Yusuf, R (on the application of) v The Parole Board [2010] EWHC 1483 (Admin)

[2010] EWHC 1483 (Admin)

Case No CO/6919/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22 June 2010

Before

MR JUSTICE KEITH

Between

R (on the application of Sahra Yusuf)Claimant

The Parole BoardDefendant

Mr Hugh Southey QC (instructed by Bindmans) for Claimant

Mr Alexander Ruck Keene (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing date: 9 June 2010

Judgment

Introduction

[1]Prisoners serving sentences of life imprisonment are called lifers. Their release depends on when their minimum term expires and when the Parole Board concludes that it is no longer necessary for the protection of the public that they should be confined. But it is rare for a lifer to be released without having spent some time in an open prison – or to use the language of the Prison Service, without having been transferred from closed to open conditions. Some time before the lifer’s minimum term is due to expire – normally about three years before – the Secretary of State will request the Parole Board to advise on the lifer’s suitability for transfer to open conditions. The issue which arises in the present case relates to when the Parole Board’s consideration of a request of that kind can consist of a review of the written materials only or whether an oral hearing should be convened.

The facts

[2]In the light of the relatively narrow issue which the claim raises, only a brief summary of the facts is needed. The claimant, Sahra Yusuf, comes from Somalia. She arrived in the UK in 1998 and claimed asylum here. She went to live in a hostel for asylum-seekers with her husband and two of her children, a boy aged 13 months, Abdi, and a daughter aged 2 months. On 6 September 2000, she killed Abdi by banging his head on the floor and shaking him. She was to claim that Abdi’s death was an accident which had happened when he had fallen downstairs. That was what she maintained at her trial, refusing any suggestion that she might plead guilty to manslaughter. The jury disbelieved her account and convicted her of murder.

[3]In the course of his sentencing remarks, the trial judge described the claimant as having killed Abdi in “an explosion of violence”. Her denial of any responsibility for Abdi’s death – which continues to this day – made it difficult for the judge to come to any conclusion about what lay behind her attack on Abdi, but the judge’s belief was that she had overheard her husband talking on the telephone, and what she had heard had made her fear that she might be left alone, either temporarily or permanently, to bring up her two young children. After passing the mandatory sentence of life imprisonment on her, the judge recommended that her minimum term should be 9 years. That was the minimum term (less the 44 days she had spent in custody prior to sentence) subsequently set by the High Court pursuant to section 269(3) of the Criminal Justice Act 2003 (“the Act”). Her minimum term expires on 15 October 2011.

[4]Because her minimum term has not yet expired, there has been no question of the Parole Board (“the Board”) considering her eligibility for early release. However, on 12 August 2008, the Secretary of State requested the Board to advise him whether the claimant was ready to be transferred to open conditions. On 6 February 2009, the claimant’s solicitors sent the Board an e-mail asking whether her transfer to open conditions would be considered at an oral hearing or on the papers only, expressing their “understanding that … pre tariff reviews are now heard orally”. The Board responded as follows:

“All pre-tariff cases are only heard on the papers by a single judicial member. This has always been the case. However, [following an inquiry by HM Inspectorate of Probation] the Parole Board changed its policy in that a transfer to open conditions cannot be recommended on the papers – if the judge feels there is any possibility of a transfer the case must be tested at an oral hearing.”

[5]Following that exchange of e-mails, the claimant’s solicitors did not take up the issue about an oral hearing again, and the question of the claimant’s transfer to open conditions was considered by a single judicial member of the Board on 3 April 2009, not at an oral hearing, but on a review of the papers only. The member had the benefit of two sets of representations from the claimant’s solicitors, as well as an independent psychological report on the claimant prepared by Dr Jackie Craissati, a chartered forensic and clinical psychologist. The member also had the claimant’s prison file. The advice given to the Secretary of State by the member was that it would be premature to recommend the claimant’s transfer to open conditions. The Secretary of State agreed with that advice, and on 21 May 2008 the claimant was informed of the decision that she would not be transferred to open conditions.

[6]The advice which the member of the Board gave to the Secretary of State ran to five pages. There is no reference in the advice to why an oral hearing was thought to be unnecessary, but the fact that one did not take place means that the member of the Board must have concluded that one was not necessary. That is the decision which is challenged on this claim for judicial review. It is important to note that there is no direct challenge to the decision of the member of the Board to advise that the claimant should not be transferred to open conditions, although the reasons given by the member of the Board in the advice have been scrutinised because they are said to have an impact on whether fairness to the claimant required that her case be considered at an oral hearing.

The legal framework

[7]The statutory provisions. In advising the Secretary of State that the claimant should not be transferred to open conditions, the Board was acting pursuant to section 239(2) of the Act, which provides:

“It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.”

The transfer of a prisoner from closed to open conditions is – at first blush, at any rate – no more than a re-categorisation of a prisoner’s security classification, and on the face of it it has nothing to do with the prisoner’s early release from prison or the prisoner’s recall to prison. In fact, that is not right. A change in the prisoner’s security classification is the consequence of any decision to transfer the prisoner to open conditions, not the cause of it. In any event, as I said at the beginning of this judgment, a lifer is very unlikely to be released without having spent some time in open conditions. That was what Irwin J found in R (on the application of Hill) v Secretary of State for the Home Department

[2007] EWHC 2164 (Admin)

at [5]-[7]. It is therefore common ground that for such prisoners their transfer from closed to open conditions is “to do with [their] early release”, since the earlier they are transferred to open conditions, the sooner they are likely to be released.

[8]Ministerial directions. Section 239(6) of the Act provides, so far as is material:

“The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter …”

Directions were given to the Board about the release and recall of lifers in August 2004. Those directions included directions for the transfer of lifers to open conditions. Para. 1 of those directions explained the link between such a transfer and their eventual release:

“A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.”

However, para. 2 of the directions made the point that the principal setting for work to be done in reducing the risks which a lifer poses is “the closed lifer estate”, and para. 3 said that the Board’s emphasis was to be “on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing his/her attitudes and in tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered”. Para. 5 of the directions identified the main factors to be taken into account when evaluating the risk of a lifer’s transfer to open conditions against the benefits to be derived from such a transfer, and para. 6 set out the various categories of information which should inform the assessment of that risk.

[9]The Board’s policy. Neither the Act nor the directions said anything about the circumstances when it is necessary or desirable to convene an oral hearing where the Board is considering whether to recommend the transfer of a lifer to open conditions. But in February 2007, the Board issued a statement which set out its policy on oral hearings for lifers. What is relevant for present purposes is that the statement included the Board’s policy on oral hearings for lifers such as the claimant who had not yet served their minimum term but who were being considered for transfer to open conditions. The statement noted that the Board’s practice had previously been “to consider these cases on paper unless there were circumstances that required evidence at an oral hearing”. The statement went on to say that an inquiry by HM Inspectorate of Probation had identified the move from closed to open conditions as one of the “key decision-making points”. Since the overriding principle was that of protecting the public, the Board’s view was that it was no longer feasible to take such key decisions which could have a significant impact on the public “without a full oral hearing where the prisoner can be questioned and any residual concerns addressed”. Accordingly, the policy in future would be that “[p]re-tariff paper decisions that would otherwise recommend transfer to open conditions should be referred to an oral hearing”.

[10]In my view, the effect of this policy was not to change the previous practice that an oral hearing would be convened where the circumstances required evidence to be given orally. Its effect was to add another circumstance in which an oral hearing had to be convened, and that was where the member of the Board had concluded, on a review of the written materials without an oral hearing, that the lifer should be transferred to open conditions. The rationale for requiring an oral hearing in such a situation was to ensure that the public was not put at risk by the lifer’s transfer to open conditions – presumably by the lifer absconding either because of the lower level of security in open prisons or while the lifer is on “resettlement leave”, and posing a risk to the public while “on the run” or on such leave. The oral hearing would enable the member of the Board to consider “any residual concerns” of that kind, and the consideration of those concerns would be the more informed because of the opportunity the member of the Board would have to question the lifer.

[11]Since the change of policy was to ensure that lifers would not be transferred to open conditions without proper regard being had to the risk to the public, it cannot be said to have limited the circumstances in which an oral hearing should be convened. The Board’s policy still required an oral hearing to be convened when the circumstances required evidence to be given orally. That is entirely consistent with the language of the statement which announced the change of policy. It did not say that the only occasion when an oral hearing would be held was in the case of “[p]re-tariff paper decisions that would otherwise recommend transfer to open conditions”. Indeed, the statement acknowledged that the number of oral hearings would increase as a result of the change of policy. The statement said:

“This will put further pressure on the [P]arole Board at a time when the increase in oral hearings is having a major impact on available resources.”

It is unlikely that the number of oral hearings would increase if the only occasion on which the policy required an oral hearing to be convened was if the member of the Board had concluded that the lifer should be transferred to open conditions.

[12]Both Mr Hugh Southey QC for the claimant and Mr Alexander Ruck Keene for the Board agreed that this was the correct analysis of the Board’s policy and the change which was effected to it. It follows that what the claimant’s solicitors were told by the Board in the e-mail of 6 February 2009 was wrong in two respects. First, its summary of the previous policy was too narrow. It was wrong to say that it had “always been the case” that “[a]ll pre-tariff cases are only heard on the papers by a single judicial member”. The practice had been that an oral hearing would be convened when the circumstances required oral evidence. Secondly, its summary of the change of policy was too wide. It was wrong to say that the effect of the change of policy was that an oral hearing would take place “if the judge feels there is any possibility of a transfer”. The effect of the change of policy was that an oral hearing would additionally take place if the member of the Board “would otherwise recommend transfer to open conditions”.

[13]Procedural fairness. In addition to the two specific situations outlined in the Board’s policy when an oral hearing should be convened, an oral hearing should be convened whenever fairness to the lifer requires one to be convened. That is also common ground between the parties. The question is whether procedural fairness required one to be convened in the claimant’s case. Despite the researches of counsel, there is apparently no previously decided case on whether procedural fairness requires an oral hearing when the Board is considering whether to recommend a lifer who has not yet served their minimum term for transfer to open conditions. Decisions in analogous situations provide some guidance, though both sides point to different lines of authority as providing the most appropriate guidance for present purposes.

[14]Having said that, it was common ground that it is for the court to decide what procedural fairness requires. It is not appropriate for the court to ask whether it was reasonably open to the Board to conclude that procedural fairness did not require an oral hearing. It is said that Langstaff J may have been expressing a different view in R (on the application of Osborn) v The Parole Board

[2010] EWHC 580 (Admin)

at [26] and [37]. I do not think that he was saying anything of the kind. He was addressing a particular factor which the Board may take into account, namely whether, in the Board’s view, an oral hearing could make no difference to the eventual outcome. Langstaff J was not addressing the nature of the court’s role when it was called upon to consider what procedural fairness had required in a particular case.

[15]I should add that in considering what procedural fairness requires, the court should give some, though not undue, weight to the decision of a specialist body such as the Board. But that needs to be approached with some care. In one of the cases to which I shall be coming shortly – R (on the application of(1) Smith and

(2) West) v The Parole Board

[2005] 1 WLR 350

– Lord Hope spoke at [66] of the “long-standing institutional reluctance on the part of the Parole Board to deal with cases orally.” It follows that any deference which is given to the Board’s view whether procedural fairness in a particular case requires an oral hearing has to be informed by that important consideration.

[16]Two authorities, in particular, are relied on by Mr Ruck Keene: R (on the application of Williams) v Secretary of State for the Home Department

[2002] 1 WLR 2264

and R (on the application of S) v Secretary of State for Justice

[2009] EWHC 2168 (Admin)

. They both related to whether an oral hearing should have been convened when consideration was being given to whether a category A prisoner (the highest level of security classification) should be re-categorised to a category with a lower level of security. In both cases, the lifers’ tariff had expired, the only difference between the two cases being that one was a discretionary lifer, whereas the other was a mandatory lifer. In Williams, the Board’s Discretionary Lifer Panel decided, following an oral hearing attended by the lifer, that a move to conditions of lower security was appropriate. However, a few months later, the Category A Review Team (“CART”), an internal body within the Prison Service, took a different view, and having refused the lifer’s request to attend the hearing at which his re-categorisation was to be considered, it decided that his category A status should be maintained. The principal issue in the case related to the tension which arose when the same issue was considered by two different bodies, one of which was concerned with the protection of the public following the supervised conditional release of the lifer, and the other with the risks to the public posed by the lifer escaping.

[17]Denying the lifer the opportunity to attend the hearing before CART arose only in the context of the lifer’s rights under

Art. 5(4) of the European Convention

, not in the context of procedural fairness. But when addressing the tension between conflicting outcomes from two decision-making bodies, Judge LJ (as he then was) giving the judgment of the Court of Appeal said at [31] that the risk of “circularity” which the case highlighted was “… mitigated by recognising that there are exceptional cases in which (subject to public interest immunity issues) the material available to the review team, in particular the reports on him, rather than their gist, should be disclosed and the prisoner permitted an oral hearing”. (Emphasis supplied) What had been exceptional in that case, said Judge LJ, was that a hearing before the Discretionary Lifer Panel attended by the lifer which had resulted in a conclusion favourable to him had been followed by a hearing before CART not attended by him which had reached a conclusion adverse to him.

[18]In S, the question whether procedural fairness required an oral hearing before CART when the re-categorisation of a lifer from category A to category B was being considered arose directly. Unlike Williams, the lifer in S had had access to all relevant materials, and had been able to make representations on them. Again, unlike Williams, there had not been a previous decision on his re-categorisation to complicate the issue. Relying on what Judge LJ had said in Williams, Judge Waksman QC held that procedural fairness required an oral hearing when the re-categorisation of a lifer from category A to category B was in issue only when the circumstances were exceptional, even when that re-categorisation could have a significant impact on when the lifer would eventually be released. In coming to that conclusion, he doubted the correctness of the view expressed by Cranston J in R (on the application of H) v Secretary of State for Justice

[2008] EWHC 2590 (Admin)

– based on dicta, in particular, of Lord Bingham in Smith and West – that the test was not so much one of exceptionality, but rather the importance of what is at stake. Judge Waksman concluded that the circumstances of the case were not exceptional, and that for that reason an oral hearing before CART had not been necessary.

[19]The authorities relied on by Mr Southey were closer to the present case. They related to whether an independent body like the Board, rather than an internal body within the Prison Service, should have convened oral hearings when considering whether a prisoner should be released. The three authorities are West and Smith, R (on the application of O’Connell) v The Parole Board

[2008] 1 WLR 979

and R (on the application of Hopkins) v The Parole Board

[2008] EWHC 2312 (Admin)

. West and Smith were cases in which the Board had decided not to recommend the release of prisoners who had been released on licence after serving one-half or two-thirds of their determinate sentences, but who had been recalled to prison for breaking the terms of their licence. O’Connell and Hopkins were cases in which the Board had decided not to recommend the release of prisoners who had been given extended sentences and had completed one-half or two-thirds of the custodial term.

[20]In West and Smith, the House of Lords considered, amongst other things, what the common law required in terms of procedural fairness when it came to decisions of the Board relating to the release of recalled prisoners. Lord Hope limited his consideration of the issue to what the Board’s approach should be when factual issues have to be resolved. He said at [67]-[68] that “an oral hearing should be the norm rather than the exception” when, on a perusal of the papers, it is thought that the case is likely to turn on disputed issues of fact. Lord Slynn said at [50]:

“There is no absolute rule that there must be an oral hearing automatically in every case. Where, however, there are issues of fact, or where explanations are put forward to justify actions said to be a breach of licence conditions, or where the officer’s assessment needs further probing, fairness may well require that there should be an oral hearing. If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the Board should be predisposed in favour of an oral hearing.”

But the fullest statement on the appropriate principle came in the speech of Lord Bingham. In a passage described by Cranston J in H at [21] as a “masterly statement of principle”, Lord Bingham said at [35]:

“The common law duty of procedural fairness does not, in my opinion, require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board’s task is certainly to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.”

The House of Lords concluded that procedural fairness had required oral hearings in those cases.

[21]Three points emerge from this passage. First, it emphasises the value to be placed on the decision-maker actually seeing and hearing both from the prisoner and from those who have been responsible for the prisoner’s management. The latter is said to have been particularly important in the claimant’s case because those who had been responsible for her management in prison all supported her transfer to open conditions. Secondly, it allows the prisoner (or more particularly the prisoner’s representatives) to address effectively any concerns which the decision-maker has. Those concerns will only become apparent at an oral hearing. Thirdly, an oral hearing reflects the importance of what is at stake. It might be said that what was at stake for the prisoners in Smith and West was greater than what was at stake in the claimant’s case. The transfer to open conditions was merely a step on the way to her eventual release, whereas what the Board was having to decide in Smith and West was whether the prisoners should actually be released. On the other hand, it could just as forcibly be said that what was at stake in the claimant’s case was greater than what was at stake for the prisoners in Smith and West. They had to be released eventually, i.e. when they had served their determinate sentences if they had not been released before then, whereas the claimant’s eventual release (if at all) was always going to be dependent on the view which the Board took of the risk she posed, and the Board’s favourable assessment of that would be put back so long as she remained in closed conditions.

[22]In S, Judge Waksman was inclined to favour Judge LJ’s test of exceptionality, because he regarded this passage in Lord Bingham’s speech as context-specific. I agree with Judge Waksman that the passage was context-specific, but that does not mean that Lord Bingham’s dicta do not have an important bearing in other, but similar, contexts. The three points which emerge from the passage are unquestionably broad enough to cover situations which the Board has to address other than the release of recalled prisoners.

[23]In O’Connell, the principal issue was whether

Art. 5(4) of the European Convention

was engaged when the Board was considering the release of a prisoner half-way through his custodial term. The Divisional Court said that it was, but the Court of Appeal disagreed. However, the Divisional Court addressed the question of whether procedural fairness at common law required the Board to convene an oral hearing when considering that issue. Latham LJ said at [24]:

“It seems to me that the Parole Board should be predisposed to holding an oral hearing in such cases. That would certainly be the case where there is any dispute of fact, or any need to examine the applicant’s motives or state of mind. But in the present case, I do not read the Parole Board’s decision as being one which could have been affected in any way by anything further that the claimant could have said beyond that which he had set out in his written representation.” (Emphasis supplied)

For that reason, the court held that procedural fairness had not required an oral hearing in that case. What Mr Southey gets from the case is that an oral hearing is necessary when the prisoner’s motives or state of mind need to be examined, and that is said to apply to the claimant’s case.

[24]Hopkins was decided after O’Connell had been decided in the Divisional Court, but before it had gone to the Court of Appeal. It was therefore decided at a time when it was thought that Art. 5(4) was engaged when the Board was considering the release of a prisoner two-thirds through his custodial term. But Stadlen J addressed what procedural fairness required as well. He said at [33]:

“… this case provides a good example of why it is that the question of whether or not an oral hearing is necessary in any given case depends on the facts of the particular case. There may be many cases where the nature of the facts, including the contents of the probation officers’ reports, the conduct of the prisoner in custody including for example persistent offending and lack of any evidence of changed attitudes are such as to point so overwhelmingly against the grant of parole as to render an oral hearing wholly pointless and academic. In my judgment this is very far from being such a case …. [T]his is one of those cases where it cannot be said that it is fanciful to suppose that the panel might have reached a different conclusion if they had been exposed to Mr Hopkins and/or the authors of the various reports.”

But the significance of Hopkins for present purposes is that the Board had read in the prisoner’s security file that he had threatened his victim and her family. That was denied by the prisoner, and Stadlen J said at [33]:

“… it is just the kind of factual issue in respect of which a prisoner in the position of Mr Hopkins should have an opportunity to state his side of the case, expose himself to questioning by the panel and seek thereby to persuade the panel that he was telling the truth.”

Although not quite on the point, what Mr Southey gets from that is the importance of the Board hearing from the people responsible for the management of the prisoner who have prepared reports on the prisoner for the Board’s consideration.

[25]This unduly lengthy survey of the authorities which were drawn to my attention leads me to the conclusion that there is no hard and fast rule for what procedural fairness requires when the Board is considering the transfer to open conditions of a lifer whose minimum term has not expired. Each case is dependent on its own unique set of facts. But I do not believe that it is only in exceptional circumstances that procedural fairness will require an oral hearing to be convened. It is possible that Judge LJ was not purporting in Williams to lay down a test of exceptionality when CART reviews a prisoner’s category A classification. In the same way that the House of Lords explained in Huang v Secretary of State for the Home Department

[2007] UKHL 11

at [20] what Lord Bingham had meant in R v Secretary of State for the Home Department ex p. Razgar

[2004] UKHL 27

at [20], it may be that Judge LJ was simply expressing an expectation, shared by the other members of the court, that the occasions when CART reviews a prisoner’s category A classification should take the form of an oral hearing would be few and far between.

[26]But the real point is that a decision by CART about when a category A prisoner should get a lower security classification is, I believe, far removed from the kind of decision to be made in the claimant’s case. A transfer to open conditions is the last step before a prisoner’s eventual release. Although there is a link between a prisoner’s security classification and his eventual release, the link is a much more tenuous one when the issue relates to the re-categorisation of a prisoner from category A to category B status. As HM Inspectorate of Probation expressed it in the inquiry which talked of the transfer to open conditions as one of the “key decision-making points”, the transfer to open conditions “set[s] in motion a momentum towards release”. It creates “a set of expectations that release has now become a matter of ‘when’ not ‘if’.”

[27]Like Cranston J who thought in H that Lord Bingham’s dicta in West and Smith provide the best guidance of what procedural fairness requires when CART reviews a prisoner’s category A classification, I think that Lord Bingham’s dicta provide the best guide of what procedural fairness requires when the Board is considering the transfer to open conditions of a lifer whose minimum term has not yet expired. True, his guidance was context-specific. But for the reasons given in the last two sentences in [21] above, I think that what was at stake for the claimant was as important to her as what was at stake for the prisoners in West and Smith.

[28]Having said that, I think that the Board’s policy to have an oral hearing when a lifer whose minimum term has not expired would otherwise be transferred to open conditions feeds into what procedural fairness requires in cases like that of the claimant. The sub-text of the new policy that the decision on the papers to transfer such a lifer to open conditions should not be given effect to unless that decision has been “ratified” following an oral hearing is that when it comes to assessing the risk which such a lifer poses to the public, an oral hearing is required. There is an important public interest in ensuring that lifers who still pose a risk to the public are not transferred to open conditions prematurely.

[29]But that cuts both ways. Just as a transfer to open conditions may not be appropriate if the level of risk to the public is too high, a transfer to open conditions will be appropriate if the level of risk to the public is negligible. If an oral hearing is needed in case the risk may be found to be too high, so too should an oral hearing normally be needed in case the risk may be found to be negligible. Procedural fairness requires a measure of even-handedness, and to mandate a hearing to check that the risk the lifer poses is not too high should usually be matched by a hearing to consider whether the risk the lifer poses is negligible. After all, there is just as much a public interest in ensuring that prisoners whose risk to the public is negligible are transferred to open conditions when their minimum term expires. The public interest is for prisoners to be released as soon as practicable in view of the cost of keeping someone in prison. The need for even-handedness in a related context was emphasised by Irwin J in Hill at [67] and [69]. It would be wrong to say that while the change in the Board’s policy remains in place, the demands of even-handedness require an oral hearing in every case in which the lifer’s transfer to open conditions is being considered. But even-handedness in the treatment of lifers who are being considered for transfer to open conditions means that real thought has to be given to the need for an oral hearing in every case in which that is going to be addressed.

The application of these principles

[30]The Board’s change of policy did not automatically justify an oral hearing in the claimant’s case in view of the conclusion which the member of the Board reached on a review of the written materials. So what remains is whether either the policy of the Board to hold an oral hearing when circumstances require evidence to be given orally or whether procedural fairness (taking into account the need for even-handedness) required an oral hearing in this case. For that purpose, it is necessary to say something about the reports which were prepared on the claimant for the Board to consider. For the most part, they supported her transfer to open conditions, and none of the reports opposed it. One of the reports spoke of the desirability of her being tested in open conditions. Most of the reports said that the risk of harm to the public from the claimant was low, and the report from the lifer manager expressed the view that she would not abscond or commit further offences if she was transferred to open conditions. Her offender manager thought that the risk of harm from her was low because she would never again have unsupervised access to children. The claimant had had a spell of mental ill-health during her sentence, and a Prison Service psychologist said that in those circumstances a transfer to open conditions should only be considered if there were adequate facilities to prevent a deterioration in her mental health. Having said that, a consultant forensic psychiatrist said that the support which the claimant required as a result of her previous mental ill-health could be provided at any prison. The tool which is commonly used to assess risk – OASys – concluded that there was a medium risk of re-conviction, a medium risk of harm to children in the community, but a low risk of any other harm. Medium risk of harm in this context meant only that the claimant had the potential to cause serious harm, but was unlikely to do so unless there was a change in circumstances.

[31]Dr Craissati’s report commissioned on the claimant by her solicitors acknowledged that her denial of any responsibility for Abdi’s death made it difficult(a) to explore why she had behaved as she had or

(b) to suggest how she should be helped, especially as there was nothing else about her behaviour (such as substance abuse, anger management or problem-solving) which needed to be addressed. But when it came to such risk of harm as she posed, the point was made that the fact that she remained in denial did not increase the level of risk she posed, and on the most robust risk assessment, she posed a very low risk of future violence. The clinical concerns relating to her previous mental ill-health were modest, and related only to “ongoing uncertainty about her mental state”.

[32]The key passage in the advice given by the member of the Board is as follows:

“9. In summary, recommendations for the prisoner’s move to open conditions seem to be based, at least partly, upon a less than critical acceptance of her sustained position of lack of responsibility and to be motivated more by an understandable desire to achieve rehabilitation and progression for the prisoner than by a consideration of the interests of public protection: the latter are potentially liable to be affected by the ability of a prisoner with an identified, but objectively unquantified and unaddressed risk of violence, to return to the community, even from the relatively controlled environment of open conditions. That is a problem which is compounded because, as Dr Craissati puts it, ‘her mental state is not completely settled’. 10. It is therefore my conclusion, balancing the prisoner’s interests in sentence progression against the interests of public safety, that it would be premature, at this stage of the prisoner’s sentence, to recommend that she should move to open conditions. That is because there is insufficient evidence that her risk of violent offending has reduced to a level such that that recommendation could safely be made. Work remains to be done firstly to ascertain with some definition the state of the prisoner’s mental health and then to undertake, perhaps following the suggested route of 1:1 therapy, the extent to which (with a prisoner who denies responsibility for the murder of her son) even a suppressed potential for explosive and manipulative violence can be examined and addressed.”

[33]Even though there is no direct challenge to this conclusion, I have summarised the effect of the materials before the member of the Board and the member’s conclusion to see whether this was a case in which the Board’s policy to convene an oral hearing when oral evidence was necessary or procedural fairness required an oral hearing. It is said on the claimant’s behalf that an oral hearing was required(a) because the member of the Board needed to see and hear from the claimant herself,

(b) so that those who had written reports on the claimant could be questioned, and

(c) so that the concerns which the member had about recommending the claimant’s transfer to open conditions could be addressed by the claimant’s representatives.

[34]I do not believe that this was a case in which exposure to the claimant would have helped the member of the Board to assess the risks she posed. The Prison Service psychologist who interviewed her described her as responsive and amenable during the interview, and said that she had talked freely with the interpreter. Dr Craissati described the claimant as having presented as “pleasant and co-operative” when interviewed in 2004, though “perhaps a little more guarded” when interviewed again in 2009. There is no reason to suppose that the claimant would have appeared any differently had there been an oral hearing, and that she would have presented – at first blush at any rate – not as someone capable of violence, were it not for the shocking attack on her son which had resulted in her imprisonment. In other words, although her presentation to the member of the Board would, no doubt, have been inconsistent with that of a woman prone to violence, it would have been very difficult for the member to assess in an informed way the risk which she posed on the basis of exposure to her in the artificial setting of a Board hearing. The disconnection between what her demeanour is likely to have been at such a hearing and the violence which we know she has been capable of would have been so profound as to make an assessment of risk by the member based on him meeting and questioning her just the once prone to error.

[35]Likewise, this was not a case in which it would have been possible to explore at an oral hearing the claimant’s “motives or state of mind” – at any rate if the two are to be treated as synonymous. Her denial of any responsibility for her son’s death had prevented that from being explored with the psychologists, and there is no reason whatever to suppose that the member of the Board would have succeeded where they had failed.

[36]Was this a case in which questioning the authors of the reports would have added anything to the member’s understanding of the claimant’s case? I do not think so. The reports are clear and speak for themselves. It is true that the claimant underwent a period of mental ill-health following her sentence, and was transferred to hospital for a while under the Mental Health Act with a diagnosis of paranoid schizophrenia. She received anti-psychotic medication, which continued to be prescribed for her for a time after her return to prison. Dr Craissati admittedly described her mental state as “not completely settled”, but having read her report with care (as no doubt the member of the Board did), I do not see how questioning Dr Craissati would have added anything to the member’s knowledge of the current state of her mental health or the impact which that might have on the risks she posed.

[37]I turn finally to whether an oral hearing was needed to enable the claimant’s representatives to address any particular concerns which the member of the Board had and which he could be expected to have raised at an oral hearing. The member of the Board was concerned that the risk of violence which the claimant posed remained “objectively unquantified and unaddressed”. By “unaddressed” the member had been referring to the fact that her undoubted capacity for violence had not been addressed in prison because of her denial of responsibility. That was undoubtedly correct. But it is said on the claimant’s behalf that had the member had the opportunity at an oral hearing to inform the claimant’s representatives of his concern that the risk the claimant posed had not been objectively quantified, they could have reminded him that the risk had been objectively quantified in the OASys assessment and in para. 11 of Dr Craissati’s report. However, the member of the Board was aware of, and had read, the OASys assessment. Indeed, he had picked up the fact that by mistake only alternate pages of the assessment had been copied. And he had read Dr Craissati’s report, which he quoted from verbatim. What the member probably meant was that the claimant’s denial of responsibility had prevented the objective assessment of her risk from being as informed as it would otherwise have been if an acceptance of guilt had been factored into the assessment. But whatever was meant, it could not be said that an oral hearing was justified for that reason alone.

[38]It is true that the member of the Board was concerned (in para. 7 of the advice) that Dr Craissati found herself “in a quandary regarding a recommendation” about the claimant’s transfer to open conditions, adding that she had made “no conclusive recommendation”. It is said that had the member had the opportunity at an oral hearing to inform the claimant’s representatives of that concern, they could have submitted that what had caused Dr Craissati to say that was her realism that the Board would have “understandable expectations regarding a demonstrable reduction in risk which cannot simply be based on good custodial behaviour”. The fact that Dr Craissati went on to say that she was “very confident” that the risk was low and that compliance with open conditions was high meant that Dr Craissati saw no reason why a transfer to open conditions could not take place.

[39]I do not think that the member of the Board thought that Dr Craissati was saying otherwise. The member expressly referred in para. 7 of the advice to Dr Craissati having reached “positive (for the prisoner) conclusions about the level of risk currently presented by her”, and that the reason why she was not making a conclusive recommendation was because she chose “instead to speculate about possible alternative outcomes of the current review”. The member of the Board could not have failed to realise that Dr Craissati saw no reason why a transfer to open conditions could not take place, but that she was only refraining from spelling that out in order to show that she understood what the Board’s concerns might be. In other words, the advice shows that the member did not need to be told what Dr Craissati was really saying.

Conclusion

[40]For these reasons, I have concluded that neither the Board’s policy nor fairness to the claimant required the Board’s consideration of whether to advise that she be transferred to open conditions to be informed by an oral hearing attended by the claimant and her representatives. It follows that, despite the importance of what was at stake for the claimant, her claim for judicial review must be dismissed. In the circumstances, it is not necessary for me to address an additional point made on behalf of the Board that it could hardly be criticised for not convening an oral hearing when the claimant’s solicitors had not asked for one. Having said that, the misinformation which the claimant’s solicitors were given about the Board’s current and previous policy neutralises the effect of that argument, and for the reasons I have given, the question of convening an oral hearing when a lifer’s transfer to open conditions is to be addressed should always be considered, whether there is a request for one or not.

[41]I wish to spare the parties the time and expense of attending court when this judgment is handed down. No doubt they will be able to agree the appropriate order for costs, though there will have to be an order for public funding assessment of the claimant’s costs. In the unlikely event that an appropriate order for costs cannot be agreed, the parties should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide what the appropriate order for costs should be without a hearing on the basis of such written representations as are made. If the claimant wishes to apply for permission to appeal, my clerk should be notified of that within 7 days of the handing down of this judgment, and I will consider that question also on the basis of any written representations without a hearing. However, any appellant’s notice will still have to be filed within 21 days of the handing down of this judgment.

Cited in 11 later judgments

and 2 more of the most senior