The Queen (on the Application of Simon Goldsmith) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Saffman |
| Judgment Date | 28 November 2019 |
| Neutral Citation | [2019] EWHC 3247 (Admin) |
| Docket Number | Case No: CO/5891/2017 |
| Date | 28 November 2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3247 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Saffman sitting as a Judge of the High Court
Case No: CO/5891/2017
In the Matter of an Application for Judicial Review
Mr Philip Rule for the Claimant
Mr David Manknell for the Defendant
Hearing date: 27 September 2019
Date draft circulated to the Parties 21 October 2019
Date handed down 28 November 2019
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.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
Introduction
The claimant, Mr Simon Goldsmith received concurrent life sentences on 20 December 1999 for 2 offences of rape and false imprisonment. As was required by law at that time, since this was his second offence of rape, he received an automatic life sentence. The minimum term of the sentence before he became eligible for parole was ultimately set at 6 years. He has accordingly been eligible for release by a Parole Board since 2005.
On admission into the prison system he was designated in Category A security conditions and has remained a Category A prisoner since that time. Prison Service Instruction (PSI) 40/2011 paragraph 2.1 and PSI 08/2013 paragraph 2.1 define a Category A prisoner as 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”.
The regime under which a Category A prisoner exists within the prison system is much more restrictive than applies in respect of prisoners in lower categories. In addition, in practical terms, it is very unlikely indeed that a Category A prisoner would ever be granted parole.
There is of course a mechanism for the review of the category in which a prisoner is held. This is set out in paragraph 4 of PSI 08/2013 to which I shall shortly come in more detail. Suffice it to say that, subject to various exceptions, decisions relating to re-categorisation are made annually by a Category A Review Team (CART).
Paragraphs 4.6 and 4.7 of PSI 08/2013 make provision for CART to grant an oral hearing to a prisoner which would allow the prisoner or his/her representatives to submit verbally their representations in support of a downgrading of categorisation.
In their reviews conducted in 2017, 2018 and 2019 CART concluded that re-categorisation was not appropriate. It did so in each year without an oral hearing. The respective decisions were communicated to the claimant by letters of 6 September 2017, 11 September 2018 and 3 September 2019.
The claimant challenges the lawfulness of all 3 decisions on the basis that substantively all the decisions to maintain category A status were wrong and he also challenges them on the basis that it was procedurally unfair not to convene an oral hearing before making the substantive decisions. He complains of a failure even to consider whether an oral hearing was required in 2017 and 2019. He also alleges a failure to comply with a common law duty to give reasons why no oral hearing was granted in the annual reviews of 2017 and 2019.
The claim as originally issued merely challenged the 2017 decision. Permission was granted by His Honour Judge Gosnell sitting as a High Court Judge on 14 February 2018. In his order he observed as follows:
“The claimant made a specific request for an oral hearing and this request was not addressed at all in the decision letter. It is not surprising that the claimant feels aggrieved about the ex post facto justification for the decision in the letter of response. This prisoner appears to have reached somewhat of an impasse in his progress and he did have some limited support from 2 independent clinicians in relation to future assessment of risk. The claim is arguable.”
The claim was amended subsequent to the 2018 decision in order that that decision could also be challenged. On 10 June 2019 Her Honour Judge Belcher sitting as a Judge of the High Court granted permission to amend and granted permission for judicial review based on that amendment. Her observations recorded in her order are as follows:
“ Whilst the approach of the parties as set out in the Statement of the parties is different, D recognises that the second decision should form a part of these proceedings. Further he accepts that the court, having granted permission in relation to the first decision, is likely to grant permission for the second decision, given both are decisions on categorisation, with the same result and commonality of grounds of challenge. Further C argues that the second decision looks at changes, if any, since the earlier decision and asserts that if the earlier decision falls away, the second must also. D argues that the first decision is now academic and overtaken by the second decision. Permission having been granted, the court cannot prevent C having a hearing on the first decision. Accordingly, it is sensible for matters to proceed together”
There are actually 7 formal grounds of challenge contained in the Amended Facts and Grounds but inevitably there is considerable overlap:
a. Ground 1 asserts a failure to consider the question of an oral hearing in 2017.
b. Ground 2 alleges a failure to properly apply the published policy contained in PSI 08/2013 with regard to the circumstances in which an oral hearing should be held.
c. Ground 3 asserts a failure to act in accordance with common law duties of procedural fairness on the basis that common law requires the provision of an oral hearing (in both 2017 and 2018) to do fairness to the claimant's case.
d. Ground 4 alleges a failure to act in accordance with the common law duty to give reasons. This is a criticism of the fact that albeit a request for an oral hearing was made in respect of the 2017 categorisation review, no reasons were actually given why that request was declined.
e. Grounds 5 and 6 allege that there were errors of the factual nature in the 2017 decision which taint it and, as a result the 2018 decision. This is because categorisation decisions are not stand alone but are an ongoing process whereby the previous decision is reviewed and contributes to the decision-making at the subsequent annual review. Therefore, errors contained in an earlier decision will taint more recent decision. This has been divided into 2 grounds because the contention is that it impugned the substantive decisions not to downgrade categorisation but also gives rise to a challenge on the basis that it affects the lawfulness of the decision not to hold an oral hearing.
f. Ground 7 alleges a failure to act rationally or proportionately in accordance with common law principles. The contention is that the decision is outside the range of reasonable decisions open to CART
The matter before me initially proceeded also on the basis of a challenge to the 2019 decision notwithstanding that there is no re-amended pleading addressing this decision. This is because this decision was only communicated by letter as recently as 3 September 2019, a matter of 3 weeks before the hearing. Indeed, in his skeleton argument at paragraphs 4 and 5, Mr David Manknell, counsel for the Secretary of State (who is responsible for the decisions of CART) argues that it is not only desirable for the court to adjudicate on the 2019 decision, but the court should only consider the challenge to that decision and should not decide on the challenges to the 2017 and 2018 decisions on the basis that they are academic.
Mr Philip Rule, counsel for the claimant urged me to consider the lawfulness of the 2019 decision but also to make a determination in respect of the two earlier decisions so that any further reconsideration by CART would be on the basis of a clean slate. He asserted that this was important not least because, as I have said, his understanding is that decisions on re-categorisation are based upon changes in circumstances since the last re-categorisation review (he relies upon R (Falconer) v SSJ (2009) EWHC 2341 (Admin) at [18] for this submission).
In fact, as the case progressed it became clear that there were difficulties in considering the 2019 decision because, whilst ostensibly the challenge is to the decision of CART not to downgrade the claimant's categorisation or convene an oral hearing before completing their review, an issue arose as to whether it could be said that CART was wrong to reach the conclusion that it reached on the information with which it was presented in the dossier to which I shall refer below and which provides CART with the information upon which to make its decisions.
Insofar as CART's decision might be based on inaccurate information in the dossier, Mr Manknell argued that that was a different issue, it was not a complaint against CART but rather a complaint against the compiler of the dossier and thus the quality of the dossier upon which CART relied. That was a different argument and one with which Mr Manknell was not equipped to deal.
This is of course one of the difficulties in attempting to deal with matters “ on the hoof”,...
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