R John Seton v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Belcher |
| Judgment Date | 15 May 2020 |
| Neutral Citation | [2020] EWHC 1161 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3639/2019 |
| Date | 15 May 2020 |
[2020] EWHC 1161 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HER HONOUR JUDGE Belcher
Case No: CO/3639/2019
Mr Jason Elliott (instructed by VHS Fletchers) for the Claimant
Mr David Manknell (instructed by The Treasury Solicitor)) for the Defendant
Hearing dates: 16 April 2020
Approved Judgment
The Claimant, John Seton, is a serving Category A prisoner at HMP Frankland, having been convicted of murder in 2008. His minimum tariff was set at 28 years 214 days and expires in 2038. He seeks judicial review of the decision of the Deputy Director of the Long Term and High Security Estate (“the Director”) not to grant him an oral hearing of his Category A review. The review took place on 18 June 2019, but the decision was issued on 16 July 2019.
The Claimant does not challenge the decision not to downgrade him to Category B. Counsel are agreed that Section 31 (2A) Senior Courts Act 1981 has no application as it cannot be said whether an oral hearing would or would not have resulted in a progressive move, and further an oral hearing could have a knock-on effect in future categorisation reviews.
The Claimant challenges the decision not to grant him an oral hearing as being irrational and/or unlawful. The Secretary of State for Justice who is responsible for the Director and the Category A Review Team (“CART”) disputes the claim and argues that the Director was entitled to reach the decision he did, and that it was a proper decision in the circumstances of this case.
References to the hearing bundle in this judgment will be by way of square brackets containing the relevant page number or numbers.
The CART System
Under the Prison Rules 1999, all prisoners within the prison estate are subject to categorisation. Category A is the highest category. The Claimant is eligible for an annual review of his Category A status. The policy governing those reviews is contained in a Prison Service Instruction: PSI 08/2013 (“the PSI”). Paragraph 2.1 of the PSI defines a Category A prisoner as “…..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. Category A review decisions are not made at prison level but are made by CART or the DDC. The DDC is solely responsible for approving the downgrading of a confirmed Category A prisoner. The annual review entails consideration by a local advisory panel (“LAP”) within the prison, which submits a recommendation about security category to CART. (PSI paragraph 4.1)
Prison staff must prepare reports for the prisoner's annual review, and such reports must be disclosed to the prisoner at least four weeks prior to the prison's LAP to allow representations to be submitted. Taking both the reports and any representations into account, the LAP must in turn make a recommendation on the prisoner's continued suitability for Category A (PSI paragraphs 4.14 and 4.15). The reports should be a comprehensive summary of the prisoner's behaviour and progress to date, that will enable an assessment of any reduction in the prisoner's level of risk (PSI paragraph 4.17).
The Facts
The relevant parts of the Claimant's Category A report (the Report”) for the review are at [119 – 140]. Details of the index offence were summarised as follows:
“Mr Seton and the victim were both drug dealers on a substantial scale. Jon Bartlett (Victim) supplied drugs to Mr Seton and according to documents recovered from the victim's home, John Seton was in debt to him by £24,000. Mr Bartlett arranged to meet Mr Seton on the 31 March 2006 expecting to be paid, but was instead met by Seton who shot him at point-blank range in the face, killing him instantly. Mr Seton escaped in a car he had purchased an hour and a half before the shooting, which was later found burnt out. He then fled to Holland where he was found using a false identity and passport. He had been involved in the supply of cannabis valued at approx. 11 million Euros and was given a custodial sentence in Holland. The Dutch police would not release him until evidence of his true identity was provided. He was then arrested under an international warrant and returned to the UK.” [119]
The Claimant continues to maintain his innocence of the index offence.
Section 6 of the Report contains the current assessment of risk from the Claimant's Offender Manager, M Gartside, and is dated 23/1/18. That date is plainly an error and should be 23/1/19. Mr Gartside assessed the risk to the public as high due to the serious nature of the index offence which involved the discharge of a firearm. He additionally assessed high risk to the public due to Mr Seton's admission of his involvement in the drug industry [135]. Under the heading “Recommendations for progression” appears the following:
“I acknowledge the good start Mr Seton has made on the PIPE unit and his continued efforts in integrating and forging good relationships with the staff and other pipe prisoners. Mr Seton showed persistence in achieving his transfer on to the PIPE unit but he has only been on the unit since 13/10/17. In addition, Mr Seton maintains his innocence therefore risk factors surrounding the offence may not have been fully explored; although I acknowledge that he has completed previous offending behaviour work.
In my professional opinion I feel unable to recommend a downgrade at this time as I feel there needs to be a more substantial amount of time as a resident on the PIPE unit. This will afford Mr Seton more opportunity to consolidate and demonstrate any learning.” [136]
Section 4 of the Report contains the current assessment of risk from Emma Walsh, Trainee Forensic Psychologist in the Psychology Department and is dated 12/02/19. Her summary and recommendations include the following:
“It is my opinion that Mr Seton has made sufficient progress in order to be downgraded to a Category B prisoner. Ideally it would be beneficial for Mr Seton to complete work on high risk situations whilst still located on the PIPE unit, this will give him the opportunity to gain additional support in preparing for his move off the unit and be prepared for any imminent stressors (i.e. anxieties about being located on a main wing). It is important that this recommendation is considered alongside any security concerns and that any future transfers are considered careful (sic) due to concerns outlined within the report. A transfer to less secure conditions would provide Mr Seton with the opportunity to further evidence his ability to manage his risk and develop further his protective factors.” [130]
Section 9 of the Report contains the LAP minutes and recommendations dated 05/04/19. The LAP recommended that Mr Seton be downgraded to Category B, adding:
“The board noted the significant risk reduction Mr Seton has evidenced since his arrival on the PIPE unit, reports noted increased insight into his lifestyle and he has worked to explore his use of violence, risk factors and case formulations to a high standard and consistently applied them to his everyday life on the unit, which is documented within the reports. The board felt that Mr Seton has completed sufficient work to justify a downgrade recommendation where he can be further tested within less secure conditions.” [139]
The Claimant's solicitors made representations to LAP dated 15 March 2019 [92 – 107]. They challenge the statement of the psychologist that Mr Seton has not engaged in risk reduction work during the reporting period pointing to individualised work completed with Miss Gemma Tock, Trainee Psychologist to further develop his insight [97]. They also point out [98] that Mr Seton has completed the further work on high risk situations which the Psychologist stated would be beneficial (See Paragraph 9 of this Judgment). I asked Mr Manknell whether the Defendant accepts that is accurate, and he confirmed that it is accurate. Similarly in relation to Mr Gartside's views that Mr Seton needed more time as a resident on the PIPE unit to afford him the opportunity to consolidate and demonstrate any learning, the Claimant's solicitors repeat that Mr Seton has undertaken consolidation work and further work that was identified since the preparation of the Gist, and that this is not documented in the reports, having been completed after the preparation of the reports [99]. At [106] they again make the point that they are concerned that the Gist is not fully completed as Mr Seton has also completed one to one sessions and consolidation work after completion of the Gist.
The Claimant's solicitors invite the Director to downgrade Mr Seton, but ask that if CART is not in agreement with that, there should be an oral hearing for the following reasons:
“1. There is a significant dispute with regards recommendations. Miss Walsh, Trainee Forensic Psychologist, submits that Mr Seton has made sufficient progress in order to be downgraded to a Category B prisoner. Mr Seton has undertaken work on high risk situations since the preparation of her report. Mr Gartside Offender Manager is unable to recommend a downgrade at this time as in his opinion he feels that Mr Seton has to have more substantial amount of time as a resident on the PIPE Unit which will afford Mr Seton more opportunities to consolidate and demonstrate any learning. We submit that Mr Seton has been on the PIPE Unit now for 17 Months. He has completed all work within the PIPE Unit and since the preparation of the Gist he has completed six one to one individualised sessions with Psychology and has also consolidated and demonstrated his learning.
2. Mr Seton has now been categorised as category A for 13 years. He has been at HMP...
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