Longmire v Secretary of State for Justice [2011] EWHC 1488 (Admin)

[2011] EWHC 1488 (Admin)Case No CO/244/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/06/2011
Before
THE HON. MR JUSTICE NICOL
Between
Andrew LongmireClaimantSecretary of State for JusticeDefendant
Quincy Whitaker (instructed by Scott-Moncrieff, Harbour and Sinclair) for ClaimantMatthew Slater (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 7 th April 2011
Judgment

Introduction

[1]On 22nd October 1988 the Claimant was sentenced to life imprisonment following his pleas of guilty to 11 offences of rape, 3 of attempted rape, buggery, indecent assault and 2 offences of using firearms to resist arrest. His tariff was fixed at 20 years. Throughout his sentence he has been a Category A prisoner. From time to time the Claimant’s categorization is reviewed. The decision is the responsibility of the Secretary of State for Justice. In practice it is taken by the Director of High Security. In advance of the review in 2010 the Claimant asked to be re-categorised as a Category B prisoner and requested an oral hearing instead of the usual paper review. On 21st September 2010 the Director decided(a) to refuse the request for an oral hearing and(b) to maintain the Claimant’s Category A status. By these proceedings the Claimant challenges first the refusal to agree to an oral hearing. He submits that fairness obliged the Director to accede to his request for such a hearing. Edwards-Stuart J. granted him permission to bring this part of his claim. Secondly, he submits that the substantive decision that he should continue as a Category A prisoner was irrational. The judge did not consider that this part of the claim was arguable, but the Claimant has renewed his application for permission in this regard.[2]When I heard the matter on 7th April 2011, it was known that the Court of Appeal (Sir Anthony May, PQBD, Sullivan and Gross LJJ) had recently heard a case involving similar issues: Donald Mackay v Secretary of State for Justice. The parties agreed that it would be sensible for me to defer my decision until judgment in that case had been handed down. It was on 12th May 2011 ([2011] EWCA Civ 522) and I have received written submissions thereafter from both parties.

The facts

[3]Between 1981 and 1988 the Claimant went on two separate campaigns of raping women in five different counties. The first was between 1981 and 1984 and the second between August 1987 and his arrest in January 1988. Most of the victims were attacked in their own homes, sometimes in the presence of their children. Two of the attacks took place in the street. He threatened some of his victims with a knife. As I have said, two of his offences were using a firearm to resist arrest. He was charged and sentenced as I have already explained.[4]In May 2002 he commenced treatment at the Fens Dangerous and Severe Personality Disorder Unit (‘DSPD’). His tariff expired in January 2008. In July 2008 he had an oral hearing before the Parole Board. In its decision dated 4th August 2008 the Board considered that the Claimant had made considerable progress and drugs and alcohol were no longer risk factors as they had been. He had reduced his risk in relation to sex offending but he still minimised the full extent of his tendencies that led to the many rapes he had committed or attempted. He also needed to undertake significant work on violence. Overall the Board considered that the risk remained too high for release or a move to open conditions to be considered. In a passage on which the Claimant relies, it added, “You should work towards your next review being in Category C conditions and to attempting to complete all remaining work that is required in Category B conditions in the areas of sexual and violent offending and the triggers for your offending before that next review.”[5]On 29th July 2009 the Director decided that the Claimant should remain a Category A prisoner. The Claimant challenged this decision but permission was in due course refused on 17th June 2010.[6]On 25th April 2010 the Parole Board again considered the Claimant’s case. It decided not to direct release or a move to open conditions. While it acknowledged that he had made considerable progress while at the DSPD Unit, this needed further testing as he moved through lesser controlled custodial environments.[7]In the meantime the Claimant was charged with a further offence of rape which had been committed on 7th September 1981. He pleaded guilty on 13th May 2010and, on 10th June 2010, he received a further life sentence with a two year tariff to run concurrently to his existing sentence.[8]On 9th July 2010, the Local Advisory Panel (‘LAP’) considered the Claimant’s case. The Panel’s decision is dated 19th July 2010 and was endorsed by the Governor of HMP Whitemoor, where the Claimant was then held. It recommended that the Claimant should be downgraded to Category B. This was the fourth occasion on which the LAP had recommended that the Claimant be downgraded. As well as the Governor, the LAP included the Clinical Director of the DSPD Unit (Dr Jacqui Saradjian), the Lead Psychologist, a Forensic Psychologist, the Acting Deputy head of Security and a number of Offender Supervisors.[9]This meeting of the LAP was specifically convened to review the Claimant’s position in view of his plea of guilty to the additional charge of rape. The Panel said of this matter, “He pleaded guilty to prevent any further distress to the victim and her family. He has accepted full responsibility for the offence. He presented as concerned about what distress this would raise for other victims of his crimes. He managed his own emotions extremely well during this period and did not resort to any dysfunctional strategies or behaviours. We felt, although the court conviction and sentence was a significant outcome, this did not increase risks and actually helped demonstrate progress in understanding and dealing with risks and behaviours associated with his offending.” It went on to recall the good progress he had made during his time in the DSPD. He had made substantial and significant changes in all aspects of his personality which were evidenced by consistently improved behaviour and attitudinal change (especially relating to authority) that had been built on and sustained for some considerable time. He had responded to the setback of the previous year of being recommended locally for progress but not being downgraded. Overall the LAP was satisfied that he had demonstrated maturity and improved capacity to control his behaviour even when going through a crisis and it was satisfied that he had built a foundation that would enable him to be safely downgraded to Category B and a disposal that should look to provide opportunities for him to continue therapy within the Category B estate.[10]Additionally, Dr Saradjian wrote to say that the Claimant had made “dramatic changes” during his time at the Fens Unit. Since the conclusion of his therapy in March 2010 he had maintained and built on his progress despite having no more than minimal support from clinical and operational staff. On behalf of the unit she endorsed the LAP’s recommendation for a downgrade.[11]The Director reviewed the Claimant’s case on 23rd August 2010 and issued his decision on 21st September 2010. He took account of the outcome of the previous Parole Board review and the reasons for the LAP recommending downgrading. His decision letter continued, “The Director was however very concerned about Mr Longmire’s recent further conviction for rape. He considered this was an important factor to be taken into account in assessing the level of Mr Longmire’s progress. He noted Mr Longmire had committed this offence many years ago, and that it was one amongst a large number of other similar offences he had committed. But the Director noted Mr Longmire had failed to acknowledge this offence despite all the therapy completed and had only admitted responsibility when brought to trial through newly available evidence. The Director considered that Mr Longmire’s failure to acknowledge his full offending throughout this long period in custody and work in therapy must cast doubt over the extent of his progress. He considered it may invalidate much of his recorded progress on such issues as his sexual offending and victim empathy. The Director noted Mr Longmire’s previous reports had recommended further intervention work on his sexual interests and attitudes towards his victims and that this had been one of the reasons for maintaining his category A status at his last review. He noted Mr Longmire had since worked on some related issues through the Healthy Sexual Relationships Group, but understood Mr Longmire was still recommended to take part in the extended SOTP [Sex Offenders Treatment Programme] to further address these issues. The Director considered Mr Longmire should now take part in this work, both to address these outstanding issues and to determine how far his failure to acknowledge and discuss all his offending has undermined previous intervention work. He also understood further DSPD therapy may be needed following completion of the extended SOTP. The Director also took into account the persistent concerns relating to Mr Longmire’s presentation and behaviour towards others. He considered that, although some improvements had been shown, these were not as lasting or convincing as he would expect from a prisoner who had completed extensive therapy and was being considered for progression. The Director also noted such concerns had been raised once more in the reporting period, although again the reports suggested Mr Longmire had remained committed to therapy and in other respects had been compliant. He still considered that Mr Longmire’s ability to behave correctly in less secure conditions must be uncertain if he fails to use appropriate personal skills in his present secure conditions. The Director considered there was sufficient information to show that, although Mr Longmire had completed extensive therapy, and had shown commitment to this work over many years, the extent and permanency of its effectiveness remained unclear. The Director therefore had to conclude that there was no convincing evidence of a significant reduction in Mr Longmire’s risk should he be unlawfully at large, and that he should remain in Category A at this time.”[12]The Director’s letter then addressed the question of an oral hearing. He said, “The Director considered that the current evidence on Mr Longmire’s progress was substantial and comprehensive, and fully open to assessment and the submission of representations though written means. He did not accept that an oral hearing was required to further explore this evidence or to clarify information that was complex or had not been fully explained. The Director noted that information from those in regular contact with Mr Longmire had been provided for this review. He also did not accept that the expiry of Mr Longmire’s tariff or a local advisory panel recommendation for his downgrading were in themselves sufficient grounds for an oral hearing.”[13]The Defendant filed no evidence, but in the course of the hearing on 7th April 2011, a minute was produced of the section of the meeting of 23rd August that concerned the Claimant. It noted that representations had been received from the Claimant’s solicitors and the addendum report from Dr Saradjian. The minute observed, “The Director and Psychologist considered the addendum report to be biased and not helpful – and did not enhance the consideration for downgrading if this was the purpose of the report. The Psychologist also considered that the DSPD reports to be vague and unhelpful and believed they were influenced by Mr Longmire using his psychopathic charm. The Director accepted that the addendum report had in effect provided loaded ammunition to support any future challenge if the decision was taken not to downgrade. However, the Director noted that the most important element in the case was the fact that in June 2010 Mr Longmire received a further life sentence for a previously unsolved rape committed in 1981. PAS had noted that this was probably as a result of improved DNA sampling and that it would not be a great surprise if he was found to have committed a number of other offences. The Director and the Panel considered that this conviction had invalidated all the work Mr Longmire had done to date in the DSPD and that in his opinion Mr Longmire was almost back to ground zero. He had not despite all the therapy he had undertaken put his hands up to the offence and only admitted guilt when presented with concrete DNA evidence and with the prospect of facing his victim in court – this casts doubt over his claim to victim empathy and what he had achieved to date. Ms Saradjian contacted the office to discuss the case. It was explained to her that her report was considered unhelpful and the concerns of the recent conviction should have been picked up by the prison (the Category A section at the prison had also expressed reservation following the recent conviction). In mitigation, Ms Saradjian stated that Mr Longmire could not remember the offence as it was so long ago and she acknowledged that he could have been responsible for a number of other offences. She accepted the decision and said that the next step for Mr Longmire was to be transferred to an establishment where he could do the ESTOP in a VP Wing and if appropriate he would have to re-start the DSPD process from the beginning.”[14]I was concerned that this document had only been produced at a very late stage in the proceedings. It is axiomatic, and Mr Slater on behalf of the Defendant did not dispute, that once permission to apply for judicial review is granted the Defendant must produce for the assistance of the Court all the documents that might be relevant for its decision. This document was plainly relevant. It should have been exhibited to a witness statement which should in turn have been filed and served with the Defendant’s Detailed Grounds of Resistance. I required the Defendant to explain why this had not happened in the present case. In response, Mr Steven Easton of the Category A Review Team within the Ministry of Justice made a witness statement. He attends review meetings and drafts the decision letters. He said that the minutes of such meetings may deal with 20-25 cases. He did not say how many were dealt with at this particular meeting although I note that the paragraph with the minutes of the discussion of Mr Longmire’s case is numbered 15. The decision letter is drafted with the assistance of the minutes but, since the letter is expected to be a fair distillation of the discussion, the minutes are not thereafter referred to. Mr Easton said it did not occur to him that the minutes would contain anything relevant to this claim and which was not also in the decision letter. He correctly accepts that this was an error. The minutes should have been checked. They should have been disclosed much earlier.

Legal Framework

[15]It is for the Secretary of State to determine in which prison a prisoner is detained and the location may be changed during the course of the term of imprisonment – Prison Act 1952 s.12. The 1952 Act also allows the Secretary of State to make rules for, among other things, the classification of prisoners – ibid ss.47(1) and 52(1). Rule 7 provides that prisoners shall be classified, in accordance with any directions by the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 3 which says that the purpose of training and treatment of convicted prisoners is to encourage and assist them to lead a good and useful life. The four security classifications are Category A, B, C and D.[16]The Secretary of State has issued a Prison Service Instruction – PSI 03/2010 on the subject of Category A and Restricted Status Prisoners: Review of Security Category. At paragraph 1.2 this defines a Category A prisoner as one 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. Chapter 4 of the Instruction provides for annual reviews of a prisoner whose Category A status has been confirmed. The reviews are completed either by the Category A team or the Director, but the Director remains solely responsible for approving the downgrading of a confirmed Category A prisoner. If (as in the present case) the Local Advisory Panel recommends that the prisoner should be downgraded then the matter is referred to the Director (see paragraph 4.11). The Director is assisted by an advisory panel (see paragraph 4.11) which includes police advisors, a psychologist and staff from the Category A Team (see paragraph 3.6). As the minutes show, in this case, the psychologist played an active part. The Defendant has not identified who this psychologist was.[17]Paragraph4.1 of the Instruction then says, “Before approving a confirmed Category A … prisoner’s downgrading the Director must have convincing evidence the prisoner’s risk of re-offending if unlawfully at large has significantly reduced. This may be evidence from the prisoner’s contact with others or participation in offending behaviour work that shows the prisoner has significantly changed their attitudes towards their offending or has developed skills to help prevent similar offending.” Paragraph4.2 deals with oral hearings and says, “The Director can grant an oral hearing of Category A … prisoner’s annual review. This will allow the prisoner or the prisoner’s representative to submit their representations to the Director verbally. The Director will grant an oral hearing if there are exceptional circumstances that suggest the submission of oral representations is the fairest means of determining the prisoner’s suitability for downgrading. The suitability and format of an oral hearing will however remain at the Director’s discretion.” Oral hearings: the law[18]It is common ground that no legislation, regulation or Prison Instruction entitled the Claimant to an oral hearing. He relied on the common law. As I have said, the Court of Appeal has very recently reviewed the principles as to when the Category A Review Team (‘CART’) or the Director are required to have an oral hearing in Donald Mackay v Secretary of State for Justice (above). The leading judgment was given by Gross LJ. He began by recognising that Category A prisoners were subject to a more restrictive regime than other prisoners and, unless they were downgraded, their prospects of release on licence were nil. The reviews of their categorisation therefore called for a high degree of procedural fairness - see [25]. The functions of the Parole Board and CART were linked, but different. The Parole Board was concerned with the protection of the public following a prisoner’s authorised and conditional release; CART was concerned with the risk to the public in the event of an escape. This difference of function could produce a situation where the two bodies took different views - see [26]. A feature of Mackay which has no parallel in the present case is that the Claimant there continued to deny that he had committed the offences for which he had been sent to prison. There was then a risk of an impasse because some rehabilitation methods may depend on the prisoner confronting and acknowledging the error of his ways.[19]Gross LJ summarised the principles in relation to oral hearings at [28] where he said, “28. Fourthly, the common law duty of procedural fairness will sometimes require CART to convene an oral hearing when considering whether or not to downgrade a Category A prisoner. As Bean J rightly observed (at [27] of the Judgment), it is for the court to decide what fairness requires, so that the issue on judicial review is whether the refusal of an oral hearing was wrong; not whether it was unreasonable or irrational. Whether an oral hearing is required in an individual case will be fact specific. Given the rationale of procedural fairness, there is no requirement that exceptional circumstances should be demonstrated – there will be occasions when procedural fairness will require an oral hearing regardless of the absence of exceptional circumstances. But oral hearings are plainly not required in all cases; indeed, oral hearings will be few and far between. Advantages may be improved decision-making, bringing CART into contact with those who have direct dealings with the offender and the offender himself; an oral hearing may also assist in the resolution of disputed issues. Conversely, considerations of cost and efficiency may well tell against an oral hearing. There can be no single or even general rule, save, perhaps, for the recognition that oral hearings will be rare. By way of brief amplification: i) As to the common law duty of procedural fairness and the holding of an oral hearing, Lord Bingham of Cornhill said this in the distinct if not altogether unrelated context of the recall to prison of a prisoner on licence:
‘35. The common law duty of procedural fairness does not….. 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 certainly is 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.’
R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, at [35]. In helpful observations on this passage, Cranston J, in R (H) v Sec of State for

Justice [2008] EWHC 2590 (Admin), said this, at [21]:

‘Lord Bingham’s statement of principle makes clear that common law standards of procedural fairness affecting an oral hearing are flexible, may change over time, and in general terms depend on the circumstances of the case. Clearly oral hearings are not required in all or even most cases, but importantly the context in which procedural fairness is being considered is determinative. There is no test of exceptionality. One considers the interests at stake and also the extent to which an oral hearing will guarantee better decision-making in terms of uncovering of facts, the resolution of issues, and the concerns of the decision-maker. Cost and efficiency must also be considered, often on the other side of the balance.’
Earlier in the same judgment, at [1], Cranston J had remarked on the ‘greater confidence’ given by an oral hearing that the ‘relevant standards’ had been properly applied; he also observed:
‘It is clear that procedural fairness does not impose the straitjacket of a quasi-judicial process and more informal procedures than what one expects before the courts or even tribunals may be acceptable. An oral hearing does not necessarily imply the adversarial process.’ ii) By way of examples from the field of categorisation decisions, in Williams (supra), this Court held that an oral hearing was required. The Parole Board had made a clear recommendation in favour of the prisoner – a post-tariff discretionary life prisoner - but CART had decided to maintain his security classification. CART had available to it reports which had not been before the Parole Board and had declined to disclose the reports to the prisoner or his representatives, although the gist of those reports had been made available. In H (supra), Cranston J held that an oral hearing was required, in circumstances which included an inconsistency between the local prison review panel (which recommended downgrading the prisoner’s categorisation) and CART (which decided in favour of maintaining his categorisation). For completeness, the Secretary of State appealed from the judgment of Cranston J but, by the time the case of H reached this Court, subsequent events had rendered the appeal academic: see, [2009] EWCA Civ 83. iii) The impasse capable of arising when a prisoner continues to deny the commission of the offence/s in question has already been discussed. A potential impasse may also arise where a prisoner needs access to opportunities to demonstrate that he can be trusted in a lower category, as otherwise he will have an almost impossible task in persuading the Parole Board that he should be released; see: Roberts (supra), at [54]. However, keeping him as a Category A prisoner may mean that he does not have access to such opportunities - and, for its part, CART (rather as it observed in the present case), with its own particular interest in the risk of escape, may be unwilling to risk downgrading the prisoner’s security categorisation without prior evidence of significant risk reduction. iv) Although the existence of an impasse or inconsistency (for example, between the Parole Board and CART) may increase the likelihood of an oral hearing being required, it should not be thought that the mere existence of an impasse or inconsistency means that an oral hearing will be warranted. Moreover, for my part, the Court should not be too ready to conclude that there is an impasse or even an inconsistency when there may be no more than a difference of view, perhaps for very good reasons: see, Cranston J, in H (supra), at [23].” i) As to the common law duty of procedural fairness and the holding of an oral hearing, Lord Bingham of Cornhill said this in the distinct if not altogether unrelated context of the recall to prison of a prisoner on licence: ‘35. The common law duty of procedural fairness does not….. 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 certainly is 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.’
R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, at [35]. In helpful observations on this passage, Cranston J, in R (H) v Sec of State for

Justice [2008] EWHC 2590 (Admin), said this, at [21]:

‘Lord Bingham’s statement of principle makes clear that common law standards of procedural fairness affecting an oral hearing are flexible, may change over time, and in general terms depend on the circumstances of the case. Clearly oral hearings are not required in all or even most cases, but importantly the context in which procedural fairness is being considered is determinative. There is no test of exceptionality. One considers the interests at stake and also the extent to which an oral hearing will guarantee better decision-making in terms of uncovering of facts, the resolution of issues, and the concerns of the decision-maker. Cost and efficiency must also be considered, often on the other side of the balance.’
Earlier in the same judgment, at [1], Cranston J had remarked on the ‘greater confidence’ given by an oral hearing that the ‘relevant standards’ had been properly applied; he also observed: ‘It is clear that procedural fairness does not impose the straitjacket of a quasi-judicial process and more informal procedures than what one expects before the courts or even tribunals may be acceptable. An oral hearing does not necessarily imply the adversarial process.’ ii) By way of examples from the field of categorisation decisions, in Williams (supra), this Court held that an oral hearing was required. The Parole Board had made a clear recommendation in favour of the prisoner – a post-tariff discretionary life prisoner - but CART had decided to maintain his security classification. CART had available to it reports which had not been before the Parole Board and had declined to disclose the reports to the prisoner or his representatives, although the gist of those reports had been made available. In H (supra), Cranston J held that an oral hearing was required, in circumstances which included an inconsistency between the local prison review panel (which recommended downgrading the prisoner’s categorisation) and CART (which decided in favour of maintaining his categorisation). For completeness, the Secretary of State appealed from the judgment of Cranston J but, by the time the case of H reached this Court, subsequent events had rendered the appeal academic: see, [2009] EWCA Civ 83. iii) The impasse capable of arising when a prisoner continues to deny the commission of the offence/s in question has already been discussed. A potential impasse may also arise where a prisoner needs access to opportunities to demonstrate that he can be trusted in a lower category, as otherwise he will have an almost impossible task in persuading the Parole Board that he should be released; see: Roberts (supra), at [54]. However, keeping him as a Category A prisoner may mean that he does not have access to such opportunities - and, for its part, CART (rather as it observed in the present case), with its own particular interest in the risk of escape, may be unwilling to risk downgrading the prisoner’s security categorisation without prior evidence of significant risk reduction. iv) Although the existence of an impasse or inconsistency (for example, between the Parole Board and CART) may increase the likelihood of an oral hearing being required, it should not be thought that the mere existence of an impasse or inconsistency means that an oral hearing will be warranted. Moreover, for my part, the Court should not be too ready to conclude that there is an impasse or even an inconsistency when there may be no more than a difference of view, perhaps for very good reasons: see, Cranston J, in H (supra), at [23].”

Oral hearing: the parties submissions

[20]Ms Whitaker on behalf of the Claimant submitted that fairness in this case did require an oral hearing. She relied on the following features: i) The Claimant had been in prison for 22 years at the time of the Director’s decision. The Claimant’s tariff had expired, but it was impossible for him to be granted parole or to be moved to open conditions while he remained a Category A prisoner as the April 2010 decision of the Parole Board illustrated. While the Claimant accepted that this was not a sufficient reason for an oral hearing, it demonstrated the importance of the issue of Categorisation Review to him and the corresponding demand for a high standard of fairness. ii) The Parole Board which had heard orally from the Claimant in 2008 had contemplated the Claimant moving to Category B conditions in the terms that I have quoted in paragraph [4] above. iii) The Local Advisory Panel had recommended that the Claimant should be downgraded a number of times. The LAP included Dr Saradjian who was the Clinical Director of the DSDP Unit where the Claimant had spent several years and had completed the course. Those responsible for treating him during this period had testified to his progress and improvement. Other members of the LAP had included the Governor and other members of staff at the prison. iv) The LAP had repeated its recommendation that the Claimant should be downgraded even after he had admitted liability for the 12th rape. As I have set out above, it considered the court conviction and sentence to be a significant outcome, but not one which increased risks and actually helped to demonstrate progress in understanding and dealing with risks and behaviours associated with his offending. v) As Dr Saradjian had told the Director, it was the Claimant’s case that he had simply forgotten about this 12th rape. The offence had been committed 29 years previously when he was drinking to excess and taking drugs and when he had committed a great many offences. The minute of the meeting suggested that the Director was sceptical as to whether this was correct. However, if that was so, in fairness the Claimant should have been allowed to give oral evidence before his case was disbelieved. vi) The minute of the meeting recorded the view of the unnamed psychologist that “it would not be a great surprise if he was found to have committed a number of other offences”. This suggestion had never been put to the Claimant and he ought to have had the opportunity to give his response to it at an oral hearing. vii) The authorities showed that one of the functions of a hearing could be to allow those who had had direct responsibility for the care and treatment of a prisoner to present their views orally. In this case, the minute showed that the Director and the psychologist adviser were disparaging of Dr Saradjian. Her addendum report was described as “biased and unhelpful”. The DSPD reports were characterised as “vague and unhelpful” and, in the opinion of the psychologist, the DSPD reports were the product of the Claimant using his “psychopathic charm”. The addendum report was described as providing “loaded ammunition to support any future challenge if the decision was not taken to downgrade.” These were serious criticisms of the professionalism of those who were involved in the running of the DSPD Unit. Before they were made and used as the foundation for the Director’s decision, an oral hearing should have been held. viii) The Claimant had completed the DSPD course. It was not clear what else he could do to demonstrate a reduction in his risk unless he was downgraded. His was therefore an example of the type of impasse which further militated in favour of an oral hearing. ix) Mackay assisted the Claimant. It repeated that there was no test of exceptionality before fairness required an oral hearing. In the end, Mackay recognised that each case turned on its own facts. The facts of the present case were more strongly in favour of an oral hearing because here (unlike in Mackay) the LAP had recommended downgrading and the Parole Board’s recommendation was more favourable to the Claimant than it had been in that case. The attitude of the Director and psychologist to the professionals who had treated the Claimant had no parallel in the Mackay case.[21]Mr Slater, on behalf of the Secretary of State, submitted that this was not a case where fairness required an oral hearing. i) Although there was no test of exceptionality, Mackay repeatedly emphasised that the cases where fairness required an oral hearing would be few and far between (see for instance [28]). For this reason, the fact that a claimant was post-tariff and had not previously had an oral hearing before the Director (or the Category A Review Team) did not carry much weight (see Mackay at [37(iii)]). ii) It was for the Director to make a decision on whether a prisoner should be downgraded. The LAP was an advisory body which made recommendations. The Director was not obliged to follow them. He was entitled to make his own assessment. The Prison Service Instruction paragraph 12 made it clear that he could look to his panel (including a psychologist) for assistance. That was what the Director had done in this case. iii) The Director’s decision was based on logic. The premise of the assessments was that the assessors knew the nature of the Claimant’s offending and his attitude to it. As part of the report on his work in the Offending Behaviour Groups in DSPD, it was said, “Mr Longmire has almost completed this group. To his credit, he has been able to disclose even his most shameful offences and work on all aspects of his offending behaviours in the group. He now recognises his offence paralleling behaviours and they have functioned in the past to manage his affect. He has been brave, open, honest and frank about his offending, both his violent and sexual offending, and from time to time this has arguably left him being consumed with guilt.” Dr Saradjian had said that the Claimant had worked through every aspect of his offending and showed genuine remorse. But the Claimant’s very recent admission to an additional rape (and an admission which had been forthcoming only when confronted with DNA evidence) showed that these premises were incorrect. iv) The Director already had the report from the LAP which had been compiled after the 12th rape came to light. He knew, therefore, that LAP, including Dr Saradjian (and by inference the other members of the staff at the unit) did not consider that this additional offence altered their recommendation. He took their opinions into account. An oral hearing would not have taken the matter any further. v) The Court should not be over-ready to find an impasse or inconsistency and, even where one could properly be said to exist, it did not necessarily mean that an oral hearing was required (see Mackay at [28(iv)]). vi) The Parole Board recommendation in 2008 was not materially different from that which it had made in the Mackay case. The Court of Appeal in that case did not think that what the Parole Board had said made an oral hearing necessary. The Claimant is on no stronger ground here. The Director did take account of what the Parole Board had said in the Claimant’s case. vii) The Claimant had not reached an impasse. He had been moved to HMP Full Sutton specifically to undertake the extended SOTP on outstanding issues relating to his sexual offending.

Oral hearing: discussion

[22]I begin by reminding myself that this present issue is about process rather than the substantive outcome. It is about whether fairness required the Claimant to be given an oral hearing before a final view was taken as to whether he should be recategorised or not. It is beyond dispute that this is a decision which I must take myself. It is therefore a different exercise than that which the Court conducts when it is considering whether the decision of an administrator or public body was Wednesbury unlawful.[23]The Claimant’s status as a post-tariff life prisoner makes the categorisation decision of particular importance, but that of itself would not mandate an oral hearing. As the Court of Appeal said in Mackay at [37(iv)], were it otherwise such hearings would be the rule rather than a rarity. This Claimant has been detained for over 22 years, but that is very substantially the consequence of the extremely lengthy tariff that was imposed for his appalling crimes. In itself, this factor also takes the case for an oral hearing no further.[24]The Parole Board in 2008 considered that the Claimant had reduced his risk in relation to sex offending, even though it remained too high for him to be released or moved to open conditions. Its recommendation regarding recategorisation is not entirely clear, but is, I think, aspirational - “You should work towards...attempting to complete all remaining work that is required in Category B conditions.” In any case, I agree with Mr Slater that, in itself, the Parole Board’s report was not such that the Director would, for this reason alone, have been required to have an oral hearing before concluding that the Claimant should remain in Category A.[25]This does not appear to be an impasse situation. Unlike Mackay, the Claimant has admitted his guilt. Dr Saradjian told the Director that if he was to remain as a Category A prisoner the next step would be for him to be put on an Extended Sex offenders Treatment Programme.[26]The clear and repeated views of the LAP are of greater significance. The Panel comprises those who have known the prisoner personally and directly. It includes those who have known him in a therapeutic context (such as Dr Saradjian), but also those who have had responsibility for his security and control. I fully accept the point which Mr Slater makes, that the LAP advises and makes recommendations. It is for the Director to decide whether a Category A prisoner should be downgraded. But the significance of the LAP recommendation is reflected in the PSI itself. It means that the decision must be taken by the Director and cannot be left to the Category A Review Team. If an inconsistency between the views of the Parole Board and the Director may increase the likelihood of an oral hearing being required (see Mackay at [28(iv)]), the same may be said where there is an inconsistency between the Director and the LAP. I notice, for instance, that the Court of Appeal distinguished Mackay from R(H) v Secretary of State for Justice [2008] EWHC 2590 (Admin)in part because there had been such a disagreement in H but there was none in Mackay - see Mackay at [34]. Even so, I recognise that the Director would not be required to have an oral hearing simply because he was minded to disagree with the Panel’s recommendation. Fairness does not require a hearing only because of such a difference of view (see Mackay ibid).[27]However, in this case there are additional features which do lead me to conclude that fairness did require an oral hearing. It is clear from the minute of the meeting that the Claimant’s admission of liability for the 12th rape and the implications of that were crucial to the Director’s decision. I appreciate that the decision letter referred to other matters as well, but Mr Slater did not seek to argue that they would necessarily have caused the Director to maintain the Claimant’s Category A status even if the 12th rape had not come to light.[28]Mr Slater did argue that this additional offence was obviously critical because it undermined the premise on which the clinicians had made their assessments – namely that the whole of the Claimant’s offending had been disclosed, analysed and accepted by him. The newly admitted offence showed, he submitted, that this was untrue in a fundamental way. As a matter of logic, therefore, the reliability of the assessments was profoundly shaken.[29]However, the people who had made those assessments did not see logic pointing in the same direction and did not see these recent events as confounding in a fundamental way the work which the Claimant had done. Neither those assessors nor I would wish to minimise the trauma which the victim of that rape is likely to have suffered, but the task which the LAP and the Director were engaged on was deciding whether the revelation of that offence altered their assessment of risk which the Claimant posed. Even before its discovery, all concerned knew that the Claimant had been a multiple, violent and dangerous rapist. Dr Saradjian and her colleagues appeared to take the view that whether he had committed 12 rather than 11 rapes almost 30 years previously did not affect their assessment of his present risk. They looked also at the way in which he had dealt with the new evidence of this 12th rape and considered that it supported their recommendation for downgrading. The Director might disagree with their assessment, but it is difficult to see how logic pointed one way rather than the other.[30]What may have lain behind the Director’s decision (and the minute strongly hints at this) is a belief that the Claimant had known about this additional offence, but had concealed it and so had not participated in the DSPD programmes with the full honesty and frankness which the clinicians thought he had. But, as the Director was also told by Dr Saradjian, it was the Claimant’s case that he had simply forgotten about this particular offence. That gave rise to an issue of fact which is a paradigm example of the type of situation where fairness requires an opportunity to make oral representations. There may be cases where an assertion by a prisoner is so fanciful that fairness does not require an oral hearing. Rape is a serious act of violence and, one might think, not easily forgotten. However, as I have said, this, like all the Claimant’s other offending, took place between 20 and 30 years previously. At the time he was abusing alcohol and drugs. In those circumstances, it was not such an absurd idea that the Claimant had genuinely failed to remember this particular offence. Of course, the Director might still disbelieve him after having heard what he had to say, but the Claimant would then have had the fair hearing of whose absence he complains.[31]The Director’s reasoning as disclosed by the minute (but not the decision letter) continued by arguing that, if this offence had been undisclosed, “it would not be a great surprise if he was found to have committed a number of other offences”. According to the minute, Dr Saradjian acknowledged this possibility, but this was not a matter on which the Claimant was asked to comment. He could have been if he had been given an oral hearing. Of course, the Claimant could not give evidence of what he had forgotten, but there may have been information which would have made it less (or, I suppose, more) likely that he had committed yet further offences. In deciding what significance to place on these other possible offences, the Director would, necessarily, need to be careful about simply engaging in speculation.[32]The minute also showed the Director and psychologist expressing the view that the addendum report was “biased” and the psychologist thought that the DSPD reports were influenced by the Claimant using his “psychopathic charm”. In making his decision, it is for the Director to decide how much weight to attribute to the reports he receives and, in principle, he may take a robust view as to their value. However, the accusation that a professional psychologist was biased and that she and her colleagues had been deceived by the Claimant pulling the wool over their eyes were serious matters which in fairness to them and to the Claimant ought to have been ventilated at an oral hearing.[33]The minute does disclose that Dr Saradjian had contacted the CART office to discuss the case. She was told her report was unhelpful and the concerns of the recent conviction should have been picked up by the prison. It was in this conversation that Dr Saradjian apparently referred to the Claimant’s claim that he had forgotten about this particular offence and acknowledged that he could have been responsible for a number of other offences and accepted that the next step for him would be a transfer to an establishment where he could do the ESOTP and, if appropriate, restart the DSPD process from the beginning.[34]I have considered whether this conversation made an oral hearing unnecessary. I bear in mind that Mackay at [28(i)] quoted with approval what Cranston J. had said in H (above at [1]), that procedural justice did not necessarily imply an adversarial process and more informal procedures that one might expect in courts and tribunals could be acceptable. However, I have concluded that the conversation with Dr Saradjian was no adequate substitute. Firstly and fundamentally it was not a conversation to which the Claimant was party. It gave him no opportunity to comment on the matters which prompted the need for an oral hearing. Secondly, it is not entirely clear from the minute exactly what Dr Saradjian was told. It is not, for instance, easy to deduce whether she was told that her report was thought to be biased and she and her colleagues had been blinded by the Claimant’s “psychopathic charm”. Thirdly, I observe that Mr Slater did not seek to argue that, if fairness would otherwise have required an oral hearing, it did so no longer after this conversation had taken place.[35]In summary, this was a case where fairness did oblige the Director to hold an oral hearing. Since the Director took his decision without such a hearing, it must be quashed.

The challenge to the substantive decision not to re-categorise the Claimant

[36]I reject as not reasonably arguable the claim that the Director failed to have regard to any relevant documentary material which was before him. He was aware that the LAP endorsed its previous recommendation for downgrading even after it learnt of the Claimant’s admission to the 12th rape. The minute makes that very clear. His decision refers to the Parole Board’s 2008 report and I infer he took account of that as well.[37]Ms Whitaker submitted that the decision to retain the Claimant’s Category A status was irrational, but it is difficult to separate her submissions in this regard from her primary case that fairness required an oral hearing. I have found in her favour in that regard. As Mr Slater submitted, once all the evidence is properly in, it is for the Director to weigh all the different views, attribute the weight he considers appropriate to the various factors and come to a decision. Irrationality is a high hurdle to cross. But because there was no oral hearing, the Director could not reach that stage. In effect, my decision on the Claimant’s primary submission has rendered this part of the argument moot. So far as is material, I refuse the renewed application for permission for this part of the claim.

Disposal

[38]The Director’s decision will need to be quashed. I will invite the parties to try to agree what further orders I should make consequent on this judgment. If an order can be agreed then there will be no need for either of them to attend when the judgment is formally handed down. If agreement cannot be reached, I would ask them each to make written submissions in support of what they contend should be included in the order. There will then, if they wish, be a brief opportunity to make oral submissions when the case is listed for judgment to be given.

Cited in 1 later judgment