M, R (On the Application Of) v The Secretary of State for Justice [2016] EWHC 2455 (Admin)

[2016] EWHC 2455 (Admin)Case No CO/2776/2014
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
Venue Manchester Civil Justice Centre,, 1 Bridge Street West, Manchester M60 9DJDate 6 October 2016
Before
HIS HONOUR JUDGE STEPHEN DAVIESSITTING AS A JUDGE OF THE HIGH COURT
Between
THE QUEENClaimantTHE SECRETARY OF STATE FOR JUSTICEDefendant
Hugh Southey, QC (instructed by Stephensons Solicitors LLP, Wigan WN3) for ClaimantIvan Hare (instructed by Government Legal Department, London WC2) for DefendantHearing Hearing date: 16 September 2016Draft judgment circulated: 22 September 2016
JUDGMENT APPROVEDHis Honour Judge Stephen Davies:

Introduction

[1]The claimant, known only as M to protect his anonymity, is a serving prisoner at HMP Woodhill. By his amended grounds of claim, and with permission granted by Kerr J on 17 May 2016, he challenges the refusal by the defendant, in a decision made by the Category A Review Team (“CART”) dated 13 January 2016, to grant an oral hearing of his annual review to consider whether or not to maintain his prisoner security category at A.[2]In the substantive part of its decision CART also decided to maintain the claimant’s security category at A. There is no separate challenge to that decision although, as Mr Southey QC counsel for the claimant submits, the merits of the substantive decision made on the papers are not relevant to the decision whether or not an oral hearing should have been held before that decision was taken. Moreover, if this challenge succeeds the claimant will of course obtain an oral hearing and, hence, a fresh decision on his categorisation.[3]The decision whether or not to hold an oral hearing is highly fact sensitive and, hence, most of this judgment concentrates on the particular facts of the instant case. However one point which has been argued and which may be of relevance to my decision is whether or not the principles stated by the Supreme Court in Osborn v Parole Board [2014] AC 1115 as to the circumstances in which the Parole Board is required to hold an oral hearing apply without modification to decisions of CART in relation to security categorisation.[4]I am very grateful to counsel for their helpful written and oral submissions. Having considered them, my conclusion is that the challenge fails, for the reasons which I now proceed to give.

The relevant facts

[5]The claimant was sentenced on 11 February 2011 to life imprisonment for a murder committed in 2009 when he shot dead a man in an off-licence as part of a gang-related dispute. The minimum tariff period which he must serve before he can be considered for release was set at 15 years. This represented a substantial discount from the tariff which might otherwise have been expected, reflecting the fact that he agreed to give evidence for the Crown. As the sentencing judge observed, by so doing he had put his own life in considerable risk and would be “forever marked out in the criminal world and prison environment as someone who informs on other criminals”. Allowing credit for time spent on remand prior to sentence, his tariff is due to expire in 2024. He has been a category A prisoner throughout, and has been held in the protected witness unit (“PWU”) at HMP Woodhill.[6]A category A prisoner is a prisoner whose escape would be highly dangerous to the public, the police or the security of the state, and for whom the aim must be to make escape impossible: paragraph 2.1 Prison Service Instruction (“PSI”) 08/2013 entitled “The Review of Security Category – Category A / Restricted Status Prisoners”. In order for his security category to be downgraded from A to B there would have to be convincing evidence that his risk of re-offending if unlawfully at large has significantly reduced, such as evidence that shows the prisoner has significantly changed his attitude towards his offending or has developed skills to help prevent similar offending: paragraph 4.2 PSI 08/2013.[7]There have been concerns expressed in prison reports about the restricted nature of the facilities available to prisoners in the PWU and in particular, as relevant to this case, restrictions on their access to accredited offender behaviour programmes (“OBPs”). It is perhaps not surprising that this is problematic, given the relatively small number of protected witnesses within the prison estate and the obvious risks associated with placing them on OBPs with other non-protected prisoners. Nonetheless it is a significant restriction, because furthering the training and treatment of prisoners is one of the expressly stated purposes of the security classification system: rule 7 of the Prison Rules 1999. If a protected witness is unable to access relevant OBPs then he may experience difficulties in being able to produce convincing evidence of a significant reduction in risk of reoffending and, thus, in obtaining a downgrading of his security categorisation. The Divisional Court said in the case of R v. Secretary of State ex p Duggan [1994] 3 All ER 277 that a decision that a prisoner should remain a category A prisoner bears directly upon his prospects of release, since it is wholly improbable that the Parole Board will recommend the release of a category A prisoner. The Supreme Court held in Kaiyam v. Secretary of State for Justice [2015] AC 1344 that there is a duty imposed upon the secretary of state to provide prisoners with a reasonable opportunity to rehabilitate themselves, including the provision of rehabilitative courses and facilities in prison thereby to demonstrate to the parole board that they no longer present an unacceptable danger to the public.[8]As originally formulated one part of this claim comprised a challenge to what was said to be a failure by the defendant to provide the claimant with access to suitable OBPs whilst in the PWU. In late 2014 and early 2015, following a risk assessment conducted by a prison psychologist, a Ms Walker, the claimant was provided with a course of 17 one-to-one sessions delivered by her, after which in May 2015 she produced a post intervention report which included an updated risk assessment. She concluded that the claimant had “made some progress against each of the identified learning outcomes”: paragraph 5.1.3. She recommended that the claimant’s risk assessment should be “updated following a recommended consolidation period of six months”, in which “demonstrating application of the material consistently, and in situations which parallel risky situations / incorporate triggers within the claimant’s violence cycle would indicate further progress (for example, dealing with feedback which he considered to be overcritical; dealing with disrespect or with feeling threatened)”.[9]In October 2015 a further report was produced, on this occasion by a Mr Arnold, a forensic prison psychologist, the primary purpose of which was to provide the local advisory panel and CART “with information relevant to the claimant’s risk”. Mr Arnold made it clear that “in line with the guidance in PSI 08/2013 he would not be making a specific recommendation regarding re-categorisation”. This, I think, is a reference to paragraph 4.18 of the PSI, which states that “individual report writers are not required to make a recommendation on the prisoner’s suitability for category A / restricted status”. It is also, at least in my view, not surprising; the purpose of the prison psychologist’s report is to provide one part of the evidence upon which the decision on re-categorisation is made, rather than to provide an opinion on re-categorisation, which involves an analysis of matters going beyond the remit of the prison psychologist.[10]The report is a lengthy report, running to 30 pages with a further 32 page Violence Risk Scale (“VRS”) Evidence Table as an Appendix B. It was produced following two clinical interviews with the claimant lasting approximately four hours in total, together with a detailed analysis of a wide range of documents as scheduled in Appendix A (including the evidence produced in relation to the one-to-one intervention), and together with discussions with the team professionals involved in the claimant’s management (including Ms Walker): paragraphs 3.1 to 3.4. The report was disclosed in full to the claimant, who had the opportunity to discuss its contents and correct any factual errors, but did not do so or wish to add any comments: paragraph 1.3.[11]It is plain from the report that Mr Arnold was aware of the claimant’s position in the PWU, and the impact of his being on that unit as regards the interpretation of his current risk assessment: paragraph 2.4. The summary and opinion in relation to risk assessment in section 7 included the following:(a) The claimant had displayed progress in relation to a number of his assessed treatment targets, but some behavioural lapses had been noted, suggesting there were occasions when he experienced difficulty applying his learning.(b) Ongoing treatment may be addressed through additional practice of skills over a sustained period, but in the absence of continued progress in this area further intervention may be required.(c) Although risk assessment was challenging given the claimant’s position in the PWU, nonetheless it was conceivable that a prolonged period of stable and compliant behaviour in this setting could provide credible evidence of skills consolidation.[12]The claimant through his solicitors commissioned his own independent psychological assessment from a Ms Hunt, consultant forensic psychologist, who produced a report dated 9 November 2015. Her instructions were different to those of Mr Arnold, and were clearly related to this judicial review claim as then formulated. She was instructed to undertake a paper review and provide an opinion on four specific matters, namely:(a) an assessment of the one-to-one work undertaken and whether it was comparable with standard OBPs;(b) whether the one-to-one report demonstrated a reduction of risk equivalent to successful completion of a relevant OBP;(c) if not, what further reports would be needed to demonstrate a reduction of risk;(d) any recommendations for alternative work which may be helpful to the claimant. She made it clear that she was not providing a risk assessment.[13]She considered that the VRS assessment procedure used by Ms Walker and Mr Arnold was entirely appropriate: paragraph 5.4. She considered that if the claimant had not been in the PWU he would have been assessed as suitable for and offered a place on the Self Change Programme (“SCP”): paragraph 6.4. She considered that the content of the one-to-one work was broadly commensurate with the SCP: paragraph 6.9. In section 7 she considered the claimant’s outstanding risks and needs. She did not identify any significant disagreement with the conclusions reached by Mr Arnold. In paragraphs 7.6 and 7.7 she considered the question as to whether the claimant could demonstrate objective evidence of reduction in risk in the PWU. Her conclusion was that the claimant was “likely to continue to face a number of challenges whilst residing in the PWU and evaluators should be reasonably confident that if he demonstrates effective use of the skills in this environment, with the specific challenges that it poses, this should be considered reliable evidence for future risk assessments”. In paragraph 8.5 she stated that in her opinion “further intervention in relation to the treatment targets that are specific to the claimant is not currently indicated”.[14]These reports were both placed before CART. CART also had before it the sentence planning and review meeting notes produced following a meeting on 30 November 2015 at which the claimant was present. As CART noted, the claimant had complied with his sentence plan objectives, although there had been some instances recorded of negative behaviour towards staff and another prisoner, albeit with no adjudications against him.[15]CART had also seen the report of the local advisory panel produced on 20 November 2015, which did not recommend a downgrading of his security category.[16]CART had also seen legal representations submitted on behalf of the claimant. This was in the form of a letter from the claimant’s solicitors to the defendant’s solicitors in connection with the instant proceedings, enclosing the report from Ms Hunt with a request that it be put before CART, and further stating as follows:
“With regards to the category A review we have now reflected on the resolution of this matter. We respectfully suggest that an oral hearing would provide procedural fairness to consider the elements of this report, a thorough risk assessment and trust that this will be forwarded to your client for consideration.”
It has been confirmed by the respective solicitors that this is the letter which was passed on to CART along with the report from Ms Hunt and, it follows, that it was this letter which prompted CART to consider the question of an oral hearing. The claimant’s solicitors have also confirmed that since they were unable to obtain legal aid in connection with the category A review they were unable to prepare or send any more substantial written representations.[17]In addressing the question of an oral hearing, CART said this:
“Regarding an oral hearing it accepted these may be appropriate in certain circumstances, including: where there is a factual dispute crucial to risk assessment; there is a dispute on the expert materials, e.g. there are alternative assessments suggesting significant risk reduction; there is an impasse in progression; or the subject has been in category A for many years without an oral hearing. The category A team considered there are however no grounds for an oral hearing in relation to your present review. It considered first your reports are entirely sufficient for the purposes of your risk assessment and for the submission of effective written representations. While it noted the contents of the private psychology reports, it did not consider this raises any factual disputes or alternative assessments of significant progress needing further resolution or discussion through an oral hearing. It accepted that your protected witness status restricts your access to mainstream interventions, but considered that for the reason given above your category A status does not prevent you from further addressing your offending and achieving a significant reduction in risk. It did not accept you are in an impasse in terms of your progression, or that an oral hearing is in the meantime appropriate or necessary to discuss or resolve the availability of coursework. It accepted you have never had an oral hearing but consider this fact could not be determinative. It noted you were sentenced a relatively short time ago and many years from tariff completion. It considered there are also other issues compelling an oral hearing in your case, or that can be resolved only through an oral hearing.”
[18]The summary in the first paragraph above of the factors of relevance to the decision whether or not to hold an oral hearing is a reasonable summary of the factors identified in paragraph 4.7 of PSI 08/2013. The PSI clarifies that paragraphs 4.6 and 4.7 were included by amendment in July 2014 “to reflect changes in policy on oral hearing for security category reviews, following a recent Supreme Court judgment relating to Parole Board oral hearings”. This, as paragraph 4.6 makes clear, is a reference to the decision in Osborn. Paragraph 4.6, whilst stating that there continued to the differences between the Parole Board context and CART context, nonetheless continued to state that “this policy recognises that the Osborn principles are likely to be relevant in many cases in the CART context. The result will be that there will be more decisions to hold oral hearings than has been the position in the past.”[19]Paragraph 4.6 goes on to emphasise three overarching points: first, that each case should be considered on its own particular facts, all of which should be weighed in making the oral hearing decision; second, that the oral hearing decision should be approached in a balanced and appropriate way, with an open mind alive to the potential real advantage of a hearing both in aiding decision-making and in recognition of the importance of the issues to the prisoner, that costs are not a conclusive argument nor are the prospects of succeeding in a downgrade; third, that the oral hearing is not necessarily an all or nothing decision.

The relevant legal principles

[20]I have had the benefits of a helpful resume of the authorities from Mr Southey.[21]I have already referred (paragraph 7 above) to the decision in ex p Duggan. That case concerned an application by a prisoner for disclosure of documents to be relied upon at a security categorisation decision so that he could make effective representations thereon, together with reasons for the subsequent decision. The claimant was effectively inviting the court to apply the practice in relation to parole board cases to security categorisation cases. Rose LJ, with whom McKinnon J agreed, said in clear terms that whilst there were procedural and other distinctions between a decision of the parole board in relation to the release of a life sentence prisoner and a decision as to security categorisation, both decisions bore directly upon a prisoner’s prospects of release, so that a decision in relation to security categorisation had a direct impact on its liberty. Effectively, therefore, the court accepted the claimant’s argument, whilst noting that there were still distinctions between the two classes of decision.[22]H v SSJ [2008] EWHC 2590 (Admin), a decision of Cranston J, is an early example of the court accepting an argument that they should have been an oral hearing in relation to a security categorisation decision. Paragraphs 1 and 21 contain statements of principle referred to with evident approval in Mackay, to which I refer in the next paragraph, and with which neither party quarrels.[23]In Mackay v SSJ [2011] EWCA Civ 522 Gross LJ, in a decision with which the President of the Queen’s Bench Division and Sullivan LJ agreed, distilled the law at paragraphs 25 – 28. In paragraph 26 he noted the differences between the Parole Board and CART in the context of categorisation decisions. At paragraph 28 he referred to the authorities and summarised the position as to when the common law duty of procedural fairness would require CART to convene an oral hearing. In the light of Osborn Mr Southey QC takes issue with the statements that “oral hearings will be few and far between” and that “considerations of cost and efficiency may well tell against an oral hearing”. He draws my attention to the fact that following the decision of the Supreme Court in Osborn the appeal to the Supreme Court in Mackay was allowed by consent. However in my view there is no difference of substance between what is said in the two decisions. There was no consideration of Mackay in Osborn and, whilst one can see that there may well be a difference of emphasis between the two, it is in my view no more than that. There was no suggestion in Osborn for example that oral hearings ought in principle to take place in the majority of cases. Nor was it suggested in Osborn that cost or efficiency considerations ought not to be relevant considerations; what was said in [72] was that costs considerations did not, on a broader analysis, always militate against holding oral hearings and, in any event, such considerations should never be conclusive.[24]Nothing said by Lord Reed in his judgment in Osborn was stated, either expressly or by necessary implication, to apply to CART decisions which are simply not mentioned. Nonetheless it was, as Mr Southey submitted, a decision reached by the application of the common law standard of procedural fairness, rather than one founded on article 5.4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”). This is relevant since it is accepted that article 5.4 (the entitlement to have the lawfulness of detention decided speedily by a court, and release ordered if detention is unlawful) does not apply to CART decisions, whereas it does apply to Parole Board decisions.[25]It was made clear in Osborn at [65], as it had been in Mackey at [28], that the court’s role is to decide for itself whether or not procedural fairness required an oral hearing in the particular case; it is not a decision which is only reviewable by the court on public law grounds.[26]Lord Reed summarised his conclusions at [2]. A number of those conclusions are clearly applicable only to decisions of Parole Boards, reflecting particular aspects of their substantive powers and their particular procedures. However many are not. Those conclusions which seem to me to be applicable to CART decisions are highlighted in bold: “i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. …” “ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews. iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. ix) The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. x) "Paper" decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not. xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty. a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.[27]Particular points of note which emerge from this analysis are that:(a) Whereas Parole Boards have members with professional expertise in psychology and psychiatry, so that the Parole Board may be able to form a view based on a professional assessment from personal observation or questioning, that is not the position with CART.(b) Although CART does not have the same express power to make recommendations as does the Parole Board as regards transfer to open conditions nonetheless, as Mr Southey submits, it is likely that CART will or may in an appropriate case make observations as to what further interventions may be necessary or helpful to enable the prisoner to demonstrate a significant reduction in risk at the next review hearing.(c) Mr Hare emphasises that in paragraph (iv) the prisoner’s legitimate interest in being able to participate arises only where he has “something useful to contribute”; see also [97].[28]I have been referred to three subsequent first instance decisions where a question has been raised as to the extent to which the principles expounded in Osborn can simply be read over to CART decisions. It is, rightly, common ground that I will not be assisted in this case by considering the actual decisions in those individual cases which are, of course, acutely fact sensitive. Thus the only question is whether there is a general principle as to how far the principles expounded in Osborn can be applied without modification or qualification to CART decisions, insofar as the answer to that question assists me in deciding the instant case.[29]The first in time is that of McGowan J in Hassett & Price v SSJ [2015] EWHC 3723 (Admin). In [11] McGowan J identified what she described as significant differences between the function and status of the Parole Board and CART in terms of their composition and role. I do not think that Mr Southey could, or did, quarrel with those observations. She then relied on those differences, and also on the rights of participation which a prisoner would have in the categorisation process even if there was no oral hearing [13], to reject any submission that Osborn required an oral hearing in every CART case [14]. I do not think that Mr Southey has ever suggested, nor could it credibly be suggested, that Osborn had that effect in Parole Board, let alone in CART, cases.[30]The second in time is that of William Davis J in Morgan v SSJ [2016] EWHC 106 (Admin). At [43] William Davis J also drew attention to certain distinctions to be drawn between Parole Boards and CART, with which again Mr Southey did not and could not quarrel. At [44] William Davis J observed, entirely correctly in my respectful view, that it was not possible simply to read over from Osborn without any modification the principles applicable to the Parole Board to CART. He particularly drew attention to the presence of psychiatric expertise within the membership of the Parole Board which is not present within CART. Other differences explain the factors referred to in Osborn which are not included in my summary at paragraph 26 above.[31]At [45] he said this, again rightly in my respectful view:
“I am satisfied that Osborn means that greater consideration than hitherto must be given to any request for an oral hearing in the context of a re-categorisation decision by CART. The general principle that CART or the DDC must consider whether fairness requires an oral hearing is a sound one. It is not necessary for me to rehearse the particular circumstances in which an oral hearing is likely to be required since the revision of PSI 08/2013 means that it would be an academic exercise.”
[32]The third in time is that of Kerr J in Bell v SSJ [2016] EWHC 1804 (Admin). In that case Kerr J said [22] that in his view nothing in Osborn suggested that the Supreme Court intended to disturb the law as expounded by Gross LJ in Mackay. For the reasons I attempted to give at paragraph 23 above, I respectfully agree.[33]In conclusion, it appears to me to be clear that there is a recognition in the cases from ex p Duggan onwards that whilst there are many similarities between Parole Board and CART decisions there also remain certain relevant differences. In particular:(a) the former are tribunals independent of the prison service, with a specialist professional composition; performing a quasi-judicial role directly affecting the liberty of the individual to which Article 5.4 ECHR applies; expressly tasked with making recommendations as to transfer to open conditions as well as release, whereas(b) the latter are performing an internal administrative role; with no specialist professional composition; where their decisions do not directly affect the liberty of the individual (although, I fully accept, they do indirectly affect liberty and also directly affect the conditions of imprisonment). It follows, in my judgment, that there might in principle be similar cases where the common law duty of procedural fairness would demand an oral hearing in a Parole Board case where it would not in a CART case.[34]However, since no two cases are alike, and since the focus must always be on the individual facts of the case and the importance of what is at stake as regards that particular prisoner at that particular time, it would be a profitless exercise to seek to draw a clear demarcation line between the two. All that I would say is that I can see that there might be some Parole Board cases where the prisoner is unable to point to any significant factual dispute or significant difference on the expert materials, and where the other considerations are broadly neutral, but might be able to say that there was a sufficient prospect that the psychiatrist or psychologist board member might obtain some further insight from seeing and questioning him (Osborn, paragraph 2(ii)(b)) that there was sufficient doubt to justify holding an oral hearing (Osborn, paragraph 2(xi)), whereas in an equivalent CART case that argument would not necessarily carry the day.

The arguments and my conclusions

[35]The claimant’s case is advanced on the basis that the need for an oral hearing is justified both by a proper application of the guidance in paragraphs 4.6 and 4.7 of PSI 08/2013 and by an application of the principles in Osborn, if different. Since it is not said by Mr Southey that an application of PSI 08/2013 would produce a different result to an application of the principles in Osborn I can consider the arguments advanced under both heads at the same time.[36]Mr Southey realistically accepts that in the particular circumstances of this case it cannot be said that there are important facts in dispute.[37]His primary submission was that because neither the Walker, the Arnold nor the Hunt reports addressed the fundamental question as to whether there had been a significant reduction in risk of re-offending there was a lack of clarity as to this essential issue, which needed to be addressed and clarified at an oral hearing. He submitted that this was particularly so where there was a dispute as between the prison service and the prisoner as to whether the risk of re-offending was sufficiently serious to justify retaining the category A categorisation. He submitted that this need was particularly compelling where the claimant was unable to access a suitable mainstream OBP and was instead reliant upon a bespoke and untested one-to-one intervention process, and where the opportunity to demonstrate a significant reduction of risk was adversely affected by his being in the PWU. He submitted that CART would also benefit from an oral hearing because even if it did not recommend a downgrading it might well wish to consider what if any further interventions were appropriate in these particular circumstances.[38]He sought to fortify this primary submission by pointing to the amount of time that the claimant had been in custody, some 7 years, having made significant progress in addressing his risk of re-offending, without having had the benefit of a previous oral hearing, and in circumstances where unless progress was made in achieving a downgrading of his security categorisation his opportunities for achieving a release on or within any reasonable timeframe after expiry of his tariff in a further 8 years were extremely limited. Whilst he realistically accepted that this was not an impasse case, he submitted that nonetheless the circumstances were such that fairness demanded an oral hearing.[39]Mr Hare in reply submitted that this was not a case where there was a dispute on the expert materials, since all experts were agreed on all important issues including, importantly:(a) the suitability and adequacy of the one-to-one intervention;(b) the assessment of risk (Ms Hunt of course not offering an opinion on this issue);(c) the way forward being for the claimant to demonstrate effective use of the skills gained from the one-to-one intervention in the context of the challenges he would face whilst remaining within the PWU. He submitted that there was no lack of clarity in the expert evidence. He submitted that the experts, the prison service and the claimant himself had all provided CART with all the material it needed to make a fair decision on the papers without the need for an oral hearing. He submitted that not only was this not an impasse case, but it was not a case where the claimant had been in prison for a comparatively long period of time, that the claimant was still a long way off tariff expiry, with sufficient time to make progress in the intervening period, and that whilst the claimant had not previously had an oral hearing there was no demonstrated need for one at this juncture.[40]Mr Hare also submitted that it was for the claimant to identify the particular respects in which an oral hearing was required, and that he had signally failed to do so. In response to this point Mr Southey submitted that this was not a pre-condition for an oral hearing to be considered appropriate, because it was often difficult to identify in advance precisely what facts and matters of assistance to the decision maker would emerge from an oral hearing. He submitted that if an oral hearing was held and Mr Arnold was asked to attend and was asked what his view was about the risk of re-offending, the degree of reduction in that risk and the appropriateness of downwards re-categorisation, his answers to those questions and more generally his clarification and expansion of his views orally might well produce material germane to the decision which CART had to make.[41]In my view it is important to follow the sensible exhortation in PSI 08/2013 and undertake a balanced assessment of the various relevant factors. The starting point is the absence of any important factual dispute, coupled with the absence of any significant dispute on the expert materials. Although the claimant submits that there is a lack of clarity on the expert evidence, in my view there is little or nothing of substance which is unclear; to the contrary there is substantial unanimity as between all of the experts. It is not surprising that Mr Arnold did not offer an opinion on re- categorisation; as he says and as I am satisfied that was not his function. He did however offer a clear opinion as to the risks, coupled with an assessment of the progress made by the claimant in addressing those risks, and his clear conclusion was that further consolidation was necessary and could be undertaken within the PWU. Ms Hunt did not disagree with any of this, and in my view her report is comprehensive, clear and insightful. It cannot sensibly be said that because she was not asked to provide a risk assessment or to consider the question of re-categorisation it was necessary for there to be an oral hearing for those questions to be out to her. Indeed in my view that would have been quite inappropriate. She was, if anything, even more satisfied than was Mr Arnold that the environment within the PWU was sufficiently challenging to allow the claimant to demonstrate effective use of his acquired skills to provide reliable evidence for future risk assessments.[42]It is apparent that the two concerns which the claimant through his legal advisers referred to Ms Hunt for her opinion, namely whether the one-to-one intervention was equivalent to the mainstream intervention offered by the SCP and whether he could achieve what he needed to achieve in terms of risk reduction whilst remaining within the PWU, were both answered in the affirmative by Ms Hunt, and in the circumstances her report did not take matters further in addressing the factors which CART had to determine, other than to support in general terms the views and conclusions already expressed by Ms Walker and Mr Arnold.[43]In the circumstances I agree with the defendant that fairness did not require an oral hearing. I do not accept that it is sufficient for the claimant to say that an oral hearing is appropriate simply because it is possible that if the prison psychologist attends questions might be asked and answers might be given which might in some way assist the prisoner’s case. I do not accept that it is sufficient for the claimant to say that an oral hearing is appropriate simply because he disagrees with the tenor of the reports submitted to CART and the views and conclusions reached in those reports. This is not a case where there is any indication that the claimant would have anything useful to say to or to address at an oral hearing. I remind myself that when asked he did not wish to add anything to the Arnold report, which addressed in some detail the progress he had made and had yet to make and the way in which he had addressed challenging situations whilst in the PWU following the one-to-one intervention.[44]I consider that there is nothing in the wider circumstance which justifies an oral hearing. In the context of his tariff the claimant has not been in custody for a very considerable time, and there is more than sufficient time for him to demonstrate a reduction in risk prior to his tariff expiry. True it is that he has not had an oral hearing before, but that is not by itself a sufficient reason for requiring one now.[45]In my judgment CART was perfectly entitled to reach the conclusion, which I share, that at this stage in the claimant’s sentence, where he has only relatively recently completed an intensive one-to-one intervention, and where the unchallenged and unchallengeable view of the psychologists is that effective use of the skills gained still needs to be, and can be, demonstrated for a further consolidation period within the PWU, there is no credible basis for concluding that an oral hearing is necessary, whether by application of the guidance contained within PSI 08/2013 or under the common law duty of procedural fairness, if different.[46]In the circumstances this claim fails and must be dismissed.

Cited in 2 later judgments