R v Secretary of State for the Home Department, ex parte McAvoy
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR:,LORD JUSTICE HOBHOUSE,LORD JUSTICE MANTELL |
| Judgment Date | 03 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1203-12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCOF 97/0752/D |
| Date | 03 December 1997 |
In The Matter Of An Application For Judicial Review
[1997] EWCA Civ J1203-12
The Master Of The Rolls
(Lord Woolf)
Lord Justice Hobhouse
Lord Justice Mantell
QBCOF 97/0752/D
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr Justice Forbes)
Royal Courts of Justice
Strand,
London WC2
MR E FITZGERALD QC and MISS P KAUFMANN (instructed by the Prisoners Advice Service, London EC1) appeared on behalf of the Appellant Applicant.
MR K PARKER QC and MISS D ROSE (instructed by the Treasury Solicitor, London SW1) appeared on behalf of the Respondent.
Wednesday, 3rd December 1997
The Issue
This appeal raises a point of principle as to the process for the categorisation of prisoners. The principle raises the question as to what information the prison service is required to provide to the prisoner to enable him to make representations as to his categorisation when that is to be reviewed.
The prisoner says that he should be provided with copies of all the material supplied to the review body prior to his making representations or, if that is not possible, at least that he should be given the names of those who have provided the information. In both cases it is recognised that exceptions would have to be made if the information which would otherwise have to be provided falls within the categories of information in relation to which public interest immunity is available.
The Home Secretary, on the other hand, contends that it is sufficient if the gist of the material which is to be placed before the review body is made available to the prisoner and, in addition, the prison authorities are prepared to consider providing additional information if the special circumstances make that appropriate.
Both sides on this appeal accept that, in order to determine the point of principle raised, the court must determine what is required in order to make the procedure of categorisation or re-categorisation fair. The process of categorisation or re-categorisation is required to be conducted fairly.
The Background
The appeal is from a judgment of Mr Justice Forbes given on 21st March 1997. He set out in his judgment the facts clearly and precisely, examined the relevant authorities and, having done so, came to the conclusion that there was no obligation on the Secretary of State to do more than was done in this case. This was basically to provide the appellant with the gist of the case which was going before the review body.
The appellant was convicted of an extremely serious offence. On 2nd December 1984 he was convicted at the Central Criminal Court of armed robbery of gold bullion and diamonds valued at £26m from the Brinks Mat Security Depot. On the following day he was sentenced to 25 years' imprisonment. In due course he was categorised as a Category A prisoner, and he has remained within that category ever since. Initially, he was also classified as being a High Escape Risk prisoner. However, that classification was reduced to the Standard Escape Risk category in December 1995. On 16th June 1995 the fourth decision by the Parole Board was reached in his case, which was to refuse parole.
The process of categorising a prisoner takes place annually. In October 1995 reports were compiled by the reporting officers at HM Prison Frankland for use at the annual review which was due to take place in December 1995. On 13th November 1995 the appellant was supplied with the gist of the material which had been prepared for that review.
I should set out the contents of that document, because it gives an indication of the type of information which is made available to a prisoner. It reads:
"Your security category review will take into account the nature and circumstances of the offence, length of sentence and previous convictions.
Our records show that on 3 December 1984 at the Central Criminal Court, you were sentenced to 25 years' imprisonment for robbery.
Previous convictions include offences for burglary.
Reports towards this review have been prepared by Frankland prison staff, although it is noted you transferred to Full Sutton on 22 September 1995.
Reports state that whilst at Frankland you were the subject of a series of reports to security department as detailed below: …"
Eight different incidents are then set out, but I do not need to do more than give two specimens: one being "trying to cause problems on wing re telephones"; the other being "possible trouble over the new searching system". The 'gist statement' then goes on:
"Reports suggest you had a clear connection with a group of subversive high risk prisoners whose alleged drugs dealing and racketeering activities were said to be seriously disrupting the regime. However, one report does describe you as polite and constructive.
It is said that you began one-to-one work with the probation department in terms of your offending behaviour. You have apparently impressed staff with your motivation to address your offending behaviour and that this suggests a shift in your attitude to your offending. Reports note you are open and honest regarding the offence and have realised the negative impact of your crime.
Because of your progress in addressing your offending, and the length of sentence you have served, there is some support for downgrading of your security category. However, the overall recommendation is that due to the serious nature of the offence, until there is further evidence of diminished risk you should remain category A.
With regard to escape risk classification, however, it is the consensus view, expressed in reports, that your escape potential is now such that high escape risk classification is no longer warranted.
Your case will be referred to the Category A Committee."
I would draw attention to the fact that that statement emphasises the importance of the offence and the fact that the review had been prepared by staff at Frankland Prison; that there were a number of incidents in which it is suggested the prisoner had played a part; that it indicates matters which are in his favour, in addition to setting out certain background matters which would obviously be considered to be adverse.
With the assistance of the Prisoners Advice Service, representations were made on behalf of the appellant dated 4th December 1995. Those representations are impressive, and they deal with the matters contained in the gist statement in some detail. The document deals in particular, so far as is practical, with each of the identified incidents, and it goes on to indicate that there is no evidence that the appellant caused any trouble whatsoever. It adds that the appellant had only been found guilty of one disciplinary offence over 12 years. It suggests that the appellant had striven to address his offending behaviour over the past year and it encloses a copy of a report from the probation officer. It then concludes with these words:
"The overall thrust of the gists is that my client has not been recommended for downgrading because of the nature of his offence. However, some twelve years have passed since he was convicted, and in that time he has maintained good custodial behaviour, and has progressed in terms of addressing his offending behaviour. If downgrading is refused on the basis of the original offence, I would ask that the Committee expressly states this in their decision and sets out the course of action that my client should take in order that downgrading may take place.
I look forward to hearing from you."
The impression that I obtain from that response to the gist statement is that the Prisoners Advice Service have been able because of that statement to put forward meaningful and useful representations on behalf of the appellant.
On 22nd February 1996 a written statement of reasons was given to the appellant setting out the decision on the review. It sets out the fact that the recommendation of the committee, approved by the Director of Security, was that the appellant was to remain in Category A but that his escape risk classification would be reduced. It sets out in some detail how the committee came to its conclusion, and I should refer to one paragraph of the decision which seems to me to be of importance. It reads:
"The Committee noted that there were differences of opinion as to whether a downgrading of your security category could be justified and it recognised that you had begun one-to-one counselling with the Probation Department in terms of addressing your offending behaviour. However, in considering all the information available in your case, the Committee took the view that the serious nature of the present offence could not be overlooked. It concluded that while some progress had been made in addressing your offending behaviour, evidence of further sustained progress in this area and further evidence of diminished risk would be required before a downgrading of your security category could be justified."
I draw attention to that paragraph in particular because it indicates that it was the nature of the offence the appellant had committed which was central to the decision as to whether he should remain in Category A.
It is that decision which is the subject of the application for judicial review which has led to this appeal.
However, before the judge and before this court there was also placed the statement which was prepared for the following year's review. That was accompanied by a letter of 17th...
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