DM v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lord Justice Sullivan |
| Judgment Date | 12 May 2011 |
| Neutral Citation | [2011] EWCA Civ 522 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 2010/2081,Case No: 2010/2081 |
| Date | 12 May 2011 |
[2011] EWCA Civ 522
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice Sullivan
and
Lord Justice Gross
Case No: 2010/2081
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT);
Mr Justice Bean
CO/1396/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Matthew Slater (instructed by Treasury Solicitors) for the Appellant
Mr Hugh Southey QC (instructed by Michael Purdon) for the Respondent
Hearing dates: 05.04.11
INTRODUCTION
This is an appeal by the Secretary of State for Justice ("the SSJ") from the judgment of Bean J, dated 30 th July, 2010, [2010] EWHC 2013 (Admin) ("the Judgment"), allowing the Respondent's claim for Judicial Review of the refusal by the Category A Review Team ("CART") to convene an oral hearing before the SSJ's re-categorisation decision on the 26 th November, 2009 and quashing the decision thus made ("the 26 th November decision").
The grounds of appeal are that Bean J erred:
i) In law, in concluding that the Parole Board's expression of view in its decision dated 23 rd July, 2009 ("the 23 rd July decision"), after an oral hearing, that moving the Respondent to a Category B training prison "may be a constructive move", sufficed (or effectively sufficed) to require CART to convene an oral hearing before the SSJ's 26 th November decision, refusing re-categorisation.
ii) In fact, insofar as the learned Judge mis-quoted the Parole Board's expression of view contained in its 23 rd July decision; at [37] of the Judgment, the Judge recorded that expression of view as follows: "a down-grading of his categorisation would [emphasis added] be a 'constructive move'"; by contrast and as already recorded, the Parole Board said only that it " may" [emphasis added] be a constructive move.
For completeness, Bean J heard the Respondent's claim for Judicial Review together with a broadly similar claim by another prisoner serving life imprisonment, one McLuckie. Nothing turns on the Judge's decision in respect of McLuckie, so no further reference will be made to that claim.
Turning to the facts, I gratefully adopt the learned Judge's summary, set out at [19] – [25] of the Judgment.
" 19. Donald Mackay was convicted of murder in December 1989 and sentenced to life imprisonment with a tariff set at 20 years. The offence came to light when police discovered the decomposing remains of the victim in a bin-bag in the Claimant's flat. She was a prostitute who had visited his flat sometime earlier. Death was due to asphyxiation following the infliction of multiple injuries to the face and severe injuries to the other parts of the body. The police had called at Mr. Mackay's flat following a complaint of assault, false imprisonment and forcible buggery from another prostitute who had come to the flat after the death of his first victim; he was also convicted of offences against her.
20. At the trial his defence to the murder charge was that the victim had arrived at his flat complaining of assault by a client. He went out to the shop in the morning and returned to find her dead. In the case of the complaints by the prostitute who survived he denies committing offences against her. He alleged that they had intercourse by consent.
21. Mr. Mackay had previous convictions for offences of violence culminating in a conviction for manslaughter in 1984; he had killed a man with a sword in a drunken brawl and was sentenced to five years imprisonment.
22. In Mr. Mackay's case….there was an oral hearing before a panel of the Parole Board in 2009. The Board had before them a report commissioned by the Claimant's solicitor from a consultant psychiatrist, Dr David Somekh, who considered that there was no good evidence to support the notion that the Claimant should remain in category A conditions. They also heard oral evidence from Mr. Mackay himself, a psychologist, Tracey Brookes, and his offender supervisor, Karen Ferraby. The Claimant was represented by his solicitor, Mr. Michael Purdon, who also acts for him in this court and who has substantial experience of prison law. Mr. Purdon did not seek a direction for release or a recommendation for transfer to open conditions: neither of these propositions would have been realistic given that Mr. Mackay still had a Category A classification…. Mr. Purdon did, however, invite the Panel to comment on his client's progress.
23. The Board wrote to Mr. Mackay on 23 July 2009 with a decision (unsurprisingly) that he should remain in closed conditions. They wrote:-
'You are an enhanced level prisoner and have been adjudication free for many years.
You have consistently denied your guilt for the index offences, saying that the deceased victim died of natural causes.
In relation to the second victim you claimed that all sexual activity was consensual.
The panel were concerned that, during your evidence, whilst accepting some of the facts of the case, your own description of events minimised your culpability to a disturbing degree.
Similarly, your accounts of your previous offending showed a lack of insight into the nature and degree of your violent behaviour.
The panel were also of the view that you saw yourself as the principal victim of events are concerned that such grievance thinking may impact on your motivation to change.
Whilst acknowledging that since the last review period you have done some work to address some of your risk factors and have behaved well in prison the panel felt that there has been no significant reduction in your level of risk.
Ms. Brookes informed the panel that the criteria for admission to the core SOTP had changed so that a denial of sexual offending was no longer a barrier as long as there was some acceptance of sexual contact.
The panel would support any work that might be achieved in this area.
Ms. Ferraby said that she supported a proposal that you be moved to a Category B training prison.
The panel felt that this may be a constructive move.
In conclusion the panel concluded for the reasons set out above that you should remain in closed conditions to complete more work aimed at reducing your risk.'
24. Following the Parole Board's review a sentence planning review was held. It concluded that the only fresh offending behaviour work needed to undertake was the SOTP. It noted that the Claimant had previously refused to undertake that program as he maintained that he was not a sex offender. However, it appeared that he was now willing to discuss the possibility with a psychologist. (I was told by Mr. Southey QC that Mr. Mackay has more recently been assessed as unsuitable for the SOTP.
25. In advance of the sentence planning review the Claimant's solicitors argued that an oral hearing should be held. By a decision of 26 th November 2009 the Secretary of State rejected the representations made in support of re-categorisation and decided that the Claimant should remain at Category A. The letter stated:-
'The Category A Team noted your representations requested an oral hearing, but was satisfied there were no special circumstances that warranted such an exceptional procedure…. The Category A Team noted Parole Board reviews relate to your suitability for supervised release or transfer to open conditions. It noted that they are also perhaps dynamic or idealistic in nature and will seek to promote a prisoner progress through testing in less secure conditions.'"
Pausing there, in the next paragraph of the Judgment, Bean J was somewhat critical of this passage in the SSJ's 26 th November decision, saying:
" 26. The sentence just quoted seems to me to show a rather patronising attitude to the Parole Board….."
With respect and though nothing of significance may turn on it, I am not sure that stricture was justified. The sentence in question needs to be read together with the passage in the SSJ's decision which next followed:
" The Category A Team noted your security category reviews however in contrast relate directly to the conditions of security in which you should be held, based on an objective assessment of the risk you would pose if unlawfully at large. It considered that an appropriate reduction in your risk must precede your downgrading, and that your downgrading could not be approved solely to test you in less secure conditions."
To my mind, despite its rather awkward drafting, this passage serves to contrast the role of the Parole Board on the one hand, with that of CART on the other; read as a whole, it dispels the element of apparent condescension that the preceding sentence (in isolation) may otherwise have conveyed.
Very little needs to be added as to the facts. The letter from the Respondent's solicitors, dated 21 st October, 2009, accompanying the representations for an oral hearing, founded the application on the basis of an "impasse" created by the Respondent maintaining that he was not guilty of the offences for which he had been convicted.
The question of the Respondent's categorisation was considered by the local prison Category A Advisory Panel ("the Advisory Panel"). Its recommendation of the 19 th November, 2009 ("the 19 th November recommendation") was unequivocal:
" Mr. Mackay's insight into his offending behaviour still warrants further development and he has a long term target to address his sexual offending behaviour. Should Mr. Mackay escape from lawful custody, no matter how unlikely that may be, he will still pose a significant risk to the public.
Mr. Mackay should remain Cat A."
As to "areas of risk", these included but were not confined to "alcohol misuse". Other areas of risk identified were accommodation, emotional well-being, thinking and behaviour and attitudes. It was said that the "sexual and violent" elements of the Respondent's offending...
To continue reading
Request your trial
-
Patrick Hassett and Another v The Secretary of State for Justice
...CA, 798–799 (Lord Woolf MR); R (Williams) v Secretary of State for the Home Department, above; MacKay v Secretary of State for Justice [2011] EWCA Civ 522, [25]–[28] (Gross LJ, endorsing the summary of principles by Cranston J in R (H) v Secretary of State for Justice [2008] EWHC 290 (Admin......
-
The Queen (in the Application of Michael Cain) v Secretary of State for Justice
...is ambiguously worded. As appears below it was held by the Court of Appeal in R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522 that, given the rationale of procedural fairness, there is no requirement that exceptional circumstances should be demonstrated. There will be occasi......
-
R (Howard League for Penal Reform and Another) v Lord Chancellor
...of State for the Home Department, ex p. Duggan [1994] 3 All ER 277 and of this court in R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522 suggest that the issues at stake in a review to decide whether a prisoner should be placed in Category A or remain in that category are imp......
-
The Queen (on the application of Paul Flinders) v The Director of High Security (First Defendant) Secretary of State for Justice (Second Defendant) The Parole Board (Third Defendant)
...down judgment in an appeal from the decision of Bean J in the case of MacKay – see Donald Mackay v Secretary of State for Justice [2011] EWCA Civ 522. In paragraph 28 of his judgment Gross LJ set out the principles which are relevant to the present case. "28. Fourthly, the common law duty ......