“Ground 1: The Defendant’s decision was detailed and provided four clear reasons why it was not necessary to hold an oral hearing: (1) the information contained within the reports was readily understandable; (2) the Claimant had not identified any important factual dispute going directly to the issue of his risk; (3) the Claimant was not at an “impasse”; and (4) the Claimant was far away from his tariff expiry. The Defendant determined that an oral hearing was not appropriate or necessary for the reasons he gave, which were adequate for a decision of this nature. Ground 2: For the reasons set out in paragraphs 43 – 54 of the SGD, the Defendant’s decision not to hold an oral hearing was not in breach of PSI 08/2013. It was a lawful exercise of the Defendant’s judgment, based on the facts and circumstances of this case, which were properly taken into account. Ground 3: Ground 3 duplicates the submissions made on Grounds 1 and 2. Even a short hearing would not have yielded any practical benefit, for the reasons already given.”
“Mr Jama has engaged with me on a regular basis, we have put into practice his skills he has learnt during his 1 to 1 sessions with psychology, and we evidence this with situations and how he has learnt to apply himself compared to his previous ways consistently proving he has learnt how to manage his emotions and behaviours, and consolidate the skills he has been taught, we document this on nomis through key worker sessions. He follows the wing regime and often goes beyond what’s required of him to help staff workloads with what he can. Mr Jama has a privileged and trusted job of the wing servery worker which he has been in this position soon after returning to B wing. He engages with staff and peers on the wing as well as his OMU, and takes part in courses suggested to him, often taking part in extras including attending sessions with external motivational speakers. He is a nominated listener and provides support when required to his peers within Whitemoor.”
“5.4.1 There continues to be security intelligence regarding Mr Jama’s use of and involvement in the illicit supply of substances and use of and illicit supply of mobile phones. Mr Jama is encouraged to consider why he may be implicated in these behaviours and the function of his potential involvement in this, making links to his risk factors and identify how this links with offence paralleling behaviours. 5.4.2 Mr Jama would also benefit from exploring the impact his attachment style and safety/defensive behaviours (as identified in his CFT formulation) have on his ability to tolerate and manage his affect (sic) and interact with others, and how this links into continued offence paralleling behaviours. It is my experience, both in interview and disclosure of this report, that Mr Jama’s avoidant/ dismissive attachment style means he sees relationships as purely transactional and focused on getting his needs met. Therefore, he can present as dismissive, intimidating and overbearing as he attempts to get his own needs met. When it was reflected to him that his comments could be experienced as intimidating, he stated “it was not his problem”
“8.2 As outlined in the PSI 08/2013, I understand that the test for downgrading a Category A prisoner is whether the prisoner’s risk of reoffending if unlawfully at large has significantly reduced, such as evidence that shows the prisoner has significantly changed their attitudes towards their offending or has developed skills to help prevent similar offending. 8.3 Based on this assessment, there is evidence that Mr Jama has significantly reduced his risk of reoffending if unlawfully at large. This assessment (and previous psychological assessments) highlights that Mr Jama has completed all core risk reduction work, that he does not evidence entrenched personality traits that are functionally linked to his risk of recidivism, nor does he evidence risk paralleling behaviours. There have been no indications of planned, anticipated, or actual violence that would warrant Mr Jama’s continued detainment in a high secure environment. 8.4 Based on this assessment, Mr Jama is considered to pose a low risk of future sexual and non-sexual violence in custody (closed and open) and a moderate risk in the community. Risk of serious harm remains high were he to reoffend. Risk is not assessed as imminent and warning signs would likely be visible. In essence, there is evidence that Mr Jama has significantly reduced his risk of reoffending if unlawfully at large. 8.5 Mr Jama is someone who, arguably, does not have a clear or clinically relevant treatment pathway. A period on a PIPE is not necessary in terms of risk reduction, and it is not clear why or how this pathway would be responsive to his needs. Mr Jama’s limited memory of his sexual offence is unlikely to change in his current environment and should not hinder his progression. 8.6 If Mr Jama was re-categorised, there is no indication that he would pose an escape risk if he resided in conditions of lesser security. Re-categorisation would provide him with more opportunities to access and engage with appropriately responsive interventions, such as a TC, and this would undoubtedly provide an opportunity to explore further and understand his trauma and offending. Re-categorisation would also provide Mr Jama with greater access to further develop his protective factors (i.e. educational and vocational opportunities) which would help in managing his previous antisocial tendencies. 8.7 To conclude, for the reasons laid out above, it is my opinion that the test for downgrading is met in Mr Jama’s case, that his risk of reoffending if unlawfully at large has significantly reduced and that he demonstrates significantly changed attitudes to his offending, and Category A conditions on no longer necessary to manage his risk.”
“…that there are at present no grounds on which a downgrading of your security category could be justified and that you should remain in Category A at this time. The Category A Team noted your representations but considered these also provide no substantial evidence that you have at this time achieved a significant reduction in your risk of similar reoffending if unlawfully at large. It considered that significant risk reduction must be shown before your downgrading. It considered that you should also show you can put relevant skills into practice over a sustained period. It is satisfied also that there are no grounds for an oral hearing for this review in accordance with the criteria in PSI 08/2013.”
“The Director considered Mr Jama’s offending shows he would pose a high level of risk if unlawfully at large, and that before his downgrading can be justified there must be convincing evidence of a significant reduction in this risk. The Director noted that Mr Jama has been in custody for some years and has engaged in suitable intervention work. He recognised that Mr Jama has achieved a degree of progress through this work. The reports are however clear that concerns remain over Mr Jama’s ability to apply new skills over time and outside his present secure conditions, as reflected in some of his recent behaviour. He considered that Mr Jama has therefore reasonably been recommended for a PIPE unit to provide further evidence of consistent and effective development of skills to manage his behaviours and risk outside his present secure conditions. He recognised that the recorded security information is, by its very nature, unproven, and should not therefore be the only matter taken into account or have an undue influence on the review decision. He is however satisfied that such information can legitimately be taken into account in fully determining Mr Jama’s progress in addition to the other relevant information, including Mr Jama’s offending, the high risk posed by this offending, and the assessments of his progress through intervention work. The Director is satisfied that the recommendations by the POM or representations that Mr Jama should progress now to enable him to access further treatment do not provide convincing evidence that he has at this time achieved significant risk reduction if unlawfully at large. He is satisfied that such evidence must precede Mr Jama’s downgrading; and that his downgrading cannot be approved before this is shown solely to enable him access to further treatment in less secure conditions. He considered the other grounds for Mr Jama’s downgrading in the submitted representations and private psychology report (including completion of risk reduction work; lack of violence in custody; moderate risk in the community; lack of escape risk) also provide no convincing evidence he has at this time achieved significant risk reduction if unlawfully at large. He accepted that legal representatives and the private psychologists they commission are entitled to express their views. He noted however these representations are similar to many other legal representations (supported by assessments in commissioned psychology reports) in being based on their own interpretation of the criteria for downgrading or of the evidence needed to show significant risk reduction if unlawfully at large. These representations regularly claim such factors as acceptable behaviour, program completion, manageability and lower security, or access to further treatment provide indisputable evidence of significant risk reduction and grounds for downgrading; and that to disagree with this is either irrational or warrants an oral hearing. The Director is however satisfied that these factors do not inevitably provide such evidence. As stated above he is satisfied that, in the absence of convincing evidence of risk reduction, downgrading cannot be approved solely to access further treatment. He considered that such factors as good custodial behaviour, suggested manageability in lower security or the absence of violence in custody do not alone provide convincing evidence that significant risk reduction if unlawfully at large has been achieved. He considered that program completion in itself does not necessarily provide such evidence. He confirmed also that no evidence of an enhanced escape risk is required for prisoner’s placement in Category A. He had no knowledge that a private psychologist has the expertise to offer a relevant judgement on Mr Jama’s escape risk if in lower security, as shown in the submitted report. But in any event he confirmed that an absence of such evidence does not in itself provide convincing evidence significant risk reduction if unlawfully at large has been achieved. The Director noted that the private psychology report states, with apparent authority, that ‘the test for downgrading is met in Mr Jama’s case’. But he considered for the detailed reasons stated above that this is not supported by the reasoning in this report or the other submitted representations. The Director confirmed that in reaching his decision he has a duty to consider the safety of the public, the police or the security of the State. As stated above, he recognised the right of legal representatives and the private psychologists they commission to express their views. But he had no knowledge that they have any responsibility to consider the safety of the public, the police or the security of the State in making their representations or assessments. He considered this is borne out by the grounds for downgrading in Mr Jama’s representations. The Director considered there are in the meantime no grounds for an oral hearing for this review in accordance with the criteria in PSI 08/2013. He considered the available information and reasoning for the downgrading recommendations in the reports and representations [which] are readily understandable. He noted Mr Jama disputes recorded security information. He considered however Mr Jama has identified no important factual dispute going directly to the issue of his risk warranting an oral hearing. As stated above, he considered there is no basis to claim that the prison assessments in Mr Jama’s case depend solely on recent security information. He considered that an oral hearing is not appropriate or necessary solely to enable Mr Jama to make verbal representations or to further dispute recorded security information. [My underlining] For the detailed reasons above the Director…considered also that the submitted recommendations provide neither convincing evidence Mr Jama has at this time achieved significant risk reduction if at large, nor any other valid grounds for his downgrading. He did not accept disagreeing with these recommendations in itself represents a significant dispute justifying an oral hearing. He considered these facts alone could not however justify an oral hearing without other supporting grounds.He noted also that Mr Jama is many years from tariff expiry. He considered that no credible argument can be made that his Category A status is harming or preventing his future liberty or parole consideration. He considered also that Mr Jama remains free to engage further with his identified pathway in a PIPE unit to enable closer assessment of significant progress, and is not in an impasse. He considered there are no other issues relevant to this review that can be resolved only through an oral hearing. [My underlining] The Director considered that convincing evidence of significant reduction of Mr Jama’s risk of similar reoffending if unlawfully at large is not yet shown. He is therefore satisfied that Mr Jama’s downgrading cannot be justified and he must stay in Category A at this time.”
“Before approving a confirmed Category A / Restricted Status prisoner’s downgrading the DDC High Security (or delegated authority) must have convincing evidence that the prisoner's risk of re-offending if unlawfully at large has significantly reduced, such as evidence that shows the prisoner has significantly changed their attitudes towards their offending or has developed skills to help prevent similar offending.”
“Oral Hearings 4.6 The DDC High Security (or delegated authority) may grant an oral hearing of a Category A / Restricted Status prisoner’s annual review. This will allow the prisoner or the prisoner’s representatives to submit their representations verbally. In the light of the clarification by the Supreme Court in Osborn, Booth, Reilly of the principles applicable to determining whether an oral hearing should be held in the Parole Board context. The Courts have consistently recognised that the CART context is significantly different to the Parole Board context. In practical terms, those differences have led to the position in which oral hearings in the CART context have only very rarely been held. The differences remain; and continue to be important. However, 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. In these circumstances, this policy is intended to give guidance to those who have to take oral hearing decisions in the CART context. Inevitably, the guidance involves identifying factors of importance, and in particular factors that would tend towards deciding to have an oral hearing. The process is of course not a mathematical one; but the more of such factors that are present in any case, the more likely it is that an oral hearing will be needed. Three overarching points are to be made at the outset: ● First,each case must be considered on its own particular facts – all of which should be weighed in making the oral hearing decision. ● Secondly, it is important that the oral hearing decision is approached in a balanced and appropriate way. The Supreme Court emphasised in Osborn that decision makers must approach, and be seen to approach, the decision 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. ● Thirdly, the oral hearing decision is not necessarily an all or nothing decision. In particular, there is scope for a flexible approach as to the issues on which an oral hearing might be appropriate. 4.7 With those three introductory points, the following are factors that would tend in favour of an oral hearing being appropriate: a. Where important facts are in dispute. Facts are likely to be important if they go directly to the issue of risk. Even if important, it will be necessary to consider whether the dispute would be more appropriately resolved at a hearing. For example, where a significant explanation or mitigation is advanced which depends upon the credibility of the prisoner, it may assist to have a hearing at which the prisoner (and/or others) can give his (or their) version of events. b. Where there is a significant dispute on the expert materials. These will need to be considered with care in order to ascertain whether there is a real and live dispute on particular points of real importance to the decision. If so, a hearing might well be of assistance to deal with them. Examples of situations in which this factor will be squarely in play are where the LAP, in combination with an independent psychologist, takes the view that downgrade is justified; or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds. More broadly, where the Parole Board, particularly following an oral hearing of its own, has expressed strongly-worded and positive views about a prisoner’s risk levels, it may be appropriate to explore at a hearing what impact that should or might have on categorisation. 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. c. Where the lengths of time involved in a case are significant and/or the prisoner is post- tariff. It does not follow that just because a prisoner has been Category A for a significant time or is post tariff that an oral hearing would be appropriate. However, the longer the period as Category A, the more carefully the case will need to be looked at to see if the categorisation continues to remain justified. It may also be that much more difficult to make a judgement about the extent to which they have developed over the period since their conviction based on an examination of the papers alone. The same applies where the prisoner is post-tariff, with the result that continued detention is justified on grounds of risk; and all the more so if he has spent a long time in prison post-tariff. There may be real advantage in such cases in seeing the prisoner face-to-face. Where there is an impasse which has existed for some time, for whatever reason, it may be helpful to have a hearing in order to explore the case and seek to understand the reasons for, and the potential solutions to, the impasse. d. Where the prisoner has never had an oral hearing before; or has not had one for a prolonged period. Timing of Annual Reviews Categorisation is reviewed within set timescales.”
“…it is legitimate to bear in mind that the director and other officials engaged in the process are not judges required to dedicate their full time and attention to categorisation decision-making but have wider management responsibilities in running prisons…it is a relevant consideration in assessing whether [fairness required an oral hearing] that courts should be careful not to impose unduly stringent standards liable to judicialize what remains in essence a prison management function.”
“I would add that even in a case where there is a significant difference of view between experts, it will often be unnecessary for the CART/Director to hold a hearing to allow them ventilate their views orally. This might be so because, for example, there may be no real prospect that this would resolve the issue between them with sufficient certainty to affect the answer to be given by the CART/Director to the relevant question, and fairness does not require that the CART/Director should hold an oral hearing on the basis of a speculative possibility that that might happen: see Downs at [45].”
“iii) The impasse capable of arising when the prisoner continues to deny the commission of the offences in question has already been discussed. A potential impasse may also arise where a prisoner needs access to opportunities to demonstrate that he can be trusted in a lower category, as otherwise he will have an almost impossible task in persuading the parole board that he should be released;… However, keeping him as a Category A prisoner may mean that he does not have access to such opportunities-and, for its part, CART (rather as it observed in the present case), with its own particular interest in the risk of escape, may be unwilling to risk downgrading the prisoner’s security categorisation without prior evidence of significant risk reduction. Although the existence of an impasse or inconsistency (for example, between the Parole Board and CART) may increase the likelihood of an oral hearing being required, it should not be thought that the mere existence of an impasse or inconsistency means that an oral hearing will be warranted. Moreover, for my part, the Court should not be too ready to conclude that there is an impasse or inconsistency when there may be no more than a difference of view, perhaps for very good reasons…”
“…if in asking the question whether upon escape the prisoner would represent a risk to the public the CART/director, having read all the reports, were left in significant doubt on a matter on which the prisoner’s own attitude might make a critical difference, the impact upon him of a decision to maintain him in Category A would be so marked that fairness would be likely to require an oral hearing.”
“The Director considered Mr Jama’s offending shows he would pose a high level of risk if unlawfully at large, and that before his downgrading can be justified there must be convincing evidence of a significant reduction in this risk”
“The Director noted that the private psychology report states, with apparent authority, that ‘the test for downgrading is met in Mr Jama’s case’. But he considered for the detailed reasons stated above that this is not supported by the reasoning in this report or the other submitted representations. The Director confirmed that in reaching his decision he has a duty to consider the safety of the public, the police or the security of the State.”
“He considered that there are no other issues relevant to this review that can be resolved only through an oral hearing.”