Bruton, R (On the Application Of) v The Secretary of State for Justice [2017] EWHC 1967 (Admin)

[2017] EWHC 1967 (Admin)Case No CO/171/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/07/2017
Before
Mr Pushpinder Saini QCsitting as a Deputy Judge of the High Court
Between
THE QUEEN on the application of Edmund BrutonClaimantThe Secretary of State for JusticeDefendant
Philip Rule (instructed by Kesar & Co.) for ClaimantChristopher Knight (instructed by the Government Legal Department) for DefendantHearing Hearing dates: 18 July 2017
Approved Judgment

Mr Pushpinder Saini QC:

[1]This judgment is divided into five parts as follows:(i) Overview: paras. 2-7.(ii) The Facts: paras. 8-38.(iii) Statutory Framework: paras. 39-48. (v). Conclusion: para. 89. I. Overview.[2]The issue in this claim for judicial review is the legality of the decision of the Defendant (“the Secretary of State”) made by letter dated 16 September 2016 (“the Decision”) to refuse to direct the release of the Claimant, Mr. Edmund Everett Bruton (“Mr. Bruton”), from prison on compassionate grounds relating to the health of his mother.[3]Mr. Bruton is serving an indeterminate sentence for public protection with a minimum term of 7 years and 6 months. The minimum term will expire in September 2018 and his case will at that time be put before the Parole Board to assess release on licence.[4]Mr. Bruton’s mother, Maisie Bruton, suffers from Alzheimer's disease, and is sadly in severe cognitive decline. She has been placed on the end of life care register and is unable to perform basic care tasks for herself. Other than Mr. Bruton, she has no other family members in the United Kingdom and is understandably distressed at the thought of leaving her own home and moving into a residential care home.[5]In outline, Mr. Bruton argues that the Secretary of State’s decisions to refuse his applications for compassionate release under section 30 of the Crime (Sentences) Act 1997 and/or or under the Royal Prerogative of Mercy, fall to be quashed by reason of several overlapping procedural failings.[6]It is to be noted however at the outset that Mr. Bruton does not contend that the decisions to refuse release from prison on compassionate grounds were perverse or irrational, and the relief he seeks is limited to orders requiring the Secretary of State to reconsider the decisions in a proper, fair and lawful manner.[7]The Secretary of State resists each of the procedural challenges and further submits that, even if any procedural challenges are made good, I should decline to order relief under section 31(2A) of the Senior Courts Act 1981.

II. The Facts

[8]On 25 October 2011, His Honour Judge Burn, sitting in the Crown Court at Inner London, imposed on Mr. Bruton concurrent sentences of imprisonment for two offences of, intentionally damaging property intending to endanger the life of persons inside a property, and dangerous driving. It cannot be disputed that the offences were of a very serious nature and the Judge in his sentencing remarks described it as “amost disturbing and worrying case”. In short, Mr. Bruton deliberately drove his car into the home of his former partner when she was at home with her young children. At the time he had consumed a significant quantity of anti-freeze, had caused himself to suffer cuts to the neck and is recorded to have resisted first-aid at the scene of the crime.[9]I will need to explain the nature of the offences in more detail, as well as to refer further to the Judge’s sentencing remarks, since these matters are relevant to risk assessments made in respect of Mr. Bruton.[10]The offences were committed by Mr. Bruton following the ending of his relationship with his partner. As described by the Judge, Mr. Bruton “set about, in a pre-meditated and meticulous way, not only planning [his] own death but also planning really serious injury, on the jury’s verdict, to the extent of endangering the life of [his ex-partner], and, indeed, her young children”.[11]The Judge also observed that Mr. Bruton had planned the attack over some days, seeking to “do the maximum amount of harm [he] could to [his partner] and, quite possibly, one or more of her young children”. The Judge noted that on “the jury’s verdict, at the time [he] did that, [he] intended to put their lives in danger. I repeat, to put their actual lives in danger”.[12]In passing sentence, the Judge said that he did not have the slightest hesitation in concluding that that Mr. Bruton was “dangerous” within the meaning of the Criminal Justice Act 2003. The Judge observed: “To spell it out, I am satisfied that there is a significant risk that in the future, if at liberty to do so, you will both commit further serious offences and, as a result, members of the public will suffer really serious harm; physical and / or psychological. I am satisfied that one of the categories of people most at risk is, unfortunately, your ex-partner and possibly her children”.[13]Although Mr. Bruton had submitted an independent psychiatrist’s report to the trial Judge suggesting a low risk of re-offending, the Judge specifically stated that he entirely agreed with the view expressed in the probation report before him that the nature of Mr. Bruton’s “offending suggests a high level of pre-meditation and controlling behaviour designed to punish [his ex-partner for] ending the relationship”. The Judge added: “…this extreme form of domestic abuse was planned to cause the most significant serious harm [to his ex-partner] and her children. He has attempted to manipulate the situation and negate any responsibility from the distress caused by presenting this violence in the context of attempted suicide”.[14]The Secretary of State’s subsequent OASys 2014 risk assessment (referred to further below at para .[16]) also cited evidence that, after his offence, he had sent a text message to his ex-partner saying: “u cud have avoided it if u answered me” and “will be waiting for you in hell” .[15]Mr. Bruton pleaded not guilty at trial and in the Statement of Facts and Grounds at §4 he expressly pleads that “he continues to maintain the position that he never intended to drive the vehicle in to the home”. He also maintains this position in his pre-action letter and representations of 19 October 2016.[16]Whilst in prison, Mr. Bruton’s risk level has been assessed by means of so-called OASys assessments conducted jointly by the prison and probation services. OASys stands for “Offender Assessment System”. One of the specific purposes of OASys is to assess the risk of harm to others which an offender poses, both inside and outside prison.[17]Although these reports are intended to be prepared annually, for unexplained reasons, only a single OASys Assessment dated 9 April 2014 (“the 2014 OASys”) was prepared in respect of Mr. Bruton. That assessment concluded, in relation to both current and future risks, that persons at risk from Mr. Bruton were his ex-partner and her children, and that the risk “may extend to other members of her extended family”. This was no doubt by way of reference to the comments of the trial Judge and the nature of the offence which led to the IPP sentence. It was also noted that there was and would be a risk to “future female partners and children in the event that a relationship comes to an end”.[18]The nature of the identified risk was physical and sexual violence, sexual deviancy, and acting violently when Mr. Bruton becomes depressed or when he feels that he has been hard done by. The risk was assessed as likely to be greatest when the partner does not seek to engage in his preferred sexual practices, when the partner decides to end the relationship, and when the partner enters into a new relationship. Notably, one of the specific circumstances thought likely to increase risk was “mother’s declining health and her demise”.[19]Assessing the risk of serious harm that Mr. Bruton would pose if released into the community, the view expressed in the 2014 OASys was that Mr. Bruton would pose a “high” risk of serious harm to both known adults and children, and a “medium” risk of serious harm to the public (this assessment of “medium risk” is material to the claim of lack of access to documents to which I make reference in para. 24 below). “High risk of serious harm” was defined as: “There are identifiable indicators of risk of serious harm. The potential event could happen at any time and the impact would be serious”.[20]I now turn to the application for compassionate release.[21]On the documents before me, it appears that there may have been an application for compassionate release on a date prior to the application with which this claim is concerned. The parties’ representatives however were unable to help me further in relation to that matter save that I was informed that a previous decision by the Defendant in early 2016 had been withdrawn after initiation of judicial review proceedings.[22]The parties were content to proceed however on the basis that one of the documents initiating the present application (and a document considered by the Secretary of State as part of Mr. Bruton’s representations) was the written application for compassionate release sent to HMP Swaleside by Mr. Bruton’s former Solicitors. The nature of the representations in that document suggest that they were submitted at some point in 2014 or 2015. I will call this “the Application” in the remainder of this judgment.[23]The basis of the submission in the Application was the health of Maisie Bruton and both section 30 of the 1997 Act and the RPM were invoked in that regard as bases for release of Mr. Bruton to take care of his mother.[24]Mr. Bruton’s representatives submitted in the Application that his release “would not compromise the safety of the public”, recognising the importance of the risk his release would pose. Of vital relevance, however, is the fact that the Application specifically acknowledged that “his risk to the public is currently medium”. Both Counsel before me accepted it is likely (and I find), that this must have been a reference to the judgment in the OASys 2014 to which I make reference above at para. 19. Other sources were suggested on behalf of Mr. Bruton (such as possibly documents disclosed in the recategorisation process), but I have concluded the OASys 2014 was the source on the evidence before me.[25]This fact suggests that Mr. Bruton and his Solicitors had access to that OASys 2014 assessment and they were seeking to address the negative assessments of risk which were made in that document. They appreciated the nature of the “risk case” they had to meet based on the index offence and they expressly recorded that fact in their representations.[26]Other than the Application, Mr. Bruton and his legal representatives submitted no further evidence concerning the risk he posed to the public. The Application made no request for an oral hearing.[27]Before turning to terms of the Decision of 16 September 2016 refusing to direct compassionate release, it is important to record and set out the materials which were before the decision-maker on behalf of the Secretary of State, Mr. Gareth Hunter, since there was some confusion and inaccuracy in this regard in the Summary Grounds and the Detailed Grounds of Resistance submitted on behalf of the Secretary of State.[28]The final position by the date of the hearing before me was that the following documents were considered by the decision-maker in arriving at the Decision:(a) An ‘Early Release on Compassionate Grounds: Compassionate Family Circumstances Report’ dated 18 July 2016, completed by HMP Swaleside (where Mr. Burton was then incarcerated);(b) An ‘Early Release on Compassionate Grounds: Compassionate Family Circumstances Report’ dated 17 August 2016, completed by HMP Coldingley (to which Mr. Bruton had been transferred on 21 July 2016);(c) The trial Judge’s sentencing remarks;(d) The original pre-sentence report;(e) The Application; and(f) Various documents evidencing the ill health of Mr Bruton’s mother, and the care assessments and plans in relation to her, supplied by Mr. Bruton’s representatives.[29]Mr. Bruton’s evidence by witness statement submitted on the day before the hearing before me was that he had not previously seen items(a) the July 2016 Early Release Report and(b) the August 2016 Early Release Report. They were first disclosed two working days before the hearing before me. The one qualification was that in relation to the July 2016 Release Report Mr. Bruton did fill in section six of that report but he was not provided with the balance of the document, which was redacted. He was asked to complete this section in pressing circumstances. In summary, in section six, Mr. Bruton explained why he was not a release risk. He stressed his good behaviour in prison, his strong desire to look after his mother and an assertion that there was nothing to suggest he would lead a criminal lifestyle outside prison.[30]The Secretary of State accepts that these two Early Release Reports should have been served with her Summary and/or Detailed Grounds of Resistance. The Secretary of State also accepts that the Summary and Detailed Grounds of Resistance also wrongly indicated that Mr Hunter had before him the OASys 2014 document itself. That was not correct. Mr Hunter did however have before him the Early Release Reports which it is common ground referred to and relied upon the OASys 2014 document. The Secretary of State does not challenge the accuracy of Mr. Bruton’s evidence summarised at para. 29 above. This position was reached after I had provided the Secretary of State time to make post-hearing inquiries.[31]The Secretary of State has apologised for these inaccuracies but it is a matter of concern that these pleadings, supported by Statements of Truth, were submitted without properly checking the accuracy of the facts. This should not have occurred.[32]The August Early Release Report specifically set out the 2014 OASys assessment conclusions that Mr. Bruton posed a low risk of further offending, but a high risk of serious harm to children and a known adult (which in context must mean his former partner). The July Early Release Report noted that there “has been no formal exploration of the offending, no insight demonstrate, it is difficult to make any assessment of future risk”. The July Report fairly noted that there had no problems with Mr. Bruton’s behaviour whilst incarcerated. However, the Reports did not support Mr. Bruton’s application.[33]By letter dated 16 September 2016, the Secretary of State declined to order Mr. Bruton’s early release on compassionate grounds. The Secretary of State explained that the application had been carefully and sympathetically considered in light of the paperwork submitted and it was emphasised that each case was considered on its own merits by reference to the statutory test of “exceptional circumstances”. It was noted that the relevant local authority had recommended that Mr. Bruton’s mother required 24 hour care and that the existing care package was meeting her needs but that she would prefer that Mr. Bruton was there to provide the required care.[34]In the material part of the Decision letter for present purposes it was said: “The OASYs-OGRs indicates Mr. Bruton poses a low likelihood of further offending and a high risk of causing harm to children and known adults. The offender manager and offender supervisor both assessed Mr. Bruton as posing a high risk of serious harm to both children and a known adult due to the circumstances of the index offence, a previous indecent assault and the fact that he had not completed any offence focussed interventions during this sentence and his risk factors are therefore considered untreated. The Governor at HMP Coldingley noted Mr. Bruton’s sentence plan objectives are to address his domestic violence, be adjudication free and maintain employment but Mr. Bruton had informed staff he would not be completing any offence focussed work as he was appealing his sentence. The Governor therefore assessed that due to his non-engagement in offence focussed work his ability to not commit further offences remains of concern. In view of this, Mr. Bruton’s risk of re-offending, particularly of a sexual or violent nature, is still of concern and therefore not considered to be sufficiently low to demonstrate that Mr. Bruton has passed the threshold for compassionate release. It is acknowledged that there would be some benefit in Mr. Bruton’s release to care for his mother however, there are other options available to Mrs. Bruton by way of Social Services provided care. Given the alternative arrangements that could be made if Mrs. Bruton accepted a care review any benefit that could be achieved by agreeing to release Mr. Bruton is outweighed by public protection considerations”.[35]Referring back to what the Secretary of State has clarified the position to be above at para. 28 in relation to documents before Mr. Hunter, it was the Secretary of State’s position (and not challenged) that Mr. Hunter, when he referred to the “OASYs-OGRs” was referring to the content of those reports as repeated in the Early Release Reports which he in fact had before him as opposed to the OASYs 2014 itself.[36]Mr. Bruton’s Solicitors wrote on 19 October 2016 a response to the Decision in the form of a lengthy pre-action letter, which made further representations to the Secretary of State. This letter is important when one considers the procedural grounds of challenge. Specifically, no request was made for disclosure of the OASys referred to by Mr. Hunter. This may have been because Mr. Bruton was already aware of the substance of those reports since he had addressed them in the Application. Further, no suggestion was made that the reports of the Governor of HMP Coldingley should be disclosed because Mr. Bruton was unable to make effective representations without that report. Much of the pre-action letter reiterated the health position of the Maisie Burton. But it also twice stated that Mr. Bruton continued to deny his index offence and asserted that the “likelihood of reoffending would be extremely low”, based apparently on the number of Mr. Bruton’s previous convictions, his behaviour in prison and that his “risk of harm to the general public should at the very most be medium”. The reference again to “medium” must have been to the OASYs 2014 assessment. No further evidence or reports assessing Mr. Bruton’s level of risk were submitted; and there was no request for an oral hearing.[37]Given how this claim has developed it is to be noted that his experienced Solicitors did not make any complaint that Mr. Bruton was unable to properly address the risk case against him or that he had been denied access to any materials. The substantive argument made was the claimed need to involve the Parole Board in assessment of risk.[38]The Secretary of State considered those representations, and wrote again on 4 November 2016 in a further Review Letter. The view remained that Mr. Bruton should not be released early on compassionate grounds. In particular:(a) The Secretary of State emphasised that it was not disputed that Mr. Bruton’s mother required 24 hour care and it was indeed now in place. The position was that if Mr. Bruton’s mother’s funds ran out then she had the option of receiving care in a residential setting. Whilst this may not be her preference, she would face the same decision that many people in similar circumstances have to make.(b) The Secretary of State had to balance the preferences of Mr. Bruton’s mother and Mr. Bruton’s opinion that his mother should remain in her own home and have Mr. Bruton provide some of her care against the risk that Mr. Bruton posed.(c) The Secretary of State considered that the professional opinion that Mr. Bruton posed a high risk of harm outweighed the need for Mr. Bruton to be released to provide care to his mother, given that there was 24 hour care in place and alternative care available to Mr. Bruton’s mother if she could no longer afford to self-fund her care.(d) The Secretary of State explained that: “In determining whether or not your client’s case is sufficiently exceptional to warrant compassionate release the overarching consideration is the risk to the public. In view of the assessments received, Mr. Bruton’s risk cannot be considered to be sufficiently low enough to pass the threshold for compassionate release”.(e) Finally, the Secretary of State also considered whether the RPM should be exercised in Mr Bruton’s case. No basis was identified which would justify use of the RPM.

III. Statutory Framework

[39]Compassionate release of those treated as “life prisoners” is the subject of Part II of the Crime (Sentences) Act 1997 (as amended). By section 34(1) and (2)(d) of that Act, a “life prisoner” means a person serving one or more life sentences, which includes a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003. Mr. Bruton is a “life prisoner” for these purposes.[40]Section 30 of the Crime (Sentences) Act 1997 is in the following terms:
“30 Power to release life prisoners on compassionate grounds (1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds. (2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable.” (1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds. (2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable.”
[41]Given that it is relevant to one of Mr. Bruton’s grounds of challenge, it is appropriate at this stage to refer to the fact that the Secretary of State has published a policy in relation to the types of cases in which the section 30 power will be exercised: Chapter 12 of PSO 4700. It is common ground however that that policy does not exhaustively cover how the Secretary of State will apply section 30. That written policy is concerned with release in situations of serious illness on the part of a prisoner. Although it is referred to in the Decision letter of 16 September 2016, it could not have been applied to Mr. Bruton’s application which was considered on its own merits against the statutory threshold of “exceptional circumstances”.[42]Application of the “exceptional circumstances” test provided for in section 30 of the 1997 Act without the need for further definition of the precise policies to be applied was endorsed by the Court of Appeal in R v McLoughlin [2014] EWCA Crim 188; [2014] 1 WLR 3964. The Court held at §§29-36 that section 30 could not be limited in its application to the circumstances set out in the Secretary of State’s published policy; that it was of no legal consequence that the policy had not been revised; and that the meaning of the terms “exceptional circumstances” and “compassionate grounds” was sufficiently certain without requiring further administrative exposition by way of a written policy. The Court of Appeal’s approach was endorsed as Convention-compliant by the Strasbourg Court in Hutchinson v United Kingdom (2015) 61 EHRR 13.[43]As explained by Lord Thomas of Cwmgiedd CJ for the Court of Appeal inMcLoughlin:
“29… In our view, the domestic law of England and Wales is clear as to “possible exceptional release of whole life prisoners”
. As is set out in R v Bieber[2009] 1 WLR 223 the Secretary of State is bound to exercise his power under section 30 of the 1997 Act in a manner compatible with principles of domestic administrative law and with article 3. 30. As we understand the Grand Chamber's view, it might have been thought that the fact that policy set out in the Lifer Manual has not been revised is of real consequence. However, as a matter of law, it is, in our view, of no consequence. It is important, therefore, that we make clear what the law of England and Wales is. 31. First, the power of review under the section arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term “exceptional circumstances” is of itself sufficiently certain. 32. Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds. The policy set out in the Lifer Manual is highly restrictive and purports to circumscribe the matters which will be considered by the Secretary of State. The Life Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds. He cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual. In the passages in Ex p Hindley [1998] QB 751; [2001] 1 AC 410 to which we have referred at para 7 the duty of the Secretary of State was made clear; similarly the provisions of section 30 of the 1997 Act, require the Secretary of State to take into account all exceptional circumstances relevant to the release of the prisoner on compassionate grounds. 33. Third, the term “compassionate grounds” must be read, as the court made clear in R v Bieber [2009] 1 WLR 223, in a manner compatible with article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case-by-case basis. 34. Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review. 35. In our judgment the law of England and Wales therefore does provide to an offender “hope” or the “possibility” of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable. 36. It is entirely consistent with the rule of law that such requests are considered on an individual basis against the criteria that circumstances have exceptionally changed so as to render the original punishment which was justifiable no longer justifiable. We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of section 30 we have set out provides for that possibility and hence gives to each such prisoner the possibility of exceptional release.”[44]Further, as is clear from the wording of section 30 itself, the decision as to release (which will necessarily involve an assessment of risk) is one for the Secretary of State rather than the Parole Board, and the Parole Board’s role is only to advise against release where the Secretary of State has otherwise decided in favour of release.[45]This analysis follows not only from a simple reading of section 30 itself, but also from the judgment of the Court of Appeal in R (Spinks) v Secretary of State for the Home Department [2005] EWCA Civ 275; [2006] 1 Prison LR 166. The Court of Appeal held unanimously that the duty to consult the Parole Board arises only once the Secretary of State has decided on an intention to release, in which case the obligation arises to consult the Parole Board before putting the decision into operation: see at §28 per Buxton LJ, §50 per May LJ and §58 per Sedley LJ.[46]Although the underlying legal issue in Spinksconcerned a different issue to that before me (it was a complaint of a claimed Article 3 ECHR breach requiring referral to the Parole Board), it was rightly agreed by Counsel that the Court of Appeal’s construction of section 30 was part of the ratio of that decision and is binding upon me.[47]Turning back to the issue of construction of section 30, as explained in Spinks by Buxton LJ:
“28. The structure is in fact quite simple. First the Secretary of State considers whether the prisoner should be released on compassionate grounds. If he decides he should not, then, in my view, the Parole Board has no role at all to play. If he decides that he wishes to release, but only then, he is obliged, before actually releasing a prisoner, that is to say before putting the decision into operation, to consult the Parole Board. That is a perfectly understandable structure - whatever might be said about the policy concerned - in that the Parole Board acts as a check on the Secretary of State, no doubt exercising its functions which is to consider the effect on society at large of the presence of a particular prisoner within it. If this section had the meaning that Mr Southey seeks, Section 30 (2) would not say: “Before releasing a life prisoner under sub-section (1) above”, it would say, “before forming a view as to his satisfaction under sub-section (1) above.”
There is therefore no domestic rule that obliges the Secretary of State to consult the Parole Board”.[48]To similar effect, May LJ and Sedley LJ separately observed:
“50. I do not accept Mr Southey's suggested construction of Section 30 of the Crime (Sentences) Act 1997. Under Section 30 (1) of the 1997 Act, it is the Secretary of State who has to judge whether a life prisoner should be released on compassionate grounds. Section 30 (2) requires the Secretary of State to consult the Parole Board before releasing a life prisoner unless this is impracticable. He is obviously required to take account of the product of this consultation before making his final decision about release. He does not have to consult the Parole Board if he is not thinking of releasing the prisoner. Section 30 (2) does not transfer the making of the decision or any part of it to the Parole Board. It remains with the Secretary of State. It is to be supposed that the Parole Board’s input will be mainly concerned with the risk of re-offending. … 58…Section 30 (2) does not say “before deciding whether he is so satisfied...”
. It says “before releasing a life prisoner...”. It thus assumes and therefore necessarily implies that the Secretary of State must already have decided under sub-section (1) that release is in principle justified.”

IV. Ground 1: Procedural Fairness

[49]Mr. Bruton advances five overlapping complaints under this head. I will address each complaint individually below, but will begin by re-stating some basic principles concerning fairness in public law decision-making. That is necessary because this appears to be the first case in which the issue of procedural fairness standards has arisen in a section 30 application context. The issue of procedural fairness has been addressed authoritatively in the context of Parole Board decisions in Osborn v The Parole Board [2013] UKSC 61; [2014] AC 1115 and in relation to Category A classification decisions in R (Hassett & Price) v Secretary of State of Justice [2017] EWCA Civ 331. Each side to the dispute before me prays in aid passages in these cases to argue, for example, that the present case is closer to the parole context (justifying heightened fairness standards including oral hearings as in issue in Osborn) or that the case is closer to the form of non-judicial management or administrative function undertaken by the CART/Director (as in issue in Hassett).[50]However, neither of those cases addresses section 30 applications and while they contain helpful general guidance (particularly the judgment of Lord Reed in Osborn at §2, and the judgment of Sales LJ in Hassett at §51), it is safer to proceed from first principles.[51]Accordingly, I take as my starting point the following statement of principle. “[W]hat the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates”: Lloyd v McMahon [1987] 1 AC 625, 702H per Lord Bridge. I have also had regard to R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531, 560D-G per Lord Mustill.[52]Applying these principles, to my mind the following five matters stand out. i) First, it is undoubtedly the case that a section 30 decision affects the rights of prisoners and accordingly procedural fairness rights are in principle engaged. ii) Second, the decision-maker, here the Secretary of State, is not acting as a judicial body like the Parole Board. Rather, he or she is exercising a form of evaluative administrative judgment in the form described by May LJ in Spinks at §51. Exercise of that judgment requires a balance to be struck between the compassionate circumstances relied upon and the issue of risk. iii) Third, having regard to the statutory framework, section 30 gives the sole responsibility for assessment of the balance between compassion and risk to the Secretary of State, subject to the qualified consultation requirements in relation to the Parole Board prescribed by section 30(2). Before one gets to consultation of the Parole Board, the Secretary of State must have evaluated the risks and concluded that they justify release. iv) Fourth, the life prisoner can have no expectation of release under section 30 and he is responsible for putting together his best possible case for an exercise of the discretion in his favour. v) Fifth, the prisoner is entitled to know and to respond to the substance of the “risk case” that he has to meet in justifying his release. In most cases of those who have been given IPP sentences, the basic “risk case” they have to meet will be obvious. They have to be allowed however to participate in the process and in the ordinary course, the prisoner should be able to respond to both the OASys assessments and Early Release Reports.[53]With that introduction, I turn to the five specific complaints of procedural unfairness.[54]The first complaint is that there was an unfairness in the Secretary of State relying upon the 2014 OASys and the Early Release Reports (which it is said were treated as determinative of risk) without disclosing that documentation and without allowing informed representations to be made prior to any decision being taken on the application.[55]As appears from the facts I have outlined above, Mr. Hunter never in fact had the 2014 OASys before him when making the decision, and relied upon the references to the risk assessments in that assessment which had been repeated in the Early Release Reports of July and August 2016. Those Early Release Reports were not disclosed to Mr. Bruton (save as regards section 6 of the July Report: see para. 29 above).[56]In my judgment, a failure to disclose potentially the most important risk assessment material to the prisoner is a breach of common law principles of fairness as they seem to me to apply in the section 30 context. The Secretary of State accepted that the Early Release Reports should have been disclosed to Mr. Bruton and did not seek to suggest that it was appropriate or lawful to keep such material from him.[57]However, in the circumstances of this case, I do not consider that this breach of procedural fairness standards was serious. That is because the facts show that Mr. Bruton was aware of the essential risk case against him and was able to make submissions both himself and through his Solicitors as to that obvious risk case based principally on the circumstances of the index offence and what was said in the 2014 OASys.[58]I bear in mind in particular the following three facts in coming to this conclusion:(a) the risk assessments in the Early Release Reports relied upon the comments in the 2014 OASys;(b) Mr. Bruton had responded to those comments and the 2014 OASys in the Application and indeed, as the body of the 2014 OASys discloses, the discrete risk assessments within it had been discussed and debated with him;(c) his Solicitors in the letter before action of 19 October 2016 at Point D (see para. 36 above) made no request for any assessments and felt able to make further representations as to the level of risk. Specifically, it does not appear that either Mr. Bruton or his experienced prison law Solicitors considered themselves unaware of the risk assessment. That is because, given the circumstances of the index offence, the nature of the risk case to be met was obvious. They also enjoyed an opportunity to submit further material from independent experts in relation to the issue of risk but chose not to do so.[59]Accordingly, as regards the first procedural complaint, in my judgment the breach of procedural fairness was regrettable but minimal in its impact on fairness in the circumstances. As a matter of discretion I would have declined to grant any relief.[60]However, I also need to address section 31(2A) which provides as follows: “(2A)The High Court—(a) must refuse to grant relief on an application for judicial review, and(b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.[61]On the basis of the facts I have found above, I have concluded that even if Mr. Bruton had been provided with the Early Release Reports in full, he would not have added materially to his representations on the risk issue. He had already substantively addressed the substance of that case in in the terms set out in those Reports. The outcome of disclosure would not have in my judgment been a different outcome and therefore section 31(2A) of the 1981 Act is engaged and relief falls to be refused.[62]The second complaint of procedural unfairness is that the Secretary of State failed to consider what information it would be appropriate to obtain to determine the section 30 application. It is said that the Secretary of State’s decision was taken without making adequate inquiry, in breach of the duty set down in the well-known case Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, per Lord Diplock, at page 1065B. Mr. Bruton also relied, in the prison context, on R (Shaffi) v Secretary of State for Justice [2011] EWHC 3113 at para. 39. It is said that an OASys from April 2014 was not a current assessment and indeed during that period Mr. Bruton had in fact progressed through a prison category to Category C conditions. It was further argued that (now the position had been clarified as to what was before Mr. Hunter) it was evident that there was no risk management plan proposal governing release and licence conditions. In essence, it is said that new and updated reports needed to be obtained.[63]I reject this challenge for a number of reasons. First, it was not just the 2014 OASys which was the basis of the decision. A number of risk related materials were considered by Mr. Hunter (see para. 28 above]. In my judgment, the decision-maker did discharge his duty under Tameside to acquaint himself with relevant information to answer the question of risk. Second, it is well established that an allegation of a breach of the duty of sufficient inquiry actually amounts to a rationality challenge. It is an allegation which expressly must not be used as a backdoor route or proxy for a procedural challenge: R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (QB) at §§137-139. But as I have noted in above, no rationality challenge has been mounted. It is not said that the lack of further information rendered the decision irrational (see specifically, §139 of Plantagenet).[64]In my judgment, the Secretary of State had both adequate materials before him and was rationally entitled to rely on the material which included the Judge’s sentencing comments and the professional opinions of those working with the offender. This was particularly so in the absence of any counter-evidence presented or relied upon by Mr. Bruton as to risk (other than assertions as to a lack of risk in the Application and by way of his own comments in section six of the July Release Report).[65]The third procedural complaint concerns policy PSO 4700. It is argued that the policy does not contain sufficient procedural safeguards to enable a fair decision-making process and protect the fundamental interests of Mr. Bruton, nor (it is argued) does it adequately allow for his participation. Accordingly, the policy is said to be non-compliant with the common law duties of fairness and/or fails to meet public law duties of clarity and transparency, and/or the requirement of Arts. 3 and/or 8 ECHR. In short, it is argued that the policy is unlawful and falls to be quashed.[66]At the hearing, Counsel for Mr. Bruton confirmed that the ECHR transparency related complaints did not add to the duties in relation to policies as developed at common law (save as to potential additional interpretive obligations under the Human Rights Act 1998). I consider this concession was correctly made. Convention standards are not presently more exacting as regards transparency than those developed in modern domestic public law.[67]Turning to the merits of this challenge, I can deal with this third procedural complaint shortly for a simple reason: Mr. Bruton’s case was, as stated above, considered outside the scope of the policy and by way of direct application of section 30. So, the policy in Chapter 12 of the PSO was not relevant or deployed in determining Mr. Bruton’s application. It is concerned with the limited situation of prisoners who seek compassionate release on restricted grounds related to their own serious and terminal illness. Mr. Bruton was not such a person.[68]As to the argument that the Secretary of State is required by either common law fairness standards or by ECHR transparency standards to have a policy which deals with a wider range of potential exceptional circumstances, that argument is precluded by the Court of Appeal’s decision in McLoughlin (referred to at paras. 42-43 above). The Court of Appeal specifically held that the fact that the policy in PSO 4700 did not reflect the full range of circumstances to which section 30 could apply was, in law, of no consequence: see §30 of the Court of Appeal’s judgment. The Court of Appeal explained that the terms of the statute itself provided the necessary certainty: see §§31, 33, 36.[69]Accordingly, there is no basis for a complaint that there is insufficient transparency or clarity concerning the circumstances in which there might be an exercise of the section 30 power in cases falling outside PSO 4700.[70]The fourth procedural complaint was that the Secretary of State should have convened an oral hearing on the facts of the present case in order that Mr. Bruton be given the opportunity to address the evaluation of the disputed risk. It is argued that the principles of fairness required the Secretary of State to convene an oral hearing to hear from Mr. Bruton, and any independent expert, as well as take evidence of the present views of officers asked to provide current assessments.[71]It might be said that this is a surprising complaint to make given that at no stage did Mr. Bruton, when advised on at least two occasions by Solicitors, ask for an oral hearing.[72]Putting that matter to one side, Counsel for Mr. Bruton and Counsel for the Secretary of State appeared to be agreed, rightly in my view, that circumstances might arise in a section 30 application where common law fairness standards required an oral hearing. The real issue then is whether such circumstances existed in the present case.[73]In my judgment, an oral hearing was not necessary. There were essentially two issues before the Secretary of State:(a) Maisie Bruton’s health and personal circumstances; and(b) the risk posed on release of Mr. Bruton. As to the first matter, there was no relevant dispute. As to the second, Mr. Bruton was clearly aware of the nature of the index offence, the terms of the 2014 OASys and his Solicitors had specifically addressed both matters in the Application and in their letter before action of 19 October 2016 which led to the Review Decision of 4 November 2016. Mr. Bruton was also given an opportunity, which he took, in section 6 of the 18 July Early Release Report to set out in his own words, why he believed he presented an acceptable risk for release at this stage.[74]I do not consider that there was more, beyond what he had already submitted, that Mr. Bruton could have said at an oral hearing given that the ultimate decision for the Secretary of State was an evaluative judgment where the single issue was risk. He and his Solicitors had already said what they wanted to say on the issue of risk and they had decided not to submit any further evidence from independent third parties.[75]I conclude that an oral hearing was not necessary to achieve fairness and I have paid particular regard to Lord Reed’s guidance in §2(ii) of Osborn, and the discussion of that guidance by Sales LJ at §59 of Hassett, in reaching this conclusion.[76]The fifth and final procedural complaint under Ground 1 is that there was a failure to consult the Parole Board as to risk. Mr. Bruton argues that the need for a review by a panel of the Parole Board arises as a consequence of the duty of procedural fairness that attaches to the decisions that affect liberty, wellbeing, and private and family rights. It is said that a proper exercise of the section 30 discretion needs to be informed by a risk analysis by the expert body in circumstances where an asserted assessment of risk (or its conclusion) is sought to be challenged. He relies also upon the provision in section 239(2) of the Criminal Justice Act 2003 which imposes a duty upon the Parole Board to advise the Secretary of State with respect to any matter referred to him which is to do with the early release or recall of prisoners. That, it is argued, provides the Parole Board with the vires to assist the Secretary of State.[77]The Secretary of State does not dispute the effect of section 239(2) of the Criminal Justice Act 2003 but argues, as further explained below, that any duty to refer the issue of risk to the Parole Board is contrary to the scheme of section 30 of the 1997 Act and authority.[78]I agree with the Secretary of State. The requirements of procedural fairness depend upon the statutory context and must be consistent with the legislative framework. In Spinks (the material passages are set out above at paras. 47-48), the Court of Appeal explained the structure of section 30 and specifically the division of responsibilities as between the Secretary of State and the Parole Board. The legislation distinguishes between those cases in which the Secretary of State is required to consult and those where the Parole Board’s function does not arise. The present case is in the latter category. As the Court of Appeal noted, the role of the Parole Board is self-evident from the terms of section 30: it is there to act as a potential ‘check’ on the Secretary of State’s decision to release, most obviously in cases where it believes the Secretary of State has wrongly identified or wrongly weighed the risks of release, by advising against release. It is not there, as Spinks confirms, to encourage the Secretary of State to release the prisoner where the Secretary of State has already decided not to do so. Section 30 allocates the decision to the Secretary of State, not the Parole Board.[79]Counsel for Mr. Bruton argued that his submission is not precluded by Spinks because the Secretary of State has a power, but not a duty, to consult with the Parole Board before taking a decision in order to achieve fairness if the common law demands such a result.[80]Although I do not accept that on the facts of this case that fairness required such consultation, in my judgment that route is barred by the reasoning in Spinks. As interpreted by the Court of Appeal, section 30 allocates a specific and narrow function to the Parole Board in compassionate early release cases. The contrary analysis would frustrate that statutory scheme and the careful allocation of roles adopted by Parliament which intended the Secretary of State himself to assess risk as the primary decision-maker.[81]Before leaving this ground concerning the Parole Board, I should refer to the decision of the Deputy Judge, Helen Mountfield Q.C., who granted permission by reference in particular to this ground. It is highly unfortunate that the Deputy Judge’s attention was not drawn by the Claimant in his application for permission to the decision of the Court of Appeal in Spinks. In granting permission, the Deputy

Judge observed:

“I consider it arguable that the parole board should be consulted and form a view on risk before a decision is taken as to whether to grant early release on compassionate grounds, rather than acting merely as a ‘blocking mechanism’ in a case where the Secretary of State might otherwise be minded to grant release”
. Given these comments, the Deputy Judge may well have taken a different view as to the arguability of this ground had her attention been drawn to the Spinks case.

Ground 2: The Royal Prerogative of Mercy (RPM

[82]Under this ground Mr. Burton complains that the Secretary of State failed lawfully to consider exercising the RPM in his favour in the 16 September 2016 Decision and also fettered the discretion enjoyed in exercising the RPM in the Review Decision of 4 November 2016. In the latter decision, it was said that “for the Secretary of State to even consider exercising her discretion” Mr. Bruton would have had to “demonstrate a meritorious act or conduct”. It is argued that the decision to refuse to exercise the RPM was based on a public law error as to its flexible scope and the decision should be quashed on that basis.[83]There was an interesting debate in argument before me as to scope of the RPM and specifically whether it is restricted to cases of injustice which existing legal processes do not address. Reference was made in this regard to R (Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin); [2010] QB 150 and McGeough v Secretary of State for Northern Ireland [2012] NICA 28.[84]I do not need to resolve this issue because it is academic on the facts. Mr. Bruton did not advance any reason other than his mother’s illness as a basis for release under section 30 or under the RPM. Having lawfully rejected the section 30 application essentially on a balancing of the compassionate grounds against risk (and there being no rationality challenge to that decision) it is hard to see how the RPM could be exercised in Mr. Bruton’s favour. The RPM application was bound to fail.

Ground 3: Alleged application of a legally incorrect threshold of risk under section 30

[85]The final ground relied upon is the complaint that the Secretary of State wrongly applied a threshold to the assessment of risk which was inconsistent with the use of the section 30 power. It is submitted that the Decision letter of 16 September 2016 and the Review letter of 4 November 2016 disclose such errors.[86]Specifically, it is said that the Decision letter was in error in referring to the fact that the risk of re-offending was not considered “sufficiently low to demonstrate that Mr. Bruton has passed the threshold for compassionate release”. It is also said that the 4 November 2016 Review letter disclosed an error in stating that “risk cannot be considered to be sufficiently low enough to pass the threshold for compassionate release”.[87]I reject these complaints. The statutory threshold is one of “exceptional circumstances”, which the Secretary of State expressly identified in the Decision letter of 16 September 2016. Self-evidently, that is a high threshold to meet. Whether it has been met must be considered by balancing the factors in play in any particular case. In this case, the most obviously relevant factors were the circumstances of Maisie Bruton and her care situation, balanced against the position of Mr. Bruton and the level of risk he might pose if released early. The level of risk which is tolerable to the Secretary of State will necessarily depend on the weight of the factors; that is the effect of a balancing exercise.[88]The references to “the threshold for compassionate release” in the Decision letter and Review letter, must be seen in that context, particularly read with the phrase “sufficiently low” which immediately preceded it. I can detect no legal error in the letters when read as a whole and in context.

V. Conclusion

[89]The claim for judicial review is dismissed.