Daniel Cummings v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Lavender |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 266 (Admin) |
| Docket Number | Case No: CO/3700/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2017 |
[2017] EWHC 266 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Lavender
Case No: CO/3700/2016
The Queen on the application of
Hugh Southey QC (instructed by Coninghams) for the Claimant
Galina Ward (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 17 January 2017
(1) Introduction
The Claimant is serving a life sentence for murder, with a minimum term of 16 years (less time spent on remand in custody). The minimum term will expire on 7 December 2018. He is a category A prisoner. He wishes to be categorised as a category B prisoner. The most recent decision to maintain his category A status was taken on 19 April 2016, and communicated to the Claimant by letter dated 18 May 2016. By this claim, the Claimant makes two complaints about that decision:
(1) The Claimant contends that there should have been an oral hearing before the decision was made.
(2) The Claimant contends that the decision was unlawful because of a failure to take account of a relevant factor.
On 20 September 2016 Martin Chamberlain QC gave permission for the Claimant to apply for judicial review.
(2) Review of Category A Status
The expression "category A prisoner" is defined as follows in paragraph 2.1 of Prison Service Instruction 08/2013 ("PSI 08/2013"):
"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."
The decision whether a prisoner is to be in category A or category B is a significant one. It affects the conditions in which he is held, but it also has implications for his prospects of release. As Rose LJ said in R. v. Secretary of State for the Home Department, ex parte Duggan [1994] 3 All ER 277, at 288d, "So long as a prisoner remains in category A, his prospects for release on parole are, in practice, nil."
Section 4 of PSI 08/2013 contains provisions for the regular review of a category A prisoner's status. The case is reviewed in the first instance by a local advisory panel (an "LAP"). Its membership includes the Governor or Deputy Governor of, and others from, the relevant prison. The LAP makes a recommendation, but, save in circumstances which are not relevant for present purposes, the decision whether or not to "downgrade" a category A prisoner is taken by the Deputy Director of Custody High Security ("the DDC").
The test to be applied by the DDC when considering whether to recategorise a category A prisoner as category B is that set out in paragraph 4.2 of PSI 08/2013:
"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."
It was common ground that:
(1) Common law standards of procedural fairness require the DDC to hold an oral hearing in those cases where fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake: see R. (Osborn) v. Parole Board [2014] AC 1115 (" Osborn"), at paragraph 2(i), per Lord Reed.
(2) Although it concerned the processes of the Parole Board, the decision of the Supreme Court in Osborn sets out propositions of law which are applicable to the question whether the DDC is obliged to hold an oral hearing in any particular case. (Indeed, paragraphs 4.6 and 4.7 of PSI 08/2013 seek to give guidance as to the practical effect of Osborn for the DDC. I need not address the detail of that guidance, since it was not suggested that it would make any difference to the result of this case.)
(3) When an issue arises as to whether the DDC should have held an oral hearing, it is for this Court to decide whether such a hearing was required. This is an application of the general rule that the Court must determine for itself whether a fair procedure was followed: see Osborn at paragraph 65, per Lord Reed.
(3) The Reviews of the Claimant's Categorisation
I was shown documents from four reviews of the Claimant's categorisation, which I will refer to as the First, Second, Third and Fourth Reviews. Before doing so, however, it is appropriate to say more about the Claimant's offending.
(3)(a) The Claimant's Offending
The Claimant had a history of offending before on 4 December 2002. On that date, he was the passenger in a car which deliberately boxed in a car being driven by a Mr. Crawford. The Claimant got out of his car and fired repeatedly at Mr. Crawford from as little as 8 feet away. Mr. Crawford, who tried to run away, was shot 11 times and killed. A 14-year-old boy was shot in the leg by a stray bullet.
Initially, the Claimant refused to accept responsibility for his offending. This remained the case until 2012, although during that period he completed various courses in prison: in 2006 he completed the ETS (Enhanced Thinking Skills) course; and in 2011 he completed the CALM (Controlling Anger and Learning to Manage) course. Eventually in 2012 the Claimant accepted responsibility for his offence. He then went on to complete the SCP (Self Change Programme) course.
(3)(b) The First Review
In 2013 the Claimant was in HMP Long Lartin. The LAP's report, dated 17 June 2013, included the following recommendation:
"The Panel discussed the fact that Mr Cummings has had positive reports from all departments over the last two years and there has been a marked improvement in his attitude. He still remains a high risk to the public and there are concerns noted by the Security Department about anti-western views.
Mr Cummings has completed SCP and is still submitting his journal. The Panel agreed that Mr Cummings needed to further demonstrate skills learnt on completed offending behaviour programmes as there were still some concerns remaining.
The Panel felt that these concerns could be managed in the Category B estate.
The Panel recommended that if the downgrade recommendation is agreed Mr Cummings should remain in the High Security Estate for a minimum of six months to continue to demonstrate the skills learnt on offending behaviour programmes. With a view thereafter if good behaviour continues to transfer to a suitable Category B Establishment.
The Panel conclude that Mr Cummings downgrade to Category B."
It will be noted that the LAP's recommendation was not that the Claimant be downgraded to category B immediately, but only after 6 months of continuing to demonstrate the skills learnt on his offending behaviour programmes and only if his good behaviour continued.
On 9 July 2013 the DDC decided that the Claimant should remain in category A. The reasons given for this decision were as follows:
"The Director noted that there had been some recent encouraging signs of progress in terms of Mr Cummings discussing and address his violent offending through intervention. He also noted the good reports from this work and his more positive attitude and engagement with staff.
But in view of the very serious nature of his offending, the Director considered that his successful application of the new skills needed be sustained and assessed over a substantial period. The Director noted that Mr Cummings' completion of work on his use of violence and his positive behaviour were both relatively recent. He also noted that the LAP had itself recommended that Mr Cummings needed to demonstrate skills more clearly due to outstanding concerns. It was also acknowledged his risk to the public was assessed as high.
The Director noted that the LAP had suggested that Mr Cummings could be further monitored and tested in less secure conditions however, whilst the Director noted that Mr Cummings was making good progress on the process of personal change as evidenced by his recent behaviour and completion of the SCP, he was not satisfied that he had at this time made the level of change that was indicative of a significant reduction in risk and that Mr Cummings' demonstration of significant risk reduction should precede his downgrading and a period of consolidation was required that would allow him to apply his new skills.
Having regard to the serious nature of the present offences which evidenced a propensity for extreme violence, his offending history and the lack of sufficiently cogent evidence at present, through offence related work or otherwise, that the risk Mr Cummings re-offending in a similar way if unlawfully at large had significantly diminished, the Director concluded that he must still be regarded as potentially highly dangerous to the public.
On the information available, the Director concluded that there were at present insufficient grounds on which a downgrading of his security category could be justified and that he should remain in Category A."
Given the qualified nature of the LAP's recommendation, the DDC's decision was perhaps not surprising. The Claimant sought to challenge it by judicial review, but subsequently withdrew his application.
(3)(c) The Second Review
Between the First and Second Reviews the Claimant was transferred to HMP Full Sutton. On 20 December 2013 an LAP produced a report on the Claimant. This recommended that the Claimant should remain a category A prisoner. That recommendation was accepted by the DDC. However, the recommendation and the decision were based on concerns arising from a period of segregation, but it was subsequently found that there was nothing to...
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