“consideration could be given to the Claimant being managed in Category B establishment.” (Emphasis added).
“Prior to the sentence planning board, Mr Cain successfully completed the TSP (Thinking Skills Programme) in September 2010, and he has now exhausted all offence related programmes available here at HMP Frankland.” “CSCP (Culmative Self Change Programme) and CALM (Controlling Anger and Learning to Manage it) have been found to be unsuitable for Mr Cain’s treatment needs. However, he has completed R and R (Reasoning and Rehabilitation) in 1998 and The Sycamore Tree Programme (victim awareness) in 2009.” “Mr Cain has expressed an interest in treatment at a prison that offers a Therapeutic Community. However, this is not possible in the HSE (High Security Estate) at this time. ” ... “Treatment in a Therapeutic Community may be of benefit to Mr Cain’s progress.”
“This [TSP] report states that Mr Cain actively participated in group discussions and used the programme as an opportunity to talk openly about the factors leading to his index offence and the thoughts that he had at the time in relation to this. This is encouraging as it shows willingness to work towards and reflect upon his previous risky behaviour. Mr Cain was however reported to have struggled at times to identify how risk areas relating to his offending behaviour currently applied to him as he felt that he has “grown up” and that he is a very different person to that who offended. It is therefore recommended that Mr Cain develops his insight into his offending behaviour further by applying his learning from the programme to potential risky situations in the future. As outlined in the attached Parole report Mr Cain has recently had his tariff reduced by 10 years which has implications in relation to priority for treatment and ultimate plans for release. A previous HCR20 report that was completed for Mr Cain assessed that his current level of risk does not necessarily warrant dispersal conditions. Mr Cain’s progression is ultimately based on his security category as the interventions that are available to him will be based on which establishment it is felt that he is most appropriately managed. Should the decision be made to downgrade Mr Cain from category A status in the future I would recommend that he is referred to a therapeutic community as I feel that this would be the most appropriate avenue for Mr Cain to address his risk should his security category warrant it. Should it be maintained that Mr Cain remains as a category A prisoner it is my recommendation that one to one work is conducted (should resources allow) which begin to address Mr Cain’s violent offending, it should be noted however that this work would not be accredited so therefore would not necessarily have the benefit of extensive empirical validation i.e. we would not necessarily know how effective this would be at significantly reducing his risk of re-offending. ”
“The panel were pleased to comment positively on the progress that Mr Cain has made, in particular his reported willingness to address his offending behaviour and his acceptance of responsibility for the second murder. The panel also noted that Mr Cain remains Adjudication free. It was the panel’s view that although Mr Cain still has outstanding risks involving his criminal lifestyle, violence, anger, psychopathy and victim empathy, in view of his sustained cooperation with sentence planning and the regime; he should be given the opportunity to address these in conditions lower than Security Category A. In reaching a conclusion, the Panel recommends that Mr Cain completes assessment for the following the courses CALM, CSCP, and could possibly be referred to HMP Grendon, where he may benefit from the Therapeutic Community (as recommended by the Parole Board).”
“ Shahzad Ref CAIN A4205AE I sent a copy of the Governor’s recommendation to him at the beginning of March. A copy was later sent to his solicitors, BHATT MURPHY on the 9/5/11. Hope this helps From Alison Alison Gallagher CAT A Clerk BDT Co-ordinator (Based on the back of “A Wing”) HMP Frankland ”
“Where the index offences are so grave, as they will inevitably be in Category A cases, the review team can justifiably require cogent evidence that that risk has diminished.”
“The person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests.”
‘Despite Mr Cain’s co-operation with the regime and the passage of time, there are still important unresolved questions about the attitudes and thinking underlying his offending, and the extent to which he understands them or has addressed them...... While Mr Cain now admitted greater involvement in the second murder offence, this was relatively recent, and there remained elements of minimisation.’
“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.”
“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.”
‘…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.’
“A prisoner’s right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies and which result in continuing loss of liberty are, or should be, anathema in a civilised, democratic society. ”
“Fairness…also requires that the objectors should be given sufficient information about the reasons relied on by the Department as justifying the draft scheme to enable them to challenge the accuracy of any facts and the validity of any arguments on which the departmental reasons are based.”
“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 is 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 [Roberts] in the course of the 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.” (Paragraph 27). “ …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.” (Paragraph 27). 180. Later in his review of the law Gross LJ referred to: “A potential impasse [which] 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, maybe unwilling to risk downgrading the prisoner’s security categorisation without the prior evidence of significant risk reduction. 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].” (Paragraph 28 (iii) and (iv).) 181. On the facts of the case Gross LJ was not persuaded that an impasse occasioned by the prisoner’s continued denial of guilt had been reached. The case seemed to fall somewhat short of that. However he added that even if he were wrong on that point it must be recognised that however regrettably impasses of this nature will sometimes be unavoidable – see the discussion in Roberts. Further he noted that the impasse which concerned the Court in Williams was of a different nature, going to the sharply contrary views held by the Parole Board and CART in that case. I take that to be an indication that in his judgment an impasse arising out of sharply different assessments as to risk as between the Parole Board and the Category A decision taker may be a stronger indication, depending on the facts of the case, that fairness requires an oral hearing than an impasse arising out of a Category A’s prisoner’s continuing denial of guilt. 182. It is also noteworthy that Gross LJ did not consider that either the fact that the prisoner was now a post-tariff life prisoner or the fact that he had not yet had an oral hearing before CART carried weight. Even though there is no “exceptionality” test, if those two factors alone justified an order for an oral hearing such hearings would be the rule rather than a rarity. “What is lacking here, which these undisputed facts cannot supply, is a proper foundation for an oral hearing; consider, by way of contrast, the position which would have arisen had the Parole Board concluded that there had been a significant reduction in risk.” (Paragraph 37 (iii)). 183. It follows in my view that of the five factors which, cumulatively Cranston J considered were sufficiently important to require a standard of procedural fairness whereby the Claimant was able to put his case at an oral hearing, Gross LJ considered that the first two, namely the fact that the Complainant was a Category A prisoner and that his tariff had expired would not of themselves have required an oral hearing. Cranston J’s third factor was the fact that the local prison had recommended that the Claimant should be re-categorised as a result of which he held that there was an inconsistency between the approach of the local prison and the Director. Gross LJ appears to have considered that to be an important factor which he contrasted with the fact that in Mackay so far from their being a disagreement between the LAP and CART the LAP conclusion was unequivocal and adverse to the prisoner. (Paragraph 34). On the other hand as already mentioned he also expressed the view that it should not be thought that the mere existence of an impasse or inconsistency means that an oral hearing will be warranted. I also observe that Cranston J in H implied that a positive recommendation by the Parole Board is likely to carry greater weight when considering whether fairness requires an oral hearing than one from the local prison. 184. In R (Flinders) v Secretary of State for Justice [2011] 1630 EWHC (Admin) Wyn Williams J applied the principles laid down by Gross LJ in Mackay to the facts of the case before him and concluded that fairness demanded that that was one of the rare cases when the Director should have convened an oral hearing before determining whether to maintain or downgrade the Claimant’s categorisation. The factors which, taken cumulatively, pointed unequivocally to that conclusion were in his view the following. First the Claimant had been a Category A prisoner throughout the period of his imprisonment. Second his tariff period had expired 3½ years earlier. Third he had been an exemplary prisoner. Fourth his mental illness was controlled and capable of being controlled while he remained in prison. Fifth there were difficult issues to be addressed about whether he was eligible for offender courses. The Director had openly acknowledged in correspondence that the reports before him were ambiguous about the Claimant’s IQ and whether he was eligible for courses. He acknowledged that that issue needed clarification. What better way to seek clarification the judge asked than by convening an oral hearing? Sixth the psychological assessment available suggested that there had been some reduction in the risk of future violence. However that view was put forward in terms which invited further exploration. Seventh the LAP had recommended that he be downgraded. In its report LAP identified the Claimant’s main risk factor as being his mental health. However it also recognised that his health was stable. The LAP considered that if his category was downgraded he could transfer to a medium secure unit where he could address his mental health issues further. Eighth the recommendation that he be downgraded to Category B was reiterated in a sentence planning and review report. 185. Wyn Willaims J held that as a consequence of his conclusion that the Director should have convened an oral hearing before determining the Claimant’s categorisation the decision fell to be quashed unless he was satisfied that the holding of an oral hearing would have made no difference to the Director’s decision. He was not so satisfied. He considered that there was at least a reasonable prospect that information would have emerged at an oral hearing which might have persuaded the Director to re-categorise the Claimant. 186. There is of course a limit to which assistance may be derived from the way in which the general legal principles laid down in the authorities to which I have referred have been applied in other cases. The effect of the application of those general principles in any particular case must necessarily depend on the relevant facts of that case. As Gross LJ said in Mackay the answer to the question whether the duty of fairness requires an oral hearing in any case is fact specific. 187. I turn to consider whether the application of those general principles to the facts of this case leads to the conclusion that the high degree of procedural fairness which was called for by reason of the adverse consequences of a decision to maintain the Claimant’s Category A status required the Director to hold an oral hearing before making his final decision. 188. I have set out earlier the eight features said by Mr Buley on behalf of the Claimant strongly to indicate the need for oral hearing. The first two were that the Claimant was a Category A prisoner who had been in prison for over 24 years, just as in H, and who was now post-tariff, again as in H. As Cranston J observed in H in remarks which were not disapproved by the Court of Appeal in Mackay those two factors point in the direction of a particularly high standard of procedural fairness. However, as held by Gross LJ in Mackay, taken alone, even when added to the fact that the Category A prisoner has not yet had an oral hearing before CART (or I would add, the Director) they do not justify an order for an oral hearing because if they did such hearings would be the rule rather than a rarity. Accordingly in my judgment they are a relevant part of the overall context to be taken into account but are not in themselves sufficient to require an oral hearing. 189. Next Mr Buley relied on the fact that the Claimant, as was the case in H, was recommended for downgrading on two occasions by respectively the LAP at Full Sutton in 2008 and the LAP at Frankland in the current review. The Frankland recommendation was said by Mr Buley to have been made in the light of a set of reports that recognised both the Claimant’s progress and the lack of any available interventions to reduce risk in the high security state. 190. The recommendation for downgrading by the Full Sutton LAP in 2008 was said by the Director in his reasons for maintaining the Category A status to have been based principally on sustained good behaviour. It was on the face of it a surprising recommendation given that at that time the Claimant was still in denial over his responsibility for the second murder. I was not shown the 2008 LAP recommendation. In the Cat A report of the trainee psychologist Ms Edmonson, although she said that, having done an HCR-20 risk assessment, the risk management items seemed to indicate that the Claimant’s risk of possible violence was not high and could be managed in less secure conditions, she also registered a number of caveats to consider when reviewing the Claimant’s case. One of those was that his denial of the second murder made it difficult to identify risk factors, specifically his individual case. 191. Although there did not seem to be any manifestation of holding negative attitudes towards certain groups of people in his behaviour in prison, it was difficult to ascertain whether that meant that he had reduced his risk or whether his risk was simply not manifesting in a way that might be expected. She described him as an unknown quantity and said that there was conflicting information. He killed in prison which might be expected to be associated with serious risk manifestations yet his behaviour was excellent. He had not received an adjudication since May 1996. An added complication was that there were no identified ways for the Claimant to address his offending behaviour which had precluded him from the opportunity of demonstrating a reduction in risk that he might have made autonomously. Although Ms Edmonson said that the HCR-20 assessment indicated that the Claimant did not require high security conditions to manage his risk that was qualified by her statement that the consequences of making a false negative assessment of risk were severe considering the Claimant’s offending history. She said that the finding that the assessment indicated that the Claimant’s risk was likely to be manageable in a Category B establishment had to be balanced against the possible consequences of making a wrong decision. 192. Indeed earlier in her report she described the indication from the HCR-20 assessment as being no more than that consideration could be given to the Claimant being managed in a Category B establishment, although in her summary she said that based on that assessment the Claimant did not demonstrate the vast majority of risk factors which have been shown to predict future violent offending. 193. At all events, at any rate as described by the Director in his reasons, the 2008 LAP recommendation for downgrading appears to have been made not on the basis of a conclusion that there had been a significant reduction in risk but principally on sustained good behaviour. Good behaviour may be an indication of but does not of itself necessarily establish a reduction of risk let alone a significant reduction. The Full Sutton LAP recommendation in 2008 is in my judgment of limited weight both for that reason and because both the recommendation and the HCR-20 assessment available to the Full Sutton LAP in 2008 preceded the Claimant’s belated admission of responsibility for the second murder in August 2009. 194. As to the recommendation of the Frankland LAP in favour of a move to Category B the Claimant had by then accepted responsibility for the commissioning of that offence. However the LAP recommendation appears to have been based not on a conclusion that there had been a significant reduction in the risk of further offending but rather on the opinion that, in view of his sustained cooperation with sentence planning and the regime, the Claimant should be given the opportunity to address his outstanding risks in conditions lower than Security Category A. On the question of risks the LAP said that they were pleased to comment positively on the progress the Claimant had made in particular his reported willingness to address his offending behaviour and his acceptance of responsibility for the second murder but also expressed the view that he still had outstanding risks involving his criminal lifestyle, violence, anger, psychopathy and victim empathy. In my view, the fact that it recommended that he should complete assessment for CALM and CSCP courses implied that there remained significant risks. 195. That certainly in my judgment is reflected in the report of the trainee psychologist Ms Wood. She noted that a full Violence Risk Scale risk assessment had not been completed so that her risk assessment should not necessarily be considered exhaustive. 196. Critically in my judgment Ms Wood stated in her report that due to the limited offence focused work that the Claimant had completed by the date of her report (28 June 2010 ), she was unable to suggest significant change within the identified areas of risk. That was not a view with which the LAP in its recommendation expressed disagreement. Because the Claimant had yet to complete offence focused work aimed at specifically addressing criminal attitudes by the time of her report Ms Wood said that it was important to note that she was therefore unable to suggest a reduction of risk within that area at that time. A fortiori, it follows that she was unable to suggest a significant reduction of risk within that area. 197. In my judgment there was force in Mr Slater’s submission that a feature of Ms Wood’s report was the limited information as at that time as to the Claimant’s risk factors and that in her view his offending behaviour work was at an early stage. See her recommendation that the Claimant complete the Thinking Skills Programme as part of him beginning to address the risk factors associated with his offending behaviour and her opinion that his belated acceptance of full responsibility for the second murder indicated that progress was much more possible within the area of criminal attitudes and in particular minimising the significance of his offending. The fact that he explained his maintenance of his innocence for sixteen years as being due to a belief that because of the nature of his own crimes he had not considered the victim to be a victim was evidence of risk within the area of criminal attitudes in that it showed that he was able to rationalise his violent behaviour. It is my judgment significant that implicit in what she wrote was an opinion that even after the Claimant’s admission of responsibility for the second murder there remained an element of minimisation, which may have explained his 16 year denial. 198. See also her opinion that the area of risk based on acquisitive offending should be addressed further through offence focused work in order to establish the extent to which unemployment drove his previous offending. See also her reference to the Thinking Skills Programme which the Claimant completed only months before the Category A review as being a part of beginning to address risk factors in relation to his offending behaviour and a good starting point in beginning offence focused work. 199. See also her recommendation that if it were decided that the Claimant should remain as a Category A prisoner he should conduct one-to-one work “whichbegins to address Mr Cain’s violent offending”