R Michael Downs v The Secretary of state for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Moore-Bick,Lord Justice Pill |
| Judgment Date | 30 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1422 |
| Docket Number | Case No: C1/2010/2909 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 2011 |
[2011] EWCA Civ 1422
Lord Justice Pill
Lord Justice Moore-Bick
Lord Justice Aikens
Case No: C1/2010/2909
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE BURTON
CO73522010
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Vijay Jagadesham (instructed by Tuckers Solicitors) for the Appellant
Mr Matthew Slater (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 13 th October 2011
This is an appeal from an order of Burton J dated 23 November 2010, in which he dismissed the appellant's claim for Judicial Review of one part of two decisions of the Category A Review Team of Her Majesty's prisons ("CART"), whereby CART refused to allow an oral hearing in respect of the appellant's annual review of his status as a Category A prisoner. The two decisions were communicated to the appellant's legal advisors on 22 April and 15 June 2010. On 13 August 2010 HHJ Pelling QC, sitting as a deputy High Court Judge, granted the appellant ("Mr Downs") permission to apply for judicial review of the two refusals to grant an oral hearing. Burton J heard the application on 23 November 2010 and gave judgment the same day.
I. The Category A Review Team's work and the law relating to oral hearings of CART reviews
CART is concerned with evaluating the risks to the public in the event of an escape of particular prisoners who are classified as "Category A" prisoners. Category A prisoners are defined as those "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". 1 In 2009 and 2010 approximately 950 inmates of prisons in England and Wales were placed in Category A. This figure has remained about the same for many years. A Category A prisoner is, inevitably, subject to a more restrictive regime and higher conditions of security than prisoners in lower Categories. Moreover, a Category A prisoner who remains as such will have no prospects of being released on parole. 2
Each Category A prisoner is entitled to have his categorisation reviewed at least once a year. 3 This process permits the prisoner and his legal representatives to submit representations, including reports from independent specialists such as psychologists, in support of a request that the prisoner should be removed from Category A and re-categorised in a lower Category. These representations must be addressed to the Local Category A Advisory Panel ("LAP") which will consider them together with reports from the prison. The LAP's consideration will lead to a "Governor's Recommendation". That is then considered by CART, which is the central body for reviewing all Category A prisoners' categorisation. CART will examine all the materials submitted by the prisoner or his representatives and all other material before it, including the Governor's Recommendation. It will then make a decision either that the Category A status remains or, if it thinks the prisoner should be re-categorised, it makes a recommendation to a more senior committee, called the Category A Committee. Any final decision to downgrade is made by the Deputy Director General of the Prison Service. 4
Normally, a decision on the Category A prisoner's future categorisation is taken by CART on the papers before it without an oral hearing. However, it is well established that in certain circumstances there should be an oral hearing at which the prisoner's representatives can make submissions and, if appropriate, witnesses or experts can give oral evidence.
The courts have considered the circumstances in which oral hearings should be held by CART before reaching a decision. The basic rule is that CART will be required to convene an oral hearing when common law standards of procedural fairness require one.
Each case will depend on its facts. However, oral hearings are not the general rule; they will be rare.In Donald Mackay v Secretary of State for Justice5 Gross LJ stated that Cranston J well expressed the broad underlying principles at [21] of R (H) v Secretary of State for Justice. 6 Cranston J referred to and applied statements of Lord Bingham of Cornhill in R (on the application of Smith) v Secretary of State for the Home Department, 7 at [35], where Lord Bingham had set out the principles under which procedural fairness may require that there should be an oral hearing by the Parole Board when prisoners are being recalled for breach of licence conditions. Applying those principles to the context of CART decisions, in relation to oral hearings by CART, Cranston J emphasised that: (i) common law standards of procedural fairness affecting an oral hearing are flexible and may change over time; (ii) oral hearings are not required in all or even in most cases: (I would add that it is clear that they will be rare); (iii) whether one is needed depends on all the circumstances of the case; (iv) the interests at stake and issues of cost and efficiency must be considered; (v) so too must the question of the extent to which an oral hearing will guarantee better decision making in terms of uncovering of facts, the resolution of issues and the concerns of the decision maker; (vi) there is no test of "exceptionality". Examples of when oral hearings may be required in the CART categorisation review exercise are set out at [28] of the judgment of Gross LJ in the Donald Mackay case. These legal principles were not in issue on this appeal.
If CART refuses to hold an oral hearing before making its decision and that refusal is challenged in the courts by judicial review, the issue on that review is whether the refusal to permit an oral hearing was wrong. It is not whether the refusal was unreasonable or irrational.
It is important to keep in mind in this case that there is no challenge to the actual decisions taken by CART on 22 April and 15 June 2010 that Mr Downs' Category A status must continue. The only decision of CART challenged is its refusal to hold an oral hearing prior to making a decision on Mr Downs' future Category A status. Therefore the only question on this appeal is whether the judge erred in concluding that CART was not wrong in its two decisions which rejected Mr Downs' requests for an oral hearing.
II. The Chronology of events in this case up to the CART decisions
Mr Downs was sentenced to life imprisonment in July 1989 after a trial in which he had been found guilty of the murder of two elderly women. The first victim was Katherine Weaver, who was murdered on 21 January 1978. The second was Gabrielle Morris, who was murdered on 26 January 1988. At his trial for the two murders Mr Downs pleaded guilty to the aggravated burglary of the home of Mrs Morris. That offence had taken place on 27 November 1974.
The facts of the three offences are relevant to the issues that arose concerning Mr Downs' categorisation. I set out Burton J's summary, which was not challenged for the purposes of the appeal before us.
"4. So far as the aggravated burglary is concerned in 1974, the victim was then 57. The Claimant, who was known to her because he was a laundry roundsman for her private guest house, broke in. He was masked and armed with a hammer and a knife, and a length of washing line. He pressed the line to her throat and hit her with a hammer, although no serious injury was caused, and he did not speak. She offered
him £300 in notes, and he seemingly took only £100. And then the learned judge records at one stage he pushed her on the bed and unzipped his flies, but there was no evidence of intercourse or of ejaculation.
5. ….The facts of [the first] murder were that the victim was found in the kitchen dead from stab wounds, two in the back and one in the chest; her pyjama bottoms, and the washing line brought in by the Claimant, on the findings of the jury, were found in the lounge; and there was no theft evident.
6. As for the second murder, he again broke into the victim's house, again cut the washing line, and she was found there with the lower part of her body exposed. Death was due to a stab wound in her back, but there were some 38 minor cuts and bruises, including injuries to the breasts, and again nothing was stolen, even though the Claimant asserted that theft was his motive."
The "tariff" for Mr Down's sentence of life imprisonment was set, after an appeal, at 23 years. He has now served over 22 years of that "tariff" and he is 65 years old. Since at least 2008 he has been an inmate at HMP Wakefield. Throughout his time in prison he has been classified as a Category A prisoner. Mr Downs continues to deny that he had any involvement in the murder of Mrs Weaver, but he now accepts responsibility for the second murder, viz. that of Mrs Morris. Mr Downs denies that there was any sexual element in the aggravated burglary offence of 1974 or in the murder of Mrs Morris in 1978. It is obviously implicit in his denial of any involvement at all in the murder of Mrs Weaver that he denies that he was guilty of any sexual element in respect of that offence.
During the time that Mr Downs has been incarcerated he has completed a significant amount of offending behaviour work. He has completed the Reasoning and Rehabilitation Programme (September 2001), the Controlling Anger and Learning to Manage it programme (December 2005) and the Alcohol Education programme (June 2003). During 2004 Mr Downs undertook four sessions of motivational work...
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