However, so far as I can judge from the documents before us, the subsequent correspondence between Governor Howard, Ms Hewitt and Ms Wilson to which I have referred above was not. Therefore that correspondence was not put before the LAP or CART by Tuckers. However, I understood Mr Jagadesham to accept that the correspondence This refers to Ms Hewitt’s letter attached to her email sent in May 2009, (see [21] above), Ms Wilson’s letter of 5 November 2009 (see [23] above) and Ms Hewitt’s response (see [24] above). “must have informed” the LAP’s report made after its meeting on 19 March 2010. I take that to mean that the LAP had the correspondence before it and that this influenced the “Governor’s Recommendation”.[31]The LAP considered Mr Downs’ case on 19 March 2010 and a report was prepared. Section 6 contains the “Governor’s Recommendation” and it was completed by Deputy Governor A Sleight and dated 19 March 2010. This noted that Mr Downs had “deselected” himself from the SOTP programme “as he says he cannot change what he doesn’t have”. But the recommendation also noted that Mr Downs now wished to be re-assessed for the programme because “…he is frustrated at his lack of progress during the reporting period”.[32]The conclusion of the Recommendation stated:
“The Panel recommend that Mr Downs remain Category A. Mr Downs needs to engage in recommendations made from SOTP and address outstanding treatment needs in relation to use of violence dependant on completion of SOTP. The Representations made by Tuckers Solicitors were considered by the Panel”
.

III. The two CART decisions

[33]The first CART decision of 2010 was set out in a letter dated 22 April 2010 from CART to Mr Downs. It stated that Mr Downs’ solicitors had made representations to CART in a letter dated 19 February 2010. The letter of 22 April 2010 summarised those representations in the following terms:(i) Mr Downs accepted responsibility for the 1988 murder and the aggravated burglary but not the murder of 1978;(ii) he bitterly regretted the part he took in the 1988 murder and the death of an innocent woman;(iii) he had taken part in the programmes noted above;(iv) an independent psychology report had been enclosed with the representations which report had been forwarded “...under a pre-action letter of 28 May 2009 and which was also sent to the Psychology Department at Wakefield Prison”.[34]The letter of 22 April continued by noting the submissions and conclusions in the Wilson Report and it observed that “…the report writer was not in a position to definitely assess your need for the SOTP, an SOTP treatment team would be qualified to do this”. The letter further noted that the report writer had concluded that: “…notwithstanding the state of dress the murder victims were found in, the report did not conclude that your offending was sexually motivated. It was submitted that you would benefit from a therapeutic community with a better environment in which to address your offence-related schemas and personality traits than the SOTP”.[35]The letter of 22 April recorded that Mr Downs denied culpability for the 1978 murder and “…also denied any sexual element to the 1988 murder”. (This is repeated later on in the letter). It also noted Mr Downs’ willingness to be re-assessed to determine his suitability for SOTP.[36]I should quote the remaining relevant parts of the letter of 22 April:
“However, the Category A Team noted that you were currently denying the sexual element to your offending. The Category A Team also noted that representations submitted by your solicitors including the independent psychology report had failed to deal adequately with the issue of your current risk to the public and this was also the conclusion of the LAP at the prison. The Category A Team were also satisfied that there were no exceptional circumstances in your particular case, including your age and ill health that would warrant an oral hearing. The Category A Team can confirm that given the remit of the review process it could not countenance a downgrading of a prisoners security category in order to facilitate a progressive move or to access courses in conditions of lower security category, without first evidencing a significant reduction in risk. Given the gravity of the present offences and your offending history which evidenced a propensity for extreme violence, and the lack of any evidence at present, through offence related work or otherwise, that the risk of you re-offending in a similar way if unlawfully at large had significantly diminished, the Category A Team concluded that you must still be regarded as potentially highly dangerous, particularly to women. On the information available, the Category A Team concluded that there were at present no grounds on which a downgrading of your security category could be justified and that you should remain in Category A.”
[37]That letter prompted Tuckers to write on 9 June 2010 specifically requesting an oral hearing on behalf of Mr Downs. The letter set out the reasons for this request. In summary these were:(i) there was a dispute on whether there was a sexual element/motivation in the offences for which Mr Downs had been convicted.(ii) CART had not explained whether or (if so) why it had rejected Ms Wilson’s views that the offences lacked sexual motivation.(iii) In any event the issue of whether there was a sexual motivation or sexual element in the offences was difficult to resolve without hearing oral evidence from Ms Wilson and the prison officials who took opposing views.(iv) To have an oral hearing in such circumstances would be in line with Parole Board policy.(v) There was, effectively, an “impasse” between the opposing views of Ms Wilson and prison officials on Mr Downs’ state of mind.(vi) Mr Downs’ category A reports were prepared by people who had not even interviewed him.(vii) The issues concerning Mr Downs’ physical frailty could not be properly considered without an oral hearing. The letter requested a response within 14 days on whether there would be an oral hearing.[38]The response of CART was contained in its letter of 15 June 2010. This letter recapitulated the history of Mr Downs’ offences, referred to the fact that CART had seen the psychological reports on him that had been prepared since 2007 and referred to Ms Wilson’s report. The letter noted that the Wilson report stated (at para 7.19) that: “…the report writer was not in a position to definitely assess your client’s need for the SOTP, and an SOTP treatment team would be qualified to do this – a position also held by psychologist (sic) at the prison – that your client engage with the SOTP treatment team to assess his suitability for the SOTP”.[39]The letter continued by “confirming” that CART did not consider that an oral hearing would be an appropriate forum to consider Mr Downs’ suitability for the SOTP. It referred to the fact that Tucker’s letter had emphasised Mr Downs’ physical frailty. The letter said that there was no evidence of that and, in any event, that was not a basis for an oral hearing. The letter concluded:
“The Category A Team noted that there had been very little merit in the submissions forwarded by representatives on behalf of Mr Downs and that your submissions had provided no evidence of diminished risk in relation to the danger your client presented as evidenced by the serious nature of his offending. The Category A Team can again confirm that there were no exceptional circumstances highlighted in submissions that would necessitate an oral hearing in the interest of fairness.”
[40]After the judicial review proceedings had been started, Ms Wilson wrote a further letter to Tuckers, dated 3 November 2010. This was intended to deal with various points made by CART regarding the Wilson report. Ms Wilson commented in particular on the statement in paragraph 7.19 of her report that “It is important to note that I am not in a position to definitively assess Mr Downs’ need for SOTP”. Ms Wilson said that it was her intention in that statement to highlight the fact that she was not a member of one of HMP’s SOTP treatment teams, but also that if she were she would “…be in a position to assess Mr Downs’ needs in this area and write to him confirming that he had been found ‘unsuitable’ for SOTP”. Enclosed with this letter was a “Structured Assessment of Risk and Need (Sexual Offending) Treatment Needs Analysis Evidence Grid” which Ms Wilson had completed for the case of Mr Downs.[41]Burton J reached the following principal conclusions: first, he said that there was no ground for an oral hearing based on the medical condition of Mr Downs. [16] of Burton J’s judgment. Secondly, there was no basis on which Mr Downs could claim that his case required he be interviewed. [18] Thirdly, the principal reason why those advising Mr Downs requested an oral hearing was said to be the need to examine the issue of whether there was a sexual element in the offending and/or that an SOTP treatment was appropriate for Mr Downs. [27] However, fourthly, it was plain from the Wilson report itself and the subsequent correspondence that she accepted that there was a sexual element in the three offences of which Mr Downs had been convicted. Therefore, that ground for requesting an oral hearing was “unarguable”. [28] Fifthly, there was no arguable case, by reference to the Wilson report, that the SOTP was inappropriate such as required an oral hearing. [30] Lastly, even if the Wilson report did espouse the view that Mr Downs represented a reduced risk (which was doubtful), her report did not present cogent evidence that this was the case. The case put forward in the report did not require that there be an oral hearing at which Ms Wilson and some opposing experts could be examined on this issue. [37] Therefore CART was entitled to refuse to have an oral hearing of Mr Downs’ 2010 review.

V. The arguments of the parties on the appeal

[42]On behalf of Mr Downs, Mr Jagadesham submitted, first, that the judge erred in not concluding that CART had misread the Wilson report. It was clear, he submitted, that the report identified disputes between the experts as to whether(a) there was a sexual motive to the offences;(b) whether a SOTP was appropriate for Mr Downs; and(c) whether there had been a sufficient decline in the likelihood of Mr Downs committing sexual or non- sexual offences such that his level of risk (if he escaped) was such that it no longer required him to remain of Category A status. The second decision letter was obviously wrong in stating that the Wilson report and other material had provided “no evidence” that Mr Downs presented a diminished risk. Secondly, Mr Jagadesham submitted that the judge erred in concluding that because the terms of the Wilson report were measured, that meant that it did not call for an oral hearing to resolve differences of views between the experts. Thirdly, the judge should have held that CART failed to take proper account of the Wilson report. Moreover, he failed to conclude that if it had done so, CART would have appreciated the need for an oral hearing. Fourthly, the judge did not take into account the fact that in both decision letters, CART appeared to assume that the test for whether there should be an oral hearing was “exceptional circumstances”, which is the wrong test in law. Therefore, viewed overall, the CART decision not to grant an oral hearing was contrary to procedural fairness on the facts of this case and wrong.[43]On behalf of CART, Mr Slater submitted first, that it was clear that CART had taken account of the Wilson report, as was clear from its two decision letters. Secondly, the view that CART took of that report cannot be described as perverse. Thirdly, although it can be accepted that there was a difference of view between Ms Wilson and the prison psychologists as to whether SOTP was appropriate for Mr Downs, there is no basis for saying that CART was wrong to conclude that an oral hearing was unnecessary before it could reach a proper view on that issue or the issue of the risk posed by Mr Downs should he escape. Fourthly, even if the submissions on behalf of Mr Downs (including the Wilson report) did provide some evidence of a diminished risk, it was not procedurally unfair of CART to arrive at the view it did (ie. that there was no evidence of such a reduction) without an oral hearing.

VI. Discussion and conclusion

[44]There is one question to ask on this appeal: did “procedural fairness” require that CART should have agreed to an oral hearing of Mr Downs’ 2010 annual review of his Category A status? Essentially, the argument of Mr Jagadesham is that there was such a difference of professional opinion between the two psychologists, Ms Wilson and Ms Hewitt, on whether Mr Downs was sexually motivated to commit the crimes and his need for further SOTP courses that CART could not properly assess Mr Downs’ risk to the public if he did escape without an oral hearing. Without one, it is said, CART was not in a position properly to uncover the facts and resolve the outstanding issues of Mr Downs’ possible risk to the public. Therefore the rejection of the oral hearing was wrong, because without one CART could not reach a measured judgment.[45]I cannot accept Mr Jagadesham’s submissions. CART had had Ms Wilson’s report since May 2009. There had been extensive correspondence between Ms Wilson, Ms Hewitt and Governor Howard on the issues raised in the Wilson report. All those issues (if not all the correspondence) were before the LAP and CART in April and June 2010. Ms 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 because it was not a dispute that could be resolved with certainty. Ms Wilson took one view (which had not changed) on the suitability of Mr Downs’ further participation in the SOTP; Ms Hewitt took the opposite view. The two decisions of CART indicate that it had read and understood the Wilson report. I think that one must assume that CART was aware of the correspondence that had taken place between Ms Wilson, Governor Howard and Ms Hewitt. 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. Ms Wilson also took one view on Mr Downs’ physical state and the prison personnel took another. However, Ms Wilson is not a physician and an oral hearing was not needed for CART to take a view on that issue. 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.[46]Mr Jagadesham emphasised three statements in the first decision letter of CART 22 April 2010 which he said showed that CART had misunderstood the position and misstated the law. He relied first on the statement that the representations of Tuckers “failed to deal adequately with the issue of [Mr Downs’] current risk to the public”; secondly, that there were “no exceptional circumstances” that would warrant an oral hearing; and lastly that the conclusion that there was a “lack of any evidence at present” that the risk of Mr Downs re-offending in a similar manner as before if unlawfully at large “had significantly diminished”.[47]On the first statement, it will be recalled that Ms Wilson had set out her views on the risk Mr Downs posed to the public in her report in the passages that I have reproduced in the Appendix. Ms Wilson considered the only one strong characteristic risk factor to be “Not knowing how to solve life’s problems”. She re-iterated that view in her letter of 5 November 2009: see point 7. Ms Wilson’s conclusion at paragraph 7.25 of her report that Mr Downs’ assessed level of risk is not such that it requires high security conditions is, effectively, based on her conclusion that there is only one strong characteristic risk factor which was not connected to sexual motivation or a sexual element in offences. Given the extensive nature of the Wilson report and the subsequent correspondence between the psychologists, it seems to me that CART was entitled to take the view that it had all the relevant material which had put the points cogently and that the points would not be improved upon or elucidated further (bearing in mind the correspondence that had taken place) by oral presentations. It was not wrong to reach that conclusion.[48]I accept that the second statement, would, if taken in isolation, misstate the law. But that is one statement in a long letter of two and a half pages which considers many factors. So that statement does not, by itself, fatally undermine CART’s decision not to permit an oral hearing. The question is whether, overall, that decision was wrong.[49]The third statement is, again, a statement of opinion based on all the material that CART was considering. It is important to note that the letter expressed the view that there was a lack of any evidence to show that the risk of Mr Downs re-offending in a similar way if unlawfully at large had “significantly diminished”. The emphasis must be on those last two words. As Elias J stated in ex parte Roberts: [2004] EWHC 679 (Admin) at [39], approved in Mackay v SSJ [2011] EWCA Civ 522 at [27]. “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 [to the public in the event of an escape] has diminished”. An oral hearing would not assist on this point. Either there was already some cogent evidence that the risk had decreased or there was not. In my opinion there is nothing in Ms Wilson’s report that raised issues on whether the risk had “significantly diminished” that required an oral hearing to resolve them.[50]With regard to the second letter, 15 June 2010 Mr Jagadesham concentrated on the statement that CART did not consider that an oral hearing “would be an appropriate forum to consider [Mr Downs’] suitability for the SOTP” and the re-iteration that Tuckers’ submissions had provided “no evidence of diminished risk in relation to the danger [Mr Downs] presented as evidenced by the serious nature of his offending” as well as the re-statement that there were no exceptional circumstances that necessitated an oral hearing in the interests of fairness. As I have already stated above, CART had all the rival arguments of Ms Wilson and Ms Hewitt (and other prison service personnel) on whether Mr Downs was suitable for SOTP had been expressed and there had been no change in them. Ms Wilson had accepted, in paragraph 7.19 of her report, as confirmed in her letter of 3 November 2010, that she was not a member of one of HMP’s SOTP treatment teams, but she believed she was in a position to assess Mr Downs’ needs in this area and express a view on whether he was suitable for the SOTP treatment. This just demonstrates that CART had two clear, opposed views to consider. There was no need for an oral hearing for those to be rehearsed once again. CART’s task was to decide which view it accepted, for which it did not need an oral hearing.[51]The statement in this letter that the submissions had provided no evidence of a diminished risk repeats the statement in the first decision letter. The points I have made in relation to that are equally applicable to this statement. The reference to “exceptional circumstances” at this point in this letter indicates to me that CART was stating that, apart from the points already dealt with in the letter, there were no other “exceptional circumstances” that would necessitate an oral hearing in the interests of fairness. That statement was correct.[52]Given all the circumstances of his case, in my view procedural fairness did not require that there be an oral hearing of Mr Downs’ 2010 annual review of his Category A status. There was, in the circumstances, no need to have an oral hearing to attempt to resolve the dispute about the suitability of Mr Downs’ to undertake further SOTP work or to assess his potential risk to the public if unlawfully at large. The decision of CART to refuse an oral hearing was not wrong.

VII. Disposal

[53]Accordingly, Burton J was correct to dismiss the claim for judicial review. I would dismiss this appeal.[54]I agree.[55]I also agree.

Cited in 18 later judgments

and 9 more of the most senior