Rose, R (On the Application Of) v The Secretary of State for Justice

The Claimant, Mr Rose, is a serving prisoner. He is detained in Category A conditions, as he has been throughout his 27 years in prison. Category A is the highest security category in the prison estate. Mr Rose’s escape risk classification has varied over the last 27 years, but it was downgraded to “standard” in July 2006 and has remained static since then.

On 14 June 2016, the Deputy Director of Custody High Security (“the Director”) reviewed Mr Rose’s security category and decided (a) there were no grounds for holding an oral hearing into the review of his security categorisation; and (b) Mr Rose should remain in Category A (“the Decision”). Mr Rose challenges the Director’s decision not to hold an oral hearing. He was granted permission on the papers by Charles Bourne QC, sitting as a Deputy High Court Judge.

In 1990, Mr Rose was convicted of two counts of kidnapping, one count of having a firearm with intent to commit an indictable offence and one count of blackmail. On 14 September 1990, he was sentenced to 15 years’, 5 years’ and 12 years’ imprisonment for those offences, respectively, set to run concurrently.

The trial judge’s sentencing remarks reveal that Mr Rose, who had no previous convictions, had built up high levels of personal and business debt. He decided to kidnap a businessman in order to extract ransom money. The offence was planned over a lengthy period. Mr Rose forced entry into the home of a deputy chairman of a food wholesales company (“the victim”) and his wife, wearing combat clothing and a balaclava, and armed with a sawn-off shotgun. Mr Rose handcuffed the victim’s wife to furniture in their house. He led the victim to a secluded gully on Dartmoor where he placed a thin wire noose around the victim’s neck and secured it to a tree branch. The victim was blindfolded, gagged and handcuffed. The victim was held for four days before managing to release himself. Mr Rose had left a ransom note for the victim’s wife demanding £1 million for the victim’s release and warning that he would execute the victim if she did not pay or contacted the police. A reduced ransom of £147,000 was paid. Mr Rose was found in possession of most of the money on his arrest.

Following Mr Rose’s arrest for the above offences, investigations were re-opened into an unsolved murder of the wife of a wealthy supermarket owner. In 1991, Mr Rose was convicted of her murder and sentenced to life imprisonment with a tariff of 25 years. The murder had been committed a decade earlier, in 1981. This offence, too, had involved a planned kidnap with a view to extracting ransom money. When the victim resisted, Mr Rose shot her four times in the back as she fled, and then he fired two further shots, point-blank, at her head and heart.

In 1995, Mr Rose carried out a highly-planned escape from HMP Parkhurst and was at large for several days. For this offence he was sentenced to a further three years’ imprisonment.

Mr Rose denies that he committed murder, but he admits he committed the other offences of which he has been convicted. He has served his determinate sentences and the tariff period for the offence of murder. Mr Rose is now 68 years of age.

The Local Advisory Panel (LAP) made a recommendation to the Director, on 10 May 2016, that Mr Rose should be downgraded from Security Category A to Category B. The members of the LAP were (i) a Deputy Governor; (ii) the Head of Corruption Prevention; (iii) a psychologist and a trainee psychologist; (iv) two offender supervisors from the Offender Management Unit (“OMU”); (v) a Category A administrator from the OMU; (vi) a case manager from the Integrated Substance Misuse Team; (vii) a member of the Independent Monitoring Board; and (viii) three Residential Officers.

The LAP’s report stated:

“The Local Advisory Panel (LAP) considered that Mr Rose does not still pose a risk of reoffending in a similar way if unlawfully at large and did evidence the significant reduction in risk that would warrant a recommendation for downgrade.”

“Recommendation – Downgrade to Category B”

…

“The LAP was advised that in relation to the kidnapping offence he has shifted in accepting his responsibility, although Mr Rose still denies the murder. During the last year Mr Rose has engaged in the RESOLVE programme to further address his risk related to violence. He demonstrated good progress in developing insight into the kidnapping offence. Although Mr Rose did not directly explore and address the murder offence during the course, many of the risks associated with the kidnapping offence are also associated with the murder offence. Therefore, Mr Rose has developed some insight into the murder offence indirectly. He has also engaged in an HCR-20 post course risk assessment, which indicated he presents a moderate risk in the community, low in custody.”

“The LAP noted that custodial reports are positive describing him as being a polite and compliant prisoner who interacts well with staff and prisoners alike. Although Mr Rose remains to have a negative attitude towards Psychology he has engaged with them and has increased his engagement with sentence planning. Mr Rose has had no proven adjudications since 2005, his last negative entry was in 2013 and no concerns have been raised from Security. Mr Rose has also produced work for the chaplaincy which has encouraged positive feedback.”

“The LAP acknowledges that Mr Rose has made progress in all areas. His attitude and response to treatment has shifted. He has increased engagement in the sentence planning process, and daily prison life in a pro-social way which is indicative in applying new skills. His protective factors are his supportive family and his strong identity as a grandfather. He has positively engaged in some work with the Chaplaincy and he is about to become a peer support worker for RESOLVE. He has developed appropriate post treatment plans that would support ongoing risk reduction.”

“The LAP is encouraged that parallels between the kidnap and the index offence highlighted in the RESOLVE have developed some insight. The LAP is also further encouraged with Mr Rose pro-social attitude and mature consistent behaviour.”

“The LAP considers this demonstrates progress and recommends downgrading to category B.” (Bold emphasis in the original; underlining added.)

The evidence before the Director (and the LAP) included:

RESOLVE is an accredited programme which is described on the Ministry of Justice website as a

“moderate intensity cognitive-behavioural intervention that aims to reduce violence in medium risk adult male offenders. The programme includes group and individual sessions and is suitable for offenders with a history of reactive or instrumental violence.”

The RESOLVE report noted that Mr Rose “engaged well” and “developed his openness throughout the programme”. Mr Rose “reflected on the risk factors that made his use of aggression and violence more likely” at the time of the kidnapping offence and he “appeared to develop in taking responsibility for this offence”. Mr Rose was “open to being challenged” and he “demonstrated respectful participation to both facilitators and other group members”. It was noted that he “would consider the feedback and was actively seen to try to implement this in his skills practices. He also provided developmental feedback to others in a respectful and supportive way”. Mr Rose “demonstrated that he has developed in his insight and awareness of his old me lifestyle and how this led him to use violence and aggression”.

Under the heading “Summary of Change”, the RESOLVE report addressed seven “Treatment Need Domains” in detail. The comments included the following:

“Insight and Awareness”

…

“ Throughout the programme, Mr Rose demonstrated development in his insight and awareness, both in his risk factors at the time of the kidnap offence and what may be risk factors for him in the future. … He discussed how he had previously stated that the victim was involved in the offence and was aware of this for an insurance fraud. It is positive that he has now begun to take responsibility for his offence, stating that within ten minutes of the offence he realised that this was not the case and the victim was not aware of what was occurring.”

…

“Overall, Mr Rose has demonstrated development in his insight and awareness. … He has recognised key risk factors for the future which he will need to manage to avoid relapse to aggressive or violent behaviour.”

“Impulsivity”

…

“Throughout the programme, Mr Rose completed a number of self-monitoring diaries. These demonstrated that he is actively using his skills to manage his emotions and challenge his thoughts to avoid acting impulsively and escalating conflicts. Of note, Mr Rose reported using self-talk, counting to 10 and using a Time Out to manage situations where he experienced frustration or anger. It is positive that he is using these skills effectively to manage these situations.”

…

“Attitudes and Beliefs”

“Overall, Mr Rose has begun to identify his personal rules and evaluate the usefulness of these. He has demonstrated his ability to reflect upon this and adapt and change these personal rules when he identifies that these are not effective for him to hold. He will benefit from continuing to recognise and reflect upon his personal rules that he holds currently and has held in the past, so that he is able to apply the skills he has developed to avoid conflict in the future.”

…

“Hostile Thinking”

…

“Overall, Mr Rose has reflected on times he has experienced ruminating and hostile thoughts. He has noted how this affected him at the time and led to him using aggression and violence. He has considered how he could use self-talk to manage these thoughts. He is encouraged to combine this with other skills to develop further in his management of these, so that he is able to effectively manage hostile thoughts in future.”

“Emotion Management”

…

“He demonstrated an understanding of skills which he could use to manage his arousal. … During the practice he demonstrated real development in his ability to use the skill of self-talk, focusing on his grandchildren. … It is positive that in his skills practice Mr Rose noted that he would also use a Time Out skill to give himself time to use the self-talk skill effectively.”

…

“Mr Rose has demonstrated development in using his skills to manage his emotions. He is encouraged to consider how he can use the skills from the programme in combination so that he can manage them effectively and avoid conflict. He will benefit from continuing to practice his skills so that he is confident in his ability within high risk situations in the future.”

“Interpersonal skills/Conflict reduction”

“Mr Rose developed significantly in his insight and awareness of his communication style.”

…

“Mr Rose demonstrated development in his perspective taking. He completed a skills practice of this considering the perspective of his daughter. Initially he appeared to find this quite difficult but was able to reflect on the consequences his offending had upon her.”

…

“Risk Management”

…

“Overall, Mr Rose has developed three Relapse Prevention Plans and considered appropriate skills that he can use to manage high risk situations. He demonstrated a theoretical understanding of how to apply the skills and is now encouraged to continue to practise the skills to further develop his ability to implement them to manage his risk factors.”

Ms Colaço’s report noted:

“5.2

The 2012 assessment considered Mr Rose to have definite lack of insight at the time.

…

5.4

During the last year, Mr Rose engaged in the RESOLVE course to further address his risk related to violence. He demonstrated good progress in developing his insight into the kidnapping offence. … He is now taking more responsibility; acknowledging that within 10 minutes into the offence he realised that the victim was not aware of what was occurring to him, as opposed to his previous account that the victim was fully aware and was party to the offence. … In interview Mr Rose demonstrated his learning well; he was able to identify and explain how key factors contributed to the kidnapping offence, the impact the offence had on different parties, and key things he needs to do in the future to ensure he does [not] increase his risk again.

5.5

Although Mr Rose did not directly explore and address the murder offence during the course, many of the risks associated with the kidnapping offence are also associated with the murder offence, therefore to some degree Mr Rose has developed some insight into the murder offence indirectly. … Mr Rose has further developed his insight into his risk of violence so at this current time I would consider him to have less serious lack of insight.

5.6

The 2012 assessment considered Mr Rose to have less serious negative attitudes at the time.

…

5.7

Since the 2012 assessment, Mr Rose has continued to demonstrate the presence of continued negative attitudes. For example, he received negative behaviour entries in April 2013 regarding comments he made about psychologists and prison ministers being ‘nazis’ during the Victim Awareness Day event. … During the last year, Mr Rose has continued to demonstrate similar negative attitudes. For example, in a general application to the RESOLVE team (15/09/2015) he wrote ‘Devon and Cornwall police on wacky baccy?’. … At his sentencing planning board this year he commented that ‘psychology is the biggest con on earth’ and used the phrase ‘psychobabes’. In interview Mr Rose explained that his negative views of psychologists stem from the experience of previous psychologists repeatedly recommending him for offending behaviour programmes despite him having already been assessed as unsuitable for those programmes. On reviewing past records, there does appear to be some merit in what Mr Rose describes. … Although it is Mr Rose that has placed barriers to engaging in treatment to reduce risk (denying the murder offence), he is choosing to challenge the Category A decisions via judicial reviews, which can be construed as demonstrating a negative attitude towards the risk management process.

…

5.8

In contrast to the above, Mr Rose has demonstrated a positive attitude in other aspects since the 2012 assessment and during the last year. He is noted as polite in his dealings with staff and other prisoners, shows a good proactive approach to his work in shop 10 and the chapel, uses correct procedures for addressing concerns, generally shows a good attitude and patience when dealing with concerns and is a compliant prisoner. There does not appear to have been a significant change in this area since the 2012 assessment, so at this current time I would consider him to have less serious negative attitudes.

…

5.10

The 2012 assessment considered Mr Rose to have no impulsivity. Since the 2012 assessment, there are no indications that impulsivity is a concern relating to violent behaviour. Therefore, at this current time I would consider Mr Rose to have no impulsivity.

5.11

The 2012 assessment considered Mr Rose to have definite unresponsiveness to treatment. His response to problems have been to take an adversarial approach rather than a more positive approach, such as making numerous formal complaints, threatening legal action and threatening judicial reviews, and believing that he does not need to engage in any work to address his risk.

5.12

Since the 2012 assessment, Mr Rose is still displaying some of this kind of behaviour. For example, in interview he confirmed he is still pursuing judicial reviews regarding his category A status. … In contrast to this, Mr Rose has engaged in the RESOLVE course to start addressing his risk of violence and has responded well to treatment. His treatment report outlines that he engaged well in the course, actively contributed to discussions and completed all assignments, developed his openness, discussed the kidnapping offence in detail, and responded well to feedback and challenges from course facilitators. As outlined earlier in this report, he also appears to have progressed significantly in developing his level of insight into his risk in relation to the kidnapping offence. Mr Rose has not yet responded to treatment in relation to his murder offence. At this current time I would consider Mr Rose to have less serious unresponsiveness to treatment.

5.13

In summary, since 2012 Mr Rose has made good progress in the clinical aspects related to his risk, which is very positive to see.

…

5.15

The 2012 assessment considered Mr Rose to have a high probability that plans will not succeed in custody and in the community.

…

5.16

Since the 2012 assessment Mr Rose has been focussing his efforts on starting to reduce his risk. During the last year he fully participated in and completed the RESOLVE course to start addressing his risk of violence in relation to his kidnapping offence, receiving a very positive treatment report on progress. … Mr Rose is also more realistic about his future custodial plans.

…

5.17

When exploring his plans upon release, Mr Rose appeared to be realistic in his considerations and indicated that he has been carefully thinking about this and looking into his options. This is really positive. He outlined how he wants to start up a non-profit website for dealing with Christian music DVDs – ones he produces which churches can use, and also ones which churches produce and want to make available to others through his website. …

5.18

… At the sentence planning board this year it was established that accommodation on release would not be an issue as he has a strong family network to support him. … Mr Rose explained that his plan regarding his non-profit website is also ideal as it is not location specific, so this allows the flexibility to comply with his release conditions, whatever they may be in future. Mr Rose’s future plans appear to be more realistic and more thought through than previously, which shows good progress from Mr Rose. At this current time I would consider there to be a moderate probability that his plans will not succeed in custody (his continued denial of the murder offence may present ongoing barriers to risk reduction and progression) and a low probability that his plans will not succeed on release.

5.19

The 2012 assessment considered Mr Rose to have a low probability of future exposure to destabilisers in custody and a moderate probability of future exposure to destabilisers in the community. … His previous plans to run his own business on release would require initial investment putting financial pressure on him again.

5.20

Since the 2012 assessment, as outlined above, Mr Rose appears to have considered how to manage his risk much more, indicating he has also benefitted from his increased level of insight gained from the RESOLVE course. In interview Mr Rose was able clearly to identify his key destabilisers and how he intends to realistically manage his risk in relation to these.

…

5.22

Mr Rose has yet to explore his destabilisers directly in relation to the murder offence, however, as mentioned earlier, many of his destabilisers appear to be similar to those of the kidnapping offence. Therefore, Mr Rose has started to address this indirectly. At the current time I would consider there to be a low probability of future exposure to destabilisers in custody and a moderate probability of future exposure to destabilisers in the community.

5.23

… Records indicate that Mr Rose continues to have a good level of personal support from family members. He receives visits on family days and has good regular contact with them by phone and letter. During his post course review for RESOLVE, family members attended his review to show him support. This was really positive. There are no indications that this personal support will reduce in future. At the current time I would consider there to be a low probability of future lack of personal support in custody and on release.

5.24

The 2012 assessment considered there to be a moderate probability of future non-compliance with remediation attempts in custody and on release. At the time Mr Rose had not engaged in any treatment work to address his risk and did not appear to have any internal desire to change.

5.25

Since 2012 Mr Rose has shown good progress by engaging and responding well [to] the treatment on the RESOLVE course. He has fully complied with course, completed his post course objectives within the specified time scales, and continues to comply with the rules and regime of custody. He also fully engaged and complied with the recommended work with his offender supervisor in 2013. His internal motivation to change seems to have grown too. … When asked about his views on potential future recommendations of remediation on release, such as community based courses, Mr Rose appeared happy and willing to comply, saying that he ‘quite enjoyed’ the RESOLVE course and wouldn’t mind doing something like that in the future if it was recommended. … At the current time I would consider there to be a moderate probability of future noncompliance with remediation attempts in custody (if it relates to the murder offence) and a low probability of future noncompliance with remediation attempts in the community.

5.26

The 2012 assessment considered Mr Rose to have a low probability of future stress in custody and a high probability of future stress if released.

…

5.27

Since 2012 Mr Rose has engaged in 1:1 work with his offender supervisor and spoken about his kidnapping offence in detail. He was able to manage his risk effectively to complete this 1:1 work. … Mr Rose has been in custody for a significant time so if he were to be in the community now there are likely to be many changes/differences to daily life which Mr Rose would need to adjust to, which may present challenges and may act as stressors. Mr Rose would benefit from considering what these daily differences may be and how he would cope with them when going back out into the community. At the current time I would consider Mr Rose to have a low probability of future stress in custody and a moderate probability of future stress in the community.” (Underlining in the original; bold emphasis added.)

Ms Calaço expressed her conclusions in the following terms:

“7.2

If Mr Rose were to be released into the community today, I consider him to be at moderate risk of future violence. Whilst he still maintains his innocence of the murder conviction and is aware this may be an ongoing barrier to his progression and risk reduction, Mr Rose is keen to progress and demonstrate reduction in risk where possible. He has engaged positively with the RESOLVE programme to address his risk in relation to the kidnapping offence and has made good progress with reducing his risk, including exploring and identifying how he can manage his risk more effectively in the community in future. Although many of the risk factors for the kidnapping offence are similar to the risk factors considered relevant for the murder offence, Mr Rose has yet to directly address his murder offence and fully address all risk areas relating to this, such as what led to him going beyond the kidnapping stage to commit murder. He has therefore not fully demonstrated a reduction in risk relating to the murder offence.

7.3

At the current time I am not recommending release or open conditions for Mr Rose. I would, however, support a progressive move being considered for Mr Rose once he has been downgraded, as he has demonstrated that he can manage well within custody and there are no indications he would present a management problem in the Category B estate. There is also no further recommended offending behaviour work for Mr Rose to undertake within the high security estate.” (Emphasis added.)

Mr Cordwell also used the HCR-20 guidance in assessing the risk presented by the Claimant. His report records:

“1.4

In respect of Mr Rose, it is my opinion, based upon the HCR-20 assessment that he falls within the ‘low’ level of future interpersonal violence based on this assessment being scored for future institutional based violence.”

…

“1.7

It is my opinion that Mr Rose no longer requires the nature and degree of security and containment that a category A establishment offers. He has successfully completed the only treatment intervention that was assessed as being available and suitable for his needs, and therefore I suggest that a progression to a category C prison is an appropriately responsive and proportionate pathway for him.”

It is pertinent to note that at §7.8 Mr Cordwell referred to “important protective factors present for Mr Rose (i.e. factors that are strengths)” as including “a positive willingness to engage in psychological therapies to address his needs”. At §8.3.2 the report, again, recorded Mr Cordwell’s assessment that the risk Mr Rose presents of future institutional violence (i.e. whilst in custody) is low. He also referred at §8.3.3 to the risk of Mr Rose re-offending as falling within the low range, indicating that in the region of 10-12% of offenders in this region re-offend within two years.

At §8.4.2 Mr Cordwell expressed the view that, having maintained his innocence of the murder for the past 15 years, “it is unlikely that it is a psychological position that will alter in the future”. And he noted that there are “no other treatment interventions available for him within the High Secure prison estate”.

Mr Cordwell’s opinion in respect of Mr Rose’s suitability for progression was expressed in these terms:

“8.5.1

It is my opinion that Mr Rose no longer requires the nature and degree of security and containment that a category A establishment offers. He has successfully completed the only … treatment intervention that was assessed as being available and suitable for his needs. A progression to category D conditions at this stage is unrealistic given the length of time he has remained in the High Secure prison Estate. Therefore, I suggest that a progression to a category C prison is an appropriately responsive and proportionate pathway for him.”

…

“8.5.2

It is evident that Mr Rose has remained a category A prisoner throughout his sentence as a result of his level of reputational risk.”

The evidence before the Director (and the LAP) also included a report from Mr Rose’s Supervising Officer, Nicola Fieldhouse (a probation officer), dated 11 February 2016. Ms Fieldhouse reported that Mr Rose had sought to access offending behaviour programmes for many years, based on his admission of the offence of kidnap, but there had been inconsistent assessments of his suitability for various interventions and, as a result, he had not been admitted to any programme until, in 2015, he was deemed suitable for RESOLVE based on the kidnap offence. Ms Fieldhouse observed:

“Mr Rose had developed a negative view of Psychology due to feeling hindered by varying assessments of him and has voiced this quite publicly. However, he approached the RESOLVE programme with an open mind and subsequently received a positive post-programme report. Mr Rose attended his post-programme review in October 2015 and his daughter and son-in-law were also there. Both his programme Keyworker, Roisin Orchard, and Mr Rose were surprised by the progress he had made. Mr Rose is said to have applied himself well to the work on the programme and became increasingly open about his offence (the kidnap) in individual sessions with Roisin. He had previously blamed his wife’s lavish lifestyle for the motivation for his offence and also said the victim was complicit. He now accepts that it was his choice to offend and that he was quickly aware the victim was not complicit in the offence but chose to continue to hold him and demand a ransom. … During the programme Mr Rose was able to give concrete examples of how he applied the tools/skills he had gained in a variety of situations and continued to do so as part of his post-programme objectives.”

“Mr Rose has produced a DVD aiming to promote RESOLVE to other inmates and has also applied to become a peer mentor for the programme, which I have supported. Completion of the RESOLVE post-programme objectives and applying to become a peer mentor were sentence planning targets set in October which Mr Rose has completed.”

“Mr Rose has also co-operated with the completion of his HCR-20 as per his sentence plan. The conclusion of the HCR-20 is that Mr Rose has successfully begun to address his risk factors and is encouraged to continue to apply the learning from RESOLVE. The HCR-20 report’s only apparent recommendation for further/outstanding work for completion is to explore interventions as and when Mr Rose takes responsibility for the offence of murder; it is my view that Mr Rose is highly unlikely to admit culpability. However, the personal awareness and skills he has developed by undertaking RESOLVE would apply to many of the risk factors associated with both the murder and kidnap offence.”

…

“Mr Rose still highlights any grievances he might have and challenges aspects of ‘the system’ but does this by legitimate means.” (emphasis added)

In his Decision, after setting out the background and describing the evidence and representations, the Director sets out his conclusion and reasons. In summary, the Director concluded that that “Mr Rose has not shown significant progress on the risk factors shown by his serious offending” or “a significant reduction in Mr Rose’s risk of similar offending if unlawfully at large”. His reasons for reaching this conclusion were:

Finally, the Decision records:

“The DDC High Security considered there are in the meantime no grounds for Mr Rose’s present review to undergo an oral hearing. He accepted Mr Rose is over tariff and has been in prison for some years, but considered these facts alone are not grounds for an oral hearing. He considered the conclusions of the reports and LAP are readily understandable in written form and do not require an oral hearing to fully explore or resolve. He accepted there are no further specific courses recommended for Mr Rose and that his risk assessment remains hampered by his denial of guilt of murder. He considered however that an oral hearing is not needed to understand or to resolve these issues. He considered there are also no other issues relevant to Mr Rose’s review and risk assessment that can be resolved only through an oral hearing.”

Mr Hare QC, counsel for the Secretary of State, sought to put in evidence a Parole Board decision letter dated 26 January 2017. Mr Bunting, counsel for the Claimant, objected to this document being adduced. He relied on the approach taken by Sales LJ in R (Hassett and Price) v Secretary of State for Justice [2017] EWCA Civ 331 at [11], where he rejected an application to admit fresh evidence in a similar context.

I agree with Mr Hare that it is important to recall the distinction between an application to admit fresh evidence on appeal to the Court of Appeal, and an application to adduce evidence at first instance. In circumstances where the Claimant was not prejudiced by the late production of this document, I am prepared to admit it in evidence. Nevertheless, the passage of Hassett and Price on which Mr Bunting relied is strongly supportive of his contention that evidence which has come into existence after the Director refused an oral hearing cannot carry any weight in assessing the lawfulness of the decision.

However, I also note that the Claimant relies on a report dated 9 February 2017, written by Nicola Fieldhouse, a probation officer and the Claimant’s Offender Supervisor. The same objection to giving any weight to material that only came into existence after the Decision could be made in respect of this report.

Although I have not ruled this evidence inadmissible, I do not consider the documents, neither of which was before the Director when he made his Decision, is of any relevance in assessing the lawfulness of his Decision.

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 he 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” (Prison Service Instruction [“PSI”] 08/2013, §2.1). This definition is subject to a proviso in §2.2, which may apply where the aim of making escape impossible can be achieved, in view of the circumstances of a particular prisoner, in lower conditions of security. But it has not been suggested the proviso is relevant in this case.

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”.

PSI 08/2013, entitled The Review of Security Category – Category A/Restricted Status Prisoners, was revised and re-issued on 10 June 2016, shortly before the Decision was made. At §4.1 it provides for annual reviews of a confirmed Category A prisoner’s security category, on the basis of progress reports from the prison. These reviews include consideration by a local advisory panel within the prison, which should submit a recommendation to the Category A Review Team (“CART”). If the local advisory panel recommends downgrading, the decision on the annual review will be taken by the Director rather than the Category A Review Team.

At §4.2 the policy provides that before approving the downgrading of a confirmed Category A prisoner’s security category, the Director

“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.”

PSI 08/2013 gives guidance, at §§4.6-4.7, on the question whether an oral hearing should be held in respect of the annual review of a Category A prisoner’s security categorisation, in these terms:

“4.6

The DDC High Security (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, Booth, Reilly 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 an 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:

(a)

Where important facts are in dispute. Facts are likely to be important if they go directly to the issue of risk. Even if important, it will be necessary to consider whether the dispute would be more appropriately resolved at a hearing. For example, where a significant explanation or mitigation is advanced which depends upon the credibility of the prisoner, it may assist to have a hearing at which the prisoner (and/or others) can give his (or their) version of events.

(b)

Where there is a significant dispute on the expert materials. These will need to be considered with care in order to ascertain whether there is a real and live dispute on particular points of real importance to the decision. If so, a hearing might well be of assistance to deal with them. Examples of situations in which this factor will be squarely in play are where the LAP, in combination with an independent psychologist, takes the view that downgrade is justified; or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds. More broadly, where the Parole Board, particularly following an oral hearing of its own, has expressed strongly-worded and positive views about a prisoner’s risk levels, it may be appropriate to explore at a hearing what impact that should or might have on categorisation.

(c)

It is emphasised again that oral hearings are not all or nothing – it may be appropriate to have a short hearing targeted at the really significant points in issue.

(d)

Where the lengths of time involved in a case are significant and/or the prisoner is post- tariff. It does not follow that just because a prisoner has been Category A for a significant time or is post tariff that an oral hearing would be appropriate. However, the longer the period as Category A, the more carefully the case will need to be looked at to see if the categorisation continues to remain justified. It may also be that much more difficult to make a judgement about the extent to which they have developed over the period since their conviction based on an examination of the papers alone.

(e)

The same applies where the prisoner is post-tariff, with the result that continued detention is justified on grounds of risk; and all the more so if he has spent a long time in prison post-tariff. There may be real advantage in such cases in seeing the prisoner face-to-face.

(f)

Where there is an impasse which has existed for some time, for whatever reason, it may be helpful to have a hearing in order to explore the case and seek to understand the reasons for, and the potential solutions to, the impasse.

(g)

Where the prisoner has never had an oral hearing before; or has not had one for a prolonged period.” (Original emphasis)

In the grounds of claim, dated 1 September 2016, the Claimant relied on the guidance given by the Supreme Court in Osborn and Booth v Parole Board [2014] AC 1115, submitting that although the functions of the Parole Board and of the Director or Category A Review Team are different, the guidance applies with equal force to Category A review decisions. Since the claim was filed, the Court of Appeal has given judgment in Hassett and Price. Mr Bunting acknowledges that I am bound by the Court of Appeal’s judgment. In particular, whilst reserving his position in the event of an appeal, the Claimant accepts that I am bound by the conclusion of Sales LJ that the “factors given particular weight” by the Supreme Court in Osborn in the Parole Board context “either do not apply at all or with the same force in the context of security categorisation decisions by the CART/Director” (Hassett and Price at [56]).

In Hassett and Price the Court of Appeal acknowledged at §2 the impact that a decision to maintain a prisoner in Category A has on his conditions of detention and on his prospects of being granted parole:

“Where a prisoner is placed in Category A, that will affect the conditions of detention to which he is subject, as the Secretary of State has to take special care to prevent his escape. It is also likely to affect his prospects of being granted parole, as it would only be in a very rare case that the Parole Board would order release of a prisoner from Category A detention without his suitability for release first being tested in more open conditions as a Category B, C or D prisoner: R v Secretary of State for the Home Department, ex p. Duggan [1994] 3 All ER 277 (DC), 280 and 288; R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498 [2002] 1 WLR 2264, [23]-[24].”

In the passages of Duggan cited by Sales LJ, Rose LJ observed:

“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.” (280h-j)

“So long as a prisoner remains in category A, his prospects for release on parole are, in practice, nil. The inescapable conclusion is that which I have indicated, namely, a decision to declassify or continue the classification of a prisoner as category A has a direct impact on the liberty of the subject.” (288d)

Similarly, in the passages from the Court of Appeal’s judgment in Williams which Sales LJ cited in Hassett and Price, Judge LJ (giving the judgment of the Court) observed at [24]:

“We are not surprised to be told that, with the exception of the release of three prisoners under the “Peace Process” in Northern Ireland, no Category A prisoner serving a sentence of life imprisonment has been released. Certainly, as far as the panel is concerned, the conclusion of the categorisation committee or review team inevitably has a direct and marked impact on its decision.”

In practice, the prospects of a prisoner who is serving a life sentence being released on parole from Category A remain, as they were in 1993 and 2002 (when the judgements in Duggan and Williams were, respectively, handed down), effectively nil - other than in the most exceptional circumstances, such as in the context of the Northern Ireland peace process.

The Claimant submitted that the Director had failed to have regard to his legitimate interest in participating in a decision which has such important implications for him. It is a fair observation that the Director does not indicate that he has borne in mind the importance of the issues to the prisoner. But the Director is bound to be well aware of the practical reality for the Claimant in terms of the greater level of restrictions in Category A and the impact on his ability to secure his release on parole. I do not consider that the Decision is unlawful for failure to have regard to this consideration.

Nevertheless, in considering Mr Rose’s primary argument that the Director has not properly or fairly applied the policy to his case, I have borne in mind the importance of the decision to him, as recognised in the policy. As Lord Reed JSC observed in Osborn at [68] “justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions”.

In his skeleton argument and oral submissions, Mr Bunting contended that the decision not to hold an oral hearing was unlawful because the Director failed properly to apply the policy set out in §§4.6 and 4.7 of PSI 08/2013. Mr Hare submitted that it was not open to the Claimant to depart from his grounds and put his case in this different way. I reject Mr Hare’s objection. The Claimant’s grounds allege that the decision was in breach of procedural fairness and the factors relied on in support of this contention were very largely based on, and repeatedly cited, PSI 08/2013: Claimant’s Grounds, §29. One strand of the Claimant’s argument in his Grounds is not pursued, at this level, namely his reliance on Osborn to demonstrate fairness required an oral hearing. But it was readily apparent that there was another strand to the argument, based on the policy, which the Claimant maintains.

It is well established that a decision-maker must follow his own policy unless he has a good reason not to do so. This public law principle is grounded in fairness and, more broadly, the requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. It is also clear that the meaning of a policy is a question of law for the court to determine. See, for example, Mandalia v Secretary of State for the Home Department [2015] 1 WLR 4546 at [29]-[31] (per Lord Wilson JSC, with whom all members of the Court agreed). These basic principles were not in dispute.

The Secretary of State did not contend that there was good reason to depart from the policy. The argument between the parties was centred on the question whether, in deciding that no oral hearing should be held, the Director failed properly to understand and apply the policy to this case. Moreover, the Secretary of State submitted, and I accept, that the fairness of the decision not to hold an oral hearing must be viewed in the context of the guidance given in Hassett and Price:

“61.

Some of the factors highlighted by Lord Reed [in Osborn] will have some application in the context of decision-making by the CART/Director, but will usually have considerably less force in that context. However, it deserves emphasis that fairness will sometimes require an oral hearing by the CART/Director, if only in comparatively rare cases. In particular, if in asking the question whether upon escape the prisoner would represent a risk to the public the CART/Director, having read all the reports, were left in significant doubt on a matter on which the prisoner’s own attitude might make a critical difference, the impact upon him of a decision to maintain him in Category A would be so marked that fairness would be likely to require an oral hearing.”

“69.

I would add that even in a case where there is a significant difference of view between experts, it will often be unnecessary for the CART/Director to hold a hearing to allow them [to] ventilate their views orally. This might be so because, for example, there may be no real prospect that this would resolve the issue between them with sufficient certainty to affect the answer to be given by the CART/Director to the relevant question, and fairness does not require that the CART/Director should hold an oral hearing on the basis of a speculative possibility that that might happen: see Downs at [45].”

PSI 08/2013 states, at §4.6, that the guidance involves “identifying factors of importance … that would tend towards deciding to have an oral hearing” (emphasis added). The process is “not a mathematical one”, but unsurprisingly the policy suggests that “the more of such factors that are present in any case, the more likely it is that an oral hearing will be needed”.

I have set out the guidance at §33 above. The Claimant contends that each of the factors specified in subparagraphs (a), (b), (c) and (d) applies, and so in deciding not to hold an oral hearing the Director has failed to apply the policy.

There is no dispute that many of the “factors that would tend in favour of an oral hearing being appropriate” apply.

First, the Claimant has “never had an oral hearing before”, in respect of his security categorisation (§4.7(d)).

Secondly, the Claimant is “post-tariff, with the result that continued detention is justified on grounds of risk” (§4.7(c)). This is a factor the Director expressly acknowledged.

Thirdly, the “lengths of time involved” are clearly “significant”: the Claimant has been a Category A prisoner since he was first held on remand in 1990 (§4.7(c)). The Director referred to this factor, noting that the Claimant has been in prison for “some years”.

Fourthly, there is an “impasse which has existed for some time”. This is a consequence of the Claimant’s continued denial of the murder of which he has been convicted, but as Mr Bunting emphasised, the policy states that, whatever the reason for the impasse, if there is one it may be helpful to have a hearing (§4.7(c)).

Ms Colaço advised that there was no further offending behaviour work for Mr Rose to undertake within the high security estate, unless he changes “his stance regarding the murder offence in future” (Colaço report, §7.3). Mr Cordwell, too, advised that there were no treatment interventions available for him whilst he remains a Category A prisoner and expressed the opinion that having maintained his innocence of the murder for so long, it was unlikely that this psychological position would alter in the future. Mr Rose’s Offender Supervisor also advised that he was unlikely to admit culpability in respect of the murder.

The Director acknowledged that there were “no further specific courses” recommended for Mr Rose and expressed the view that “his risk assessment remains hampered by his denial of guilt of murder”. But he considered that an oral hearing was not needed to understand or resolve these issues.

It is clearly the case, as Sales LJ observed in Hassett and Price at [70], that:

“Where a prisoner refuses to accept responsibility for an offence of which he has been found guilty … that is likely to have an effect on the relevant risk assessment made in relation to him for the purposes of a Category A review decision, as explained by Elias J in R (Roberts) v Secretary of State for the Home Department [2004] EWHC 679 (Admin) at [36]-[42].”

Nevertheless, whatever the reason for it, the policy makes clear its existence is a “factor of importance” tending “in favour of an oral hearing” because, even if the reasons for the impasse are understood, it may be helpful to have a hearing to explore the potential solutions to the impasse. Whilst, of course, it may be said that the solution is for Mr Rose to take responsibility for the murder offence, the evidence is clear that there is little prospect he will do so. The purpose of an oral hearing would, therefore, be to explore whether there are any other potential solutions to this impasse. Given the degree to which Mr Rose has admitted committing a serious offence involving instrumental violence (i.e. the kidnapping), the impact of his denial of the murder on the ability to assess the risk he presents, whilst important, is less stark than would often be the case.

The applicability of factors (a) and (b), in §4.7 of PSI 08/2013, was rather more contentious. Mr Bunting contended that “important facts are in dispute”, namely, the extent to which Mr Rose has shifted in his insight and responsiveness to treatment. In my judgement, this is a question of assessment rather than a factual dispute. I accept Mr Hare’s contention that §4.7(a) of PSI 08/2013 is not engaged on the facts of this case.

The most important factor in this case is (b). The guidance indicates that if there is a “significant”, “real and live” dispute on the expert materials, “a hearing might well be of assistance to deal with them”. The first example given of a situation in which this factor will, according to the guidance “be squarely in play” is where “the LAP, in combination with an independent psychologist, takes the view that downgrade is justified”.

In my view, it is clear that this (fifth) factor is “squarely in play” in this case:

Mr Hare acknowledged that the case falls within the example. However, he submitted that there was no real and live dispute between the experts and, even if there was, the Court of Appeal said in Hassett and Price (at [69]) that it will often be unnecessary for the Director to hold a hearing, even where there is a significant difference of view between experts.

It may be said that there is no significant difference of view between the experts. The LAP has recommended that Mr Rose should be downgraded, and their recommendation is consistent with the thrust of the reports from both the prison psychologist and the independent psychologist, as well as the Offender Supervisor. However, in my judgement, the fact that it is not only the LAP in combination with an independent psychologist recommending downgrading, but this is also consistent with the prison psychologist’s report, cannot assist the Secretary of State. It renders Mr Rose’s case for an oral hearing all the stronger.

As Lord Bingham observed in R (West) v Parole Board [2005] 1 WLR 350, at [35], it “may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker”. In circumstances where the LAP concluded Mr Rose had demonstrated a significant reduction in risk, and recommended down-grading him to Category B, and the evidence could fairly be said to be consistent with and supportive of the LAP’s recommendation, the opportunity that an oral hearing allows to discover and address the points that were troubling the decision-maker was particularly vital.

In Hassett and Price at [51(i)] Sales LJ observed that it is “appropriate to take account of the extent to which a prisoner has had a fair opportunity to put his case at other stages of the information-gathering processes within the system as a whole”. In this case, as in Hassett and Price, Mr Rose has had opportunities to impress a range of officials, and he has had contact with psychologists. But it is no answer, in his case, that he has had such an opportunity because the reports of those to whom he had put his case were supportive of down-grading.

In my judgement, in deciding not to hold an oral hearing, the Director did not properly or fairly apply PSI 08/2013. Whilst oral hearings in the context of categorisation reviews will be “comparatively rare” (Hassett and Price, at [61]), all save one of what are described by the policy as important factors tending in favour of an oral hearing are squarely in play in this case. Above all, this was a case where the thrust of the evidence and the LAP recommendation favoured down-grading of a post-tariff life prisoner and, if he was not down-graded, there was an impasse. This does not mean that it was not open to the Director to make a rational finding that Mr Rose should remain in Category A. But it does mean that he could not lawfully do so without giving Mr Rose an opportunity to address the points that were troubling him at an oral hearing.

For the reasons I have given, the Director’s decision not to hold an oral hearing was unlawful and, accordingly, this claim for judicial review is allowed.

The Claimant’s claim for judicial review is allowed;

The Defendant’s decision of 14^th June 2016, to refuse to hold an oral hearing of the Claimant’s Category A review, is quashed;

The Defendant shall hold an oral hearing of the Claimant’s Category A review on the first available date, using the most up-to-date reports which are available;

The Defendant shall pay the Claimant’s costs of the judicial review claim on the standard basis, to be assessed if not agreed;

The Claimant’s costs of the claim be the subject of a detailed assessment in accordance with the Civil Legal Aid (Costs) Regulations 2013 and CPR, r. 47.18.

The Defendant to file, if so advised, submissions for leave to appeal, for a stay of paragraph 3 of this order, pending any such appeal, and on costs set-off (of £4,010 for the costs ordered to be paid by the Claimant to the Defendant in respect of action CO/4280/13) within seven days of hand down of judgment;

The Claimant to file any submissions in response within seven days thereafter.