“The Director considered Mr Murcott's offending shows he would pose a high level of risk if unlawfully at large. He is satisfied that before Mr Murcott's downgrading can be justified there must be clear and convincing evidence of a significant reduction in this risk. The Director recognised that Mr Murcott has spent many years in prison and hospital since his conviction. He recognised also that Mr Murcott has engaged in relevant treatment. He noted the current reports are however clear that, despite this length of time and treatment, Mr Murcott has achieved very limited insight or progress addressing his offending, and still hold attitudes linked to his offending. Mr Murcott had also displayed offence-paralleling behaviours in hospital. He noted the reports show clearly that Mr Murcott has not significantly reduced the risk previously identified. and which resulted in his placement in Category A until his move to hospital in 1999. The Director acknowledged that Mr Murcott has recently complied with the regime. But he is satisfied· this provides insufficient evidence Mr Murcott has significantly reduced his risk if unlawfully at large. He considered there is in the meantime no other evidence that Mr Murcott's escape could be made impossible in less secure conditions justifying his downgrading, such as significantly impaired health or mobility. He noted further assessments will now take place to determine a suitable pathway for Mr Murcott. The Director carefully noted Mr Murcott's representations. He confirmed that PSI 08/2013 (the guiding instruction for reviews of Category A prisoners) states that all prisoners previously held in Category A must return to Category A when received back into prison custody from psychiatric hospital. The PSI states that a full review of their suitability for continued placement in Category A must then take place. He confirmed that this review has been completed entirely in accordance with PSI 08/2013. This review has assessed the same issues as in all reviews of Category A prisoners: i.e. the risk posed by the prisoner should the prisoner be unlawfully at large (and not if in lower security or on supervised release or parole), based on the nature and circumstances of the offending; and the progress the prisoner may have achieved in reducing this risk. In completing this review the Director is responsible only for determining Mr Murcott's suitability for Category A, and not his suitability for prison release. The Director considered the representations claiming that Mr Murcott should not be in prison, on such grounds as his mental health might deteriorate, or he would be in danger from others, have no relevance to this review. He noted in any event there is no evidence the predicted extreme effects cited in the representations have taken place since Mr Murcott's return to prison. He considered that decisions made by hospital authorities on Mr Murcott's suitability for outside visits while in their care could not determine this review. He considered the view of the Parole Board, which is responsible for deciding suitability for open conditions or parole release, and not closed prison categorisation, also could not determine this review. He considered there is no basis to the. suggestions in the representations that Mr Murcott's risk if unlawfully at large must inevitably have significantly reduced as a result of his length of time in prison and hospital, or that his return to Category A is invalid or unlawful. The Director considered evidence of a significant reduction in Mr Murcott's risk of similar reoffending if unlawfully at large is not yet shown. He is therefore satisfied Mr Murcott's downgrading cannot be justified and he must stay in Category A at this time.”
“The Category A Team considers there are also no grounds justifying an oral hearing for this review, in accordance with the criteria in PSI 08/2013. It considers the available information was readily understandable and suitable for the submission of effective representations. It considers there are no grounds for an oral hearing to resolve or understand the available information. It is satisfied also that an oral hearing is not appropriate or necessary simply to enable further representations to be made on existing information, or as an appeal against a decision which you do not agree with.”
“Security Categorisation is a risk management process, the purpose of which is to ensure that those sentenced to custody are assigned the lowest security category appropriate to managing their risk (…).”
“a. Following common law guidance and the policy “there will be more decisions to hold oral hearings than has been the position in the past”
“Whether an oral hearing is required in an individual case will be fact specific. Given the rationale of procedural fairness, there is no requirement that exceptional circumstances should be demonstrated – there will be occasions when procedural fairness will require an oral hearing regardless of the absence of exceptional circumstances.”
“…However, it deserves emphasis that fairness will sometimes require an oral hearing by the CART/director, if only in comparatively rare cases.”
“… An oral hearing would have enabled the reasons for the contradictory views to be examined on behalf of the appellant and for the contents of any adverse reports to be directly addressed. In the final analysis the review team would, of course, have reached its own decision, but an oral hearing, and proper disclosure, would have ensured that the decision was the result of a better-informed process, and the conclusions, and the reasons for them, would then have been received with correspondingly greater confidence”
“…when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”
“(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”
“When procedural fairness is in question, the court’s function is … to consider objectively whether there has been procedural unfairness.”
“the character of the decision making body, the kind of decision it has to make and the statutory or other context in which it operates.”
“It is emphasised again that oral hearings are not all or nothing – it may be appropriate to have a short hearing targeted at the really significant points in issue.”
“The first was described by Lord Hoffmann (ibid) [Secretary of State for the Home Department v AF (No 3)[2010] 2 AC 269 , para 72] as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions.”
“One virtue of asking whether there has been procedural unfairness is that it avoids any speculation about what the outcome would have been. When the common law identifies procedural unfairness, it is of vitiating materiality unless the outcome would inevitably have been the same. Another virtue is that procedural fairness recognises the values of: (i) the liability to result in better outcomes by ensuring that the decision-maker receives all relevant information and that it is properly tested; (ii) the avoidance of a sense of injustice that the person who is the subject of the decision will otherwise feel; and (iii) the rule of law (Osborn §§67-71).”
“However, it deserves emphasis that fairness will sometimes require an oral hearing by the CART/Director, if only in comparatively rare cases.”
“5. Constraints Exclusions from ROTL and prisoner apprenticeships and other restrictions 5.1. The following must not be considered for any form of temporary release: • Category A offenders (adult males) or restricted status offenders (adult females/young offenders)”
“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.”
“it is important that the oral hearing decision is approached in a balanced and appropriate way… with an open mind; must be 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; should be aware that costs are not a conclusive argument against the holding of oral hearings; and should not make the grant of an oral hearing dependent on the prospects of success of a downgrade in categorisation”
“53. It is recognised in the authorities that the court has to caution itself against the suggestion that no prejudice has been caused to a claimant because the flawed decision would inevitably have been the same. For example, in R v Ealing Magistrates Court, ex p Fanneran (1996) 160 JP 409, a case concerning theDangerous Dogs Act 1991 , Staughton LJ said: “The notion that when the rules of natural justice have not been observed one can still uphold the result because it would not have made any difference, is to be treated with great caution. Down that slippery slope lies the way to dictatorship. On the other hand, if it is a case where it demonstrable beyond doubt that it would have made no difference, the court may, if it thinks fit, uphold a conviction if natural justice had not been done.…”
“Natural justice is not always or entirely about the fact or substance of fairness. It … also has something to do with the appearance of fairness. In the hallowed phrase, justice must not only be done, it must also be seen to be done.”
“Procedural justice 2.4 When people believe the process of applying rules (how a decision is made rather than what decision is made, and how they are treated during the process) is fair, it influences their views and behaviour – this is called ‘procedural justice’. There is very robust evidence, from all around the world, showing that people are much more likely to respect and comply with rules and authority willingly when they believe the way the rules are applied is fair and just. This is true even if the outcomes of decisions are not in their favour or are inconvenient for them. 2.5 Research from HMPPS, and from prison services around the world, shows that when prisoners perceive authority to be used in a more procedurally just way, this is associated with significantly less misconduct and violence, better psychological health, lower rates of self-harm and attempted suicide, and lower rates of reoffending after release.”
“The first formal reviews for Provisional Category A / Restricted Status prisoners received back into custody from a psychiatric hospital or a prison outside England and Wales will be completed using the annual review report forms at Annex B. Available psychiatric hospital assessments may also be used.”
“ACCREDITED PROGRAMMES AND OTHER OFFENCE-RELATED WORK IN PRISON: Please list any programmes that the prisoner has been nominated for, refused access to, attended or completed during sentence. Please also include refusals by the prisoner.”
“Intervention to explore sexual fantasies about young girls, attitudes that supported sexual violence against children and maladaptive beliefs about the role of sex as a form of coping, date unknown.”
“likely to struggle in understanding and retaining information he is presented with, which is likely to Impact his ability to understand his risk factors. This is corroborated by previous reports from Mr Murcott's Hospital settings and also what he was able to discuss with me during interview for this report.”
“On11/06/2018 , his Psychologist reported that it was identified that he had made little progress in past psychologist sessions, there were limitations to how well he responded to psychological treatment which was likely due to his cognitive deficits which impacted on his ability to understand complex concepts and also for him to retain any material covered. As a result, it was thought that it would be unhelpful at that point to identify further psychological treatment goals.”
“I have not had sight of post-programme reports for these interventions, though the Chartered Psychologist working with him stated that Mr Murcott struggled to retain Information or Identify thoughts, feelings or behaviours linked to his offending. When asked about this work in Interview, Mr Murcott was not able to recall what was covered during the programmes and couldn't even tell me whether it was focussed on sexual offending behaviour. This suggests that Mr Murcott may not have the capacity to develop sufficient interna I controls to offending meaning that external management through restrictions placed upon him will be required.”
“Mr Murcott engaged with the Adapted Sex Offender Treatment Programme (ASOTP) In 2004 and reportedly found it difficult to understand and retain the learning from this. When asked about this during Interview for this report, he was unable to give a consistent recollection of his sexual Interests, maintaining that he did not find female children attractive. Mr Murcott stated that he had, what he considered to be, consensual sex, with what he termed "child prostitutes", because their mothers had approached him and asked if he would like to have sex with them. Mr Murcott has made statements In the past about finding the victim attractive and wanting to take her virginity however, during Interview for this report, he maintained that he did not ever think or say this. Mr Murcott also told his POM that he had sex with the victim's body after he had killed her, and when asked about this during the writing of this report, reported that his POM had made it up.”
“In order to evidence a significant reduction in risk, it is recommended that Mr Murcott undertake consolidation work with his case management team. It was also highlighted that there are outstanding treatment needs to explore around his sexual interest in children, sexual preoccupation, insight into offending and helping Mr Murcott to understand the link between childhood trauma and his offending.”
“the Panel questioned whether the most secure conditions were necessary to make escape impossible.”
“With regard to physical health, it is noted that Mr Murcott has poor mobility and has been referred to a Physiotherapist for a walking aid assessment.”
“31 Application for judicial review. (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.”
“Since admission to Ashworth his mental health difficulties have involved relapses and remissions and a partial response to anti-psychotic medication. His presentations have included not eating, believing that his RMO had interfered with his tariff, bizarre beliefs and ruminations concerning his family and background, fears about other patients, delusional bizarre writing, poor sleep and appearing ill at ease, becoming angry loud and agitated, writing letters with amorous and abusive content, demonstrating lack of insight regarding mental health problems, refusing medication, changing his name to hide his identity from his family, variations of mood and strange beliefs regarding his offence. Negative symptoms have also included flattened affect, social withdrawal, poor motivation, limited insight into his mental health difficulties and risks. He has also been prone to non-compliance with medication.”
“Mr Murcott has a well-documented diagnosis of paranoid Schizophrenia. There is very clearly documented evidence of him experiencing auditory and possibly visual hallucinations, experiencing paranoia and having grandiose delusional ideas. There have also been reports of markedly disinhibited sexual conduct. In addition, Mr Murcott's history, attitude and some of his more detailed risk assessments do suggest that he has co-morbid personality disorder of the anti-social type predominantly. However, this has not been formally diagnosed using well known psychometric tools. Mr Murcott's historical records suggest bizarre beliefs and behaviour dating back to when he was aged 12 years old which would suggest a very chronic illness of early onset.”
“The nature of his index offence has been clearly documented and his records indicate that Mr Murcott had very clear grandiose delusions and he also experienced chronic auditory hallucinations that eventually led to a decision to transfer him to a high secure psychiatric facility. There are very clear examples in his records of him hearing voices calling him names and telling him to kill himself and other people. There are bizarre beliefs about religion, suicidal ideas and there were reports of him getting delusions of reference from the television during which he sees things related to his circumstances, like fire, vampires, witches and the murder of a young girl. As outlined before, Mr Murcott has a chronic mental disorder some aspects of which are of a relapsing/remitting nature. However, the nature of his illness remains a major factor that makes it appropriate for him to remain detained in hospital. He has a chronic illness which was difficult to treat in the past and there is a very high risk of relapse if he is not closely supervised. The sexual offending risk which has been presented in the past is also of a degree that would suggest that Mr Murcott's detention in hospital remains justified until it can be clearly stated that the risk has been eliminated. That cannot be stated at the present time.”
“The mainstay of Mr Murcott's treatment is Clozapine therapy which has helped to control his psychosis in a satisfactory fashion. Non-pharmacological aspects include the sexual offending work which has been extensively done at Ashworth Hospital. He is not deemed suitable to engage in formal psychological work at this time.”
“He has very little insight into the risk he posed to others. He is very unrealistic regarding his future placement, frequently requesting to be transferred to a lock rehabilitation unit. On11/06/2018 , his Psychologist reported that it was identified that he had made little progress in past psychologist sessions, there were limitations to how well he responded to psychological treatment which was likely due to his cognitive deficits which impacted on his ability to understand complex concepts and also for him to retain any material covered. As a result, it was thought that it would be unhelpful at that point to identify further psychological treatment goals. On07/03/2019 while on a trip to see his brother at HMP Frankland, he was observed by staff to be checking if staff were looking at him and then he was noted to look at a young girl through the window and move his head around to look through the back window, as the car drove past. On26/03/2019 , he was described as not being happy with this Ward Round, when asked about looking at a young girl when on his community trip to see his brother. He denied that this had occurred. Indeed, as stated by the prison trainee psychologist, he stated that people were "make things up", and he will not be "coerced into a confession". On23/07/2019 , he was discussing toiletries with the female Occupational Therapist. He was then described as taking hold of the OT's hand without her consent and when the OT staff attempted to pull away, he held onto her hand with both of his hands and tightened his grip. The OT staff reported assertively asking him to let go on two occasions, stating that she could feel that his grip was not loosening and he was just staring at her. He then let go on the third request. The OT staff reinforced boundaries by asking him not to take hold of her hand and he was described as just staring at her. On16/08/2019 , he was noted to be holding one of his fellow peer's arm, and refused to let go, despite staff asking him to do so. When questioned later in the day about his behaviour, he became defensive and avoided staff eye contact. On10/04/2020 , a female staff member came into the communal areas and said hello to him, stating that she had not seen him in a while, and asked him how he was doing. He then stated to the female staff member that she had changed, and when asked by the staff member what he meant by that, he responded, "You've got even more gorgeous". It was explained to him that this was an inappropriate way to speak to a member of staff and that he should not make further comments like this to staff. He was described as not seeming to understand why this was the case. However, he did apologise for his comment.”
“His insight into his past risks is partial at best, but to his credit he has not engaged in any violent behaviour for many years. Given his cognitive deficits he would need external controls more so than internal controls to help him to continue manage his risks in the future. He has consistently voiced not wanting to return to prison, but he has very unrealistic views regarding his care pathway in the future. On17/07/2020 , he stated that he fancies a female member of staff and thought she was beautiful. Boundaries were reinforced. On26/07/2020 , he told a female member of staff to f**k her boyfriend off and to run away with him. Boundaries were reinforced. On21/08/2020 , a female staff member reported that she while in the communal area she turned around and he was noted to have had his trousers pants down exposing his private parts and smiling. She reported that when he observed that a fellow had seen him he quickly pulled his pants up.09/09/2020 , the alleged incident of him exposing himself to a female staff member was discussed with him. He denied exposing himself to the staff member stating that he was only adjusting his pants. On28/04/2021 , he was reported by the observing staff that he was observed looking at school children on the way back to The Spinney from his Community Leave.”
“Regarding Insight; he accepts that he has a mental disorder and that he requires medication but he has on occasions requested to have his medication reduced. He does not think he needs to remain in a medium secure facility and keeps asking to be discharged to a rehabilitation ward or back to the community to live independently. He minimises his past risk behaviours and the reasons for his index offence. In the past on occasions he has blamed the victim of the offence for his offending.”
“Mr Murcott has partial understanding of his illness. He does recognise symptoms including hallucinations and delusions and has been compliant with medication while in hospital. How much this could be done in the community is still unclear. He does not have good insight into his illness and has been non-compliant in the past. He has also asked for a drug-free trial while at The Spinney, but after explanation, he agreed to continue with Clozapine. He has not been properly tested out on his ability to self medicate and it is highly questionable that he would be able to self-medicate in the community given his cognitive deficits. He is compliant with treatment as an inpatient, but it is more than likely that if he was to be in the community, compliance with treatment would be an issue.”
“His chronic psychosis is well controlled on his current medication and there appears to be improved insight which is still very limited. Considering the level of risk he presented, and also due to the fact that there is still some evidence of him making infrequent inappropriate comments to female staff and mostly denying these incidents when questioned by the MDT, the team is of the opinion that his detention is justified for his health, his safety as well as for the protection of others. There have been concerns in the past about his mental state deteriorating rapidly in a prison setting, considering his vulnerabilities. The team is still of the opinion that this remains the case.”
“If Mr Murcott is to be discharged from hospital he is unlikely/unable to comply with his medication. He would also be prone to relapse of his past drug misuse. Both factors would lead to a relapse of his mental disorder with a significant increase of his risk to self and to others. The risk of sexual offending to children would increase greatly. If prematurely discharged given the above discussion the author is of the opinion that he would likely end up acting in a manner dangerous towards himself and others.”
“The team respectfully request that the Tribunal do not discharge Mr Murcott's at this time but to allow him to remain detained in hospital where effective and necessary treatment is available. Given his cognitive difficulties his risks to others are being manage contextually in a medium secure environment. The team is of the opinion that a possible step down to a long term low secure service is possible in the future (this would have to be agreed by his gate keepers) with any further progress being very gradual and carefully managed.”
“He expressed significant remorse, shame and guilt regarding the index offence.” (B91) This sentence comes in section 2 of the report. The section is entitled: “Details of any index offence(s) and other relevant forensic history. (taken from Dr Alnufoury report).”
“it is a relevant factor that both Mr Hassett and Mr Price have had extensive discussions with and opportunities to impress a range of officials of the Secretary of State, including significant contact with prison psychology service teams. The decision-making by the CAT/Director is the internal management end-point of an elaborate internal process of gathering information about and interviewing a prisoner...”
“It is clear that Dr Grimes and the FTT (MH) significantly differ in risk assessment from that the Defendant chooses to rely upon and make. The reasons for, and bases for, the dispute need to be properly resolved or explored if fairness is to be achieved.”
“The sexual offending risk which has been presented in the past is also of a degree that would suggest that Mr Murcott's detention in hospital remains justified until it can be clearly stated that the risk has been eliminated. That cannot be stated at the present time.”
“Assessment of Future Sexual Violence Risk using the OASys Sexual reoffending Predictor • Mr Murcott has been assessed using the OASys Sexual reoffending Predictor (OSP) which is an actuarial risk assessment tool used to assess the likelihood of proven sexual reoffending for adult males. In Mr Murcott's case: • OSP/C predicts further offending for a sexual/sexually motivated contact offence. Mr Murcott has been assessed as MEDIUM on OSP/C.”
“Definition of Category A 2.1 A Category A prisoner is a prisoner whose escape would be highly dangerous to the public”
“Furthermore, reasons proffered after the commencement of proceedings must be treated especially carefully, because there is a natural tendency to seek to defend and bolster a decision that is under challenge: Nash, [34(e)].”
“A full psychological assessment has been undertaken to review the level of risk in light of interventions undertaken in special hospital.”
“It was recognised that the special hospitals and prison provide a secure environment with a structured medication regime. However, if this structure were not present, it is likely that Mr Murcott would become less consistent with his medication and likely that his mental health would destabilise. This may in turn make him more likely to want alcohol, thereby significantly increasing his risk of disinhibition and sexual offending.”
“We are quite satisfied from the evidence we have considered that if returned to prison it would only be but for a short period before the patient's medication administration regime failed, his mental health relapsed, and he presented risk to himself and others.”
“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.”