Whittaker, R (on the application of) v Secretary of State for Justice [2011] EWHC 2166 (Admin)

Case No CO/13177/2010

[2011] EWHC 2166 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 2nd June 2011

Strand

London WC2A 2LL

B e f o r e:

HIS HONOUR JUDGE WAKSMAN QC

(Sitting as a Judge of the High Court)

Between

THE QUEEN ON THE APPLICATION OF WHITTAKERClaimant

Between

SECRETARY OF STATE FOR JUSTICEDefendant

Computer-Aided Transcript of the Stenograph Notes of

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Mr Jagadesham (instructed by Swain & Co Sols) appeared for Claimant

Mr Fullwood (instructed by Treasury Solicitor) appeared for Defendant

JUDGMENT

HHJ WAKSMAN QC:

[1]This is a challenge to the decision of the Category A Review Team (CART), part of the Ministry of Justice, not to re-categorise the claimant, Mr Whittaker, as a Category B prisoner from his present Category A status. The decision was made first in a letter of 28th September 2010 and then confirmed by a letter of the 29th November 2010.

[2]Mr Whittaker was born on 11th March 1966 and is currently serving his sentence at Wakefield Prison. He has a long history of offending. On 8th February 2002 he was sentenced to life imprisonment, with a tariff of 24 years, for the offences of two murders and one attempted murder. In respect of all three offences he entered the victims' properties and shot them in the head. None of the victims were personally known to the claimant. His tariff will expire on 12th February 2025.

[3]Up until 2025, when he developed symptoms associated with multiple sclerosis, Mr Whittaker had denied the index offences. That attitude has changed, at least to some extent, further to the onset of these symptoms. In 2005 he suffered from his first episode, paralysing him from his feet to his upper chest for 8 months. He suffered a similar episode in 2006, lasting 7 months, with residual tingling in the hands thereafter. He suffered a severe episode in 2007, where he had to be constantly catheterised and had extreme spastic weakness in both legs as well as some weakness and unco-ordination of his arm and sensory abnormalities of pins and needles in the hands. Since then he has remained wheelchair bound and his condition has deteriorated in that he is unable to walk or stand and has totally lost the use of his legs. While his arms remain functional they have also substantially deteriorated. He does not have the muscle strength to wheel himself around for sustained periods.

[4]There may be occasions when the inability is not quite as total as I have just described but that, broadly speaking, presents the picture. His hand/eye and coordination have also deteriorated. He has difficulty in drafting correspondence. Short-term memory and ability to concentrate have also been impaired.

[5]A full history of how the symptoms developed and of what they consisted is to be found in a report of Dr Loizou which stated the position as at the 29th July 2009 to be found at page 62 of the bundle.

[6]In addition, he is said to suffer from a secondary ailment called involuntary emotional expressive disorder (IEED) where his internal feelings are not accurately represented by outward expressions and statements. So he might say one thing and feel something different inside. On the evidence before me that appears to be a self-reported condition but it is not suggested it is wholly implausible or fictitious.

[7]The position in relation to Category A prisoners and re-categorisation is set out in the Prison Service Instruction (“PSI”). I read from several parts of that document, first of all paragraph 2, at page 3:

"A Category A prisoner is a prisoner whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible."

[8]I pause there to say that for present purposes that assessment of this claimant is not under challenge. But the passage goes on:

"In deciding whether Category A is necessary consideration may also need to be given as to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security and that prisoner categorised accordingly. However, this will only arise in exceptional circumstances, since escape potential will not normally affect the issue of categorisation as it is rarely possible to foresee all the circumstances in which an escape may occur."

This case, so far as it concerns me, is about escape potential.

[9]At page 9, it is stated in the fourth paragraph of section 1:

"Before approving a provisional category or restricted status prisoner's downgrading, the Director must be convinced the prisoner does not pose a high risk of re-offending in a similar way if unlawfully at large. The Director may decide this on the nature and circumstances of the prisoner's offending or any significant change in the prisoner's circumstances, such as an important change in the charges against the prisoner or substantially impaired health or mobility."

[10]Then moving to page 11, under the section headed "Oral Hearings":

"The Director can grant an oral hearing of a Category A prisoner's annual review. This will allow the prisoner or representative to submit their representations verbally. The Director will grant an oral hearing if there are exceptional circumstances that suggest that the submission of oral representations is the fairest means of determining a prisoner's suitability for downgrading. The suitability of the format of an oral hearing willing however remain at the director's discretion."

There is no challenge to any aspects of that policy which I have recited but there is relevant case-law to which I will turn in due course.

[11]So far as the facts are concerned, as already noted, the position now is that reviews of the claimant's category will take place approximately once a year, and I should indicate at the outset that the next annual review is to take place at some point in September 2011 and I am told that the reporting process, at least as the far as the prisoner is concerned, will commence shortly.

[12]An extensive report was prepared by the Category A team for the purpose of the review in question. That document begins at page 22 of the bundle. At page 23 the definition of a Category A prisoner and the reference to escape potential are set out in the PSI is quoted there. The offence history is set out. At page 25:

"It is noted that being wheelchair bound, Mr Whittaker is limited to what he can do without assistance."

At page 27, in a section of the report prepared in March 2010, it is noted:

"Mr Whittaker self reported that he feels his offences were triggered by unresolved issues surrounding his cannabis use. Due to his medical condition he was not seen suitable for treatment at this time and for the foreseeable future when seen by CARATs in October 2009."

At page 28:

"It was noted that he made the statement in October 2009, but at the time of the offence he was a completely different person; he now understands the suffering he caused to other people, if he thinks he was some sort of psychopath at the time 'but I am not now'. He stated during an interview that he felt that MS would prevent him from completing any offending behaviour work due to lack of concentration levels and the poor short-term memory. He said that he thought that MS was the best cure for offending and the illness had made him more aware of victim issues. He said he was willing to attend but would not be able to fully participate giving the impression he was not motivated."

At page 29:

"In a statement from the offender supervisor, it was noted that he was paralysed and lost the sight. However the sight had returned and he now had some mobility although he still used a wheelchair."

Then he said this, as at 29th March 2010:

"It is acknowledged that symptoms of MS will have an impact in the future on his physical abilities however in order to evidence reduction and risk he needs to address all aspects of his offending behaviour as he is not completed any offending behaviour work he remains a high risk of harm."

[13]Then at page 30 in relation to offence-related work, a brief report prepared by forensic psychologist it noted:

"In a recent sentencing planning board, he said he had not felt well enough to engage in group work due his progressive MS he said it found difficult to concentrate for prolonged period and problems hand eye coordination but noted it was encouraging he recently moved from health care to an adapted sell on normal location...” I interpose to say he was in an adapted cell in each of those locations. “..He still requires help with every day care, but he says his recent change to his medication seems to have improved his quality of life. Health care staff report that although his condition can relapse at any time he's recently been stable and they feel he may now be well enough to consider some form of group work. Psychology department continued to approach him with regard to considering group work but they had mindful of his health care needs. It might benefit him to engage in one of the less demanding programmes, such as foundation programme which is a four week programme and required only a small amount of written work and out of session work."

At page 31, a further psychology report, prepared by the same author as before noted:

"He had not yet reduced his risk of re-offending he had committed three very serious offences and what still unsure as to what triggered his behaviour but given the nature of his illness, which means he's confined to a wheelchair and his condition is likely to worsen over time, this may reduce the likelihood of him being physically able to carry out offences of a similar nature in the future. In his opinion the attitudes and believes underpinning Mr Whittaker's offending behaviour have not yet been addressed. He has the intelligence and possible criminal contact which may enable him to be indirectly involved in criminal activity if he chooses to do so."

As I said there is no challenge to the principal basis on which he is categorised as an A prisoner.

[14]At page 33, in one of the sentence planning reviews it was noted:

"His long-term illness may impact on his level of risk."

At page 34, in a case summary and going back to October 2008:

"Mr Whittaker was currently in a wheelchair and reported that he was able to manage independently in a disabled cell."

Then at page 36 in a statement made on 24th April 2010, being a health report, completed by the medical officer, there was this question and this answer:

"Has the prisoner any exceptional medical issues that would ensure that his escape could be made impossible in conditions of lower security? eg incapacity or chronic ill-health?"

Diagnosed with multiple sclerosis, at the present time his medical condition would not affect any recommendations with regards to lowering his category status..." which I interpret to mean that in the author's view this should not lead to a recommendation of a lowering of category status for that reason. There is also the report of Dr Loizou which I do not need to go through.

[15]On 8th August 2009 his application to be re-categorised was rejected.

[16]Then at page 55, dealing with a further sentence planning meeting report, from the end of 2009, it was stated at page 56 of the bundle:

"It is acknowledged that symptoms of MS will have an impact in the future on his physical abilities, however in order to evidence reduction in risk he needs to access all aspects of his offending behaviour."

At page 60 in interview:

"Mr Whittaker said, 'My hand/eye co-ordination has gone and it completely exhausts me.'"

About moving back onto normal location which in fact happened albeit it in an adapted cell, he said he would like to progress with his medication:

"Mr Whittaker explained to the Board that [at that point] he had the illness I.E.E.D. ... 'I'll say one thing, when inside I will be thinking another.'"

So those were the papers submitted to the CART Review Panel.

[17]Then I turn to the representations which were made on Mr Whittaker's behalf, I think by his solicitors. They are dated 18th August 2010 and they begin at page 64 of the bundle. They set out the index offences, the previous convictions and the history of Mr Whittaker in prison. They then turn to health conditions, say that he is paralysed from the waist down and permanently bound to his wheelchair. His arms were very weak and he could not push himself very far without being easily exhausted. They described the earlier episodes much in the way that I have already set out:

"The condition so far as arms are concerned was said to continue to deteriorate with him being unable to walk or stand with the total use of his legs. His arms while functioning have substantially deteriorated but do remain functional. Due to his hand/eye co-ordination had difficulty in drafting correspondence which easily exhausts him. His short-term memory and ability to concentrate has been affected."

Consequently, said the representations and I now quote:

"... Mr Whittaker will have difficulty being able to reduce his risk through completing offending behaviour coursework, as he would be unable to participate in the class rooms without substantial support both in class and when completing in cell work... To further complicate matters, a secondary ailment to MS which Mr Whittaker suffers from is called IEED ... which means he feels and thinks something on the inside but is not reflected when verbally expressed. As such, Mr Whittaker may have difficulty communicating with the Psychology and Programmes Department. Further, the CSCP has been recommended. However, in the high security estate there is only one designated disabled establishment namely, HMP Wakefield. Similarly, there is only one establishment which offers CSCP namely, HMP Long Lartin. Therefore, given his disability he will not be able to offered the opportunity to complete the CSCP in a high security establishment which placed him in a 'catch 22' position."

CSCP is a communal skills course.

[18]I interpose there to make this observation. It was plain from the passages just read out that in so far as short-term memory and ability to concentrate can be described as mental impairment, as opposed to neurological consequences of the disease, and insofar as there is a reference to IEED, they have been invoked solely in the context of a submission that it is difficult for Mr Whittaker presently to be able to reduce risk through completing offending behavioural course work. They are not invoked in any other context.

[19]In conclusion, the representations state that he was suffering from MS, it is degenerative; and he will not fully recover. He is permanently paralysed from the waist down and resides on the disability wing and in the only high security prison establishment equipped to deal with disabled prisoners. He is keen to reduce risk through programmes but will have difficulty doing so. It is not suggested it will be impossible.

[20]Then there is reference to Category A prisoners and the obligation of CART to consider whether the objective of making escape impossible could be achieved in Category B. Therefore the risk of escape is a material factor when considering whether they should be re-categorised.

[21]Then it goes to on to say this and I quote again:

"Given Mr Whittaker's physical disability it is submitted that Mr Whittaker is not able to escape from closed conditions and as such escape is possible. In the circumstances, considering the salutatory effect the diagnosis of MS had on [him], it is submitted that Mr Whittaker should be downgraded to category B conditions. This will place him in conditions where his healthcare needs and provisions can be more easily managed. It will also offer him better opportunities to gain access to adapted coursework to accommodate his needs. Further, should CART be minded to give a negative decision, an oral hearing should be granted to allow for oral evidence to be given regarding Mr Whittaker's condition from his Consultant Neurologist in relation to his physical condition and the limitations this would have on any potential Mr Whittaker may have escaping, wing staff who are able to comment upon Mr Whittaker's loss of mobility and the effect and impact this has on him with regard to his daily needs."

That was produced on 18th August. On 28th September 2010 the first decision letter was produced and it reads as follows:

"The Category A [Review has been] completed. The decision is that he was to remain in Category A. The decision had reached following careful consideration of all relevant factors including nature and the circumstances of present offence, offences length of sentences imposed previous offending history prison reports. We have also submitted representations towards your review."

Then it deals with index offences and then the high risk if unlawfully at large and that there needs to be clear and convincing evidence of the significant reduction in this risk. Then it is said that there was risk factors associated with use of extreme violence had not significantly changed. It was noted that it was believed the drugs use was a key factor in the offending but needs to be further explored. Then as follows:

"The Category A Team recognise your circumstances had in recent years been greatly affected by multiple sclerosis. It noted you required the use of a wheelchair and at the time of your last review you were located in healthcare centre. Your condition had also prevented your effective participation in recommended intervention work. The Category A Team notes the current reports suggest that there had been some small recent improvements. You were now located in you own cell on the wing and your participation in some initial coursework was also now a possibility due to improvement achieved through medication."

I pause there. It seems to me that on the basis of what is said in the report, that this was an entirely fair and measured comment. The letter goes on:

"It noted the medical assessment that your medical condition would not at present affect any recommendation relating to your security category."

That must be a reference back to the brief report at page 36:

"The Category A team accepted your medical health is likely to become an important consideration in future in relation to your security category should your condition deteriorate. But it considered the total evidence in the current reports showed your physical condition was not at present so impaired that your escape could be made impossible in less secure conditions. Your physical condition also did not prevent you from discussing and addressing your offending, and thereby showing the necessary risk reduction to allow progression. The Category A Team considered there was at present no convincing evidence that your risk of reoffending in a similar way if unlawfully at large had significantly diminished. It was therefore satisfied you should remain in category A at this time. The Category A Team considered the information in the present reports, including from those in regular contact with you and aware of your current needs, was sufficient for the purposes of assessing your physical condition in relation to your security category. It did not seem there were any grounds for this information to be further debated or clarified for an oral hearing with a consultant neurologist."

[22]That then provoked a response from those acting for Mr Whittaker in their letter of 22nd November 2010. It was said that what was noted was the key piece of offence focussed offending behaviour course work was CSCP (Cognitive Self-Change Programme) but he could not access this course while he remains a high security prisoner. It said that this information was contained within his representations but did not appear to have been taken into consideration.

[23]The author then went on to say that he was concerned about the conclusion in the context of physical “improvement” had been taken out of context saying that he stills remained physically paralysed. His muscle wastage was so great he could not move his lower limbs. While he can move his arms he does so with great difficulty and they have become weakened. His short-term memory loss and issues surrounding IEED had not been considered which will inevitably impact upon him completing any offending behaviour coursework. It was said that the decision he remains Category A was irrational. His mental and physical frailty (as detailed above and within the lengthy representations) which related to his inability to escape and complete group/unadjusted offending behaviour work has not been taken into consideration.

[24]I pause there. It was submitted to me by Mr Jagadesham that even though the apparent mental impairment had not previously been invoked as relevant to the issue of escape potential as opposed to the ability to complete course work, in this passage in the letter, it was. I do not accept that submission. This particular passage seems to me to be no more than summarising what has been said before and it was right to say that the mental (as opposed to physical) frailty related to inability to complete offending behaviour of work. If it was going to be suggested that the mental impairment was now to be regarded as a significant factor as to escape potential, something very much clearer than that would have to be stated. Certainly any reader of that letter would in my judgment, be entitled to assume it was doing no more than summarising the previous submissions. I will return to that topic hereafter.

[25]The letter then went on to request an oral hearing. It was noted that this request had previously been refused. But given his physical frailty and the impasse in his case, in other words being unable to achieve re-categorisation until he completes the relevant work, an oral hearing would be appropriate in his case.

[26]That led to the second decision letter under challenge, dated 29th November 2010. This noted that CSCP was a long-term sentence planning target and he was unable to access this course but it said that Mr Whittaker had yet to engage in one of the less demanding programmes which only required a small amount of written work and out-of-session work. It noted that Mr Whittaker had declined an assessment for CSCP in October 2009 citing ill-health and no attempt had been made to address very serious offending and he had yet to reduce risk of re-offending. The attitude and beliefs underpinning that offending had not been be addressed. The CART team acknowledged that given the nature of the progressive illness which resulted in confinement to a wheelchair his condition was likely to worsen over time, and that this could reduce the likelihood of him being physically able to carry out offences of a similar nature in the future. But they noted that his reports had not supported his submissions that his medical condition at that time would allow consideration to be given to a downgrading of his security. The CART team noted that physical conditions did not prevent him discussing and addressing offending behaviour. The CART team confirmed that it was fully aware of clients' physical condition and did not consider an oral hearing was necessitated in the interests of fairness.

[27]Given the particular circumstances of this case and the fact that the prisoner was fully aware of his current needs, I do not consider that the letter written by the solicitors and the further decision letter takes the matter any further and if there were no grounds to interfere with the first letter, I cannot see that there are any grounds to interfere with the second.

[28]Having completed that review of the papers, I should then briefly summarise the evidence of Mr Easton who is part of the CART team at the Ministry of Justice who dealt with this case. In his witness statement he sets out the various policies and rules and the PSI. He deals with the question of mental impairment from paragraph 15 onwards. He says he was involved in determining the most recent categorisation review. He said that the claimant's mental health, as part of the more general review of his health, was considered and was evidenced by the statement that the decision was reached after careful consideration of all the factors and the comments in the decision which noted the improvement in his condition and the possibility of participation in coursework going forward. The was also a reference to a report that previous problems with memory loss had improved. He considered that the report provided a more positive picture of his health generally than was put forward by the representations and there had been progress in relation to his physical condition independent mental health since last review. That was in line with the health care report writer's view, which was that the medical condition did not impact on any recommendation regarding his category status. Put another way, said Mr Easton, the writer clearly did not consider that the claimant's medical condition had lowered his risk of re-offending if unlawfully at large. As I have indicated, that at least is not in dispute for present purposes.

[1]Then at paragraph 20 Mr Easton said:

"Categorisation of decisions are taken solely on the basis of risk posed. Oral hearings are held where paper reviews fail to reach a clear conclusion on this issue. Such cases being exceptional. But this was not an exceptional case. The conclusion to be reached was clear and the medical reports and other reports recommendation confirmed the illness was not viewed as impacting on his risk of re-offending given his clarity was appropriate to hold a further oral review of the issues. I do not consider an oral hearing would add anything more."

Then in paragraph 21:

"Furthermore for the sake of completeness oral hearings on categorisation consider issues relating to risk of reoffending only and it would not be appropriate such hearings in order to consider further peripheral issues such as access to course work or general progression."

I will return to that in due course.

[29]One curious feature of this case is that although the consultant neurologist was offered for an oral hearing by Mr Whittaker’s representatives, no report had been obtained prior to the review, nor has a report been prepared subsequently, for example, for use by this court. That is material because, as noted below, the question of an oral hearing is now for this court to decide on an application such as this. Appropriate funding for an independent report had apparently been obtained and was going to be progressed by a visit but that visit, for some reason, did not happen. It is said that if an oral hearing was granted, then funding would be obtained or confirmed or repeated for the attendance of the appropriate specialist and the making of a report. Indeed given the prior funding agreement, apparently it is likely that funding would be available simply for a report to be produced at a review without an oral hearing. It is not suggested that an oral hearing is a prerequisite for the funding of a report. Certainly the experience of this court is that the reports are often obtained prior to reviews such as this, where there is a need for such reports. As I have already noted the dangerousness criterion itself for Category A is not an issue, it is simply a question of escape potential.

[30]So far as the law is concerned there is no real difference between the parties who have concentrated rightly on those cases concerning oral hearings. The leading case now is the case of R (DM) v Secretary of State for Justice

[2011] EWCA Civ 522

, a recent decision of the Court of Appeal on 12th May 2011. I need to read only from the statements of principle set out in the judgment of Gross LJ, with whom the two other Lord Justices agreed. At paragraph 25 he said:

"... the decision as to continued classification of the prisoner as Category A has a direct impact on the liberty of the subject and calls for a high degree of procedural fairness."

Then at paragraph 28 he said:

"the common law duty of procedural fairness will some times require CART to convene an oral hearing when considering whether or not to downgrade a Category A prisoner. .......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."

[31]By way of amplification, Gross LJ looked at various examples in particular, at (i) he quotes from the decision at first instance in West v The Parole Board

[2005] 1 WLR 350

which referred to Lord Bingham's statement of principle that:

"There is no test of exeptionality. 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."

Then (ii) some examples were given in the case of R (Williams) v Home Secretary

[2002] EWCA Civ 498

"... 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... "

In R (H) v Sec of State for Justice

[2008] EWHC 2590 (Admin)

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)..."

[32]In DM itself, on the facts, the Court of Appeal reversed the decision of the judge at first instance holding that no oral hearing was required.

[33]I then turn to the case of R (Riley) v Governor of FranklandPrison

[2009] EWHC 3598 (Admin)

. There, an oral hearing was ordered by His Honour Judge Pelling QC. So far as the facts are concerned, this was where the prisoner was by then a stroke victim and had serious cognitive impairments which reduced very significantly his escape potential. It effectively ruled out a planned escape. So the only question was an opportunistic escape, and the question of mobility in that context then arose. There was then a real issue over mobility, and in paragraph 8 of his judgment, the learned judge noted that there had been a report prepared in relation to that but the refusal letter did not deal with that report at any great length. It simply referred to the fact that the report said:

"... mobility was said to be good with no reports of any falls. The report also concluded that it was very difficult to offer an opinion whether the risk of further escapes had changed, given the lack of details in the available account of your escapes from custody. The report also noted that your communication and cognitive difficulties would make it very difficult to you to plan and organise and escape."

Then, in paragraph 18, so far as the principal reason for ordering an oral hearing,

the judge there said:

"The critical factor involved an assessment and the degree to which the claimant had the physical Category B. Medical evidence suggests the claimant does not a cognitive capacity to plan an escape. If so it was not clear whether this had been accepted, the only issue remains in relation to the risk of opportunistic escape. It is to that issue of the question of physical capacity which is primary relevant. In my judgment, that issue is one which is likely be best resolved at an oral hearing where the issue with the witnesses including doctor ... who compiled a report all of that and noted the claimant on a day-to-day basis. The decision makers have an opportunity to explore the issues which most concern them. Mobility is clearly an important issue and on the basis of the conclusions of the letter, it is one which is clearly in issue. In my judgment, it was an issue the resolution of which would be assisted by seeing the claimant and relevant officers, officials and professionals."

There is no serious cognitive problem in this case although clearly there is a problem so far as mobility is concerned which would appear to be much more significant.

[34]While the case is Frankland does relate to the question of escape potential, it is very much based on its own facts. There are also statements of principle in that case but they have now been superseded or summarised by the statements of principle which I have already read out from the case of DM.

[35]There is also the case of Roose v Parole Board

[2010] EWHC 1780 (Admin)

, to which both sides have referred. In that case, there were reports from both sides before the Board although they were in dispute. By the time the matter came to court, there were even more. I read here from paragraphs 28 and 29:

"28. The court raised the question of how realistic was the possibility that Mr Roose might even be eligible for a particular programme. The idea of personality or may be so severe he might be so dangerous to qualify for the programme stood in stark contrast to opinions expressed of his two previous reviews that he had been suitable for transfer to open conditions. To test that Miss Bromley commissioned a report on Mr Roose, of Miss Charlesworth-Moore, a consultant forensic psychologist, having interviewed him and subjected him to a number of tests, her views reported in May 2010, was his disorder was not of such severity to bring him within the criteria for inclusion in the programme."

Then the court said in paragraph 29:

"Against that background the case advanced on Mr Ruse's behalf is that an oral hearing may have enabled (a) Dr Brook-Tanker to be questioned on the comment the Board may consider whether he should assessed as suitable for treatment on the program, (b) Mr Denning to be questioned about why he thought Mr Roose benefit from the programme. Two whether his view any different appreciated Dr Brook-Tanker had not said that Mr Ruse would benefit from such a move or she was recommending such a move but only saying it was possible. Further the circumstances in which his transfer to open conditions was still appropriate. If necessary and Miss Charlesworth-Moore's report could have been commissioned earlier than it was Miss Charlesworth-Moore could have told the Panel why Mr Roose did not satisfy the criteria for conclusion programme. Representations of all these topics could have been made and they could have been particularly compelling bearing in mind the premium on which our system places of oral advocacy."

That is a very different case from this one. There is a statement of general principle which is of some assistance here, in paragraph 22, and the last part says:

"In a case where a written representations were made to the Board by the prisoner's representative it is necessary for the Board to consider whether in the particular circumstances of the case, an oral hearing will have made the Board's consideration of the case anymore informed and the assessment of the risk the prisoner posed anymore accurate than already was the case."

That was emphasised by a decision of Langstaff J in the case of Osborn v Parole Board

[2010] EWHC 580 (Admin)

where he said at paragraph 32: " For fairness to demand an oral hearing there must be something which the oral nature of such a hearing can contribute by reason of the fact that it is oral and held in his presence or that of his representatives which is of relevance to that hearing or to future potential hearings. I do not rule out that there may be circumstances in which even though there is nothing of such relevance to add there may on the exceptional facts of a case be such a need for the prisoner to see and understand how his case has been considered that procedural fairness demands a hearing in his presence, or that of his representative: but such cases if they exist will be rare, for by definition from the Board’s point of view it is being invited to participate in a process when the prisoner’s participation can add nothing of relevance. From the prisoner’s point of view, it is a waste of his time to take part in an oral hearing when nothing of relevance may be gained, and may even risk being a hollow charade where he has already responded in writing with all the relevant representations. If there is no obvious relevance, there is no good reason for the Board to bear the additional burdens of arranging and holding an oral hearing. Further, in reaching a decision whether there is such potential relevance, and whether to hold such a hearing, the Parole Board should have regard to the reasons given by or on behalf of a prisoner for seeking an oral hearing.” That is relevant here.

[36]Against all of that background, I turn to the two grounds of challenge. First of all, I deal with the challenge to the effect that the decision letters failed to take account of the question of mental impairment in relation to issue of escape potential. First of all, as is plain from the report and the representations it is absolutely clear that the mental impairment such as it was relied upon solely on the issue of coursework and the difficulty that that posed and nothing else. The extent to which the IEED disorder might impact on that or other matters is somewhat unclear but the nature of the reliance on the mental impairment is clear. I have already dealt with how those acting for Mr Whittaker came back to that issue in the letter of 22nd November 2010, and the view already expressed that the part of the letter which refers to mental and physical frailty, and then inability to escape and completion of group offending behaviour work does not take the matter any further. One simply cannot read into that a clear suggestion that mental impairment is now being relied upon for some other purpose.

[37]Further, that being the case, as I have indicated, there was nothing wrong with the second letter from CART. Mr Jagadesham said that perhaps in any event mental impairment of this kind could have some impact and that I should consider that here and now, in relation to any ability, for example, to plan an escape. But it seems to me this is all highly speculative. I cannot see that those sorts of suggestions, at this stage, really take the matter any further. Certainly not from the point of view of any criticism of the decision letters faced with the submissions that had been made to CART at that time. It may be that on a future review the question of mental impairment will be investigated by Mr Whittaker or by a professional on his behalf more fully. There may be some submissions that can be made linking those particular impairments to the question of escape potential. But it has not been so far and it could not be put before me in anything than most speculative and vague terms.

[38]Next, it is said to be an issue concerning the ability to undertake course-work and that the decision letter in some way got that wrong so that there was a failure to take account of mental impairment in that context. I think that this issue has been significantly overstated. All the decision letter said was that there was a possibility of doing some work. In fact it is not actually clear from the papers or from the representations that it would be impossible for the claimant to undertake that work. There were certainly difficulties lying in the way but the author of the decision letter was perfectly entitled to conclude that at least some of the less taxing programmes could be started because of the very limited demands which they would make on the physical or mental abilities of Mr Whittaker as opposed to his thinking skills. In any event even if there was an issue, that is not an issue which goes to the question of escape potential which is the basis of this particular ground.

[39]Mr Jagadesham relied on the case of G v Secretary of State for the Home Department

[2006] EWCA Civ 919

. That was a case where there had been an asserted lack of motive to escape, which was put forward as exceptional circumstances as within the meaning of 1(3) of the relevant part of PSI. Pill LJ took the view that this was a principal controversial issue that had been raised and was understood as raising a discrete and significant issue (see the representations). What then happened was when that the decision letter came back, which was long and detailed, it contained no reference to the point at all. So it is unsurprising in that particular case that the court thought it appropriate to interfere.

[40]But that is a long way from this case because, as I have indicated, there is no clear, or indeed any reliance upon the mental impairments such as they are as real factors in relation to escape potential. So the decision letters cannot be criticised for not dealing with it in that context.

[41]In general terms, of course, the decision letters did take into account the course-work point. I have already referred to that in the decision letter but just to reiterate, at the bottom of 69, it was noted that the claimant needed a wheelchair and at the time of the last review was in the health care centre; the condition had prevented effective participation in the recommended intervention work but it then noted the current more and small recent improvements and now the possibility, due to medication, in relation to some initial coursework.

[42]Obviously, in that context the only basis for those remarks could have been how they were put to CART in the first place, which was by reference to the mental impairments. In the context in which it was raised the decision letter clearly dealt with it. There is also the evidence of Mr Easton that in general terms the question of mental impairment was looked at.

[43]In all those circumstances and on the materials presently before me, as indeed they were before the Review Panel, there is no basis for the first ground and I dismiss it.

Failure to order oral hearing

[44]I turn then to the only other ground which was the failure to order an oral hearing and in doing so I note that there is no separate ground attacking the rationality or otherwise of the decision in so far as it related to physical impairments and escape potential. That issue is raised solely in the context of the oral hearing.

[45]So far as this is concerned, there were two key planks of Mr Whittaker’s submissions as developed in oral argument as to why, in the interests of fairness, an oral hearing was necessary so as to produce a fully informed and fair result. First, there was in fact a dispute between the claimant and CART as to the true extent of his disability from MS which related to the question of escape. Secondly, on that issue, the input of his own or possibly a different consultant neurologist would be of assistance and such a person could then be questioned.

[46]As to the first factor, as confirmed by Mr Fullwood, there is no real issue over the extent of the disability. There may be at the margins but not its essence. Where there have been some small beneficial changes, for example, going back to his own room after having been in an adapted cell elsewhere, or where there has been a response to medication, that cannot really be gainsaid. Otherwise, all that is being said, so far as coursework is concerned is that there is the possibility of doing some. There were other changes noted, for example, that there was an eyesight problem but that it had been resolved. An ability to do a little writing or attend one of the two sessions or at least the possibility that that could be done is not in essence at odds with the medical symptoms put forward.

[47]I accept that there are not any very extensive reasons on this point, either in the decision letter or in Mr Easton's witness statement which focus rather more on the outside risk, if I can put it that way, rather than the inside risk, that is the risk of an effective escape. But the question of escape was clearly considered. Returning to the letter, as already noted in the second paragraph, it referred to:

"The CART team accepted that medical help is likely to become an important consideration in the future in relation to security category should your condition deteriorate. But it is considered that the total evidence in the current reports showed your physical condition was not at present so impaired that your escape could be made impossible in less secure conditions."

There are references in the report to this matter albeit briefly. One then reverts to this topic in the last part of the letter (page 70) where it says:

"The Category A Team considered the information in the present reports including from those in regular contact with you and aware of your current sufficient for purposes of assessing your physical condition in relation to your security category. It did not see there were any grounds for this information to be further debated or clarified through an oral hearing with a consultant neurologist."

Of course it would be true that the staff would see the extent of the disabilities for themselves.

[48]On a proper analysis, it is not that there is some major issue on the extent of the physical symptoms but rather, whether it meant that escape could be made impossible in less secure conditions. As far as that is concerned, there is, for example, the possibility of collusion with others to assist on any escape. Mr Jagadesham says that the mental impairments that had been identified, for example short-term memory, or inability to concentrate might militate against that. Perhaps, although again there is no detailed evidence on this point, I do stress that unlike many cases, there is no actual evidence from Mr Whittaker nor any professional on his behalf, which might have brought matters up-to-date or which otherwise could have assisted the court. There is of course the fact that he is in a wheelchair, either all or very nearly all of the time with the loss of the use of his legs either total or very nearly so. But I do not see that this fact (and there are obviously a number of disabled prisoners who have been convicted of very serious offences within the prison estate) in and of itself means that an oral hearing must be necessary. One can ask rhetorically: what more would the Board gain having had such a hearing? On that basis, therefore, the first plank of the submission in relation to oral hearing falls away.

[49]That then leaves the issue of consultant neurologist. I emphasise that the presence of a consultant neurologist was the sole ground advanced for the oral hearing, obviously to assist on the question of physical impairment. But that is an entirely speculative proposition without some indication, at least, of what the neurologist would say. It is not uncommon to produce reports at this stage and, indeed, there would obviously have been papers from Mr Whittaker's own neurologist's reports of this incident examinations that could have been made available and perhaps supplemented by a note on escape potential. That simply was not done and has not been done even now, which is highly relevant because it is for the court now to decide on an oral hearing based on the material now before it.

[50]There is the earlier report of Dr Loizou which Mr Jagadesham relies upon although it comes from 2009. That sets out how the disease has manifested itself and particular incidents had occurred, but it was not directed to the question of escape potential. Those particular facts do not themselves appear to be in dispute as to what has happened in the past. According to Mr Easton that was taken into account.

[51]Mr Jagadesham is right to say that there could be a dispute not over primary facts but about their interpretation. I agree, although it may be that when there is a real and serious dispute on the primary facts going to a key issue then an oral hearing is more readily to be seen as appropriate. Of course ultimately there is bound to be a dispute where CART finds against Mr Whittaker so far as re-categorisation is concerned. The mere existence of a dispute as to escape potential is not by itself something that inevitably calls for an oral hearing. As the cases have emphasised, each case must turn very much on its own facts and those occasions are likely to be rare an oral hearing is called for.

[52]I do note in passing that the written submissions on behalf of Mr Whittaker for this hearing, which suggested an oral hearing might have prevented CART from falling into error under ground 1, that is not taking into account mental impairment. But for the reasons I have already given there was in fact no error.

[53]I also note that there was a suggestion at one point about the oral hearing helping to resolve any issue about an impasse so far as coursework is concerned. It is trite law that the fact that there may be an impasse issue in relation to coursework does not automatically mean that there should be an oral hearing and in any event, that particular point was not advanced before me. I say no more about that. Matters may have moved on since November 2010 and further reports may address this problem again if indeed it is a problem.

[54]It may very well be that if hereafter a report is produced from a neurologist which goes into detail on present symptoms, future prognosis and perhaps deals with any relevant mental impairment, in the context of escape potential, planned or opportunistic, that not only will CART obviously have to give it careful consideration but it may be, if CART thinks that elements of that report are disputed in some way, or where it can gain real assistance from questioning its author, that an oral hearing will be ordered by the Review Panel. But that stage has not yet been reached. Obviously it is ultimately for CART to decide the appropriate course based on all of the evidence. It is not for the claimant to satisfy the court of some particular burden of proof. But it is likely only to be in an exceptional case where escape potential will result in re-categorisation where the underlying risk is still there, (see the guidance in PSI, to which I have referred and which is not challenged).

[55]So, in my judgment, the claimant does at least need to set the ball rolling in a manner which goes somewhat further than he has done to date. As a matter of commonsense, if you say that a consultant neurologist will assist at an oral hearing, you do need to produce at least something in advance as to what he will say on a relevant issue. Until he does one does not even know whether there will be a dispute and, if so, as to what extent.

[56]For all of these reasons I do not consider that an oral hearing here is appropriate on the materials before me and therefore this second and final ground of challenge must fail.

[57]I add here an observation about what was said by Mr Easton in paragraph 21 of his witness statement:

"Oral hearings on categorisation consider issues relating to risk of reoffending only. It would not be appropriate to hold such hearings in consider further peripheral issues such as access to course work or general progression."

[58]That statement is wrong, if it is suggesting that oral hearings cannot been convened where the issue is escape potential. As escape potential is not directly referred to in that paragraph it is not clear to me whether that is what Mr Easton is saying but if he was he would be wrong. Obviously if there is something which is genuinely peripheral, it is hardly likely to warrant an oral hearing. But again, when a request for an oral hearing is put forward then the CART team have to consider that request in terms of the relevant circumstances.

[59]Even if there was an error in paragraph 21, it cannot affect the decision here, because the decision here is that of the court. I make no such error. I make my decision as to whether there should be an oral hearing(a) on the basis of the materials before me and

(b) on the basis of the well established legal principles. So that error, if that is what it is, can be safely ignored for present purposes but no doubt CART will note my observations.

[60]I note that the next review is not far off. I would apprehend that a rather more substantial set of representations would be made on that occasion and on the face of it they will include a report from a professional instructed on behalf of Mr Whittaker. In that event, the CART review team must of course keep a genuinely open mind in relation to any further submissions made next time round on the question of escape potential and an equally open mind on any request that is made as far an oral hearing is concerned. As matters stand the present claim must fail.