Patrick Hassett and Simon Price v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice McGowan |
| Judgment Date | 23 December 2015 |
| Neutral Citation | [2015] EWHC 3723 (Admin) |
| Date | 23 December 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5280/2015 & CO/6077/2014 |
[2015] EWHC 3723 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice McGowan
Case No: CO/5280/2015 & CO/6077/2014
Matthew Stanbury (instructed by Swain & Co and also Kyles Solicitors) for the Claimants
Matthew Slater (instructed by TSOL) for the Defendant
Hearing dates: 14/10/2015
These are two claims which are being heard together for practical reasons. They arise out of the decisions of the Defendant, through the relevant Category A Review Team, ("CART"), to refuse to allow each of the Claimants an oral hearing to determine their continued need to be held in Category A, the highest security category during their substantial prison sentences.
Patrick Hassett was convicted, after trial in 1992, of the rape and murder of a 13 year old girl in 1978. He continues to deny his guilt. He was sentenced to a life sentence with a "tariff" period of 14 years. The tariff is that period which the sentencing judge orders must be served before the prisoner can be considered for release. Mr Hassett has therefore been eligible to be considered for release since 2006. Mr Hassett has also been convicted of a number of other violent sexual offences against women and children. He admits committing those offences. He has been designated a Category A prisoner.
He seeks to challenge the decision of the Defendant of 19 September 2014, refusing him an oral hearing on the issue of his categorisation. In his case there has been another decision of 12 June 2015, which has in some respects improved his position. Nonetheless he seeks to pursue his challenge to the original challenge. The parties agreed that this was the better course.
Simon Price was convicted of being concerned in the importation of £35m worth of cocaine. He continues to deny that he knew it was cocaine and claims only to have played a minor role. His sentence was reduced on appeal to a term of 25 years. He has recently been sentenced to an additional term of 10 years in default of meeting a confiscation order in the sum of £2.34m.
He seeks to challenge the decision of the Defendant of 1 October 2014 refusing an oral hearing on the issue of his categorisation.
BACKGROUND
The Secretary of State for Justice, as the Minister responsible for prisons, administers a scheme for the categorisation of all prisoners. There are grades which measure risk to the public of re-offending if at liberty. The grade will affect the conditions of a prisoner's detention in the broadest terms. Many of the matters raised in written and oral submissions are common to both Claimants and can be dealt with before dealing with the detail of each case separately.
Some categorisation decisions are reached after an oral hearing many are not. In July 2014 a more detailed policy, PSI 08/2013, came into effect. It did apply to the decisions subject to this review. It is accepted within the policy document that following the Osborn ruling, that there might well be a larger number of oral hearings in such categorisation cases in the future, particularly relating to Category A prisoners but it does not set out a policy that such hearings must take place.
It is not the function of this court to design or suggest policy to the Defendant, nor is it the courts function to audit policy except to the extent that any aspect of that policy arises on the facts of any particular cases. The court will review these decisions and can intervene only if these decisions have been shown to be unfair.
These challenges are brought following the ruling of the Supreme Court in Osborn and Booth [2013] UKSC 61, [2013] 3 WLR 1020 which dealt with the circumstances in which the Parole Board must hold an oral hearing when considering the release from detention or the transfer to open conditions of prisoners. Lord Reed said;
i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever 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. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.
ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:
a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.
b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.
c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.
d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.
iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.
iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.
v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.
vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.
vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of...
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