Michael Steele, R (on the application of) v Secretary of State For Justice

This is a challenge by way of judicial review to a decision dated 28 July 2020 taken for the Defendant by the Category A Team (“the CAT”, formerly “the CART”) in HM Prison and Probation Service’s Long Term and High Security Prisons Group. By the impugned decision the CAT decided two things. The first was that the CAT was satisfied that the Claimant must stay in Category A, on the basis that “convincing evidence of a significant reduction in [his] risk of similar reoffending if unlawfully at large” had not been shown. That is the test for downgrading articulated in the Instruction PSI 08/2013 paragraph 4.2 (“the PSI”). It reflects the need for “cogent evidence in the diminution of risk” which has been endorsed as “plainly a proper requirement” by the Courts: see R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331 [2017] 1 WLR 475 at paragraph 70. It is common ground that that was the relevant test and that the CAT was asking itself the right substantive question. The second was that the CAT considered that there were no grounds for the Category A review which it was conducting to be considered further through an oral hearing in accordance with the criteria in the PSI. Those criteria are to be found at paragraphs 4.6 and 4.7 of the PSI. They have been considered by the Courts in many cases, including Hassett. The focus of this challenge is on the refusal to conduct an oral hearing. Permission for judicial review was granted on the papers by HHJ Gosnell on 3 February 2021.

The mode of hearing was by MS Teams. That mode of hearing was organised by the Court in conjunction with the parties. The legal representatives had satisfied themselves that that mode of hearing would involve no prejudice to the interests of their clients. I was similarly satisfied. An application had been filed seeking a direction that the Claimant be permitted to attend the hearing by videolink. I indicated a preparedness to entertain any practical arrangements which could be identified, including a parallel BT Conference call so that the Claimant will be able to listen to this hearing over a telephone line. In the event, the Claimant’s solicitors confirmed that it had not been possible to identify any workable arrangement, and the application was withdrawn. I am satisfied that the mode of hearing was appropriate in the context of the pandemic and that no prejudice has been caused to the interests of anybody. The open justice principle was secured. The case and its start time were published in the Court’s cause list. Also published was an email address usable by any member of the press or public who wished to observe the hearing. The hearing was recorded. This judgment will be released into the public domain.

The PSI records (paragraph 2.1) that a Category A prisoner is one “whose escape would be highly dangerous to the public … and for whom the aim must be to make escape impossible”. The focus (paragraph 2.2) is on “the prisoner’s dangerousness if he did escape, not how likely he is to escape”. A threefold classification (paragraph 2.5) deals with escape risk. “Standard” escape risk, the lowest classification, is applicable to a prisoner “who would be highly dangerous if at large” but in respect of whom no “specific information or intelligence suggests there is a threat of escape” (paragraph 2.6). The PSI goes on to describe the review procedures applicable, inter alia, in the context of Category A review. I have already referred to the test of “convincing evidence of a significant reduction in [the prisoner’s] risk of similar reoffending if unlawfully at large” (paragraph 4.2). So far as oral hearings are concerned it is not necessary to set out paragraphs 4.6 and 4.7: instead, I invite attention to the judgment of the Court of Appeal in Hassett where they were set out in full at paragraph 21. The PSI has been revised and updated, including in the years subsequent to the October 2013 decision of the Supreme Court in R (Osborn) v Parole Board [2013] UKSC 61. Paragraph 4.6 of the PSI discusses the extent to which there are parallels and differences between Category A review decisions and Parole Board decisions, as does Hassett at paragraph 51. Paragraph 4.6 says “this policy recognises that the Osborn principles are likely to be relevant in many cases in the [CAT] context”, referring to the PSI as “guidance [which] involves identifying factors of importance, and in particular factors that would tend towards deciding to have an oral hearing”. Paragraph 4.6 goes on to identify three “overarching points”. The first, in essence, is that each case must be considered on its own particular facts. The second, in essence, is that the decision as to whether to hold an oral hearing must be approached “in a balanced and appropriate way”, which includes (quoting Osborn) the decision-makers being “alive to the potential, real advantage of a hearing both in aiding decision making and in recognition of the issues to the prisoner” and not making “the grant of an oral hearing dependent on the prospects of success of a downgrade in categorisation”. The third, in essence, is that there is scope for flexibility and tailoring: the decision is “not necessarily all or nothing”. Paragraph 4.7 identifies four factors which would tend in favour of an oral hearing being appropriate, under headings which (in the case of the first three) the text then elaborates. The four factor headings are: (a) “where important facts are in dispute”; (b) “where there is a significant dispute on the expert materials”; (c) “where the lengths of time involved in a case are significant and/or the prisoner is post-tariff”; and (d) “where the prisoner has never had an oral hearing before; or has not had one for a prolonged period”. In this case, the Claimant relies on factors (a), (b) and (c).

Hassett was the third of a trilogy of Court of Appeal cases cited to me, which (at paragraph 56) endorsed the guidance in the first two: R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522 and R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422. From that line of authorities, the following points are worthy of emphasis for the purposes of the present case. (1) The common law principles identified in the parole context in Osborn do not apply with the same force to Category A review decisions (Hassett paragraphs 59 to 61). (2) The general guidance in the PSI is lawful and not apt to mislead a decision-maker as to the applicable legal standards, a point decided in the specific context of a challenge to factor (b) (Hassett paragraph 66). (3) A Category A review decision “has a direct impact on the liberty of the subject and calls for a high degree of procedural fairness” (Mackay paragraph 25). (4) It is “for the Court to decide what fairness requires, so that the issue on judicial review is whether the refusal of an oral hearing was wrong; not whether it was unreasonable or irrational” (Mackay paragraph 28). The CAT may need to “exercise a judgment on whether an oral hearing would assist in resolving … issues and assist in better decision making” and the question for the Court is whether the CAT “was wrong to decide against an oral hearing” (Downs paragraph 45). (5) Where a prisoner denies the offending of which they were convicted, which may in consequence mean ineligibility or unsuitability for participation in courses relevant to satisfy the CAT that the risk to the public has been significantly reduced, the CAT’s “starting point can only be the correctness of the jury’s verdict” and the denial “may … in many cases severely limit … the practical opportunity of demonstrating that the risk has diminished” (Mackay paragraph 27). (6) Although it has been said that “oral hearings will be few and far between” (Mackay paragraph 28) and “comparatively rare” (Hassett paragraph 61), that is prediction rather than principle: there is “no requirement that exceptional circumstances should be demonstrated” (Mackay paragraph 28). (7) The fact that there is a “difference of professional opinion” between two experts (eg. two psychologists), the fact that the CAT has “two clear, opposed views to consider”, and the fact that the CAT’s “task was to decide which view it accepted” does not – in and of itself – make an oral hearing necessary (Downs paragraphs 44-45, 50; also Hassett paragraph 69).

I was also referred to R (H) v Secretary of State for Justice [2008] EWHC 2590 (Admin) paragraph 21, as to the absence of a “test of exceptionality”; Osborn paragraph 2(xi), in support of Mr Stanbury’s contention (contested by Mr Manknell) that the ‘benefit of the doubt’ should go in favour of the prisoner; R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin) paragraph 80, for the observation that “offending behaviour programmes are neither a necessary nor sufficient condition for release from prison”; and R (Nduka) v Secretary of State for Justice CO/617/2019 (25 October 2019) at paragraph 34, as to it being to consider the four specific factors in paragraph 4.7 of the PSI “in the round, by considering them cumulatively” (a point made in paragraph 4.7: “the more of such factors that are present in any case, the more likely it is that an oral hearing will be needed”). Mr Manknell cited Hassett paragraphs 61 and 68-72 as helpful passages illustrating the principled application of relevant factors. Mr Stanbury did the same in relation to Nduka.

The Claimant is aged 78. In 1998 he was sentenced to three concurrent life sentences having been convicted of a triple murder of three drug dealers in December 2005, a crime which the trial judge described as “a carefully organised ruthless piece of summary execution in which no mercy was shown to the victims” in which the Claimant was “the organising mind and leader”, “a savage killing which arose by reason of trouble between two drug dealing group to have been cooperating… but had fallen out”. The judge observed that you were “very dangerous” and had demonstrated the “high degree” of your dangerousness. The Claimant, while accepting his involvement in drug importation, has always protested his innocence of the triple murder. He has been in custody in conjunction with those matters since 1996 when he was aged 53. His 23 year minimum term expired in May 2019. He had been Category A throughout. He has been “standard” escape risk classification since September 2005. The annual Category A reviews have included a decision on 23 October 2018 by the Director of Long-Term and High Security following an oral hearing, afforded in circumstances where the local advisory panel (“LAP”) was at that stage recommending downgrading from Category B (as had been the position in H: see Mackay paragraph 34). They have included the subsequent decision of 10 May 2019 by the CAT without an oral hearing. Each of those decisions maintained the Category A categorisation, concluding that the clear and convincing evidence of a significant reduction in risk had not been demonstrated. So far as parole is concerned, the parole board conducted a review in 2019, reaching a decision on 25 November 2019 following an oral hearing which took place on 26 April 2019, 8 November 2019 and 15 November 2019. The parole board’s determination was that the continued confinement of the Claimant was necessary for the protection of the public and that, having regard to risk and risk-reduction, it was not appropriate to recommend transfer to open conditions. The board recorded that the professional witnesses who gave oral evidence were unanimous that the Claimant’s “behaviour in custody [was] not such as to require the conditions of high security in which [he] continue[d] to be confined”. The board discussed the various reports which were before it and the risks of reoffending assessed, whether in prison or in the community. The Claimant had been transferred to HMP Wakefield on 30 March 2020.

Within the materials before the CAT for the 2020 Category A review – as had been the position in relation to the Director’s 2018 review, the CAT’s 2019 review, and the 2019 parole board review – were documents which referred to offender behaviour work. What had emerged, in particular, were two options which could be suitable and appropriate, notwithstanding that the Claimant continued to deny that he had committed the murders. One was a programme called “Resolve”, a medium intensity violence reduction programme. Another was called “M & E”, a Motivation and Engagement course. M & E was described as a pathway to Resolve. There was a long history. By way of recent example, in February 2019 the prison psychologist Ms Bennett had recommended M & E and Resolve. The CAT decision of May 2019 recorded that the Claimant had “yet to take part in suitable intervention work”. The LAP recommendation of July 2020 – that Category A be retained – observed that the Claimant “had yet to take part in suitable intervention work”. The parole board in November 2019 had accepted “the professional advice” that the Claimant had “yet to present with the appropriate level of motivation necessary for effective engagement in treatment”.

The impugned decision of the CAT, as the latest Category A review, was arrived at after consideration of detailed representations from and on behalf of the Claimant, prison reports including an update from a trained psychologist Ms Walsh, materials including the previous campaign review decisions and the parole board’s decision, and the latest recommendation of the local advisory panel (LAP), together with the report of an independent psychologist (Dr Beckley) submitted on behalf of the Claimant. As I said at the outset, the CAT was satisfied that the Claimant must stay in Category A, on the basis that “convincing evidence of a significant reduction in [his] risk of similar reoffending if unlawfully at large” had not been shown. The CAT also considered that there were no grounds for the Category A review which it was conducting to be considered further through an oral hearing in accordance with the criteria in the PSI.

Mr Stanbury submits that the CAT was wrong not to convene an oral hearing in circumstances where there was a relevant factual dispute, playing a material part in the decision, relevant to the risk factors. Paragraph 9 of the impugned decision read as follows: “The reports… record your aggression towards psychology staff at HMP Frankland in 2018 and 2019 when invited to engage with assessments. In late 2019 he became verbally aggressive and angry and made threats when asked to follow guidelines by a prison offender manager. [The CAT] noted you deny this information. It accepted this information should not have a decisive influence on your review. But it considered this information can validly be taken into account, particularly as it echoes the Director’s concerns at the oral hearing on your angry presentation, resistance to effective assessment and focus on grievance and redress”. The Claimant’s representations to the CAT had contended that reference to his being “aggressive to staff” was “incorrect and untrue”. Mr Stanbury’s submission is that factual disputes, “namely whether the Claimant behaved in an angry/aggressive manner” when interviewed by the HMP Frankland psychology department in 2018/2019 and towards offender manager Ms Crow in September 2019 and November 2019, wanted an oral hearing. Mr Stanbury submits that in concluding that the reported information “can validly be taken into account” the CAT was resolving a factual dispute. He submits that reliance on the reported information as being information which “echoes the Director’s concerns and your oral hearing on your angry presentation …” reflected the resolution of the factual dispute based on the Director’s own impressions. He submits that the very fact that this was “taken into account” at all was inconsistent with the applicable common law standards and in any event with factor (a) of paragraph 4.7 of the PSI. He submits that, on this basis whether standing alone or in conjunction with the other factors in the case, it was wrong for the CAT not to undertake an oral hearing. That is especially so, he submits, in circumstances where it is not necessary for the relevant disputed facts to be shown to be capable of being decisive (citing Osborn paragraph 88 and the phrase should not make the grant of an oral hearing dependent on the prospect of success of a downgrade in categorisation in the second overarching point to paragraph 4.6).

In my judgment, there is a short and complete answer which is fatal to these contentions. The analysis in the rest of the decision (paragraphs 10 to 17) was prefaced with the opening words of paragraph 10: “But even leaving these issues aside [the CAT] considered…” What those words clearly connote, as Mr Stanbury rightly accepted, was that the CAT was keeping separate the matters discussed in paragraph 9 and the substantive reasoning in paragraphs 10 to 17. The rest of the decision which contained a sustained, substantive analysis of the issues and the reasoned basis for the evaluative determination. It was in those circumstances that, when (at paragraphs 18 and 19) the CAT came to address whether there were grounds for an oral hearing to understand or resolve points arising from the written information, the CAT concluded that it “had no evidence of significant factual errors warranting an oral hearing”. In my judgment, in circumstances where the CAT had explicitly separated out (from paragraph 10 onwards) its substantive analysis from the matters it had discussed in paragraph 9, that conclusion in the application of factor (a) from paragraph 4.7 is unimpeachable. There were no important facts in dispute. There were no disputed facts which went directly to the issue of risk. There was no significant explanation advanced depending on the credibility of the Claimant on which it could assist to have a hearing at which the Claimant and/or others could give their version of events.

Mr Stanbury rightly accepts that the fourth factor (d) from paragraph 4.7 of the PSI could not assist the Claimant since this was not a case of a prisoner who had “never had an oral hearing” or who had “not had one for a prolonged period”, as the CAT rightly emphasised. He submits that the third factor (c) was in play, given the length of time in which the Claimant had been in custody in the fact that he was post-tariff. As the PSI puts it, in the text accompanying factor (c): “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 [the prisoner has] developed over the period since their conviction based on an examination of the papers alone”. The CAT clearly had these features of the case will in mind. There is an obvious overlap between the temporal factors (c) and (d). The Claimant had spent a long time on Category A, but not a long time post-tariff. There had been an oral hearing in relation to his Category A classification in October 2018 together with the parole board oral hearings during 2019. That was the context for examining his case on an examination of the papers. As Mr Stanbury’s submissions rightly recognised, the considerations under factor (c) including the need to look at the case carefully, and the nature and extent of any difficulty making any “judgements” on the papers in light of the temporal features of the case, needed (before the CAT) and need (before this Court) to be put alongside the points about factual disputes (with which I have dealt) and the points about disputes on the expert materials (to which I now turn).

Mr Stanbury submits that this was a case where there was a “significant dispute on the expert materials” and the CAT was wrong not to convene an oral hearing for the purpose of hearing oral evidence, in particular, from Dr Beckley. He submits that there was a live dispute on a point of importance. That point was whether reduced risk was identifiable notwithstanding that programmes like Resolve and M & E had not been undertaken. Mr Stanbury emphasises that Dr Beckley had undertaken a structured risk assessment, had interviewed the Claimant in detail, reached a view which was not an ‘outlier’ given the overlap between her assessment and the assessments arrived at by some – at least – of the professional witnesses who had given evidence to the parole board in 2019. He emphasises that Dr Beckley, recognising that there were offender behaviour work “options available to [the Claimant]”, assessed him as “a medium risk of future violence to the general public”, concluding that the risk was not “contingent on completing future offending behaviour programmes”. He points out that Dr Beckley identified the correct question – “the test for downgrading a Category A prisoner” – the need to “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 prevent similar offending”. He emphasises that Dr Beckley assessed the Claimant’s position as “no longer … to require offending behaviour programs in order to evidence this”, since she did “not consider [the Claimant] to evidence significant entrenched personality traits that are functionally linked to his risk of recidivism”. Mr Stanbury submitted that the reasoning of the CAT was simplistic, lacking in analysis and real engagement with the expert evidence, and that – unlike the fact-specific situation in Downs (paragraph 45) the nature of the materials and issue in the present case called for a fair hearing in the correct application of the PSR factor (b).

In my judgment, it was not wrong for the CAT to conclude, as it did, that “there is no significant dispute on the expert evidence justifying an oral hearing”. The CAT considered Dr Beckley’s report alongside the other materials in the case. The CAT concluded, from all these materials, that there was “no evidence” that the Claimant had “engaged in any intervention work to address your offending and the related risk factors”; that, in addition to his continued denial of guilt, there was “no evidence” that he had “discussed relevant risk factors in depth, even in theoretical terms, or … shown significant insight and development of skills to manage these risk factors in future”. The CAT recognised the themes, in the materials, of “manageability in custody” and “compliant custodial behaviour”. It recognised that Dr Beckley’s assessment was that the Claimant posed “a moderate risk of future violent recidivism”. It had in mind that the LAP had recommended maintaining Category A. It considered the parole board’s “conclusions” on the Claimant’s “continued high risk to the public if released” to be “totally incompatible with a conclusion that [the Claimant had] achieved significant risk reduction if unlawfully at large”. The CAT concluded that Dr Beckley’s conclusions “did not provide convincing evidence” that the Claimant had “significantly reduced [his] risk if unlawfully at large” and did not “represent strongly-worded evidence of significant risk reduction”. That observation about how “strongly-worded” was the “evidence of significant risk reduction”, though criticised by Mr Stanbury, needs to be seen in the context of what Dr Beckley had said: “I am not of the opinion that his risk of future violence is contingent on completing future offending behaviour programmes”; and “[he] is no longer deemed to require offending behaviour programs”. The CAT had in mind the overlap between Dr Beckley’s recommendation and what had been said in evidence before the parole board, but “did not accept these recommendations represent a great weight of evidence in favour of your downgrading” or “provide convincing evidence” that the Claimant had “achieved a significant reduction in [his] risk of similar reoffending if unlawfully at large”. Having considered the expert materials with care, the CAT was not wrong to conclude that there was no real and live dispute on particular points of real importance to the decision, where an oral hearing would be of assistance to deal with those points. As in Downs, the CAT was here able to perform its task without an oral hearing.

In all circumstances of this case, including looking at the features of the case cumulatively and in the round, this was not – in my judgment – a case where it was wrong not to have an oral hearing, on the application of the criteria identified in the PSI, and on the application of the relevant common law principles. In my judgment, the CAT was properly alive to the potential, real advantage of a hearing both in aiding decision making and in recognition of the issues to the prisoner; the CAT did not make the grant of an oral hearing dependent on the prospects of success of a downgrade in categorisation; and the CAT had in mind the decision’s direct impact on the liberty of the subject, calling for a high degree of procedural fairness. I have applied those same principles. The analysis in this case does not turn on whether it is the common law principles, or the PSI criteria (being policy guidance attracting the general public law duty of adherence), which are the more or the less generous, or whether they are in perfect symmetry. The analysis does not turn on the status of the observations in Hassett paragraphs 61 and 69. Nor does it turn on whether the Court should, to any extent, respect an exercise of judgment by the CAT in the application of the PSI criteria, or whether objective application is the untrammelled province of the Court. Nor does the analysis turn on whether there is a ‘benefit of the doubt’ principle in this context. Taking the most favourable view to the Claimant on each of those matters, the conclusions are the same as I have expressed them. In those circumstances, and for all those reasons, the claim for judicial review is dismissed.

I ordered as follows (omitting the legal aid-related detail): that the claim for judicial review be dismissed; that there be a detailed assessment of the Claimant's publicly-funded costs; and that, subject to the mechanisms regarding legal aid costs protection, the Claimant shall pay the Defendant's reasonable costs on the standard basis.