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

The claimant, Mr Steele, is a serving prisoner. He is detained in Category A conditions and he has been throughout his 22 years or so in prison. Category A is the highest security category in the prison estate. Mr Steele’s escape risk clarification has varied over the last 22 years but it was downgraded to standard in July 2006 and has remained static since then. On 15 June 2017, the Director of Long Term and High Security Prisons Group, the Director, reviewed Mr Steele’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 Steele should remain in Category A. Mr Steele challenges the Director’s decision not to hold an oral hearing. He was granted permission on the papers by Morris J, a High Court judge on 17 January 2018.

Dealing briefly with the facts of the claimant’s offences. On 20 January 1998 at the Central Criminal Court, the claimant was convicted of murder of Patrick Tate, Anthony Tucker and Craig Rolfe. He was also convicted of conspiracy to import cannabis. On 4 March 1998, the claimant was sentenced to life imprisonment with a tariff of 23 years. It was alleged that the claimant, with a co-accused, Mr Whomes, lured the victims to a secluded spot for a lucrative drug deal and shot them in the head as they sat in a Range Rover. The claimant has always maintained his innocence in respect of the murder offence.

Dealing now with the Local Advisory Panel’s recommendation. In 2016, a local area panel met and recommended that the claimant be downgraded to being a Category B prisoner. The defendant refused to confirm that. The claimant brought judicial review proceedings which were never fully resolved and became academic when this challenge was made to the 2017 decision. On 3 May 2017, the Local Advisory Panel met to consider whether to recommend that the claimant be downgraded to a Category B prisoner. The panel consisted of three governors of HM Prison Frankland, HM Prison Frankland’s Category A manager, the claimant’s wing manager and two officers there from and representatives of the prison psychology and probation. They recommended that the claimant be downgraded to being a Category B prisoner. Their reasons were as follows:

“The Board noted that Mr Steele has spent his custodial sentence demonstrating positive engagement with staff/professionals along with his age and maturity. The Board noted that Mr Steele had developed strong protective factors throughout his time in custody which are evidenced through his own representations and reports included with his dossier. Whilst Mr Steele engages with sentence planning, his has not completed any offending behaviour programme works to address the risk factors suggested by his offending, largely due to him maintaining his innocence. However, the Board noted his offences dated back 25 years when Mr Steele had an entrenched criminal attitude/lifestyle, something which he has not evidenced whilst in custody. Mr Steele has been recommended for some one-to-one work prior to completing Resolve, to develop his motivation and insight, something, he has declined to complete whilst located at HMP Frankland as he is unable to work with psychology/programme staff. The Board recommended that given Mr Steele’s offences were twenty-plus years ago, his age/maturity along with his exemplary custodial behaviour and his developed protective factors that now would be an appropriate time to afford him the opportunity to be downgraded and placed in less secure conditions with a view that the one-to-one work and Resolve is completed. The Board recognises that his mistrust with psychology will still be present in Category B conditions and it will be a slow process of engaging him but the Board felt he no longer required Category A conditions.”

In his decision, after setting out the background and describing the evidence and representation, the Director sets out his conclusion and reasons. In summary, the Director concluded that evidence of a significant reduction in Mr Steele’s risk of similar re-offending if unlawfully at large is still not shown despite his general compliance with the regime. He is therefore satisfied Mr Steele’s downgrading cannot be justified and he must stay in Category A at this time. His reasons are expressed as follows:

“The Director considered Mr Steele’s offending showed he would pose a high level of risk if unlawfully at large and that before his downgrading could be justified there must be clear and convincing evidence of a significant reduction in this risk. The Director carefully noted the LAP recommendation and Mr Steele’s representations but considered that there are no grounds to depart from the last decision in 2016. He accepted Mr Steele has been in custody many years and is well-behaved. He noted the reports and nonetheless confirmed Mr Steele remains firmly unwilling to discuss or to address his most serious offending of the related risk factors. He noted that despite having the full opportunity to discuss and address his offending, Mr Steele has consistently declined to engage with relevant staff in prison to enable assessment of offence-related insight and progress, including his recent refusal to take part in the Resolve programme or one-to-one work. This continues to prevent a reliable assessment of significant and lasting change in the risk factors underlying Mr Steele’s serious offending, despite his general regime compliance”

He also carefully took into account the correct criteria for a downgrading from Category A, i.e., that there must be convincing evidence of a significant reduction in the prisoner’s risk of similar offending if unlawfully at large and not if moved to less secure conditions or even if released under supervision. On that basis, compliant custodial behaviour has suggested manageability in less secure conditions are insufficient on their own to justify downgrading. He noted Mr Steele’s age but has no evidence of health or mobility problems that might affect his risk assessment or suggest his escape could be made impossible in less secure conditions.

The Director noted past reports and recommendations including in the private report referred to and had been fully and properly considered in past reviews and correspondence and detailed responses have been given explaining why these have not provided convincing evidence of a significant reduction in Mr Steele’s risk if unlawfully at large. He considered there are also no grounds for an oral hearing for the present review. He accepted Mr Steele has been in custody many years and is post tariff but considered these facts to not provide sufficient grounds for an oral hearing without other compelling reasons. He considered there are no such compelling reasons in Mr Steele’s case. He considered all the reports are readily understandable and do not require an oral hearing to explain or to resolve. He considered he did not need to hear directly from either Mr Steele or the report writers to further clarify the available information or the level of Mr Steele’s progress. He noted there are also no current alternative assessments suggesting Mr Steele has achieved significant risk reduction, such as from the Parole Board. He considered there is no impasse in Mr Steele’s progression as suitable interventions are readily available to help him address his offending and show risk reduction. He considered any impasse in terms of Mr Steele discussing and addressing his most serious offending is self-imposed by his denial of guilt of offences of which he has been lawfully convicted. He did not accept an oral hearing was required to understand or resolve such an impasse.

The Director considered evidence of a significant reduction in Mr Steele’s risk of similar reoffending if unlawfully at large is still not shown despite his general compliance with the regime. He is therefore satisfied Mr Steele’s downgrading cannot be justified and he will stay in Category A at this time. The legal framework is as follows:

A prisoner may lawfully be confined to such a prison as the Secretary of State directs, that is section 12 of the Prison Act 1952. The Secretary of State has the power to make rules for the classification of prisoners and has done so in the Prison Rules, Statutory Instrument 1999/7(7). Rule 7 of the Prison Rules provides, subject to exceptions which are not applicable to this case as follows.

‘Prisoners should 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, 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-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’.

That is a Prison Service Instruction 08213, paragraph 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 particular circumstances of a particular prisoner in lower conditions of security but it has not been suggested that provisos are 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’. PSI082013 entitled the review of security category – Category A Restricted Status Prisoners was revised and reissued on 10 June 2016. In paragraph 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, colloquially known as 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 paragraph 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 reoffending 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.

The same PSI gives guidance at paragraphs 4.6 and 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 classification. It is in these terms:

The claimant contends that the Director, in making his decision, did not fairly or properly apply the PSI082013. The claimant submits that a number of factors which would tend in favour of an oral hearing are present in this case. The first of these is that is contended there is a factual dispute. The claimant’s counsel contends in the skeleton argument that the factual dispute is whether the claimant is unwilling to discuss or address his most serious offending or the related risk factors, or whether as the claimant himself has identified, (a) he was deemed unsuitable for the offending behaviour courses, (b) he has been misunderstood as to his willingness to engage with psychology, (c) he could not actually access appropriate offending behaviour courses in the high security estate.

The second issue that the claimant’s counsel contends applies in this case is that there is a dispute on the expert materials. It is submitted that significant weight ought to have been afforded to the Local Advisory Panel and that their conclusion that the claimant no longer required Category A conditions was an expert assessment of the risk that the claimant posed. Indeed, that echoed the recommendation from the previous year, 2016, which had in itself referred to a previous assessment of Laura Powling, an independent psychologist who had also concluded the claimant ought to progress to Category B albeit in 2012. The claimant’s counsel contends there is a disagreement now between the Local Advisory Panel and the defendant which has occurred for the last two years. In addition, the Local Advisory Panel was informed by the expert report of Doctor Powling and there is a specific example given in the PSI where the Local Advisory Panel in combination with independent psychologists takes the view that downgrade is justified. As that is so in the present case, that should have militated in favour of an oral hearing.

The third factor is the length of time that the claimant has been on Category A. In the claimant’s case it is roughly 20 years. I think it is more than 20 years. The guidance says that the longer the claimant has been on Category A the more carefully the case will need to be looked at. The defendant says that that was taken into account but the claimant complains of the way in which the defendant expressed the reasoning insisting there would need to be compelling reasons in addition to the length of the time spent in Category A, which does not accord with the policy as expressed in the PSI. In addition, the claimant is post-tariff and has never previously had an oral hearing. The claimant is currently 74 years old.

The final point the claimant wishes to make is that there is an impasse as stated in paragraph 4.7(c) which is a factor which favours an oral hearing. The Local Advisory Panel identified such an impasse in 2016 and 2017 whilst the defendant denies there is an impasse, the claimant says it is obvious there is an impasse in relation to the claimant’s need, ability and willingness to engage in offending behaviour in the Category A estate. The conclusion put forward by the claimant is that the defendant has not fairly or properly applied the considerations in the PSI082013, that the claimant’s case is similar to a comparable case of R (On the application of Rose) -v- Secretary of State for Justice [2017] EWHC 1826 and that the court in this case should quash the decision to refuse an oral hearing in the same way that the court did in Rose.

The defendant relies on the fact that the claimant has not completed an offending behaviour programme to assess the risk factors suggested by his offending. Nor has he been willing to discuss his treatment needs. The defendant says that it therefore becomes impossible or extremely difficult to accurately determine significant offence-related insight and progress. The defendant says that the claimant is wrong to suggest that this case is similar to the claimant in Rose. In the case of Rose, Mr Rose admitted a violent kidnapping which had similar factual matrix to the murder that he was consistently denying. He had also successfully completed psychological work to address the kidnapping which was the Resolve programme. There were supportive psychological reports from two psychologists which were concurrent with the application, or virtually concurrent which confirmed he had developed insight and confirmed a reduction in risk. There was accepted evidence that if he was not downgraded he was effectively at an impasse in terms of future categorisation. The defendant says the claimant in this case is not at an impasse because he has been offered one-to-one work with a view to preparing for the Resolve programme which he has chosen, for his own reasons, not to accept.

The defendant also relies on a number of decisions about the categorisation process which are relevant to the court’s review of the decision of the Director in this case. In particular, in Roberts, (Regina on the Application of) -v- Secretary of State for the Home Department [2004] EWHC 679, Mr Justice Elias, as he then was, says, ‘Where the index offence is so great as they will inevitably in Category A cases, CART can justifiably require cogent evidence that the risk has diminished’. In McKie, which I am going to return to in due course it was said that the court should not be too ready to conclude that there is an impasse or even an inconsistency where there may be no more than a difference of view, perhaps for very good reasons. Similarly, in Downs, which again I’m going to refer to later, it was said that the Director, assisted by his advisors and with the benefit of not only the Local Advisory Panel recommendation, but the extensive reports on the prisoner would be able to, except in rare cases, resolve all the disputes of evidence including disputes between experts on the paper. There is also reliance on certain legal principles about procedural fairness which I am going to detail very briefly, mainly based on the decision in Hassett (R, on the Application of) -v- The Secretary of State for Justice, Court of Appeal [2017] EWCA Civ 331, the decision of the Court of Appeal.

On the actual grounds as put forward, the Director would say that whether the Claimant is willing to engage in offender behaviour programmes is not a fact in dispute but is a question of assessment. This was the decision of Deputy High Court Judge Steyn in the case of Rose that I want to refer to later. The defendant also says that the facts that are in dispute are not directly related to risk as they should be in accordance with the PSI. Effectively, the defendant is saying that no real dispute of fact has been identified and even if it were properly identified it would not require an oral hearing.

In relation to the dispute between the decision maker and the Local Advisory Panel, the defendant relies on the fact that whilst there is a dispute in the sense of what the end result should be, both the Director and the Local Advisory Panel agree that the claimant has completed no offending programmes and that he appears to have refused to engage during the report period and that given that unanimity, it is possible for the defendant to lawfully take the recategorization decision on the papers. The defendant relies on the fact that the defendant does not express any opinions, it is actually the decision-making body and the concept of it being in dispute with the Local Advisory Panel is a difficult one to analyse. According to the defendant, this particular provision is more intended to deal with cases where two experts who have both reported back to the Local Advisory Panel come to differing views about issues in the case and in those circumstances, it may be helpful to hear those views orally.

As far as length of time and the claimant being post-tariff, those are accepted by the defendant as accurate but it specifically says in the guidance that it does not follow that just because a prisoner has been Category A for significant time, or is post-tariff, then an oral hearing would be appropriate and it was submitted by Counsel on behalf of the defendant that it would be very unusual for an oral hearing to be convened in circumstances where that was the only factor put forward.

In terms of the impasse, it is contended on behalf of the defendant that there is no such impasse. The defendant relies on the Court of Appeal’s statements in McKie about the appropriate treatment of alleged impasses and I am going to refer to that later in the judgment. In addition, the defendant relies very strongly on the fact that this claimant has failed to take part in any offender behavioural programmes and by declining to even undertake assessment of what his treatment needs might be, has contributed to his situation where as the decision put it, it is impossible to accurately determine significant events, related insight and progress despite his compliance with the regime and other positive factors and that the cause of his impasse, if it indeed exists, is his decision not to cooperate due to ongoing legal proceedings and distrust towards the Psychology and Programmes Department at HMP Frankland as recorded in the LAP decision. The defendant also disagrees with the claimant that Rose is applicable for the reasons I have already indicated.

In considering Mr Steele’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 the claimant as recognised in the policy as Lord Reed observed in Osborn, paragraph 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. 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 consistent with the public. It is also clear the meaning of a policy is a question of law for the court to determine’.

These basic principles were not in dispute in the course of this hearing.

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. It is therefore necessary for me to examine the various factors set out in the PSI, at paragraph 4.7 and decide whether and to what extent they are engaged in this case. The first factor is whether important factors are in dispute. Facts are likely to important if they go directly to the assessed risk. There is a factual dispute about whether the claimant was willing to engage with offending behaviour programmes. The claimant claims there is an issue about the availability and suitability of such programmes, but I am not convinced that is made out. The claimant claims to have been misunderstood.

It seems to me, however, that the position is clearly set out in 2017 LAP report, at page 20, which records as follows:

There is no issue about this between the Local Advisory Panel and the decision maker certainly. Having examined the contentions which the claimant makes somewhat intemperately and his submissions to the Local Advisory Panel at page 42 onwards of the hearing bundle, I doubt whether an oral hearing would enable him to make good the contention that he has not refused to engage with psychology staff. I find myself in agreement with Deputy High Court Judge Steyn QC in Rose at paragraph 55 where she accepts that whether Mr Rose shifted in his responsiveness to treatment is a question of assessment rather than a factual dispute. I also accept the submission of Mr Slater today that even if Mr Steele’s willingness to engage in treatment programmes is a question of fact, it is not an important fact going directly to the issue of risk. I find this issue is not effectively engaged in Mr Steele’s case.

The second issue is whether there is a significant dispute on the expert materials. I accept that this consideration is engaged here as a Local Advisory Panel is considered an expert and the decision maker comes to a different view on categorisation based on his view of assessment of risk. I think the real issue here is not whether this paragraph of the guidance is engaged, but whether it justified an oral hearing. Whilst it is true that the Local Advisory Panel felt the downgrading was justified, I think it may be going a little too far to say that the decision was reached in combination with an independent psychologist. The Panel had the report of Doctor Laura Powling prepared in January 2012 amongst the wealth of material in the dossier they considered, but it was not specifically referred to in the 2017 decision although it was mentioned obliquely in the 2016 decision. It was certainly vintage and the defendant might say out of date. It is clear that the existence of a dispute between experts does not necessarily mean that an oral hearing might be of assistance to the Director. I can understand the point which Mr Slater makes that a dispute between the LAP and the Director is not really a dispute between experts as such.

The authority for the proposition that it may not be always necessary to hold an oral hearing is the decision in Downs, Regina (on the Application of) -v- Secretary of State for Justice [2011] EWCA Civ 1422, the leading decision by Justice Aikens and in that case, Lord Justice Aikens had to deal with a genuine dispute between two experts, both of whom had reported before the LAP. Just in with extracts, the two experts were called Ms Wilson and Ms Hewitt. What he said about this was:

In this case, there was no actual difference of opinion between two experts. The decision maker appears to have accepted the factual basis of the LAP report and recorded that the reports are readily understandable and do not require an oral hearing to explain or to resolve. The factor which was fatal to Mr Steele’s case was his failure to engage in any offending behaviour programmes to reduce the risk of offending if at large. This was not something which the LAP disputed and was clearly set out in their report. The fact that the Director does not need to hold an oral hearing to deal with this issue is supported by Lord Justice Sales at paragraph 69 of Hassett where he says, ‘I would add that even in a case where there is significance difference of view between experts, it will often be unnecessary for the Director to hold a hearing to allow them to ventilate their views orally’. The neutral citation for Hassett is [2017] EWCA Civ 331.

The third factor contains three elements, the length of time served, whether the prisoner is post-tariff and whether there is an impasse. The decision maker dealt with the first two of these issues in a way which did trouble me. I will read again specifically what was said:

‘He accepted Mr Steele has been in custody many years and is post-tariff but considered these facts do not find sufficient grounds for an oral hearing without other compelling reasons. He considered there are no such compelling reasons in Mr Steele’s case’.

I’m not sure the decision maker is right to say there needs to be other compelling reasons. The policy does not state that there have to be. It’s also fairly clear from a sensible view of the policy as a whole, that mere length of time served and being post-tariff alone is unlikely to justify recategorization when a substantial reduction in risk is specifically required to be found. Some assistance may be found in the decision of Mr Justice William Davis in R Morgan -v- Secretary of State for Justice [2016] EWHC 106 and at paragraph 47 Mr Justice Davis says:

In that case, no consideration at all appeared to have been given to the length of time the claimant had been incarcerated. In fact, it was almost 20 years but the judge still refused the application for judicial review because he did not think the Director was wrong not to hold an oral hearing. On this basis, even though I am uncomfortable with the way the decision maker expressed his view, I cannot say he was wrong to refuse an oral hearing on this ground as it is unlikely that an oral hearing would add very much to the arithmetic which the decision maker was capable of making without further assistance.

This brings me to the final factor of whether there was an impasse. Assistance is provided in the decision of Lord Justice Gross in McKie. At paragraph 27 he says as follows:

‘Thirdly, reference has already been made to the concerns occasioned by the impasse capable of arising in the case of a prisoner who maintains a denial that he committed the offences of which he has been convicted. On the one hand he may need to complete various courses to satisfy CART that the risk to the public has been significantly reduced were he to be unlawfully at large. On the other, he may be ineligible or unsuitable for participation in such courses whilst he continues to deny guilt. Whilst, plainly, continued denial of guilt cannot of itself preclude recategorization, a matter which would compound injustice in the case of anyone wrongly convicted of, necessarily in this context, grave offending, denial of guilt will very likely be relevant as undermining any acceptance of responsibility for the harm done. Moreover, the CART starting point can only be the correctness of the jury’s verdict. Still further, and realistically, there will be very, very many more occasions where prisoners deny guilt for offences which they have, in fact, committed in accordance with the decision of Mr Justice Elias, as he then was, in Roberts -v- Secretary of State for the Home Department [2004] EWHC 679 (Admin)

In the course of a most valuable discussion of this particular concern as it seems to me it is necessary to be alert to the possibility of injustice occasioned by an impasse of this nature, but it must be accepted on occasion such impasses will unavoidably occur. Given the important public interest in risk reduction before an offender is released on a controlled basis into the community or a recategorization decision is taken increasing the risk of escape. As Mr Justice Elias observed in Roberts again at paragraph 42, ‘By being in denial, they i.e., prisoners, limit, and in many cases severely limit, the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates they have not accepted that the risk was ever present’.

In paragraph 20.8.4, Lord Justice Gross says:

There is an obvious impasse in this case as the claimant faces the classic problem of being unable to carry out any offending behaviour courses as a result of his continued denial of involvement in the murder for which he was convicted. According to the PSI, the reason to call for a hearing would be to explore the case and to seek to understand the reasons for and the potential solutions to the impasse. In my view, the Director has no need to convene an oral hearing to do this whilst the claimant’s denial of guilt was one of the reasons for the impasse, there were in fact other reasons.

I return to page 20, I am not going to read into the judgment again but it is the reasons which were identified by the Local Advisory Panel. A possible solution to the impasse is therefore available to the claimant but he has chosen not to pursue it. This means that whilst there is an impasse, it is not merely caused by his denial of guilt which could not be a good reason to deny his re-categorisation but by his inability to prove a significant reduction in risk which is normally done by completing offending behaviour courses or similar programmes.

The successful claimant in Rose had completed such a programme called Resolve. It was his successful completion of this programme in August 2015 which persuaded two psychologists to provide recent and extensive evidence of his improve in insight and awareness and the consequent reduction in risk of harm. He was thus in a much stronger position than Mr Steele in these proceedings. Mr Rose had managed to complete the course based upon an earlier kidnapping which had many common features with him still denying a murder conviction. In his case, he had explored every possible avenue and was at an impasse in his further progression caused only by his denial. Mr Steele cannot say that as his failure to engage with one-to-one work, develop his motivation and insight into treatment has prevented him competing the Resolve programme and an oral hearing was unlikely to assist the decision maker in understanding the reasons for and potential solutions to the impasse which were, sadly for Mr Steele quite clear.

In the circumstances and bearing in mind the discretion which was open to the decision maker, I cannot say that he was wrong not to hold an oral hearing. I therefore intend to dismiss the claim.