Hassett & Anor, R (On the Application Of) v The Secretary of State for Justice [2017] EWCA Civ 331

[2017] EWCA Civ 331Case No C1/2016/0424&0556
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2015] EWHC 3723 (Admin)
ON APPEAL FROM THE HIGH COURT (QUEEN’S BENCH DIVISION, ADMIN)
THE HONOURABLE MRS JUSTICE MCGOWAN
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/05/2017
Before
LADY JUSTICE BLACKLORD JUSTICE SALESLORD JUSTICE MOYLAN
Between
The Queen on the Application of:Appellants(2) Simon PriceAppellantThe Secretary of State for JusticeRespondent
Matthew Stanbury (instructed by Kyles Legal Practice and Swain & Co Solicitors) for AppellantsMatthew Slater (instructed by The Government Legal Department) for RespondentHearing Hearing date: 04 April 2017
Judgment Approved
[1]This case concerns the standard of procedural fairness required to be observed by the Secretary of State’s Category A Review Team (“the CART”) and the Deputy Director of Custody – High Security (“the Director”) and his advisory panel when deciding whether to maintain a prisoner’s security classification in prison as Category A. The Director is responsible for the categorisation and allocation of Category A prisoners, but may delegate decision-making, which for many decisions will be carried out by the CART.[2]“A Category A prisoner is a prisoner 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 08/2013, para. 2.1; R v Secretary of State for the Home Department, ex p. McAvoy [1998] 1 WLR 790, CA, at 795). 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 [1994] 3 All ER 277 (DC), 280 and 288; R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498; [2002] 1 WLR 2264, [23]-[24]. This is an approach of the Parole Board as a matter of practice, rather than the consequence of any rule of law. Nonetheless, 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. PSI 08/2013 provides that the CART should normally review a prisoner’s Category A status annually.[3]The CART and the Director and his panel are in law emanations of the Secretary of State, on usual Carltona principles (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560). They are “internal bodies, part of the Prison Service, administering the prisons and organising their security”: R (Williams) v Secretary of State for the Home Department, [22]. They are composed of persons with relevant expertise and experience in making judgments about prisoner categorisation, as an aspect of prisoner management within the prison estate which is their responsibility. The CART and, in relevant cases, the Director and his panel address the question of the risk posed by a prisoner in the context of his escaping from prison and being at large, on the run and not subject to any measures of management and support in the community.[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 [22] and [27].[5]The Supreme Court addressed the standard of procedural fairness in relation to decisions made by the Parole Board in R (Osborn) v Parole Board [2013] UKSC 61; [2013] 3 WLR 1020. The guidance given by the Supreme Court, discussed in detail below, pointed towards a requirement for the Parole Board to hold an oral hearing involving a prisoner in more cases than had been its practice up till then.[6]The principal submission of the appellants in the present case is that the same guidance should also govern what happens when the CART (or, as relevant, the Director and his panel) decide whether a prisoner should be placed or remain in Category A. This submission has been rejected in a series of decisions in other cases at first instance, alongside the decision below in this case: R (Morgan) v Secretary of State for Justice [2016] EWHC 106 (Admin); R (Bell) v Secretary of State for Justice [2016] EWHC 1804 (Admin); M v Secretary of State for Justice [2016] EWHC 2455 (Admin); and R (Cummings) v Secretary of State for Justice [2017] EWHC 266 (Admin). This is the first occasion on which this court has had to deal with the issue.[7]The two appellants (Mr Hassett and Mr Price) are long term prisoners who were placed in Category A and maintained with that categorisation over a long period through successive reviews by the CART and, where relevant, by the Director and his panel, without any oral hearing. In these proceedings Mr Hassett challenges the lawfulness of a decision by the CART dated 19 September 2014 to maintain him in Category A, on the grounds that fairness required that he should have had an oral hearing before that decision was made. Mr Price challenges a decision by the CART dated 1 October 2014 to maintain him in Category A, again on the grounds that he should have been given an oral hearing before that decision was made. In both cases, a challenge is also made to the lawfulness of the guidance given by the Secretary of State at para. 4.7 of her Prison Instruction PSI 08/2013 regarding the circumstances in which an oral hearing should take place before the CART (or, as relevant, the Director and his panel) make a decision on review to maintain a prisoner in Category A.[8]Mr Hassett’s Category A review decision of September 2014 has been superseded by further decisions of the CART in June 2015, June 2016 and January 2017. The decision in June 2015 again confirmed Mr Hassett’s Category A status. It was made shortly before the hearing below in the Administrative Court, but it was agreed that Mr Hassett’s judicial review challenge should proceed by reference to the decision of September 2014. The decision in January 2017 has once again confirmed Mr Hassett’s Category A status, notwithstanding some positive statements regarding improvements in Mr Hassett’s risk status in reports before the CART.[9]On the appeal, Mr Hassett made an application to adduce fresh evidence about what had happened in January 2017. We dismissed that application at the hearing, with reasons to follow. The reasons for that decision are set out below.[10]Mr Stanbury, who appeared for the appellants, explained that the fact that there had been further Category A decisions in the cases of both Mr Hassett and Mr Price did not render the present appeals in respect of the Category A decisions of, respectively, September 2014 and October 2014 academic, because if the appellants’ submissions of law are correct or if the guidance in PSI 08/2013 is wrong, that will affect how they are treated in the context of the next review of their cases by the CART. Mr Slater, for the Secretary of State for Justice, did not make oral submissions to the effect that the appeals were academic and that we should not determine them.

Application to admit fresh evidence

[11]The reasons for refusing Mr Hassett’s application to admit fresh evidence about what happened in 2017 can be stated shortly. That evidence is irrelevant to whether the judge determining his judicial review claim in December 2015 in respect of a CART decision in September 2014 erred in her decision to dismiss his claim. Mr Stanbury accepted that it is not the function of this court to conduct a fresh judicial review of the decision of January 2017, but wished to adduce the evidence as illustrative of how some useful work can be done to reduce risk despite a denial of the index offence and how risk reporting from various sources can change over time. With respect, there is nothing in the judgment below to suggest that the judge did not appreciate these obvious points. Certainly this court does understand the points, without the need for evidence to be admitted to illustrate them. The admission of the fresh evidence would not have advanced the arguments we have to determine on the appeal in any material way, and if it had been admitted it would have been an unnecessary distraction from the debate on the points of principle which we are asked to decide. Time would have been taken up at the hearing for no good purpose, and there would have been a real risk, for all Mr Stanbury’s assurances that he would not ask this court to conduct a fresh judicial review of this later decision, that the parties would have been drawn into exchanges of submissions on the new evidence as if we were conducting such a review. Having regard to the overriding objective in CPR Part 1 and to maintain proper focus in the appeal, it was appropriate that this new evidence should not be admitted. Factual background The Category A review process

Factual background

[12]The Category A review process is explained and guidance regarding it is given in Prison Instruction PSI 08/2013.[13]The CART typically takes its decisions by reference to a dossier of materials compiled by staff within the prison where the prisoner is held, including the prison’s psychology services team. The reports are compiled following interviews with the prisoner. The reports attach any pre-sentence and post-sentence reports on the prisoner. The reports in the dossier deal with the prisoner’s offending history; his behaviour in prison and level of compliance with his sentence plan; offence-related work in terms of programmes attended (such as a sex offender treatment programme – “SOTP”) and progress in those programmes; his health, insofar as it might be relevant to risk categorisation; and security information. Other relevant material will be included in the dossier.[14]The dossier is provided to the prisoner so that he and his advisers have an opportunity to make representations in writing about its contents. The prisoner may submit material of his own, such as reports from an independent psychologist or psychiatrist as occurred in the cases of Mr Hassett and Mr Price.[15]The dossier and any materials submitted by the prisoner are then sent to the Local Advisory Panel (“LAP”), which is composed of representatives of the probation service, the prison psychology service, security specialists and the prison governor. The LAP makes a reasoned recommendation.[16]The package of materials is then sent to the CART. The CART usually completes the review itself if the LAP has not recommended downgrading the prisoner from Category A and the CART considers that there is no reason to downgrade him.[17]The CART may forward more marginal decisions to the Director, who considers categorisation with assistance from an advisory panel comprising a police adviser, chartered psychologist, members of the CART and an Independent Monitoring Board member. Cases referred to the Director include any recommendations to downgrade a prisoner from Category A and so-called five-year cases, to ensure that the Director himself and his panel see each prisoner’s case at least every five years.[18]The CART and the Director and his panel have a discretion in relation to the procedure they adopt for categorisation reviews and must act fairly, having regard to the context in which such reviews are undertaken.[19]Paragraph 4.2 of PSI 08/2013 states:
“Before approving a confirmed Category A / Restricted Status prisoner’s downgrading the [Director] (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.”
[20]This paragraph has to be read subject to the definition of a Category A prisoner set out in para. 2.1 of PSI 08/2013, set out above, which governs the whole of PSI 08/2013. Downgrading from Category A pursuant to para. 4.2 will only be appropriate if the significant reduction in risk takes the prisoner outside that definition.[21]Paragraphs 4.6 and 4.7 of PSI 08/2013 deal with the topic of oral hearings in the Category A review process. They state:
“4.6 The [Director] (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 [the Osborn case] 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 a 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. 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. (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.” (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. 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. (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.”
[22]In these proceedings, the appellants say that the parts of the guidance in para. 4.7(b) in italics are unlawful, in that they do not properly reflect the guidance given by the Supreme Court in Osborn which, according to their submission, should govern the question of when the CART and/or the Director and his panel should hold an oral hearing involving the prisoner when reviewing his Category A status.

The facts in Mr Hassett’s case

[23]Mr Hassett, now aged 58, has been a serving prisoner since 1984. He was already serving a sentence for various serious sexual or sexually motivated offences involving girls when, in 1992, on the basis of DNA evidence, he was sentenced to a life term with a 15 year tariff (later increased to 17 years) for the murder in 1978 of a 13-year old girl, after raping her. His tariff expired in 2006. Mr Hassett maintains his innocence in respect of the murder, but accepts responsibility for the other previous sexual offences for which he was sentenced.[24]Mr Hassett has been placed within Category A since 1992. He has not had an oral hearing for any review of that categorisation, including the review resulting in the September 2014 decision under challenge in these proceedings.[25]In prison Mr Hassett has completed a number of programmes to address his offending behaviour, including the core and extended versions of the SOTP and the programme in relation to controlling anger and learning to manage it (“CALM”).[26]The reports included in the dossier for the 2014 review decision in his case recognised some positive elements in his case, but also highlighted negative ones. Gemma Tock, forensic psychologist in training with more than 4 years’ experience in the High Security Prison Estate, completed a Structured Assessment of Risk and Need report, dated 21 January 2013, under the supervision of Aiveen Fox, a Chartered and Registered Forensic Psychologist. The report was prepared following Mr Hassett’s completion of SOTP courses, two extended interviews by Ms Tock and her review of relevant materials.[27]Ms Tock noted that Mr Hassett had been assessed in June 2012 as presenting a high risk of sexual reconviction. Her assessment of him from her interviews was that he had difficulty in providing concrete evidence of what he had learned from the various programmes he had participated in, so that “it is particularly challenging to accurately assess Mr Hassett’s understanding of the work that he has engaged in”. He had had “difficulties in each treatment programme in expressing his thoughts, particularly his sexual ones” and “he struggles to explain how he is applying skills that he has learnt to himself.” For example, he did not acknowledge a preoccupation with sex in his offending behaviour and was less than forthcoming in owning up to feelings of vengefulness. Ms Tock’s view was that he would benefit from carrying out further SOTP work. She also considered that he might need to revisit the CALM programme. She also considered that his refusal to acknowledge responsibility for the murder required “significant further exploration”.[28]In response to the dossier for his Category A review, Mr Hassett submitted a report by Rhys Matthews, a chartered forensic psychologist, dated 27 May 2013, which had been prepared for the purposes of a Parole Board review of his case. Mr Matthews conducted an interview with Mr Hassett and reviewed and commented on Ms Tock’s report.[29]Although Mr Matthews’s assessment about the progress being made by Mr Hassett was more positive, it also reflected some of the concerns which Ms Tock had. Some examples follow. In his interview with Mr Matthews, Mr Hassett again had difficulty in acknowledging the sexual motivation of his offending:
“To direct questioning he told me that he has committed sexual offences but does not see himself as a sexual offender.”
He denied responsibility for the murder. Mr Hassett was not good at explaining what he had gained from the programmes he had attended: it required “persistence” to conduct a satisfactory interview. Although Mr Hassett in interview denied a sexual interest in young girls, Mr Matthews’ view was that he “should be managed on the basis that he has the capacity to be aroused by young girls”, though no further programme work was indicated (presumably on the basis that Mr Matthews did not think that Mr Hassett would benefit from it, despite his concern). Mr Matthews, like Ms Tock, found that Mr Hassett had feelings of inadequacy and poor self-confidence, but these were deep-seated and unlikely to change as a result of repeating programme work; instead Mr Hassett needed “the opportunity to put what he has learnt into practice and to gain confidence by progressing through his sentence.” Mr Matthews noted that concerns about Mr Hassett being suspicious, angry and vengeful were longstanding, and Mr Hassett acknowledged such feelings to some degree in interview; but although Mr Matthews noted that a report from the psychology team which supervised the CALM programme attended by Mr Hassett said that at times he could not answer the questions asked and went off at a tangent, so that it was difficult to gauge his progress, he did not consider that further programme work was necessary. Mr Matthews’s overall recommendation was that it was not necessary for Mr Hassett to repeat SOTP or CALM programmes; rather, “What is required is for Mr Hassett to have the opportunity to practise the skills he has learnt and to test his emotional management skills in prisons of a lower security category where he will face different challenges.”[30]A number of points may be made about Mr Matthews’s report:(i) it was prepared for Parole Board purposes, and looked to a situation in which there would be ongoing management of Mr Hassett, which obviously would not be the case if he simply escaped;(ii) as noted, in significant respects Mr Matthews corroborated areas of concern already identified in Ms Tock’s report, the main difference between them being in their views whether Mr Hassett would or would not benefit from carrying out further programme work;(iii) Mr Matthews was very far from saying that Mr Hassett would present no significant risk to the public if he escaped – on the contrary, he thought that he required management in relation to his capacity to be aroused by young girls and his recommendation to the Parole Board was not that Mr Hassett should be released, i.e. as presenting no significant threat if managed in the community, but that he should continue to serve his sentence in prison, albeit at a lower categorisation to enable him to practise self-restraint and test his emotional skills;(iv) Mr Matthews made no comment about how Mr Hassett’s denial of responsibility for the murder affected the risk he would present to the public.[31]In May 2014 the CART reviewed and confirmed Mr Hassett’s Category A status.[32]By letter dated 18 September 2014, Mr Hassett’s solicitors requested the CART to recomplete his security category review with an oral hearing, on the grounds that an oral hearing was required because Mr Hassett was well past the expiry of his tariff and in light of Mr Matthews’s report.[33]In the decision letter dated 19 September 2014, which is the decision under challenge in Mr Hassett’s case, the CART confirmed that it had considered the request for an oral hearing in light of the guidance in PSI 08/2013, but had decided that no oral hearing was required. The CART did not consider that the expiry of the tariff, of itself, required an oral hearing to be held. The CART did not consider that Mr Matthews’s report provided evidence “of a significant dispute on matters relevant to Mr Hassett’s security category review.” The CART correctly noted that Mr Matthews’s report did not address the relevant test in relation to security categorisation (i.e. in relation to the risk a prisoner would pose if he escaped from prison). The CART also considered that areas of concern which were confirmed by Mr Matthews’s report, as noted above, tended to confirm the appropriateness of Mr Hassett’s categorisation. Its view was that:
“… apart from recommending Mr Hassett should practise skills rather than undertake the SOTP, Mr Matthews’s report does not significantly differ from prison reports. It considers his report provides no evidence that prison reports were wrong in their assessments of Mr Hassett’s progress and suitability for downgrading. It considers his report provides no evidence of key issues relevant to Mr Hassett’s progress that need closer examination.”

The facts in Mr Price’s case

[34]Mr Price, now aged 71, was sentenced on 15 July 2005 to imprisonment for 28 years (amended on appeal to 25 years) for his role in the evasion of import taxes in respect of the importation of 690 kilos of cocaine with a value of £35 million. Mr Price had sought to minimise his responsibility by(i) maintaining that he thought that it was cannabis rather than cocaine being imported; and(ii) maintaining that he had a minor role in the arrangements made. However, the trial judge found, according to the criminal standard of proof, that he knew that the drugs were cocaine and that he had a “major” role in the importation (“I regard you as the brains or at least a prime mover in this operation”). Mr Price has extensive previous convictions dating from 1959 for a wide range of offences, including housebreaking, theft, using false pretences, shop-breaking, robbery (armed with an offensive weapon), possession of dangerous drugs, assault on police, impeding the prosecution of an offender (in a case of murder), impeding apprehension of a criminal, handling stolen goods, possession of a document with intent to deceive, forgery, bribery, conspiracy to fabricate evidence, uttering a forged document, obtaining property by deception and possession of a false listed instrument. He has been placed in Category A from the outset of his imprisonment.[35]In 2007 a confiscation order in the sum of £2,340,000 was imposed on Mr Price, which Mr Price failed to pay. The Crown Prosecution Service pursued the imposition of an additional default sentence of 10 years’ imprisonment, and that sentence was imposed in May 2015. Mr Price has commenced judicial review proceedings in relation to this order.[36]Reports have been prepared on Mr Price periodically in the usual way. He has been reluctant to discuss his intentions on his release or his judicial review challenge to the confiscation order.[37]In December 2011, Dr G. Gregory in the psychology department at HMP Long Lartin prepared a psychology report on him. We were not provided with that report, but with a report dated 13 February 2013 by forensic psychologist in training Katie-Jo Elliott, under the supervision of a registered forensic psychologist, Donna Orr, which referred back to Dr Gregory’s report for a comprehensive assessment. Ms Elliott’s report was based on a 45 minute introductory interview at HMP Frankland directed to gauging Mr Price’s level of insight into his offending, and did not purport to be a comprehensive risk assessment. Ms Elliott’s assessment was that Mr Price’s offence account minimised his involvement in the offence, using justifications to limit his role, such as that he was “really acting as a guide”. This meant that the psychology team had very little understanding of his offending risk factors and whether he had addressed them, leading to Ms Elliott’s conclusion:
“I cannot with any certainty confirm Mr Price has reduced his risk in terms of specific risk factors linked to his index offence at this time.”
Ms Elliott’s assessment was that criminal lifestyle, criminal peers and criminal attitudes were influential in Mr Price’s behaviour at the time of the offence. In summary, Mr Price had maintained the same strategy of denial of responsibility for the cocaine importation as he used at his trial, on which he was comprehensively disbelieved.[38]Mr Price commissioned an independent psychology report dated 30 May 2013 from Prof. Crighton, a consultant forensic psychologist, for his Category A review in 2013. Prof. Crighton conducted two interviews with Mr Price.[39]In his report, Prof. Crighton was more positive about Mr Price than Ms Elliott. But as in Mr Hassett’s case, points also emerge from the report which support aspects of Ms Elliott’s assessment. Mr Price confirmed that he had had a criminal lifestyle and had been involved in a network of criminal associates and activities over a long period. He had moved into fraud and deception offences as a form of specialist offending (para. 31). Although Prof. Crighton said at one point that the account of the importation offence given by Mr Price was consistent with the judge’s sentencing comments (para. 29, first sentence), even he confirmed that Mr Price denied that he was aware that the drugs were cocaine rather than cannabis (latter part of para. 29, para. 32), leading him to say “Other than this there was little evidence that Mr Price was seeking to minimise his role or responsibility” (emphasis added). Prof. Crighton did not set out exactly what account Mr Price had in fact given; nor did he address the other dimension of minimisation of responsibility in terms of the extent of his role in the offence which Ms Elliott had identified in her 2013 report. In fact, it is clear from Prof. Crighton’s report that Mr Price went into elaborate detail to minimise his responsibility, by trying to argue that he saw cannabis at the time as a relatively harmless recreational drug (paras. 32 and 33); and even on Mr Price’s own account, he identified greed as a motivating factor for him (para. 32, para. 42).[40]Mr Price has been studying psychology in prison, and Prof. Crighton observed at para. 34:
“It is possible that Mr Price is simply repeating academic learning and that [his account of the harmfulness of cannabis and recognition of its effects on victims] did not reflect any genuine empathy or insight. It is difficult to effectively assess this area since this depends to a large extent on judgments about the quality of self report information. The other major source of information is behavioural observation, either direct or indirect. Ms Elliott and Ms Orr will have faced this difficulty in conducting their assessment. Given that they were not able to conduct a full psychological assessment of Mr Price making an accurate determination in this area would be very difficult.”
The same limitations obviously applied to Prof. Crighton’s own assessment.[41]Mr Price told Prof. Crighton that he had “few qualms about deceiving the revenue and customs service” at the time of the importation offence (para. 42), and Prof. Crighton does not record that Mr Price expressed any change of heart on that score. Prof. Crighton considered that Mr Price’s increasing age is likely to have significantly reduced his risk of reconviction and serious harm (paras. 51, 54 and 75), but made that point only by reference to what appear to have been studies regarding general rates of reoffending and did not explain why this should be so with a career criminal specialising in fraud and deception. Prof. Crighton’s view was that overall “There is little evidence of lack of insight” and that “There is little evidence of negative attitudes” (para. 54), but his report itself showed that there was some evidence on both counts.[42]Prof. Crichton’s conclusion was that “there are no psychological grounds which require continued detention in conditions of high security and Mr Price could now be appropriately detained in Category B conditions” (paras. 65 and 83). Although Prof. Crighton was aware that he was producing a report in relation to a Category A review, he did not specifically say there would be no significant risk that would arise if Mr Price escaped, but only that there had been a diminution in risk.[43]A decision was made in 2013 to maintain Mr Price in Category A. Reports were then prepared for his next security categorisation review in 2014. Ms Elliott prepared a further report dated 18 February 2014, this time supervised by Jennifer Cottam. She had three interviews with Mr Price before finalising her 2014 report, in the course of which Mr Price provided her with Prof. Crighton’s report. He also provided her with a “Statement of Rebuttal” in which he took issue with aspects of Ms Elliott’s assessment in her 2013 report, denied that he had minimised his role in the importation offence and denied that he lacked insight into his offending.[44]Even though Ms Elliott’s 2014 report is stated not to be a comprehensive risk report, it is thorough and even-handed in its appraisal of the psychological risk factors in Mr Price’s case. In interview, Mr Price continued to minimise his responsibility for his offending in various ways, including most notably continuing to offer an account which denied the findings made by the trial judge about his major role in the importation operation (p. 5). Mr Price also focused on behavioural and legal aspects of the offence in a way which drew attention away from the key psychological issues of identification of cognitions and risk-factors in his offending behaviour (pp. 3 and 6). Ms Elliott gave him a further opportunity to describe his insight into his drugs importation offence, and he remained unable to do so in a satisfactory way. He gave an account of how he became involved through agreeing to help a friend; through thinking that involvement with importation of cannabis is “not as bad as it could be, it’s not the end of the world”; and that his criminal background meant that his moral compass was not as “black and white when it comes to the law” and that this allowed him to transpose his own moral judgment for the law of the land. But he did not acknowledge to Ms Elliott the factor of desire for financial gain which Prof. Crighton had highlighted (pp. 3-4), and Ms Elliott noted that Mr Price had also minimised that factor when interviewed by Dr. Gregory at HMP Long Lartin. Mr Price also stated to Ms Elliott that he had gained personal insight through his academic studies, but declined to discuss this in any further depth. So overall there was no greater clarity regarding the factors leading to his offending behaviour through which adequate ways could be worked out for Mr Price to address that risk (p. 4). Also of concern was that Mr Price questioned the need for a risk management plan for the future and his assertion that his determination to remain risk free in the future would be sufficient, which indicated that Mr Price had no real insight into the risk factors that had led him to offend throughout his life (pp. 4-5). This concern was especially great “given that Mr Price has previously maintained an offence free lifestyle for a number of years and, despite this, chose to engage in offending behaviour in terms of his index offence” (p. 6).[45]The LAP’s recommendation, having regard to all the available reports, was that Mr Price should be maintained as Category A. In its view, he should provide clearer and more honest explanations for his offending and also identify more clearly the strategies that would help him avoid similar reoffending.[46]In a categorisation review decision dated 10 June 2014 by the Director, with advice from his panel, Mr Price’s Category A status was maintained. The Director agreed with the view of the LAP. The decision letter stated, among other things, that having taken account of all relevant reports and representations, the Director: “… was … not persuaded that Mr Price had achieved any further or more convincing progress in relation to his offending since his last review. He noted Mr Price remained unwilling to accept the most serious aspects of his offending and unable to provide convincing accounts of the influences on his offending or strategies to avoid similar reoffending. In addition he noted Mr Price’s reluctance to discuss his plans for release or his confiscation order. …”.[47]By letter dated 29 September 2014, Mr Price’s solicitors requested that his security categorisation be reviewed by way of an oral hearing involving him. In that regard, Prof. Crighton’s report was said to be a significant factor pointing to the need for an oral hearing.[48]In a letter dated 1 October 2014, setting out the decision under review in Mr Price’s case, the CART refused that request. Again, the CART had regard to the guidance in PSI 08/2013. The CART pointed out that despite statements in Prof. Crighton’s report which suggested that Mr Price was not minimising his offending, in fact he clearly was when one compared Mr Price’s account (including to Prof. Crighton) with the findings by the trial judge. The CART noted that previous psychology reports (presumably including Dr Gregory’s full report from December 2011) “had highlighted that given [Mr Price’s] current conviction and his offending history, it was clear that his risk centred on his motivation to deceive and manipulate, using whatever means he saw fit”; and Ms Elliott in her 2014 report had confirmed that “whilst he had expressed offence related awareness and remorse up to a point, he remains unable to provide clear explanations for his thinking and attitudes influencing his offending, or to identify convincing ways of avoiding re-offending in the future.” The letter also noted, in relation to the LAP’s review, that Mr Price “was unwilling to discuss the confiscation order, and had stated that he would disappear on release.” The CART’s conclusion was that it remained satisfied that Mr Price had not made the level of progress in the process of personal change that would indicate there had been a significant reduction of risk in relation to his serious offending and that there was no good ground to hold a reconsideration of his case by way of an oral hearing.

Discussion

[49]In this section I will address in turn(i) the implications of the judgment of the Supreme Court in Osborn for issues of procedural fairness in relation to security categorisation reviews of Category A prisoners;(ii) whether the guidance in para. 4.7(b) of PSI 08/2013 is unlawful;(iii) whether the decision of the CART of 19 September 2014 in Mr Hassett’s case, to refuse to grant him a reconsideration of his Category A status at an oral hearing, was unlawful; and(iv) whether the decision of the CART of 1 October 2014 in Mr Price’s case to like effect was unlawful.

(i) Osborn and Category A reviews

[50]“[W]hat the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates”: Lloyd v McMahon [1987] 1 AC 625, 702H per Lord Bridge; see also R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531, 560D-G per Lord Mustill.[51]Although the CART/Director and the Parole Board all make decisions which have significant effects upon prisoners and their prospects for release, there are material distinctions between the CART/Director and the Parole Board in relation to each aspect of the inquiry regarding the requirements of fairness identified by Lord Bridge: i) As noted above, the Parole Board has been established as a judicial body independent of the Secretary of State and the prisons management organisation. The requirements of fairness to be observed by an independent judicial body adjudicating on aspects of the right to liberty are high, having regard to the need to promote confidence in the independence and impartiality of the judicial adjudicative process. On the other hand, the CART/Director are officials of the Secretary of State carrying out management functions in relation to prisons, whose main task is the administrative one of ensuring that prisons operate effectively as places of detention for the purposes of punishment and protection of the public. In addition to bringing to bear their operational expertise in running the security categorisation system, they will have other management functions which mean that in striking a fair balance between the public interest and the individual interests of prisoners, it is reasonable to limit to some degree how elaborate the procedures need to be as a matter of fairness for their decision-making. Moreover, in relation to their decision-making, which is part of an overall system operated by the Secretary of State and is not separate from that system, it is appropriate to take account of the extent to which a prisoner has had a fair opportunity to put his case at other stages of the information-gathering processes within the system as a whole. So, for example, in the present cases it is a relevant factor that both Mr Hassett and Mr Price have had extensive discussions with and opportunities to impress a range of officials of the Secretary of State, including significant contact with prison psychology service teams. The decision-making by the CART/Director is the internal management end-point of an elaborate internal process of gathering information about and interviewing a prisoner, whereas the Parole Board has to make its own decision independent of the prison management system. ii) The kind of decision to be made by the Parole Board is different from the kind of decision to be made by the CART/Director:(a) the question which the Parole Board seeks to answer is whether a prisoner can safely be released at an appropriate point in his sentence, in circumstances where there are possibilities for his management in the community to contain and safeguard against the risk he might otherwise pose; this is a highly fact-sensitive question with a number of dimensions, which contrasts with the far starker question which the CART/Director seek to answer, namely what is the risk to the public interest if the prisoner escapes and is at large in society without any prospect of management in the community?(b) the Parole Board is directly engaged with adjudicating on rights in respect of liberty and the question whether the prisoner should now be released, whereas the CART/Director have to focus directly on the question of what security measures should be put in place in relation to the prisoner in the course of managing him while his sentence continues, and the impact on his eventual prospects for release is an indirect side-product of their determination on that issue (see McAvoy at [1998] 1 WLR 790, 799C); and, related to these points,(c) the decisions made by the Parole Board are judicial determinations of rights, whereas those made by the CART/Director are administrative decisions with a particular focus on ensuring the administration of prisons is carried out properly and effectively in the public interest. iii) Reflecting and giving further emphasis to the points made above, the statutory framework for decision-making by the Parole Board is very different from that for decision-making by the CART/Director. The Parole Board is a body set up under statute as an independent judicial body with power to make binding determinations on whether a prisoner is entitled to be released. Moreover, the need for the Parole Board to be established and to function as an independent judicial body is underpinned by the requirements of Article 5(4) of the European Convention on Human Rights, as noted in Osborn at [2(i)], [54]-[63] (especially at [57]: “The courts have … been able to take account of [obligations under the Convention] in the development of the common law … Human rights continue to be protected by our domestic law, interpreted and developed in accordance with [the Human Rights Act 1998] when appropriate”) and [112]. By contrast, the role of the CART/Director in relation to prisoner security classification is laid out by the Secretary of State in Prison Service Instructions and is an aspect of the prison management regime. Article 5(4) does not apply in relation to their decision-making.[52]The procedural standards of fairness in the common law have developed over time as circumstances and social expectations change. The decision of the House of Lords in Ridge v Baldwin [1964] AC 40 is a classic example; and see ex p. Doody at [1994] 1 AC 531, 560E (Lord Mustill). As Lord Reed JSC, for the unanimous Supreme Court in Osborn, emphasised in his judgmentat [61], the common law continues to develop, including in areas within the scope of the Convention guarantees. Osborn gives recent guidance on the requirements which fairness imposes in relation to decision-making by the Parole Board.[53]The standards now applied in relation to the Parole Board are more stringent than they were formerly. By the time of R v Secretary of State for the Home Department, ex p. Duggan [1994] 3 All ER 277 the Parole Board in practice supplied certain reports to a prisoner (p. 282). However, in view of the impact on prospects for release of a prisoner of a decision by the CART/Director, acting for the Secretary of State, to maintain him in Category A, the Divisional Court held that as a matter of fairness the Secretary of State should supply him with the gist of information about him (rather than the categorisation reports themselves), apparently on the basis that this would meet the same standard of fairness as would be required of the Parole Board (p. 288). Mr Stanbury submitted that this indicates that the CART/Director must now be subject to the same procedural requirements as the Parole Board, as set out in Osborn.[54]In my view, however, this inference cannot be drawn from ex p. Duggan. The procedural standards observed by both the Parole Board and the CART/Director are now more demanding than at the time of Duggan. The common law applicable in each context has developed, so that in each context full reports on a prisoner are provided to him to give an opportunity to comment on them (subject to issues of withholding of information on grounds of public interest immunity) before decisions are made which affect him. But with the development of procedural standards, points of difference between the Parole Board and the CART/Director which were of less or no materiality in the context of the less demanding standards in issue at the time of the debate in Duggan have assumed greater significance when exploring what precise procedural requirements are to be imposed respectively in the two different contexts.[55]As the procedural requirements for the Parole Board have become more stringent since Duggan, case-law has highlighted the differences between the Board and the CART/Director and has held that it cannot be assumed that the same requirements always apply in the two contexts: see in particular R v Secretary of State for the Home Department, ex p. McAvoy [1998] 1 WLR 790, CA, 798-799 (Lord Woolf MR); R (Williams) v Secretary of State for the Home Department, above; MacKay v Secretary of State for Justice [2011] EWCA Civ 522, [25]-[28] (Gross LJ, endorsing the summary of principles by Cranston J in R (H) v Secretary of State for Justice [2008] EWHC 290 (Admin), in which this court held that a requirement for an oral hearing before the CART will be rare and in the circumstances of that case none was required); and R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422, [2]-[8] (Aikens LJ, endorsing the guidance in MacKay), in which again this court held that a requirement for an oral hearing before the CART will be rare and again held in the circumstances of that case that none was required (see in particular [45]). These judgments preceded Osborn. I have already referred to first instance decisions in the period after Osborn in which a series of judges have held that the guidance in Osborn cannot simply be transposed to the context of decision-making by the CART/Director.[56]In my judgment, those first instance decisions have been correct about that. 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.[57]Lord Reed in his judgment in Osborn helpfully summarised his conclusions regarding the circumstances in which the Parole Board would be required by common law standards of fairness to hold an oral hearing, at para. [2]:
“(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) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. (viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. (ix) The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. (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) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. (xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty.”
[58]For the purposes of his criticism of para. 4.7(b) of PSI 08/2013 and to support his attack on the lawfulness of the decisions in Mr Hassett’s and Mr Price’s cases, Mr Stanbury also called particular attention to para. [86], where Lord Reed said this:
“An oral hearing is also necessary when for other reasons 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.”
[59]In my judgment, it is clear from Lord Reed’s reasoning in Osborn that it cannot be taken to apply directly in the context of security categorisation decisions made by the CART/Director. In support of the common law requirement for the Parole Board to hold oral hearings in a wider range of cases, Lord Reed emphasises a range of points about that context which distinguish it from the Category A decision-making context:(a) Article 5(4) of the ECHR, applicable to the Parole Board, informs the development of the common law standards laid down by the Supreme Court;(b) the Parole Board has to make its own “independent assessment of risk”, so the standards of fairness applicable are what is required to enable it to decide fairly as an independent adjudicative body, and be seen to do so (see [81] and [86]-[91]), rather than as part of an overall process of consideration by the Secretary of State, as is the case with the CART/Director;(c) the Parole Board is concerned to consider how the risk which it assesses to exist might be “managed and addressed” (see [81], [84] and [86]), including by management measures imposed after the prisoner is released, and this will typically require a more nuanced examination of the position, including assessment of the extent to which the prisoner might be motivated to co-operate with such management measures, making it more likely that the prisoner could make a useful contribution at an oral hearing, than in relation to the different question the CART/Director have to address;(d) the prisoner has a legitimate interest in being able to participate in a decision with important implications for him where he has something useful to contribute (see [68], [82], also [88]-[89] and [96]), but in the context of administrative prisoner management decisions by the CART/Director the legitimate interest of the prisoner in being able to argue that he should be released is less directly engaged; further,(e) the extent to which he is likely to be able to make a useful contribution at the stage of consideration by the CART/Director is much less, because of the question being addressed and the nature of the process leading up to that consideration.[60]Lord Reed was considering the standards to be expected of the Parole Board as an independent judicial body. Therefore he did not address other reasons why, in striking a fair balance in terms of procedural standards between the public interest and individual interests in the context of decision-making by the CART/Director, it is legitimate to bear in mind that the Director and other officials engaged in the process are not judges required to dedicate their full time and attention to categorisation decision-making, but have wider management responsibilities in running prisons. Lord Reed observes that the Parole Board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. However, whilst it is no doubt the case that the CART/Director could not lawfully refuse an oral hearing on these grounds if fairness required one, it is a relevant consideration in assessing whether it does that the courts should be careful not to impose unduly stringent standards liable to judicialise what remains in essence a prison management function. That would lead to inappropriate diversion of excessive resources to the categorisation review function, away from other management functions.[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.[62]For these reasons, I reject the primary submission made by Mr Stanbury. After the Osborn decision, as before it, there remain material differences between the decision-making context for the Parole Board and that for the CART/Director, and those differences mean that the procedural requirements are different in the two cases. (ii). The lawfulness of para.

(b) of PSI 08/2003

[63]In the light of the discussion above, I do not consider that Mr Stanbury’s criticism of para. 4.7(b) of PSI 08/2013 can be sustained. The Secretary of State is right to identify (b) (“Where there is a significant dispute on the expert materials”) as a factor tending in favour of an oral hearing. The remaining text in para. 4.7(b) is a fair amplification of that basic idea. It is only where there is “a real and live dispute on particular points of real importance to the decision” that it is likely to be a requirement of fairness that an oral hearing be held.[64]The thrust of Mr Stanbury’s criticism of para. 4.7(b) was that these phrases had the effect of down-playing the significance of the example given - “where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds” – whereas in his submission the paragraph should have reflected directly what was said in para. [86] in Osborn, set out above. In my view, the criticism is misplaced.[65]It is right to say that the example should be read as subject to the basic guidance earlier in para. 4.7(b), but there is no unlawfulness involved in that. Paragraph [86] of the judgment in Osborn has to be read as part of a judgment giving guidance on the procedural requirements in the context of decision-making by the Parole Board, and cannot simply be read across to the materially different context of decision-making by the CART/Director. Appropriate modification is required for guidance relevant to the latter context, which is what para. 4.7(b) seeks to give.[66]In my view, para. 4.7(b) gives lawful general guidance regarding procedural requirements for the purposes of Category A decisions by the CART/Director. It is unnecessary to consider whether the guidance in PSI 08/2013 is precisely aligned with common law fairness standards. Some differences in expression are to be expected as between internal administrative guidelines and a judgment of a court of law. However, I am satisfied that para. 4.7(b) is not liable to mislead officials into applying a lower standard of procedural protection than the law would require: cf Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 at [137] (Wyn Williams J); R (S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin), at [37] (Sales J). Accordingly, this is not a case in which it would be appropriate for this court to strike down or seek to modify para. 4.7(b). (iii). The decision to refuse an oral hearing in Mr Hassett’s case[67]In my judgment, the decision not to hold an oral hearing in Mr Hassett’s case was lawful. The decision was not taken in reliance on any unlawful guidance: see above. There was no breach of the common law requirements of fairness in the circumstances of this case.[68]The question to be answered was whether Mr Hassett would present a risk to the public if he escaped from prison. Mr Matthews’s report did not suggest that he would not; rather, it strongly tended to indicate that he would. That was also the view of the prison psychology service. On the relevant question, therefore, there was no real or significant dispute between the expert psychologists which might indicate either that an oral hearing was required involving them, to test their respective expert opinions in an adversarial oral procedure, or that an oral hearing was required involving Mr Hassett. Mr Hassett had already had a fair opportunity to explain himself to both psychologists and could not realistically be expected to provide further assistance on the question being addressed.[69]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/Director to hold a hearing to allow them 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: see Downs at [45].[70]Where a prisoner refuses to accept responsibility for an offence of which he has been found guilty, as Mr Hassett has done here, that is likely to have an effect on the relevant risk assessment made in relation to him for the purposes of a Category A review decision, as explained by Elias J in R (Roberts) v Secretary of State for the Home Department [2004] EWHC 679 (Admin) at [36]-[42]. As Elias J observed at [42], “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 of the diminution of risk if the safety of the public is to be secured.” There was no unlawfulness in the way in which this factor was taken into account in Mr Hassett’s case. (iv). The decision to refuse an oral hearing in Mr Price’s case[71]For similar reasons, the decision not to hold an oral hearing in Mr Price’s case was also a lawful one. There was no breach of common law fairness in his case.[72]I have reviewed above the limitations of Prof. Crighton’s report. It should also be noted that by the time of the decision under challenge in October 2014 it was very out of date. It had been prepared for the purposes of a categorisation review in May 2013, and commented on Ms Elliott’s report of February 2013 for that review. But things had moved on to a considerable degree since that review. Ms Elliott had produced a new report of February 2014 based on new reports and further detailed interviews with Mr Price. Those interviews gave further grounds for concern regarding the risk he would present if he escaped. There was no further report from Prof. Crighton to dispute the assessment of risk by the prison psychology service in the light of this new material. There was, in my view, no current real and significant dispute between psychological experts in October 2014 which required the CART/Director to hold an oral hearing.

Conclusion

[73]For the reasons given above, I would dismiss this appeal.[74]I agree.[75]I also agree.

Cited in 39 later judgments

and 30 more of the most senior