R (on the application of Simon Smart) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton DBE,Mrs Justice Thornton |
| Judgment Date | 09 July 2021 |
| Neutral Citation | [2021] EWHC 1898 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1777/2020 |
[2021] EWHC 1898 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mrs Justice Thornton DBE
Case No: CO/1777/2020
Mr Jude Bunting (instructed by ITN Solicitors) for the Claimant
Mr Robert Cohen (instructed by Government Legal Department) for the Defendant
Hearing dates: 17/06/2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mrs Justice Thornton DBE
Introduction
This case concerns procedural fairness in the context of a review by the Secretary of State's Category A Review Team (‘CART’) when deciding to maintain the Claimant's classification in prison as a Category A prisoner.
The Claimant was convicted of murder in March 2012 and is serving a life sentence with a 30-year tariff. He will not be considered for release until April 2042.
The claim is brought on three grounds:
Ground 1A – The Defendant applied the wrong test in deciding not to hold an oral hearing. It treated its conclusion on the substantive question of whether there had been a substantial reduction in the Claimant's risk of reoffending, if unlawfully at large, as conclusive of whether fairness required an oral hearing.
Ground 1B – Common law procedural fairness required an oral hearing.
Ground 2 – The Defendant failed to apply the policy Prison Service Instruction (PSI 08/2013) which was intended to widen the circumstances in which there will be oral hearings of Category A reviews.
Legal framework
A prisoner may lawfully be confined to such prison as the Secretary of State directs (s.12 of the Prison Act 1952). The Secretary of State has the power to make rules for the classification of prisoners (s.47 of the Prison Act 1952), and has done so in the Prison Rules ( SI 1999/728).
Rule 7 of the Prison Rules provides, subject to exceptions which are not applicable to this case:
“Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 3.”
Adult male prisoners are classified by reference to four security categories (A to D). A Category A prisoner is one “ 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, §2.1). Immediately below Category A is Category B, which is for prisoners “ for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult”.
A decision regarding a prisoner's categorisation has significant implications both for the public interest and for the individual interests of the prisoner himself. A prisoner in Category A endures a more restrictive regime and higher conditions of security than those in other categories. Movement within prison and communications with the outside world are closely monitored; strip searches are routine; visiting is likely to be more difficult for reasons of geography in that there are comparatively few high security prisons; education and employment opportunities are limited. And as, by definition, a Category A prisoner is regarded as highly dangerous if at large he cannot properly be regarded by the Parole Board as suitable for release on licence ( R v Secretary of State ex p Duggan [1994] 3 All ER 277, Rose LJ).
The CART is an internal body, part of the Prison Service, administering the prisons and organising their security. It is 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 its responsibility. The CART addresses 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 ( R (Hassett) v Secretary of State for Justice [2017] 1 WLR 4750).
The Category A review process is explained and guidance regarding it is given in PSI 08/2013. It was further explained by the Court in Hassett [at 13–16]. The CART typically takes its decisions by reference to a dossier of materials compiled by staff within the prison where the prisoner is held, including the prison's psychology services team. The reports are compiled following interviews with the prisoner. The reports attach any pre-sentence and post-sentence reports on the prisoner. The reports in the dossier deal with the prisoner's offending history; his behaviour in prison and level of compliance with his sentence plan; offence-related work in terms of programmes attended and progress in those programmes; his health, insofar as it might be relevant to risk categorisation; and security information. Other relevant material will be included in the dossier.
The dossier is provided to the prisoner so that he and his advisers have an opportunity to make representations in writing about its contents. The prisoner may submit material of his own, such as reports from an independent psychologist as occurred in this case.
The dossier and any materials submitted by the prisoner are then sent to the Local Advisory Panel (“LAP”), which is composed of representatives of the probation service, the prison psychology service, security specialists and the prison governor. The LAP makes a reasoned recommendation.
The package of materials is then sent to the CART. The CART usually completes the review itself if the LAP has not recommended downgrading the prisoner from Category A and the CART considers that there is no reason to downgrade him.
The CART has a discretion in relation to the procedure it adopts for categorisation reviews and must act fairly, having regard to the context in which such reviews are undertaken.
The test for downgrading a Category A prisoner
Paragraph 4.2 of PSI 08/2013 states:
“Before approving a confirmed Category A / Restricted Status prisoner's downgrading the [Director] (or delegated authority) must have convincing evidence that the prisoner's risk of re-offending if unlawfully at large has significantly reduced, such as evidence that shows the prisoner has significantly changed their attitudes towards their offending or has developed skills to help prevent similar offending.” (underlining is the Court's emphasis).
In Hassett, Sales LJ said this paragraph had to be read subject to the definition of a Category A prisoner set out in § 2.1 of PSI 08/2013, which governs the whole of PSI 08/2013. Downgrading from Category A pursuant to § 4.2 will only be appropriate if the significant reduction in risk takes the prisoner outside that definition.
Oral hearings
Paragraphs 4.6 and 4.7 of PSI 08/2013 deal with the topic of oral hearings in the Category A review process. Relevant extracts state:
“4.6 The [Director] (or delegated authority) may grant an oral hearing of a Category A/Restricted Status prisoner's annual review. This will allow the prisoner or the prisoner's representatives to submit their representations verbally, in the light of the clarification by the Supreme Court in Osborn of the principles applicable to determining whether an oral hearing should be held in the Parole Board context. The Courts have consistently recognised that the CART context is significantly different to the Parole Board context. In practical terms, those differences have led to the position in which oral hearings in the CART context have only very rarely been held. The differences remain; and continue to be important. However, this policy recognises that the Osborn principles are likely to be relevant in many cases in the CART context. The result will be that there will be more decisions to hold oral hearings than has been the position in the past. In these circumstances, this policy is intended to give guidance to those who have to take oral hearing decisions in the CART context. Inevitably, the guidance involves identifying factors of importance, and in particular factors that would tend towards deciding to have an oral hearing. The process is of course not a mathematical one; but the more of such factors that are present in any case, the more likely it is that an oral hearing will be needed. Three overarching points are to be made at the outset:
First, each case must be considered on its own particular facts – all of which should be weighed in making the oral hearing decision.
Secondly, it is important that the oral hearing decision is approached in a balanced and appropriate way. The Supreme Court emphasised in Osborn that decision makers must approach, and be seen to approach, the decision with a open mind; must be alive to the potential, real advantage of a hearing both in aiding decision making and in recognition of the importance of the issues to the prisoner; should be aware that costs are not a conclusive argument against the holding of oral hearings; and should not make the grant of an oral hearing dependent on the prospects of success of a downgrade in categorisation.
Thirdly, the oral hearing decision is not necessarily an all or nothing decision. In particular, there is scope for a flexible approach as to the issues on which an oral hearing might be appropriate.
4.7 With those three introductory points, the following are factors that would tend in favour of an oral hearing being appropriate:
...
To continue reading
Request your trial