Willoughby, R (on the application of) v Category A Review Team [2011] EWHC 3483 (Admin)

Case No CO/5250/2010

[2011] EWHC 3483 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 21/12/2011

Before

MR JUSTICE EDWARDS-STUART

Between

The Queen on the Application of LAWRENCE WILLOUGHBYClaimant

CATEGORY A REVIEW TEAMDefendant

Mr Stephen Field (instructed by Bailey Nicholson Grayson Solicitors) for Claimant

Mr Matthew Slater (instructed by Treasury Solicitors Department) for Defendant

Hearing Hearing dates: Thursday 15 December 2011

Judgment

[1]This is another case of a challenge by way of judicial review of a refusal by the Category A Team of HM Prisons ("CART") to hold an oral hearing of the Claimants Category A Review.

[2]By way of introduction I will summarise the function and role of CART. I take this with gratitude from the judgment of Aikens LJ in R (Downs) v Secretary of State for Justice

[2011] EWCA Civ 1422

, paragraphs 2-5: “2. CART is concerned with evaluating the risks to the public in the event of an escape of particular prisoners who are classified as "Category A" prisoners. Category A prisoners are defined as those "whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible". In 2009 and 2010 approximately 950 inmates of prisons in England and Wales were placed in Category A. This figure has remained about the same for many years. A Category A prisoner is, inevitably, subject to a more restrictive regime and higher conditions of security than prisoners in lower Categories. Moreover, a Category A prisoner who remains as such will have no prospect of being released on parole. 3. Each Category A prisoner is entitled to have his categorisation reviewed at least once a year. This process permits the prisoner and his legal representatives to submit representations, including reports from independent specialists such as psychologists, in support of a request that the prisoner should be removed from Category A and re-categorised in a lower Category. These representations must be addressed to the Local Category A Advisory Panel ("LAP") which will consider them together with a report from the prison. The LAP's consideration will lead to a "Governors Recommendation". That is then considered by CART, which is the central body for reviewing all Category A prisoners categorisation. CART will examine all the material submitted by the prisoner or his representatives and all other material before it, including the Governors Recommendation. It will then make a decision either that the Category A status remains or, if it thinks the prisoner should be re-categorised, it makes a recommendation to a more senior committee, call the Category A Committee. Any final decision to downgrade is made by the Deputy Director General of the Prison Service. 4. Normally, a decision on the Category A prisoner's future categorisation is taken by CART on the papers before it without an oral hearing. However, it is well established that in certain circumstances there should be an oral hearing at which the prisoner’s representatives can make submissions and, if appropriate, witnesses or experts can give oral evidence. 5. The courts have considered the circumstances in which oral hearings should be held by CART before reaching a decision. The basic rule is that CART will be required to convene an oral hearing when the common-law standards of procedural fairness require one. Each case will depend on its facts. However, oral hearings are not the general rule; they will be rare. In relation to the test to be applied on an application for judicial review, Aikens LJ said, paragraph 7: “If CART refuses to hold an oral hearing before making its decision and that refusal is challenged in the courts by a judicial review, the issue on that review is whether the refusal to permit an oral hearing was wrong. It is not whether the refusal was unreasonable or irrational."

The facts

[3]On 17 October 1997 the Claimant was sentenced to life imprisonment for false imprisonment, indecent assault and assault occasioning actual bodily harm on an 18-year-old student. The incident occurred in the bathroom of a University Hall of residence. Although the Claimant is now in his late 50s, he was a fellow student at the University at the time. The facts of the offence, as set out in a Pre-Sentence Report dated 15 October 1997 in preparation for the sentencing hearing, are that the victim was forced into a cubicle before being hit and told that a knife was being held to her throat. She was then forced to perform oral sex until the assailant ejaculated, and was then made to drink copious amounts of water from the tap. It was said that the purpose of this was to prevent identification of the offender by removing all traces of his DNA.

[4]The Claimant has always denied that he committed these offences and that remains his position today.

[5]The Claimant committed that offence quite shortly after his release from a 3½ year sentence for assault occasioning actual bodily harm in 1994. That was an incident involving a young woman in a lift. In addition, he has the following previous convictions: 1977 Gross indecency involving a 10 year old child 1987 Kidnap, indecent assault, assault occasioning actual bodily harm (x 3), attempted kidnap and false imprisonment. 1989 assault occasioning actual bodily harm and indecent assault. I should say at once that the 1987 convictions were the subject of a successful appeal. The issue was identification and the Court of Appeal held that the trial judge had failed to give a proper direction to the jury on the question of corroboration. The court was not satisfied that with a proper direction the jury would have reached the same conclusion and so the convictions were quashed.

[6]In November 2007 the Claimant had a security category review as a result of which it was decided that he was to remain a Category A prisoner. By that time the Claimant had completed an Extended Sexual Offenders Treatment programme and the Better Lives Booster programme. It was noted that the Claimant had shown some progress on issues relating to his offending, but that issues in relation to his sexual interests and frequent use of violence in his offending had yet to be addressed. In the former context it was noted that the Claimant was due to start the Healthy Sexual Functioning programme in the near future. In short, the outcome of the review was that evidence was still required to demonstrate that there had been an appropriate reduction in the risk presented by the Claimant.

[7]The letter summarising the result of the review and the reasons for it concluded as follows: “The Review Team accepted that your denial of guilt of the present offences should not on its own be a bar to your downgrading. It however had to proceed on the basis that you had been lawfully convicted of these offences. It also had to proceed on the basis that, until there was convincing information to show otherwise, the high risk indicated by your offending remained undiminished to an appropriate level. The Review Team noted you had an extensive history of violent sexual offences against female victims. It also noted you had committed a number of your serious offences within a short period of release from custody. It considered that your offending indicated a high level of potential dangerousness. The Review Team considered that a downgrading of your security category could not be approved until there was convincing evidence of a significant reduction in your risk of reoffending in a similar way if unlawfully at large. While the Review Team acknowledged your participation in recommended programmes to help you address your serious offending, it was satisfied that evidence of a necessary significant reduction in your risk was not yet available, and that you should therefore remain in the category A at this time."

[8]In March 2008, a forensic psychologist in training, Ms Rachel Woodward, produced a Structured Assessment of Risk and Need (Sexual Offending) ("SARN"). For this purpose she had considered a substantial number of documents relating to programmes that the Claimant had undertaken, wing histories, the Claimant's psychology file, which included details of a number of complaints made by the Claimant, and the Pre-Sentence Report dated 15 October 1997.

[9]Ms Woodward interviewed the Claimant for 4½ hours on two separate occasions in early March 2008. The report states that its content would be disclosed to the Claimant prior to finalisation and his views would be incorporated. I do not know whether or not this happened. I will have to revert to the content of this report later in this judgment.

[10]On 12 November 2009 the Claimant's solicitors served Representations for his Category A Review, which was to be held on 26 November 2009. This ran to some 24 pages. The final four paragraphs comprised a request for an oral hearing if CART was not minded to downgrade the Claimant's categorisation.

[11]The review duly took place and CART decided that the Claimant should remain Category A. The results were set out in a letter to the Claimant dated 18 January 2010.

[12]The general theme running through this letter was that the Claimant's completion of further offending behaviour at work since his last review had not provided evidence of significant further progress. It said that CART: “. . . did not accept that your category A status prevented you from further addressing your offending and showing evidence of significant risk reduction. In any case it considered that an appropriate reduction in your risk should precede your downgrading, and that your downgrading could not be justified solely to allow you access to programmes in less secure conditions. It also understood the recommended CALM programme was available, or soon will be available, to category A prisoners in vulnerable conditions. The Category A Team did not accept that your compliant behaviour could alone provide necessary evidence of significant risk reduction. It also noted OASys assessments were not intended to be used in isolation from more dynamic forms of risk assessment, such as those provided following offending behaviour programmes. It noted that they were specifically not intended to determine a prisoner’s risk if unlawfully at large. The Category A Team considered that your lack of progression was the result of your limited disclosure and success in addressing the risk factors relating to your offending, and that no impasse to your progression had been created from outside. The Category A Team also considered that the evidence of your custodial behaviour and the results of your progress in addressing your offending were clearly explained and open to consideration through the normal process of review. It considered there were no compelling grounds for an exceptional oral review of the available information."

[13]On 24 February 2010 the Claimant’s solicitors wrote a letter before claim. It repeated the request for an oral hearing and pointed out that the requirement of exceptionality had been removed by the decision in Riley v Governor of Frankland and CART

[2009] EWHC 2146 (Admin)

. The letter reminded CART that the Claimant’s last review had been in November 2007 and that he had served 13 years - twice the length of his tariff.

[14]Relying on the decision of the House of Lords in R v Smith and West

[2005] 1 WLR 350

, the Claimant’s solicitors contended that written submissions did not afford flexibility of oral presentation and did not allow his representatives to mould any argument to issues that the decision maker appeared to regard as important. It said also that oral submissions were justified in this case because undue weight was being placed on the facts that the Claimant was "a denier" and the SARN report was a highly subjective document. Concern was expressed also that the report was prepared by a trainee psychologist. It was submitted that an oral hearing "is needed to enable [the Claimant] and the review team to properly address both the content of the SARN report by exposing the author to questioning and indeed exposing [the Claimant] to questioning so that he can show the review team he has demonstrated a reduction in risk".

[15]On 2 March 2010 CART replied to this letter. It said: “The Category A Team accepts that an oral hearing may be the fairest means of determining a prisoners security category review in some special cases. It considers however that there must be exceptional grounds for considering these issues can only be resolved through an oral hearing, and not the usual means of written reports and representation. The Category A Team is satisfied there are no exceptional issues in [the Claimant’s] case that can not be explored, responded to and resolved through the normal means of review. It considers [the Claimant] has been fully able to make comprehensive representations on the current reports through the normal means. It also considers that neither his expired tariff nor your view of the competence of the psychologist in this case in themselves oblige an oral hearing of his review."

[16]Accordingly, CART declined to reconsider its decision. It is CART's refusal to have an oral hearing of the Claimant’s Category A review that forms the subject of this application. As I have already noted, the task for the court in this type of case is to consider whether or not the circumstances of this case required an oral hearing as a matter of fairness and common law. Unusually for a judicial review case, the court is not concerned with the decision making process, but with the decision itself.

The SARN report

[17]I should say at once that I reject the suggestion that an oral hearing was justified because the writer of this report was still a trainee Forensic Psychologist. In fact, she had over 6 years experience of working with sex offenders and she was then currently responsible for clinically overseeing assessments for the Sex and Treatment Programmes available at HMP Frankland. She has a BSc (Hons) in Psychology with Criminology and an MSc in Applied Forensic Psychology. It seems to me that she was perfectly well qualified to carry out the SARN assessment in this case.

[18]On page 8 of her report, under the heading "Change on Dynamic Risk factors" Ms Woodward said: “In reviewing the evidence for progress on identified risk factors I have encountered difficulties in formulating [the Claimant’s] case. There are a number of issues that remain unclear. This is not to suggest [the Claimant] has made no progress, rather it would suggest that there may be obstacles or barriers in the way of [the Claimant] being able to discuss his life and offending, and therefore impact upon his ability to engage meaningfully within treatment interventions." A little later, on page 9, she said this: “[The Claimant] has been open about his grievance style thinking, which he believes underpins his offending." And in the same section, on pages 11-12, she said this: “I do not yet fully understand how the role of power, revenge and grievance interplayed in order to lead to him offending sexually. In my opinion, [the Claimant] still would benefit from exploring why he used sex in his offences rather than violence. This might assist in clarifying his sexual interests (as discussed in the sections above). However, regardless of [the Claimant’s] motivation for his offending, he needs to develop effective coping strategies to manage this type of thinking in order to reduce the risk of this resulting in further sexual offending in the future. As such this remains an outstanding area of risk and treatment need. . . . In interview, [the Claimant] acknowledged he becomes annoyed when his requests to staff are not dealt with and so now he "ties" staff up with complaints and paperwork. It is encouraging that [the Claimant] is aware of these behaviours. It is now important for him to look at what he achieves from this type of behaviour and develops more effective, pro-social methods of interacting with staff working with him." And in the same section, on pages 11-12, she said this: . . . In interview, [the Claimant] acknowledged he becomes annoyed when his requests to staff are not dealt with and so now he "ties" staff up with complaints and paperwork. It is encouraging that [the Claimant] is aware of these behaviours. It is now important for him to look at what he achieves from this type of behaviour and develops more effective, pro-social methods of interacting with staff working with him."

And in the same section, on pages 11-12, she said this:

[19]Ms Woodward assessed the Claimant's overall level of dynamic risk, using the SARN assessment as a framework, as high. However, she acknowledged that in general, as an offender’s age increases, their risk of re-conviction for a sexual offence can decrease.

[20]The theme running through Ms Woodward’s report was that the Claimant was prone to grievance thinking and that it remained unclear why this had resulted in the use of both sexual activity and violence in his past offences, rather than just violence alone. It was this aspect that she felt required further treatment and analysis. She felt that his frequent use of the complaints procedures showed that his grievance thinking was still present.

The need for an oral hearing

[21]Mr Stephen Field, who appeared for the Claimant, submitted that the references in the letter of 18 January 2010 to the conclusion of CART that there were "crucial issues relating to [the Claimant’s] sexual interests and use of violence remained unexplored and not significantly amended" and to the "impasse” to his progression not being created from outside were both matters that could have been explored at an oral hearing, and that they should have been.

[22]Further, by reference to points made in the Representations that were submitted in November 2009, Mr Field submitted that following an oral hearing in the circumstances of the Claimant's case:(1) There was a factual dispute about the Claimant’s use of the grievance procedure and whether or not his use of it was inappropriate.

(2) The Claimant's response to the Healthy Sexual Functioning (“HSF”) programme, some parts of which he did not complete because he thought they were inappropriate in his case, was a matter which was better suited to investigation at an oral hearing.

(3) The question raised by Miss Woodward about whether or not further participation in treatment programmes would be beneficial for the Claimant in the light of "his response", was a matter that ought to be investigated at an oral hearing.

(4) The fact that CART found that the Claimant should remain in Category A conflicted with the level of risk of harm identified by OASys, namely that he presented a Medium risk of harm within the community and children in particular, in conclusion with which Ms Woodward agreed, was a matter that should have been explored at an oral hearing.

[23]Mr Field submitted that, in effect, CART was refusing to downgrade the Claimant because he was still denying the index offence. In this context, he submitted, a substantial answer was provided by the contents of the progress report of the HSF programme. That report said, at page 24: “[The Claimant] showed a good ability to link antecedents together identifying that being in situations where he was alone with a woman when feeling vengeful would be risky." In short, I think that Mr Field's submissions amounted to saying that there was sufficient question as to whether the Claimant's continuing denial of the index offences really made any difference, given his ability to discuss and analyse his behaviour in the context of the previous sexual offences, such as to justify this important issue being explored at an oral hearing.

[24]Mr Matthew Slater, who appeared for the Defendant, said that the review panel could perfectly well assess for itself whether or not the documents supported a suggestion that the Claimant made excessive use of the complaints procedure. He reminded me that CART was an expert body that was well able to understand documents of this sort. It would not need to be taken through them by a representative of the Claimant. Although, as Mr Slater submitted, the letter of 2 March 2010 accepted that in some special cases an oral hearing may be the fairest means of determining a prisoner's security category, CART’s view in this case that an oral hearing was not justified was entirely appropriate. He submitted that given the gravity of the index offence, CART was entitled to require cogent evidence of a decrease in risk before making a recommendation for re-categorisation. This was not a case where the refusal to downgrade prevented access to appropriate training because the only programme that was being considered was the CALM programme, which is or was soon to be available to category A prisoners.

[25]Mr Slater submitted also that the mere existence of conflicting views, whether expressed by experts or others, was not of itself sufficient to justify an oral hearing. CART was well able in most cases to resolve such disputes satisfactory without having to have an oral hearing. He submitted that none of the points raised by Mr Field made this one of those rare cases where an oral hearing was the only way in which to do justice.

[26]Both parties referred me to the important decision of the Course of Appeal in DM v Secretary of State for Justice

[2011] EWCA Civ 522

. In particular, Mr Slater relied on paragraph 27 of the judgment of Gross LJ, and Mr Field relied on paragraph 28. I shall therefore set them both out in full. 27. Thirdly, reference has already been made to the concerns occasioned by the impasse capable of arising in the case of a prisoner who maintains a denial that he committed the offences of which he has been convicted. On the one hand, he may need to complete various courses to satisfy CART that the risk to the public has been significantly reduced were he to be unlawfully at large; on the other hand, he may be ineligible or unsuitable for participation in such courses while he continues to deny guilt. While, plainly, continued denial of guilt cannot of itself preclude re-categorisation, a matter which would compound injustice in the case of anyone wrongly convicted of (necessarily in this context) grave offending, denial of guilt will very likely be relevant as undermining any acceptance of responsibility for the harm done. Moreover, the CART's starting point can only be the correctness of the jury's verdict. Still further and realistically, there will be "very, very, many more occasions" where prisoners "deny guilt for offences which they have in fact committed": see, Elias J (as he then was), in R (Roberts) v Secretary of State for the Home Department

[2004] EWHC 679 (Admin)

, at [42], in the course of a most valuable discussion of this particular concern, at [39] – [42]. As it seems to me, it is necessary to be alert to the possibility of injustice occasioned by an impasse of this nature; but, it must be accepted that on occasions such impasses will, unavoidably, occur – given the important public interest in risk reduction before an offender is released on a controlled basis into the community or a re-categorisation decision is taken increasing the risk of an escape. As Elias J observed in Roberts, again at [42]:

" … by being in denial they [i.e., prisoners] limit – and in many cases severely limit – the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates that they have not accepted that the risk was ever present." 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].”

[27]At the end of the day, I consider that the answer to the question of whether or not this is one of the rare cases which justified an oral hearing is to a significant extent a matter of impression. Of course, in an ideal world every case would have an oral hearing but, as DM makes clear, experience shows that oral hearings are plainly not required in all cases. Indeed, the starting point must be that of an oral hearing is usually not necessary. Further, even where it is thought that an oral hearing may be of assistance, questions of cost and efficiency may point the other way.

[28]It is clear in my view that grievance thinking has played a significant part in the Claimant’s previous offending, as he appears to accept. An obvious question for CART, therefore, is whether the Claimant’s actions are still motivated to a significant extent by grievance thinking. His use of the complaints procedure suggests that they are. This is a matter that CART can in my view assess perfectly well for itself on the basis of the documents available to it, in particular those reviewed by Ms Woodward.

[29]Whilst I can well understand that the Claimant would like to have the opportunity to present his case in person to CART, I consider that in reality he would be able to do no more than make a number of self serving assertions about his future at risk which would probably be of limited assistance to any review panel. So far as I am aware, the Claimant has not suggested that Ms Woodward's report contains any errors of fact. The objection is really that the Claimant does not agree with her conclusions.

[30]Although the Claimant had obtained two reports from an independent forensic psychologist, dated September 2010 and September 2011, respectively, I held that these were not of any direct relevance to this claim. Accordingly, this was not a case where there was any conflict of expert opinion before CART.

[31]It is important to bear in mind that CART’s decision as to whether or not to hold an oral hearing is one that must be made in the light of the information available to it at the time. As Lord Hope observed in Smith, at paragraph 67: “The question is not whether the case ultimately turns on a disputed issue of fact when the decision is taken. It is whether, when the papers are first looked at, it is likely to do so."

[32]Mr Field's submissions, perhaps unsurprisingly in the circumstances, tended to focus on the differences between the views expressed in CART’s letters of 18 January and 2 March 2010 and the points that had been raised on behalf of the Claimant in the Representations. The application of the observation made by Lord Hope in Smith means that I should focus on the Representations that were made prior to the hearing, rather than the points made in the Claimants solicitor’s letter of 24 February 2010 that was written in response to the letter of 18 January 2010 setting out the reasons for CART's decision.

[33]The principal points made in the Representations were that the Claimant was a prisoner who was still in Category A many years after his tariff date and that heavy reliance was likely to be placed on the SARN produced by a trainee psychologist. It was contended that an oral hearing was needed to enable the Claimant and the review team properly to address the content of the SARN report by exposing its author to questioning and exposing the Claimant to questioning so that he could demonstrate that his risk had reduced.

[34]Mr Field very properly accepted that there was little in the point that Ms Woodward was a trainee psychologist, when she had 6 years experience of this type of work. So the question really became whether the contents of her report were such as to make this one of those rare cases in which CART should hold an oral hearing.

[35]In my view they were not. The report identified certain areas of uncertainty about the extent to which the risk presented by the Claimant had reduced. Oral evidence from the Claimant was very unlikely to resolve these. If he had failed to convince Ms Woodward and other assessors that the level of risk remained uncertain, I find it hard to see how it might be thought that he would do any better with CART at an oral hearing. In any event, as I have already indicated the Claimant’s evidence would really go to matters of opinion rather than to the resolution of disputed questions of fact. It is for the experts to express opinions, not for the prisoner other lay individuals to do so.

[36]So far as the point about his use of the grievance procedure is concerned, for the reasons that I have given that was a matter which I consider CART could resolve for itself without the need for oral representations.

[37]In these circumstances, the Claimant has failed to persuade me that the decision not to hold an oral hearing at the 2009 Category A review was wrong. I am not satisfied that the requirements of fairness and justice required an oral hearing. I therefore dismiss this application for judicial review.

Afternote

[38]As I have already indicated, the Claimant became eligible for consideration for parole in April 2004. So long as he remains a Category A prisoner, he has effectively no chance of being released. Re-categorisation is therefore an essential step towards his release.

[39]The Claimant has now served 14 years against a tariff of 6½ years. I do not know how many prisoners there are who are in a similar situation. Apart from the advantages of an oral hearing that have been set out in the passages quoted above, another aspect is that a decision reached after an oral hearing is likely to be received with greater confidence by the prisoner (see Judge LJ, as he then was in R (Williams) v Home Secretary

[2002] 1 WLR 264

, at paragraph 32; and the observation of Cranston J in H, in the passage quoted above).

[40]Even if CART were to take the view on a future review of the Claimant's categorisation that there were no other compelling reasons for an oral hearing, there may come a time when the length of his detention could of itself be such a compelling reason. It can, I consider, be said with some force that a person who faces the prospect of what looks like indefinite detention as a Category A prisoner should at some point have the opportunity of a face to face encounter with the relevant decision-makers so that he can at least feel that everything that could have been said on his behalf not only has been said, but also has been seen to have been considered. I think that the reasonable man would expect fairness to require no less.

[41]If the costs of these proceedings cannot be agreed, or if any further directions are required, either party may apply in writing for an appropriate order by 4 pm on 10 January 2012. If opposed, the other party is to respond within 3 working days thereafter. I will then deal with the matter on paper unless either party requests an oral hearing. If there are no issues in dispute, the parties are to lodge an agreed order by 4 pm on 12 January 2012.