R (H) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 09 September 2008 |
| Neutral Citation | [2008] EWHC 2590 (Admin) |
| Docket Number | CO/2676/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 September 2008 |
[2008] EWHC 2590 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
MR Justice Cranston
CO/2676/2007
Mr H Southey (instructed by Bhatt Murphy) appeared on behalf of the Claimant ( Mr H Arnott, Solicitor Advocate attended for judgment)
Mr P Patel (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Procedural fairness sometimes demands an oral hearing. There can be greater confidence with an oral hearing that the relevant standards have been properly applied and that the facts on which the decision is based are accurate. The oral hearing also gives the person affected by the decision the opportunity to tailor the arguments to the concerns of the decision-maker. The interests at stake are such as to trump other factors in the balance such as cost and perhaps efficiency. It is clear that procedural fairness does not impose the straightjacket of a quasi-judicial process and more informal procedures than what one expects before the courts or even tribunals may be acceptable. An oral hearing does not necessarily imply the adversarial process.
That is the legal context of this case where the claimant challenges a decision by the defendant, now the Secretary of State for Justice, that he should remain a Category A prisoner. He is serving a sentence of life imprisonment, his minimum term has expired and he is currently detained in a Protected Witness Unit. These factors, he contends, mean that the Secretary of State erred by failing to hold an oral hearing when determining his categorisation. My conclusion is that there should have been an oral hearing in the particular circumstances of the claimant's case. In addition, he contends that the Director of High Security Prisons (acting on behalf of the defendant) erred by failing to take account of his need to undertake offending behaviour courses when considering his categorisation. That I do not accept.
Background
The claimant has a long history of offending. He has 17 previous convictions for over a hundred offences. In 1995 he received three concurrent sentences of some three and a half years for offences of armed and attempted robbery. Whilst he served those sentences he was detained in a Protected Witness Unit (“PWU”) as a consequence of turning Queen's evidence against his co-defendants. Then in January 1999 he was sentenced again, this time to six sentences of life imprisonment for offences of wounding with intent, robbery and attempted robbery and for related firearms offences. He also received a concurrent four year sentence for burglary and a concurrent ten year sentence for aggravated burglary. The offences related to events in April and June of 1998. The April 1998 events involved two domestic burglaries. During the course of the second burglary, a sawn-off shotgun was used to shoot the householder in the lower back as he ran off. The June events involved two armed robberies of a building society and during the course of the second robbery the claimant held a sawn-off shotgun to the stomach of a police officer. The claimant's tariff was initially set at eight years but on appeal the Court of Appeal substituted a tariff of seven years and six months, which expired in early July 2006.
That same month, July 2006, the claimant's solicitors asked the Local Category A Advisory Panel to recommend to the Director of High Security Prisons that the claimant should be “downgraded to Category B” as he was “able to show significant reduction in risk since his initial classification”. Various documents were available for consideration of his categorisation. There were three reports by a forensic psychologist. In the first, the psychologist said that the claimant's risk factors remained the same. However, his motivation to address those factors had changed to some extent. To a degree there had been a reduction in risk. That report was dated November 2004. In the second report of February 2006, the claimant's location in the Protected Witness Unit was said by the psychologist to limit the interventions he was able to access. In other words, his allocation to that unit prevented him from undertaking the full range of offending behaviour work. The third report of March 2006, again by a psychologist, was lengthy. In one part the claimant's total PCL-R score (that is Psychopathy Check List: Revised) “indicates mainstream offending behaviour programmes are unlikely to be suitable for his needs”. At paragraph 4.7 of that report the writer said:
“I do not believe mainstream offending behaviour programmes would meet his needs, however if resources were available he may benefit from some structured one-to-one interventions focussing on developing his insight into his risk factors and developing a realistic relapse prevention plan.
[The claimant's] location in the WPU [I think what is meant is the PWU] also limits the interventions he is able to access.”
Moreover, the claimant himself wrote in June 2006 saying that he was unable to participate in offending behaviour work, despite applying.
In July 2006 the claimant's solicitors made representations. In putting the argument that the claimant should be recategorised, they contended that he had experienced problems accessing relevant offending behaviour work because of his location in the PWU. They said that his status as a protected witness meant that he was highly unlikely to seek to escape, and they advanced the need for an oral hearing regarding his categorisation both before the Local Category A Advisory Panel and also before the Director of High Security. Reference was made to the case of R (on the application Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498, [2002] 1 WLR 2264.
In August 2006 the Local Category A Advisory Panel at the prison where at the time the claimant was detained recommended that he should be recategorised. It said that some progress had been noted in the test scores assessing risk, although it said that he still remained a high risk in terms of likely re-offending. Overriding that fact, however, was that as a Protected Witness Unit prisoner his likelihood of escaping was very low, as he would lose the protection afforded to him by the police and put himself at substantial risk while at large. Additionally, his PWU status had reduced the possibility of having external contacts that could provide assistance prior to or following any escape. The Panel concluded that the risks that did remain could be adequately managed in Category B conditions. His recent custodial behaviour presented no contra-indication to downgrading, and as a lifer it was felt that downgrading to Category B would allow further opportunities to test out and to address further the risk issues that he presented.
In November 2006 the Director of High Security Prisons announced his decision on the claimant's case. The Director decided that the claimant's status as a Category A prisoner should remain. It is necessary to set out the reasons in some detail. The Director said that the claimant's overall behaviour had been satisfactory and that he had been compliant and posed no serious problems. But his compliant behaviour within the presently highly secure conditions could not on its own provide clear evidence of a reduction in the risks of re-offending. The Director recognised that he had taken part in some initial work and assessments to address his offending behaviour. He was willing to take part in further work but he still had some way to go to provide evidence of progress on the core issues relating to his violent offending. The Director noted that he had currently shown poor levels of insight into his offending and displayed little awareness of alternative ways of thinking and behaving. The progress on offending behaviour work completed to date could not, in the Director's view, provide sufficient evidence by itself of a reduction in his risk of re-offending. The Director took into account the Local Category A Advisory Panel's recommendation, but he also noted that the recommendation had been made solely on the basis of the Panel's consideration that his protected witness status reduced his risk of escaping and that he still posed a high risk of re-offending in a similar way as in the past. The Director was satisfied that the claimant's current location could not provide automatic grounds for his downgrading, since the claimant had been located within a Protected Witness Unit during his previous sentence but had re-offended in a serious manner on release. The Director said that downgrading “could not be justified to provide the opportunity for him to take part in offending behaviour work that might be available in less secure conditions”. He considered that “an appropriate reduction in [the claimant's] risk must take precedence over a downgrading of his security category”. The Director considered that downgrading could not be justified unless there was convincing evidence of a significant reduction of his risk of reoffending in a similar way and no such evidence was available. There was evidence of a high level of potential dangerousness and he had a long history of violent offending and had not been deterred from re-offending in a serious way by his previous custodial sentences.
In December 2006 the Director of High Security Prisons reconsidered the claimant's case. What had happened was that he had made his decision in November, not having taken into account the...
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