Ferguson, R (on the application of) v Secretary of State for Justice

On 9 November 2009 Sir Michael Harrison granted permission for Judicial Review of the decision of the Secretary of State in 2009 regarding the Claimant’s categorisation as a life prisoner. The Claimant contends that the decision is unlawful, failing to comply with basic principles of procedural fairness. It may also be necessary to decide whether a subsequent 2010 categorisation decision makes this claim academic. The Claimant submits that the decisions in 2009 and 2010 should be quashed. Alternatively, if the 2009 decision were flawed but this is no longer material, he seeks a declaration confirming that the 2009 decision was unlawful since he must be entitled to an order designed to prevent further unlawful reviews.

The Claimant since conviction for murder on 2^nd November 2000 has been detained as a category ‘A’ prisoner, defined 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” (Prison Service Instruction 3/2010), his categorisation reviewed in 2009.

The usual procedure for review of the conditions in which category ‘A’ prisoners are detained involves reports used in the reviews being supplied to the prisoner for comment before a final decision is taken. The reports make no recommendation in connection with categorisation, and are submitted to a ‘local advisory panel’ (‘LAP’) at the prison where their subject is detained. The LAP then makes a recommendation to the Category ‘A’ Review Team (‘CART’) based in London on whether a categorisation should be downgraded. If the LAP’s recommendation is that the prisoner should remain category ‘A’ and if the CART agrees, the final decision is taken by the CART. In all other cases the relevant decision is taken by H.M. Prison Service’s director of high security prisons.

The index offence. The Claimant denied and continues to deny guilt. SK, 33 at her death, a divorced mother of two lived with her children in Gillingham where on 24 November 1999 the Claimant handcuffed her behind her back, stabbed to death and apparently raped her vaginally and anally. He had previously had a friendly, but not physical, relationship with her. The Crown’s case was that the offence had a sexual motivation.

The circumstances of the offence are set out in documents disclosed to the Claimant when he appeared as a defendant in his trial, and which were before the Defendant when he made his 2009 decision. Also disclosed in advance of the 2009 review, within a dossier of reports, was the report of Jo Pallas a psychologist. Not disclosed was the report by the trial judge, misleadingly throughout the paperwork in this Judicial Review termed “sentencing remarks” whereas it should properly be termed “the post-conviction report for the Home Secretary”.

Also available to the Claimant was a report of Offending History (“OH”) which reads in part:

“The victim was found in her home, lying face down on her bed with her legs spread apart. She had been attacked from the front and suffered multiple stab wounds to her chest. Her throat had been slashed and she had bruising to her face. Her hands were handcuffed behind her back and her blouse had been ripped open revealing her breasts.”

The psychologist’s contribution to the OH (disclosed before the 2009 decision) reads in part:

“Details regarding the lead up to the offence are not clear. It is documented that the victim had been restrained by the use of handcuffs and her body was naked from the waist down, and her upper clothing having been torn by force. She was vaginally raped and injuries indicated anal penetration. She was found lying face down on the bed with her legs apart. It is documented in his Dispersal Induction Assessment that it is possible that necrophilia took place ... The victim had been attacked from the front and suffered multiple stab wounds to her chest focussed around her heart. On at least two of the wounds the knife had been lunged in and pulled out at a short distance and lunged in again. The victim’s throat had been slashed and she had bruising on her face consistent with a slap or punch to the face.

The evidence reported in Mr Ferguson’s Dispersal Induction Assessment, which includes his case summary, indicates that he planned the offence. It is documented that Mr Ferguson sent an email message shortly before the offence, suggesting that he was planning to rape a woman, ‘by 4pm I’ll be a true man’… ‘It should be a TRUE MAN’S right to rape any woman he wants ... I’ve been sizing up a female acquaintance to state my lust for real’.”

It further records –

“... a large selection of pornography was found in his home, he composed and replied to rape stories on the internet ... sexual preference for teenage girls. Mr Ferguson has had a relationship with a girl under the age of 16 years ... preferring sex to include violence or force ... there is evidence that on the internet he downloaded, composed and replied to rape stores and fantasies, each one including the use of a knife, using the knife to increase the pain of the victim whilst he was having intercourse. Some of the scenarios that he put on the internet were similar to events of the index offence.

Rape supportive beliefs. During his DIA interview he also stated that he wanted to create a website named ‘UK Rape Club’. There is also evidence that he had a fixation with stranger rape scenarios.

Use of violence – Mr Ferguson has been convicted of murder. His offending involved an extreme amount of violence ...”

The Crown at trial and the Defendant in this Judicial Review relied and rely on an amount of planning in relation to the murder. As the OH sets out:

“Mr Ferguson filled in a shoppers’ survey giving his victim’s name as his partners and putting his address, thus receiving mail for her and giving him an excuse/opportunity to go to her home to deliver the mail for her. This survey was completed several months prior to the offence and police suggest that this was part of the planning.”

Also prepared for the 2009 review and disclosed in advance was:

“… Mr Ferguson does not accept responsibility for his offending and therefore it has been difficult to identify specific triggers. However, the following have been identified as possibly benefiting from further exploration: viewing sadistic pornography, and fantasies of rape or sex to include force/violence …….In relation to evidence of continued risk, Mr Ferguson does not accept responsibility for the offences and is therefore not engaged in any offence-focused work. Consequently, all areas of risk remain outstanding………….Mr Ferguson resembles the group of people labelled as “medium” risk of combined risk of sexual and violent recidivism. In the historical sample, the combined sexual and violent reconviction rate for this group was 23% over a 5 year period, 30% over a 10 year period and 34% over a 15 year period. As not all re-offences result in conviction, actual rates of re-offending would be likely to be higher than this, but it is not possible to say precisely how much higher………….December 2005 [whilst in prison] Mr Ferguson ordered a magazine and a DVD which was sexually sadistic in nature and contained images of both men and women. Mr Ferguson engaged in the extensive use of sadistic pornography, primarily on the internet, during the lead up to his offence. This is of concern and indicates offence paralleling behaviour.”

The Claimant’s solicitors made representations on the reports disclosed and supplied an independent report by Louise Coates, a consultant forensic psychologist who had worked with serious offenders for over 13 years. She was a member of the Parole Board, and qualified to administer risk assessment tests including the Hare Psychopathy Checklist, the HCR-20 and the Risk of Sexual Violence Protocol.

She concluded that:

“…….Mr Ferguson presents a low risk of violently offending and moderate risk of sexually offending as assessed by the HCR-20 and SVR-20. He presents with few personality traits associated with psychopathy, which in turn indicates that Mr Ferguson does not present a high risk of generally or violently re-offending, along with none of the personality traits associated in the literature with sadistic sexual murders. …..Mr Ferguson does not present the level of risk warranted by Category A status, he is highly unlikely to attempt to escape and in the improbable event that he was [sic]unlawfully at large it is doubtful that he would engage in unlawful sexual activities for fear of drawing unwanted attention to himself. ”

The category A review concluded on 29 April 2009. The decision of the Secretary of State reads where relevant:

“The Category A team noted in his sentencing report, [post-conviction report for the Home Secretary] the Trial Judges [sic] noted the evilness, cruelty and savagery of the crime and the danger which you presented to young women because of your views and attitude to sex. …

The SVR highlighted a moderate risk of sexual violence according to the assessment of Ms Coates, however, the Category A Team considers this to be an underestimate of risk ... psychologist [sic] at Wakefield have confirmed that deviant sexual arousal such as this is extremely difficult to change within a treatment setting and is one of the best indicators of risk of future acts of sexualised violence. …

The Category A Team weighed the views expressed in the report [of Louise Coates] against the nature and circumstances of the offence, including the trial Judges [sic] post trial summary and your security category reports and concluded that there was no cogent evidence to support the views expressed in the report …”

The views of Jo Pallas, a psychologist working at HMP Wakefield, were in an e-mail s/he sent on 28^th April 2009, and now disclosed to the Claimant, as follows:

“Given the lack of previous convictions and general offending in Mr Ferguson’s case it is unsurprising that some of the risk assessments used……..highlight a lower risk of violent re-offending……..The SVR20 highlights a moderate risk of sexual violence according to the assessment of Ms Coates. However we would suggest that this is an underestimate of the risk presented when individual dynamic risk factors are considered. The presence of an interest in sexton include violence of force is well evidenced within the documentation for example evidence of sado-masochistic sexual activity in his life generally, including the use of threats and weapons and an extremely high level of violence within the offence. Deviant sexual arousal such as this is notoriously difficult to change within a treatment setting and is one of the best indicators of risk of future acts of sexualised violence.”

On 20 July 2009 the Secretary of State’s response included an explanation that the trial judge’s “sentencing report” was a public document and would have been disclosed. This would not have been true of his post-conviction report for the Home Secretary, which by letter on 21 July 2009 the Claimant’s solicitors explained had not been disclosed, but would have been true of his sentencing remarks. In any event a copy of his report for the Home Secretary was enclosed with the 20 July 2009 response, which went on to say that the psychology department at HMP Wakefield had been approached as to the report by Ms Coates, and that there was no basis for reopening the Claimant’s categorisation review.

The Claimant points to account having been taken of the views of Jo Pallas about the significance of “deviant sexual arousal” whereas reports prepared for the review were silent as to it. It is he submits clear that the material from Jo Pallas was relied upon when rejecting the report of Ms Coates. He complains that direct contact between Secretary of State and psychologist excluded his solicitors who thus could not tackle the topic in their representations. On 16 July 2009 his solicitors wrote a letter before claim arguing that the procedure adopted at the review was unfair. Rejecting any basis for reopening the review the Defendant replied that the judge’s remarks were in the public domain and in any event disclosed, and that Jo Pallas had been consulted for views on the report of Louise Coates.

Judicial review proceedings began. The Secretary of State contends that he was entitled to consider advice from a psychologist without disclosing it since it was in-house advice, relying on R (Burgess) v Secretary of State for the Home Department 2006 1 Prison Law Rep 257. His position on the trial judge’s report for the Home Secretary is that it is not new material but part of the corpus to be considered at review.

After permission had been granted the 2010 review was begun, the Claimant repeated his reliance upon the opinion of Ms Coates, argued that the 2009 decision should not be treated as a starting-point for that of 2010, and that any material undisclosed during the 2009 review should now be disclosed. On 19 February 2010 the LAP recommended that the Claimant remain within category A and on 7 April 2010 the Secretary of State reached a like conclusion. It was justified as follows: clarification from the psychology department at HMP Wakefield had by this stage been disclosed as part of the most recent decision letter (26 April 2010). The report of Ms Coates, “addressed in detail in the previous decision”, was in it said to lack cogent evidence to support its conclusions.

The Claimant criticises the decision as merely rejecting the opinion of Ms Coates, as opposed to in detail refuting her testing and consequent evidence-based conclusion.

The Claimant has permission to challenge the 2009 and seeks it to challenge the 2010 decision. He argues that where subsequent decisions have post-dated the grant of permission, such an approach has been adopted: R (H) v Secretary of State [2008] EWHC 2590 (Admin); R (Wilkinson) v Secretary of State [2009] EWHC 878 (Admin). He suggests that the delay in hearing claims for judicial review would make it impossible to challenge categorisations were the mere fact of a subsequent decision to make proceedings academic. He submits that the 2010 is so closely related to the 2009 decision that errors in the earlier undermine the later. Prison Service Instruction (“PSI”) 03/2010, which governed the review of the 2010 categorisation, makes clear that any review would focus upon whether the risk posed by the Claimant had diminished. His contention is that if the 2009 review suggests it had not, the decision-maker would look for a subsequent reduction, an approach in accord with PSI 03/2009 as to categorisation generally. It reads:

“The purpose of the recategorisation process is to determine whether, and to what extent, the risks a prisoner presented at his or her last review have changed and to ensure that the prisoner continues to be held in the most appropriate conditions of security.”

In R (D’Sane) v Secretary of State [2010] EWHC 514 (Admin) McCombe J having considered PSI 03/2009 concluded that categorisation decisions take previous decisions as a starting point. Hence the Claimant submits that the reasoning of the Secretary of State is not adequate if the new decision is unrelated to the earlier, since it would not address a substantial issue (low risk as demonstrated by Ms Coates) raised by the Claimant: R (Oyston) v Secretary of State (2000) The Independent 17 April. In the 2009 decision, in reliance upon the then undisclosed material from Jo Pallas, the Secretary of State rejected the low risk contention. However, if the 2010 decision does not build upon the 2009, it follows, the Claimant argues, that the all-important low-risk argument is not addressed in the 2010. The result is that the 2010 decision is inseparable from the 2009.

That said, the Claimant concedes that answering the rhetorical question “Is the content of the Jo Pallas e-mail new material or a new review of existing material?” is difficult. He argues, relying on Burgess, that whilst experts routinely review material and then give their opinion, this cannot be what was there envisaged and that if it did it would be in conflict with Duggan.

The Claimant contends that a decision-maker may become entrenched and seek to defend a decision if asked to review it: R v Secretary of State ex p Hickey [1995] 1 WLR 734 at 744D, applied in R (P) v Secretary of State [2004] EWCA Civ 1750 when the Court of Appeal said:

“…once a decision is made, it is difficult to change it. This is particularly so when a decision has been made on a factual basis and when the person subject to the decision seeks to persuade the decision maker, after the decision has been made, that the factual basis on which he acted is wrong. Inevitably the decision maker will be reluctant to conclude that his original decision was wrong”

The Claimant suggests it is inevitable that the Secretary of State found it difficult to consider 2010 representations about matters not disclosed in 2009 but as to which findings been made. Putting the point a different way, the submission is that this very struggle fortifies the contention that the reviews of 2009 and of 2010 were closely related and it must follow so too were the decisions.

In Duggan [1994] 3 All ER 277 the Divisional Court held that fairness required gists of reports used in reviews to be revealed so as to give the prisoner the opportunity to comment on them and to facilitate the subsequent preparation of proper reasons. In Burgess the Parole Board considered whether a prisoner serving a discretionary life sentence for manslaughter should be released after the expiry of his minimum term, or ‘tariff’. It declined to direct release, but recommended that the Secretary of State should transfer him to open conditions. In considering the Parole Board’s recommendation the Secretary of State took advice (not disclosed to the prisoner) from a psychologist upon the psychological reports which had informed the Parole Board’s decision. Burgess found that the advice was ‘in-house’, the non-disclosure of which did not amount to a flaw in the Secretary of State’s decision-making procedure. Rose LJ said:

“It is common ground that 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; educational 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. ”

In R (on the application of Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin) Munby J. quoted Lord Woolf’s finding in R v Secretary of State for the Home Department ex parte Michael McAvoy [1998] 1 WLR 790 that fairness required the disclosure of gist reports in order that the person affected could know what factors weighed against his interests, so as to be able to make worthwhile representations before going on to say:

“Ordinarily the prisoner is not shown the Category A reports. The practice is for a document summarising their content - known as the 'gist' - to be prepared and copied to the prisoner. …

… what is required is "the gist of any matter of fact and/or opinion", and that this applies as much to comments as to recommendations.”

Since he also held that the Data Protection Act 1998 required disclosure of all reports relied upon as part of the categorisation process (save where justification exists for withholding them) Lord led to PSO 1010 which reads in part:

“The High Court judgement in the case of ex parte Lordrequires that category A reports should be subject to disclosure under the Data Protection Act 1998 (subject to any necessary exceptions arising out of the exemptions covered in the Act).”

It is basic procedural fairness that an individual should be able to consider material considered by a decision-maker: R v London Borough of Camden ex p Paddock [1995] COD 130.The Claimant submits that at his 2009 review a failure to comply with the Lord PSO 1010 principles meant that in an unfair procedure the decision relied to a material extent upon matters undisclosed, including the trial judge’s report. Even were comments of the trial judge in the public domain, there was no indication that his report would be relied upon, whereas, once alerted, the Claimant could have addressed them. In particular he relies upon discussions between the Secretary of State and Jo Pallas. Had the Claimant known of additional material from a psychologist, it could have been supplied to Ms Coates for her comments.

He seeks on three grounds to distinguish Burgess. There the psychologist was a civil servant advising ministers, not as here an employee of the prison detaining the prisoner; she provided no new material whereas it is here contended that new material was provided; an earlier Parole Board review had recommended a transfer to open conditions and the Secretary of State was merely deciding to accept it, whereas here the topic of recategorisation was squarely in issue.

It follows, the Claimant argues, that were there no obligation to disclose opinions expressed by employees of the prison, then principles set out in Lord and Duggan would be undermined, implying as they do higher standards of procedural fairness in the context of category A prisoners than in those seeking transfer to open conditions. He fortifies his argument by reference to Burgess wherethe Parole Board had already considered the case and provided substantial procedural fairness. The role of the Secretary of State was merely to review its decision.

The Claimant accepts that as the trial judge’s report was disclosed after judicial review proceedings were commenced he could address it within the 2010 review. Initial complaint in written submissions of non-disclosure was in oral argument sensibly advanced as but one fortification of the Claimant’s case as a whole. Rather, the Claimant emphasises that the report of Ms Coates showed that risk was lower than might otherwise be thought and that deficiencies in addressing her opinion, that is a failure to refute the genesis of its conclusion and the route thereto, constitute a material error. That being so, he contends he has established the inevitable link between 2009 and 2010 decisions, the 2010 decision-maker unable so to distance himself from the 2009 content as to achieve the open mind contemplated in Hickey and in P.

The Defendant argues that all relevant information was in reports prepared for the 2009 review, that the Claimant had a full opportunity to make all submissions he chose as to the circumstances of the index offence, that the same material had been relied on in previous decisions, as evidenced by similar comments made in the 2008 review, and that the Claimant was fully aware both of this information, and of its importance.

The trial judge’s report to the Home Secretary bears rehearsal in full:

“SK was killed by the defendant whom she knew on 24^th November 1999 at her home in her bedroom. She was 33 at the time of death having been born on 28^th April 1966. She was a divorced mother of an autistic boy aged 10 and a daughter aged 7. She lived with the children in the old matrimonial home at 26 Birch Grove, Hempstead, Gillingham. She was due at work at about 11.30am on the morning of her death but did not get there. When her mother phoned her at 11.30am there was no reply. Sometime that morning Susan Kent was handcuffed with her hands behind her back was raped and buggered and stabbed to death by the defendant. Although for a period of a few months before he had had a friendly relationship with her which had fizzled out, he had never before had any physical relationship with her nor had he been a visitor in her house.

The injuries found by the pathologist Doctor Rouse included the cutting of the throat by four or perhaps five cuts across the neck, one of which jumped to the left shoulder. The knife had a serrated edge. The main wound exposed a partial division of the superficial jugular vein. There were a further seven stab wounds to her chest which included one which fractured a rib which would have needed moderate to severe force. Another wound entered the heart. There was evidence of a second insertion of the knife to create a second wound tract on two of the wounds. There was bruising and an abrasion to her right breast and her left breast which implied a straight edged compression possibly caused by a nipple clamp. The pathologist gave evidence that in certain forms of sexual activity objects are used which are intended to inflict pain such as pincers or bulldog clips. Doctor Rouse said that in this case it was possibly a nipple clamp. There was abrasion at the back end of the vaginal entrance and of bruising at the six o’clock position of the anus with grazing which were indicative of penetration. The neck wounds required four separate motions of the cutting edge across the neck. One of the neck wounds severed one of the jugular veins and might have contributed to death by haemorrhage from that injury. There were a total of 9 stab wounds to the chest made up of 7 stab wounds of which 2 had re-insertions. The injuries to the anus and vagina were consistent with trauma with blunt penetrative trauma of the genitalia. External swabs were taken from Susan Kent’s vagina and anus and both contained traces of semen. DNA profiles from those swabs matched Susan Kent’s and also matched the defendant’s. The experts evidence was that the chance of obtaining a match with the defendant was of the order of 1 in a Billion if the DNA had come from an unknown person unrelated to the defendant.

The defendant had recently bought a computer and, six days before the murder, had had a telephone installed at his home address. He chose an E-mail address and chose the Internet password of “Tattoo”. Almost immediately he began using the Internet to visit various web sites and the computer to send and receive E-mails. He began using the Internet for long periods at night to visit pornographic sites which were concerned with sado-masochistic practices and rape and he sent E-mails trying to set up a UK Rape Club. In E-mails which he sent about setting up the UK Rape Club he said “we have a right to rape”. In E-mails he sent on the day of the murder he said that he “should be a real true man in about 8 hours” (From other evidence the prosecution inferred that he would have committed a rape with that time). On the preceding day he had typed into a web site entitled “Louis Cypher” (a reference to Lucifer) the words “it should be a true mans right to rape any woman he wants. If it wasn’t for the law I’d have done so for real by now…always on the look out for fresh meat to savour. I have even been sizing up a female acquaintance to slight (sic) my lust for real”. The prosecution contended that that was a reference by the defendant to Sue Kent and his intentions towards her.

The police had seized from his house a great amount of pornographic material including drawings which he had done himself or sexual intercourse taking place accompanied by the presence of knives and handcuffs. The defendant accepted that drawings and photographs and other pornographic material were all found at his house. His computer was also seized and there was extensive evidence once it had been analysed of the type of sites he had been visiting including the pornographic, sado masochistic one called “Louis Cypher”. The evidence showed a pre-occupation with rape, sado masochistic practices and also F.S.R.P (forced sexual role play or fantasy sexual role play).

The defendant had in his possession a key which fitted and worked the handcuffs which had been taken from the body of SK. He also had in his waste bin a sheath for an identical type of knife which could have caused the wounds on Susan, which knife was never found.

The defendant gave an explanation of his movements locally on the morning and early afternoon of 24^th November which the prosecution from examination of close circuit video cameras were able to dispute and in some cases disprove.”

In my judgment a moment’s reflection demonstrates that, set against all the Claimant knew, and remembering that as a defendant in the criminal trial he had listened to and read how the Crown put its case, it is inconceivable that those who represent him would have gained anything from reading the judge’s report such that they could deploy it as a decisive weapon in their armoury of challenge. The circumstances of the murder are plainly fundamental to the decision. The Claimant knew what had been said both by the trial judge and by others. Any suggestion that he was surprised when such was taken into account is itself a surprising proposition. As will be clear from its rehearsal above, it added little if anything to what was known to the Claimant. It would be untenable to suggest that the vocabulary of Hidden J added to the inescapable inferences to be drawn from disclosed material. If I needed persuading that the judge’s report to the Home Secretary would have played but a part, and a modest one if any, in the decision-making process, I should find it in its having been relied upon for at least one previous decision, as that of 2005 makes plain:

“The Review Team carefully noted your solicitor’s comments in relation to the circumstances and nature of the index offence and to the sexual nature of the offence, and the fact that you were not charged or convicted of sexual offences. The Review Team was aware that you were convicted of murder and that information about the nature and circumstances of the offence was available from a summary of evidence and the post trial summary provided by the trial Judge’s tariff setting purposes. The Review Team noted that in setting a minimum recommendation of 20 years, the Judge noted in this report the evilness, cruelty and savagery of the crime and the danger which you presented to young women because of your views and attitude to sex. The trial Judge’s report also noted that “the injuries to the victims anus and vagina were consistent with trauma with blunt penetrative trauma of the genitalia. External swabs were taken from the victims vagina and anus and both contained semen. DNA profiles from those swabs matched the victims and also matched the defendant’s.””

Indeed, substantially the same comments and information are to be found in the 2008 CART, as well as in the prior LAP recommendation. References include “your sexual interest and use of extreme violence”, “your use of extreme sexually motivated violence”, “you had in fact been convicted of a savage and probably sexually motivated murder”.

The Defendant argues that the decision-maker simply and appropriately wished to form a view on representations by Ms Coates and asked Jo Pallas for a professional view. Jo Pallas’s advice formed part of the internal workings of the decision-maker, ie working out its view as to the Claimant’s representations and evidence. Procedural fairness does not require disclosure of the internal workings of the decision-maker, see Bushell, where the court found “no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives from his department in the course of making up his mind”. In R v Secretary of State for Education ex p S [1995] ELR 71 there was no breach of fairness in failing to disclose an expert’s evaluation of a party’s submissions. It was internal advice which need not be disclosed. In R (Edwards) v Environment Agency[2008] UKHL 22, [2009] 1 All ER 57, HL, Lord Hoffman, obiter, said

“the ... documents were part of the Agency's decision-making process, prepared after a lengthy period of public consultation. If the Agency has to disclose its internal working documents for further public consultation, there is no reason why the process should ever come to an end.”

Such materials are expert input into the decision-making process, and, were there an obligation to consult, it would amount to an obligation to provide a response to the draft decision. There is no requirement to disclose the view the decision-maker provisionally holds, the only obligation is to disclose the gist, here the circumstances of the murder and any opinion of relevance. The Defendant points out that it would be difficulty to identify a case in which more detail could have been disclosed. Reports prepared for the 2009 review and disclosed in advance contained a mass of information. It would be surprising were the Claimant, supported by experienced practitioners, to think CART would not take the whole into account. Anything he sought to say in relation to the murder he could and should have said in response to the reports disclosed: see Malloch v Aberdeen Corp  [1971] 1 WLR 1578, HL, 1595, where the court said:

“A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”

As Mr Auburn for the Defendant submitted in oral argument, Burgess for a decade has stood without being doubted. Attempts to distinguish itas advanced by the Claimant are in my judgment unfounded. There is no material difference for the purpose of procedural fairness between a psychologist based at a prison and one who is not. The psychologist’s advice was not new material but a view on the opinion of the Claimant’s expert, and as such no more than an evaluation of one aspect of the Claimant’s overall submissions. Use by the decision-maker of internal advice does not amount to procedural unfairness, as the authorities make plain. A similar issue had in any event arisen within the 2008 decision, and it is worth remembering that internal advice was necessary at the 2009 CART stage only because the Claimant submitted representations on Ms Coates’ report to CART, not, as would be orthodox procedure, to the LAP. Had matters proceeded as normally they do, Ms Coates’s opinion would have been addressed in detail by the LAP, and CART would not have found it necessary to seek advice from Jo Pallas.

The Defendant is in my view correct when he submits that on a consideration of the factual backdrop of the index offence and then of the chronology of developing categorisation reviews, there is nothing in the Claimant’s submissions. The decision-maker, appropriately anxious to achieve an informed view on the professional opinion of Ms Coates, turned for another professional view to the prison psychologist Jo Pallas. This was a logical and unexceptional part of a whole, that is, the conclusion to be reached upon all the available information. So long as the gist of the material was made known, as it plainly was, the Defendant has complied with the test in Burgess.

I have been careful at considerable length to set out the material available as time went by to the Claimant, his advisers and to Ms Coates. Psychologists offer interpretation or evaluation of the entirety of submissions but it is upon that entirety that the decision should be, and in this case plainly was, based. I can see no procedural unfairness established on any basis.

The Defendant contends that the challenge is academic since the 2010 decision supersedes that of 2009, and the Claimant had a full opportunity to make submissions to the 2010 decision-maker as to materials of which he now complains. In particular, that the Judge’s report to the Home Secretary and the views of a prison psychologist were not disclosed in advance is irrelevant as both were available to the Claimant prior to the 2010 decision. Further, the Defendant’s 2010 decision expressly took into account the complaint that the 2009 decision should be viewed with caution in light of the particular issues raised in the judicial review claim.

CART 2010was aware of the allegations made in relation to 2009, conducted its own evaluation of the matters of which complaint is made, formed its own opinion, and did not merely adopt the decision of 2009. This was the proper approach. It was for 2010 CART to accord to 2009 what weight it thought appropriate. The challenge, it will be remembered, is to 2010 CART’s according to the 2009 decision more weight than should properly have been given. The Claimant in that regard made to 2010 CART what representations he thought right and they were taken into account.

As to the impact on CART 2010 of the alleged flaws in the 2009 decision it is necessary to look at the nature of the challenge to 2009. It is to allege procedural unfairness by virtue of non-disclosure of the two matters I have rehearsed. However each was fully disclosed prior to the 2010 and if there were a 2009 flaw then it is plainly cured by the disclosure in 2010.

I have set out in considerable factual detail the extent of the information, from whatever source, available to the Claimant at all material times. I have no hesitation in concluding that the Defendant is justified in arguing that the challenge to the 2009 decision is academic and the 2010 justified, having been based upon a proper approach. If I had been persuaded of any procedural unfairness in the 2009, I should confidently conclude that it was remedied by the 2010 decision. The 2010 CART expressly considered the procedural complaint as to 2009 and took it into account in relation to the weight to be placed on the 2009 decision. All the representations made by Mr Auburn for the Defendant are well-founded.

It follows that the claim against the 2009 decision must be dismissed, and permission be refused as to the 2010 decision.