Patrick Hassett and Another v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Moylan,Lady Justice Black |
| Judgment Date | 04 May 2017 |
| Neutral Citation | [2017] EWCA Civ 331 |
| Docket Number | Case No: C1/2016/0424 & 0556 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 2017 |
The Queen on the Application of:
[2017] EWCA Civ 331
Lady Justice Black
Lord Justice Sales
and
Lord Justice Moylan
Case No: C1/2016/0424 & 0556
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION, ADMIN)
THE HONOURABLE MRS JUSTICE MCGOWAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Stanbury (instructed by Kyles Legal Practice and Swain & Co Solicitors) for the Appellants
Matthew Slater (instructed by The Government Legal Department) for the Respondent
Hearing date: 04 April 2017
Approved Judgment
This case concerns the standard of procedural fairness required to be observed by the Secretary of State's Category A Review Team ("the CART") and the Deputy Director of Custody – High Security ("the Director") and his advisory panel when deciding whether to maintain a prisoner's security classification in prison as Category A. The Director is responsible for the categorisation and allocation of Category A prisoners, but may delegate decision-making, which for many decisions will be carried out by the CART.
"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" (PSI 08/2013, para. 2.1; R v Secretary of State for the Home Department, ex p. McAvoy [1998] 1 WLR 790, CA, at 795). Where a prisoner is placed in Category A, that will affect the conditions of detention to which he is subject, as the Secretary of State has to take special care to prevent his escape. It is also likely to affect his prospects of being granted parole, as it would only be in a very rare case that the Parole Board would order release of a prisoner from Category A detention without his suitability for release first being tested in more open conditions as a Category B, C or D prisoner: R v Secretary of State for the Home Department, ex p. Duggan [1994] 3 All ER 277 (DC), 280 and 288; R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498; [2002] 1 WLR 2264, [23]–[24]. This is an approach of the Parole Board as a matter of practice, rather than the consequence of any rule of law. Nonetheless, it is clear that a decision regarding a prisoner's categorisation has significant implications both for the public interest and for the individual interests of the prisoner himself. PSI 08/2013 provides that the CART should normally review a prisoner's Category A status annually.
The CART and the Director and his panel are in law emanations of the Secretary of State, on usual Carltona principles ( Carltona Ltd v Commissioners of Works [1943] 2 All ER 560). They are "internal bodies, part of the Prison Service, administering the prisons and organising their security": R (Williams) v Secretary of State for the Home Department, [22]. They are composed of persons with relevant expertise and experience in making judgments about prisoner categorisation, as an aspect of prisoner management within the prison estate which is their responsibility. The CART and, in relevant cases, the Director and his panel address the question of the risk posed by a prisoner in the context of his escaping from prison and being at large, on the run and not subject to any measures of management and support in the community.
The status and role of the CART and the Director and his panel are to be contrasted with those of the Parole Board. The Parole Board is an independent judicial body which makes judgments about the suitability of prisoners for release on licence or parole, among other things. It too is concerned with questions of risk to the public, but in the different context of asking whether release of a prisoner on licence would pose an unacceptable risk of harm, having regard to a range of management measures which may be put in place to support the prisoner and manage that risk if he is released. The difference in the function of the CART and the Director and his panel, on the one hand, and the Parole Board, on the other, in assessing risk was emphasised by this court in R (Williams) v Secretary of State for the Home Department at [22] and [27].
The Supreme Court addressed the standard of procedural fairness in relation to decisions made by the Parole Board in R (Osborn) v Parole Board [2013] UKSC 61; [2013] 3 WLR 1020. The guidance given by the Supreme Court, discussed in detail below, pointed towards a requirement for the Parole Board to hold an oral hearing involving a prisoner in more cases than had been its practice up till then.
The principal submission of the appellants in the present case is that the same guidance should also govern what happens when the CART (or, as relevant, the Director and his panel) decide whether a prisoner should be placed or remain in Category A. This submission has been rejected in a series of decisions in other cases at first instance, alongside the decision below in this case: R (Morgan) v Secretary of State for Justice [2016] EWHC 106 (Admin); R (Bell) v Secretary of State for Justice [2016] EWHC 1804 (Admin); M v Secretary of State for Justice [2016] EWHC 2455 (Admin); and R (Cummings) v Secretary of State for Justice [2017] EWHC 266 (Admin). This is the first occasion on which this court has had to deal with the issue.
The two appellants (Mr Hassett and Mr Price) are long term prisoners who were placed in Category A and maintained with that categorisation over a long period through successive reviews by the CART and, where relevant, by the Director and his panel, without any oral hearing. In these proceedings Mr Hassett challenges the lawfulness of a decision by the CART dated 19 September 2014 to maintain him in Category A, on the grounds that fairness required that he should have had an oral hearing before that decision was made. Mr Price challenges a decision by the CART dated 1 October 2014 to maintain him in Category A, again on the grounds that he should have been given an oral hearing before that decision was made. In both cases, a challenge is also made to the lawfulness of the guidance given by the Secretary of State at para. 4.7 of her Prison Instruction PSI 08/2013 regarding the circumstances in which an oral hearing should take place before the CART (or, as relevant, the Director and his panel) make a decision on review to maintain a prisoner in Category A.
Mr Hassett's Category A review decision of September 2014 has been superseded by further decisions of the CART in June 2015, June 2016 and January 2017. The decision in June 2015 again confirmed Mr Hassett's Category A status. It was made shortly before the hearing below in the Administrative Court, but it was agreed that Mr Hassett's judicial review challenge should proceed by reference to the decision of September 2014. The decision in January 2017 has once again confirmed Mr Hassett's Category A status, notwithstanding some positive statements regarding improvements in Mr Hassett's risk status in reports before the CART.
On the appeal, Mr Hassett made an application to adduce fresh evidence about what had happened in January 2017. We dismissed that application at the hearing, with reasons to follow. The reasons for that decision are set out below.
Mr Stanbury, who appeared for the appellants, explained that the fact that there had been further Category A decisions in the cases of both Mr Hassett and Mr Price did not render the present appeals in respect of the Category A decisions of, respectively, September 2014 and October 2014 academic, because if the appellants' submissions of law are correct or if the guidance in PSI 08/2013 is wrong, that will affect how they are treated in the context of the next review of their cases by the CART. Mr Slater, for the Secretary of State for Justice, did not make oral submissions to the effect that the appeals were academic and that we should not determine them.
Application to admit fresh evidence
The reasons for refusing Mr Hassett's application to admit fresh evidence about what happened in 2017 can be stated shortly. That evidence is irrelevant to whether the judge determining his judicial review claim in December 2015 in respect of a CART decision in September 2014 erred in her decision to dismiss his claim. Mr Stanbury accepted that it is not the function of this court to conduct a fresh judicial review of the decision of January 2017, but wished to adduce the evidence as illustrative of how some useful work can be done to reduce risk despite a denial of the index offence and how risk reporting from various sources can change over time. With respect, there is nothing in the judgment below to suggest that the judge did not appreciate these obvious points. Certainly this court does understand the points, without the need for evidence to be admitted to illustrate them. The admission of the fresh evidence would not have advanced the arguments we have to determine on the appeal in any material way, and if it had been admitted it would have been an unnecessary distraction from the debate on the points of principle which we are asked to decide. Time would have been taken up at the hearing for no good purpose, and there would have been a real risk, for all Mr Stanbury's assurances that he would not ask this court to conduct a fresh judicial review of this later decision, that the parties would have been drawn into exchanges of submissions on the new evidence as if we were conducting such a review. Having regard to the overriding objective in CPR Part 1 and to maintain proper focus in the appeal, it was appropriate that this new evidence should not be admitted.
Factual background
The Category A review process
The Category A...
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