Bell, R (on the application of) v Secretary of State for Justice

Neutral Citation Number:[2016] EWHC 1804 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/154/2015 The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG Monday, 27th April 2016 B e f o r e: MR JUSTICE KERR - - - - - - - - - - - - - Claimant Defendant Between: THE QUEEN ON THE APPLICATION OF JOHN BELL v SECRETARY OF STATE FOR JUSTICE - - - - - - - - - - - - - Digital Audio Transcript of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr Matthew Stanbury appeared on behalf of the Claimant Mr Matthew Slater appeared on behalf of the Defendant - - - - - - - - - - - - - J U D G M E N T 1. This is a combined substantive judicial review and a rolled-up hearing of claims by the claimant, a life sentence prisoner whose minimum term of 20 years expired, I am told, in August 2014. These applications arise from decisions of the Category A Review Team ("CART") about the claimant, who resides at HMP Full Sutton, declining to re-categorise the claimant downwards from category A and, pertinently for the purposes of today's proceedings, declining to grant him an oral hearing before making decisions to that effect. 2. In 1987 the claimant raped a young woman after driving her to a local park and threatening her with a knife. Later the same year he murdered another young woman who was found lying at the bottom of a grass bank at a roadside. She had been raped before being strangled. In 1992 the claimant raped and buggered a 15-year-old girl, threatening her with a screwdriver, and attempted to murder her with a ligature around her neck after binding her hands. 3. The claimant accepts responsibility for the latter offence but denies, or has in the past denied, over long periods, having committed the first two offences dating back to 1987. He was sentenced in 1993 at Chester Crown Court to life imprisonment, indeed, to six life sentences for murder, attempted murder, three rapes and buggery. The minimum term was set at 20 years. He was duly incarcerated and in 1998, many years before expiry of his tariff, completed a course relating to sex offending. 4. 5. In 2009 he was transferred to HMP Full Sutton. The following year, in September 2010, he took part in an extended sexual offender's treatment programme lasting some nine months. In 2013, he was assessed for but found unsuitable for what was then called the Healthy Sexual Functioning Programme; since renamed as the Healthy Sex Programme. In April 2014, a report was prepared by a Ms Gill, a forensic psychologist, for the prison authorities. After reviewing the history, she noted that he had by this time completed the Thinking Skills Programme (TSP) and a “RESOLVE” programme which aims to reduce violence in medium to high risk adult and young male offenders. 6. She concluded that he had demonstrated insight into risk factors related to his offending but that she was not confident that it would be safe for him to be released, as he would then have increased opportunities to interact with adult females and his offending history had been marked by anger towards women that had triggered sexual and violent thinking. She recommended that he engaged with a what is called a psychologically informed planned environment (PIPE) unit. 7. The claimant's case was then considered on two occasions, in July 2014 and August 2014, by a local advisory panel (the panel). The second occasion was as a result of a complaint made by the claimant which led to the panel reconvening to consider the matter further. On both occasions the panel reached the view that there was not reliable evidence of a reduction in the risk factors associated with his violent and predatory behaviour, and that he remained a high risk of harm to the public if unlawfully at large, with no significant reduction in the risk of similar re-offending if unlawfully at large; and that consequently he should remain a category A prisoner. 8. That was just before the expiry of his 20 year minimum term, which expired on 14 August 2014. His categorisation was reviewed the following month in September 2014. The decision was that he was to remain in category A. His solicitors then made representations asking for an oral hearing. That led to the first of two decisions challenged or sought to be challenged in these proceedings. 9. First, what happened was that on 10 October 2014 a letter was sent to the claimant's solicitors giving reasons for refusing the request for an oral hearing. A pre-action protocol letter was then sent by the solicitors; and a psychologist, Dr Pratt, produced a report to which I come next. That report was dated 22 November 2014, although its final incarnation may have been a bit later than that. 10. In any case, it was sent to the defendant on 9 December 2014, in the form that it now is in before me today. It is common ground that the version before me today is an amended version of a previous version of the same report, which had been prepared with the assistance of public funding for the purpose of a forthcoming Parole Board hearing. It was explained to me, and it is agreed, that because public funding is not available for hearings dealing with re-categorisation of prisoners (as distinct from Parole Board hearings) the then existing report was adapted for the purpose of underpinning and supporting the claimant's case for re-categorisation. 11. The report is quite lengthy. Dr Pratt met the claimant for several hours before preparing it. Both sides made submissions on it, to which I will come shortly. The conclusion reached by Dr Pratt was stated in various ways in different parts of the report. I need only quote a couple of short passages. He said: "On this basis alone [on the basis of having completed the TSP] I conclude there is therefore firm evidence that treatment in prison has substantially reduced his risk and therefore he does not merit continued classification as category A." 12. Later in the report he said: "... the Parole Board can reasonably consider he meets the criteria for open conditions. I appreciate of course that will allow him access to the community and at the very least therefore he should be expected to keep a very close account of his location since he could indeed be challenged at any point." 13. Later in the same report, he said this: "I do not consider that there is further work to be completed by attendance at a PIPE unit. I recommend on the basis of his current risk that he is no longer managed as a cat A prisoner and indeed I recommend the Parole Board consider him suitable for open conditions." 14. Pausing there, the mixing of Parole Board considerations with categorisation considerations, is readily explained by the circumstances in which the report came to be amended, which I have just recounted. 15. After that, on 16 December 2014 the defendant made the first of the decisions challenged in this case, considering again the request for an oral hearing and confirming its decision, already given in its letter of 10 October 2014, refusing one. The decision letter made reference to Dr Pratt's report but concluded that it was not based on fresh information unavailable at the time of the review in September 2014, and that it did not persuade the CART either to change its mind about keeping the claimant in category A or to hold an oral hearing to consider that issue further. 16. In April 2015, there was a hearing before the Parole Board with which I am not directly concerned. The Parole Board concluded that the claimant's risk level had not diminished to the point where he could be safely released or managed in open conditions, and recommended a further period in closed conditions. By this time, an application for permission to seek a judicial review had been made and it came before Stewart J, who granted permission on 29 April 2015. 17. The following month, in May 2015, Ms Hayley Tingle, a forensic psychologist at HMP Full Sutton, reviewed the papers and produced a report for the purposes of a further review of the claimant's position. She noted the history. She did not, it appears, meet the claimant before preparing her report. Nor did she mention Dr Pratt's report and I infer that she was not provided with it; otherwise, I believe she would have mentioned it. She concluded that the claimant would benefit from attending a PIPE unit but that he was not taking the opportunity to do that as he did not wish to engage with the process. 18. Later the same year, in September 2015, a further review of the claimant's security category took place. The resulting decision was set out in a letter of 16 September 2015, and is the subject of a further challenge before me today, in respect of which permission has not yet been granted. The decision letter referred to the history and noted that the claimant was now, unlike previously, willing to take part in what had become the Healthy Sex Programme (HSP), but the remainder of the decision letter was essentially repetitious of the decision about nine months earlier. It included a repeat of the refusal to hold an oral hearing, essentially for the same reasons as before; although by this time judicial review grounds of challenge had been lodged in respect of that previous decision and permission had been granted by Stewart J. 19. For completeness I mention (though it is not directly material) that in January 2016 the claimant completed the HSP. 20. The second challenge came before the court by way of amendments to the initial grounds of challenge, and that matter was considered by Mr CMG Ockelton (Vice-President of the Upper Tribunal), sitting as a judge of the High Court, on the papers. He directed on 22 April (five days ago) a rolled-up hearing in respect of that further proposed challenge, to be heard at the same time as the substantive hearing in relation to the first challenge. That is why the matter comes before me today in the way that it does. 21. Although there was not any substantial dispute between the parties about the applicable principles of law, I will mention that I was referred to the following authorities: Mackay v. Secretary of State for Justice [2011] EWCA Civ 522 (in the judgment of Gross LJ; see in particular paragraphs 12 and 25-28; R (Michael Downs) v Secretary of State for Justice [2011] EWCA Civ 1422; R (Osborn) v Parole Board) (and other appeals) [2014] AC 1115, see in particular the judgment of Lord Reed JSC at paragraphs 64-72 and paragraphs 86-90. 22. The appeals heard together in Osborn were decided in the context of oral hearings before the Parole Board rather than the CART. I note that the law as set out in Mackay and confirmed in Downs at Court of Appeal level was not discussed in the slightly different context of Parole Board proceedings in Osborn and that nothing in the Supreme Court's decision in the latter case suggests in any way that the Supreme Court intended to disturb the law as expounded in the judgment of Gross LJ in Mackay. 23. I was briefly referred in Mr Slater's skeleton argument to the well-known discussion of the requirements of procedural fairness in ex parte Doody [1994] 1 AC 531 at 561 per Lord Mustill: "The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made." 24. A little earlier in the same speech, he said: "... it is not enough ... to persuade the court that some procedure other than the one adopted by the decision maker would be better or more fair. Rather, they must show that the procedure is actually unfair." 25. Finally, I was referred to two first instance decisions, at least one of which is the subject of a pending application for permission to appeal to the Court of Appeal: firstly, the decision of McGowan J in Hassett & Price v. Secretary of State for Justice [2015] EWHC 3723 (Admin) (see in particular at paragraphs 11 and 14, 16 and 20) and the decision of William Davis J in Morgan v Secretary of State for Justice [2016] EWHC 106 (Admin). In both those cases, claims that there should have been an oral hearing in category A review decision cases involving the CART, failed on the facts. 26. For the claimant, Mr Stanbury submitted that the indicia for an oral hearing were plainly present in this case and that it was unfair of the defendant to decline to hold one. He reminded me that the claimant was a post-tariff prisoner who had not had an oral hearing before. He submitted that the report of Dr Pratt supported the proposition that the claimant could be managed in open conditions, and that the time had come for that proposition to be tested, not just on a review of the documents but at an oral hearing. 27. Mr Stanbury said the case fell squarely within the relevant policy document, which is an instruction document bearing the reference PSI 08/2013. That policy document, it is common ground, sets out the relevant considerations largely derived from the Osborn case, which are to be looked at when considering whether or not an oral hearing should be accorded to a prisoner whose categorisation is under review. and citations at paras 21- 28. I need to refer to just a few short passages from that policy document. The definition of a category A prisoner is set out in paragraph 2.1 thus: "A Category A prisoner is a prisoner whose escape would be highly dangerous to the public, or the police or the security of the State, and for whom the aim must be to make escape impossible." 29. At paragraph 4.2 in the same policy document the issue of downgrading a category A prisoner is considered in following terms: "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." 30. The paragraphs setting out the considerations informing any decision to grant or refuse an oral hearing are set out in paragraphs 4.6 and 4.7 in the same document. They are lengthy and I need not set them out in full. Mr Stanbury, for the claimant, submits that here there is a clear case falling within paragraph 4.7(b) of the policy document which says, that among factors that would tend in favour of an oral hearing are: "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." 31. Among the examples given are the circumstances which, Mr Stanbury submits, obtain here, namely "where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds". The same policy document, as Mr Stanbury reminds me, points to the length of time that has elapsed since the expiry of a tariff. The advantage of seeing a prisoner face to face and the desirability of attempting to resolve an impasse that has emerged, are factors that are relevant, as is whether the prisoner has ever had an oral hearing before. 32. But Mr Stanbury's main argument is that there is, on the papers, a clear disagreement between Dr Pratt and the other professionals involved in providing the documentary record for consideration by the CART, the former supporting re-categorisation and the latter effectively opposing it. In particular, Mr Stanbury pointed to paragraph 88 in the judgment of Lord Reed JSC in the Osborn case, where he said that whether an oral hearing should be held: "... does not depend on his [the prisoner] establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning...." 33. He reminded me that Lord Reed JSC had also emphasised at paragraph 90 that the Parole Board, and Mr Stanbury submits by parity of the reasoning here the CART, should "have no predisposition to favour the official version of events or the official risk assessment over the case advanced by the prisoner." 34. Mr Stanbury submitted that it was wrong here for the CART in effect to adopt what amounts to something like a summary judgment approach, whereby the views of Dr Pratt are summarily rejected without being subjected to any testing or discussion at an oral hearing. He submitted that this is not a case like the Downs case in which the differences of view between the experts had been extensively aired in correspondence. 35. Mr Slater, by contrast, made submissions that were very different. His starting point was to accept that the decision on the question of fairness one for the court and not the CART and that the court does not exercise a supervisory jurisdiction and a standard of review founded on Wednesbury principles. But he said it would be wrong for a disagreement between experts, without more, of itself to make an oral hearing mandatory; otherwise they would be very frequent and disproportionately so. He likened that state of affairs to having what he called a jury trial on a parking ticket. 36. He submitted that the decision making process on the documents is sophisticated and involves many professionals of experience and expertise, including psychologists examining and writing about the issue. In such circumstances, he said, complete consensus between all the professionals was likely to be relatively rare. 37. In the present case, Mr Slater submitted, while there is evidence that the claimant has made some creditable progress, which may in the future help him to achieve a move to open conditions under the Parole Board process, that is a different exercise from the present one of considering his categorisation. The categorisation review process involved particular consideration of the likelihood of harm in the event of escape or absconding. 38. In relation to that issue, Mr Slater pointed to clear evidence that the claimant was unfortunately suffering from lifelong post-traumatic stress disorder; and Dr Pratt himself accepted in his report that it could lead to a situation in which the claimant might, if not incarcerated, engage in what Dr Pratt called "almost desperate aggressive behaviour". That formed part of Dr Pratt's assessment of risk factors emanating from the claimant's history and, in particular, the history of his relationships with women. Dr Pratt recognised that if the claimant's post-traumatic stress disorder (PTSD) were again to "become unmanageable causing distress flashbacks etc", that would be the trigger for the "almost desperate aggressive behaviour", which could pose a real and serious threat to female members of the public. 39. Mr Slater went on to submit that in the light of that evidence, it could not be said that there was convincing expert evidence from the claimant's side to the effect that if unlawfully at large the claimant would not be dangerous to women; indeed, being unlawfully at large, said Mr Slater, is the very situation in which the claimants admitted that the lifelong PTSD would likely to flare up and create a high level of danger of re-offending leading to serious harm. 40. Mr Slater reminded me that the requirement for downgrading a category A prisoner to a lower category was that a prisoner had to show cogent evidence of a significant reduction in the level of risk of re-offending. That is found in paragraph 4.2 of the policy document from which I have already quoted, the substance of which is similar to what was said by Elias J (as he then was) in Roberts v. Secretary of State for the Home Department [2004] EWHC 679 (Admin), at para 39, in turn approved by Aikens LJ in Downs, at paragraph 49. 41. Mr Slater said that the present facts fell far short of requiring an oral hearing to test whether the claimant could show the required reduction in the level of risk, even with the assistance of Dr Pratt's report. 42. Mr Slater also emphasised the gravity of the claimant's attitude to his guilt of the offences for which he was sentenced, which has fluctuated in a series of twists and turns, including at least one admission by him of having previously feigned to admit guilt to secure an advantage, and having subsequently returned to a position of denying guilt, in the case of at least one of the offences. 43. Those then are the facts and contentions of the parties and I come now to my reasoning and conclusions. 44. First, I think it right to grant permission for the claimant to bring his challenge to the supervening decision of 16 September 2015. It would be incongruent for permission to be granted in the first challenge but not the second, since the essence of both decisions is the same, despite the period of about nine months that elapsed between them. In agreement with Stewart J, and by the same reasoning, I find that the second challenge crosses the arguability threshold. 45. So I grant permission for the amended grounds of challenge to go forward. But as to the substance of both claims, I am not persuaded that it was unfair for the CART to decline the request for an oral hearing on each of the two occasions on which it did so. 46. It seems to me that on a fair reading of Dr Pratt's report, and bearing in mind the definitions and tests that had to be addressed as set out in paragraph 2.1 (the definition of a category A prisoner) and paragraph 4.2 (the test for reduction from category A status) in the policy document, the conclusions reached by Dr Pratt and his reasoning leading to those conclusions, did not raise a serious case for disputing the continuation of category A classification. 47. I do not think that reasoning runs counter to what Lord Reed said at paragraph 88 in the Osborn case, deprecating a summary judgment approach to the question of expert evidence. It seems to me that there may be cases, and that this is one of them, where an expert report, taken at its highest in the prisoner's favour, does not reach the point at which fairness demands its testing at an oral hearing. 48. I ask myself on the facts, what are the factors for and against an oral hearing and whether they lead to the conclusion that fairness demands one. 49. On the one hand, I accept that the claimant is a post-tariff lifer who has been in prison for a very long time. I accept that the risk assessment scores, not all of which I have recited in detail in order not to lengthen this judgment any further, are uniform. I accept that there is some room for disagreement about them and for differing interpretations of what they imply, and that the claimant has not yet had the benefit of an oral hearing. And I accept that there some indication in the decision letters that Dr Pratt's evidence is not fully accepted. 50. As against that, and on the other side of the balance, I take it into account that the offences committed by the claimant are of the utmost gravity. His tariff has indeed expired, although less than two years ago. There is clear evidence on the documents from which the CART could reasonably apprehend a serious risk of escape; and it is undeniable that, were that to occur, the risk to female members of the public would be high, even on Dr Pratt’s evidence. 51. Dr Pratt's evidence was at times linguistically quite difficult to follow. One view is that it was unrealistic in its recommendation of open conditions. Mr Stanbury has submitted that it was wrong for his evidence to be summarily rejected without being tested at an oral hearing. But I do not, for my part, think that is the right way to look at Dr Pratt's' evidence albeit there is much in it with which the CART could reasonably disagree. 52. I think the real point here is that his evidence contains sufficient acceptance of risk that even taken at its highest in the claimant's favour, it was never likely in reality to provide a foundation for a decision to re-categorise the claimant. He does not say in his report that he is confident there is only a low risk of harm to the public and re-offending, if the claimant’s lifelong PTSD is triggered while he is outside prison. As Mr Slater points out, Dr Pratt acknowledges the risk of "almost desperate aggressive behaviour" if his PTSD becomes unmanageable. 53. For those reasons, it seems to me this is not one of the relatively rare cases in which the decisions to decline an oral hearing were unfair. I therefore dismiss the application to quash the first decision made in December 2014. I grant permission for the second decision made in September 2015 to be challenged, but I dismiss the substantive application to quash it.