Anthony Clarke, R (on the application of) v The Secretary of State for Justice

This is an application for judicial review brought by Anthony Clarke, a prisoner who is currently serving a prison sentence in a Category A (high security) prison. On 19^th January 2021, a decision was taken on behalf of the Secretary of State for Justice to maintain the Claimant’s Category A status. This decision was upheld on review on 25^th March 2021. The Claimant challenges the process that led to these two decisions. In essence, he contends that (i) the process did not comply with the Secretary of State’s published policy: PSI 08/2013; and (ii) there was a failure to comply with common law requirements of procedural fairness, in particular with respect to the refusal to convene an oral hearing.

In 2008, the Claimant was convicted of the murder of a former girlfriend and sentenced to a mandatory life sentence with a tariff of 25 years. The victim had been stabbed and set on fire. At the time of the index offence, the Claimant was 26 years old. The materials that I have seen describe the circumstances of the offence as follows:

“Anthony Clarke had been in a relationship with the victim for approximately one year but the relationship had ended several months prior to the offence. There were concerns regarding domestic violence in the relationship as the victim had made 5 allegations to the Police in the 3 weeks leading up to her death. She was due to make a statement to the Police in the 3 weeks leading up to her death. She was due to make a statement to the Police on the day of her murder. According to the Crown, it appears that she had looked to take advantage of this situation by threatening Anthony Clarke that she would sign the statement unless he paid her £1000. . . .

The victim arranged to meet Anthony Clarke at 4.30pm on the day of the murder. He arrived along with a co-defendant (1) who together bundled her into a car and drove her to a garage owned by Anthony Clarke’s uncle (co-defendant 2). She was transferred into a white van owned by the uncle and held in there for several hours. She was eventually driven to a secure country lane by Anthony Clarke who had earlier obtained a can of petrol. She was stabbed and set on fire.”

This was not the Claimant’s first offence. He had previously been convicted for the offence of handling stolen goods.

During the course of his time in prison, the Claimant has completed a number of programmes including RESOLVE (a rehabilitation programme that aims to help users to develop skills of self-control), the Thinking Skills Programme and a number of victim awareness courses.

As a Category A prisoner, the Claimant’s categorisation is reviewed on an annual basis. The process entails consideration by a local advisory panel (LAP) within the establishment where the prisoner is confined. The LAP submits a recommendation about a prisoner’s security category to the Category A Team (“the CART”). The Deputy Director of Custody (DDC) High Security (or delegated authority) is solely responsible for approving the downgrading of a Category A prisoner.

In July 2019, the LAP recommended that the Claimant be downgraded to Category B. This recommendation was not accepted by the Director of Long Term and High Security Prisons. The Director concluded that “there needs to be a clear treatment pathway” for the Claimant, that Psychology needed to know more about the Claimant’s risks, and a PCL-R (a Psychopathy Checklist assessment) was required to explore fully the Claimant’s risk factors so as to ensure the suitability of future treatment options.

For the following year’s annual review, the Claimant was provided with the dossier of materials on 20^th May 2020. The dossier contained a number of positive observations about the Claimant and his behaviour. It also referenced some remaining concerns about the Claimant’s risk, and the further work that needed to be carried out to reduce his risk.

In the dossier, there was a report from Mr. Cook, the Claimant’s keyworker at HMP Wakefield where he had been confined since March 2018. Mr. Cook explained that during the reporting period there had been no adjudications or warnings against the Claimant and there were no concerning behaviours to report. Mr. Cook explained that there were a number of positive reports about the Claimant, including an incident where he had assisted in calming an incident between two prisoners. This was stated to show the Claimant’s “exceptional attitude towards the rehabilitative community on A wing and his personal contribution.” Mention was also made of the Claimant’s graduation from the Open University, where he had obtained a degree in Business. Mr. Cook observed that the Claimant “regularly implements skills learned from RESOLVE and shows this on a daily basis. [He] speaks with staff if there are issues or threats against him rather than letting situations progress and potentially worsen.” Reference was also made to the Claimant keeping very strong family ties, having regular contact with his children and a supportive partner.

The dossier also included a report from Ms. Barton, a Probation Officer. Ms. Barton reported that the Claimant continued to be diligent in his employment as a wing cleaner and noted that no concerns about the Claimant’s day-to-day behaviour were recorded. However, Ms. Barton’s report contained a concern that the Claimant may have engaged in “manipulative behaviour” by inviting the Prison Offender Manager, the Claimant’s key worker and an independent psychologist to a meeting between the Claimant and Assessment and Intervention Staff. Ms. Barton also noted that the Claimant had not completed any offending behaviour work that addressed the domestic abuse element to his index offence. She regarded this as “core reduction work”. She concluded that:

“whilst Mr Clarke’s completion of RESOLVE/TSP alongside no concerns being raised about his day to day behaviour on the wing and him gaining various qualifications are all extremely positive, in my assessment they are not enough to warrant a reduction in the risk to medium.

In my assessment, work on his behaviour towards women in relationships is a priority and given the nature/seriousness of the offences and the risk Mr Clarke presents he should remain within the Long Term High Security Estate ... whilst the core risk reduction work is completed. . . . The main risk factors relate to his behaviour in relationships and the extreme violence he has used towards an ex-partner”

A Psychology report from Ms. McCraw (dated 15^th May 2020) was also included in the dossier. Ms. McCraw had met with the Claimant as part of her assessment. I shall set out some of the details from Ms. McCraw’s assessment, as these were referred to by the parties, and (when compared with the views expressed by a private psychologist engaged by the Claimant) will help to illustrate some of the issues that were in dispute between the parties.

Ms. McCraw reported that the Claimant had initially denied responsibility for the index offence; in 2015 he began to accept responsibility for his part in the offence, although his account of the offence differed from that contained in the official documentation. Ms. McCraw reported that the Claimant had expressed concern about moving to another Category A establishment due to what he said were issues with another resident at HMP Long Lartin, where the Claimant stated he had been threatened or extorted for finances. The Claimant was also reported to have said that the threat of violence had followed him to another Category A establishment, HMP Whitemoor, there was an altercation with another resident for a particular reason disclosed to the prison service. It was stated that this incident was documented as the Claimant not being subject to adjudication on the grounds of “provocation”. (During the course of the hearing, counsel for the Claimant, Mr. Rule submitted that this must have meant “self-defence”). As a result of these concerns, the Claimant intimated that he would not be able to move to another Category A establishment to complete offending behaviour programmes if they were recommended.

Ms. McCraw explained that a Programme Needs Assessment had been produced in January 2020. This concluded that further investigation was required into the Claimant’s insight into his risk and future risk management plans. Ms. McCraw reported that she had carried out the HCR-20 version 3 (Historical, Clinical and Risk management) violence risk assessment. This is a structured risk assessment, pursuant to which risk is evaluated in a variety of domains. Ms. McCraw identified that the Claimant had a history of problems with violence, as reflected in the index offence; and a history of problems with antisocial behaviour, which included involvement with antisocial peers at the time of and preceding the index offence. In Ms. McCraw’s opinion, “the presence of co-defendants suggest there was some level of group affiliation in the commission of the offence.” Ms. McCraw noted that the circumstances surrounding the index offence suggest the possible presence of difficulties in the intimate relationship with the victim prior to her death, although she noted that the Claimant had denied that he had been verbally or physically aggressive towards her.

With respect to the domain of “History of Problems with Personality Disorder”, Ms. McCraw noted that a formal assessment of personality disorder had been carried out in 2018 by another psychologist (Dr. Gregory), and this indicated “the presence of problematic personality traits, specifically callous disregard for others, manipulation, entitlement and antisocial beliefs”. She explained that “these traits did not cluster to reach the level of a formal diagnosis for personality disorder.” Ms. McCraw stated that an assessment in Psychopathy (the PCL-R) was not necessary, but shared the view of Dr. Gregory that “the presence of these traits within the context of the index offence, which have also been observed to some extent in his behaviour in custody, suggests these traits are worthy of consideration in the development of a risk management plan.” Ms. McCraw explained that:

“Dr Gregory makes reference to Mr Clarke’s capacity for impression management in her assessment, an opinion with which I am inclined to agree. It is my view Mr Clarke presents as an educated man who considers himself to be highly skilled and capable in several aspects of his life. This is evidenced in the composition of his Relapse Prevention Plan document (2017) which outlines all of his achievements in custody, something he was keen to reiterate and expand upon during interview. Mr Clarke’s language and presentation are suggestive of an individual with a high level of self-esteem and confidence in his abilities, with a willingness to question and/or contest, albeit through formal and appropriate measures, professionals who may question the sincerity or validity of his presentation. I am of the view this assessment is supported by evidence pertaining to Mr Clarke’s approach to questioning information documented within his recent PNA [Programme Needs Assessment], his approach to contacting the Senior Psychologist involved in the PNA assessment to discuss the outcome of the assessment and, his attempts to elicit a recommendation from the author of this assessment on completion of interviews.

It is my opinion Mr Clarke’s attempts to circumvent formal measures to communicate with professionals, with the implied intention of securing a positive appraisal of his behaviour, is worthy of consideration. I suggest this could be viewed as offence paralleling behaviour to some degree. In the circumstances of the index offence where Mr Clarke was eager to quash the threat of information becoming known to authorities that could have been damaging to his character and position. In the current context, I suggest Mr Clarke may be keen to ensure assessments of his thinking and behaviour are consistent with that of a recommendation for a downgrade, thus enabling him to progress with his sentence as he hopes. Whilst it is noted that Mr Clarke is not engaging in acts of violence to secure his position, he has been persistent in his attempts to challenge and seek modification of appraisals of his behaviour, for example in the form of the PNA and this assessment, that could hinder the advancement of his preferred sentence progression. I consider this evidence to support the presence and relevance of this item.”

With respect to the domain of “History of Problems with Violent Attitudes”, Ms. McCraw noted that the Claimant had recognised, through his association with perpetrators of violence, that he had begun to hold beliefs that violence was permissible and appropriate “in the context of preservation of his status, material and financial gain.” Ms. McCraw stated that in her opinion, the Claimant’s association with antisocial peers could be considered as evidence of this item. Although the Claimant denied direct involvement in the antisocial or violent activities of his peers, he had lauded the benefits of their lifestyle. During interview, she noted that the Claimant had acknowledged that he had engaged in behaviour that could be viewed as disrespectful towards others, exemplified by the manner in which he engaged in sexual contact with females, including the victim: the victim and other women had been shared between the Claimant and his co-defendants for sexual purposes. In addition, Ms. McCraw noted that the Claimant had had the status of an HRE [High Risk of Escape] prisoner due to concerns about his possible association with criminal gangs. Although Ms. McCraw could not expand on the nature of the concerns, the length of time that the Claimant was the subject of these measures (approximately five years) was suggestive of substantial concerns by the authorities to support their assessment of risk. Ms. McCraw expressly noted, however, that the Claimant consistently denied association with organised crime at any stage in his sentence.

With respect to Clinical items, and the domain of “Recent Problems with Insight”, Ms. McCraw expressed the view that the Claimant had developed insight into his behaviour through participation in therapeutic programmes. However, she was of the opinion that the Claimant’s capacity for impression management could not be overlooked. She stated that:

“This view does not imply Mr Clarke is disingenuous in his acknowledgment of the factors that influenced his use of violence, rather I suggest a level of caution may be applicable in this case, with consideration of Mr Clarke’s motivation to acknowledge risk and his culpability for his behaviour, i.e., to achieve a downgrade”

In dealing with the domain of “Recent problems with instability”, Ms. McCraw expressed the opinion that evidence presented in the assessment was suggestive of the Claimant experiencing a level of cognitive instability, specifically a tendency to attribute responsibility and/or blame to others. This was evidenced in his discussion of the index offence, where although the Claimant accepted responsibility for setting the victim on fire, he also presented the view that he was a passive agent in the offence “acting under the instruction of others through fear of reprisal, denying that he was the central perpetrator”. Ms. McCraw noted that this was inconsistent with the official account of the index offence. Ms. McCraw noted that there were similar patterns of thinking evidenced in the Claimant’s appraisal of difficulties he had encountered in custody: the Claimant had, for instance, presented the threat of violence from others as a barrier to moving to another Category A establishment to access therapeutic programmes, even though there was evidence to suggest that he had been capable of managing threats to his safety in custody and she therefore questioned “the veracity” of the Claimant’s argument for not wanting to move to another high security establishment.

As for the domain of “Recent Problems with Treatment or Supervision”, Ms. McCraw stated that there was no evidence to indicate that the Claimant had displayed a poor attitude to compliance or responsiveness to supervision in the recent past. However, the issue of impression management was said to be relevant.

“Concerns have been expressed regarding the nature of Mr Clarke’s interaction with professionals, querying whether this is genuine or self-serving in nature. . . . [T]here is evidence to indicate Mr Clarke struggles to accept appraisals of his behaviour that are inconsistent with his view of himself, i.e. suitable for a downgrade. . . [D]uring the current assessment Mr Clarke queried the evidence used to rate the presence of personality traits in Dr Gregory’s report and the reasoning for an assessment of psychopathy. Mr Clarke was not observed to be disrespectful in his disagreement, nor did he attempt to discredit report writers. It is my view the persistent nature of Mr Clarke’s disagreement, specifically his desire to have information reflect an evaluation of his behaviour consistent with his own view, raises questions about authentic compliance in this case.”

In considering “Risk management items”, Ms. McCraw stated that the Claimant had expressed a desire to downgrade this categorisation so that he could access therapeutic interventions within a Category B establishment, including the option of a Therapeutic Community at HMP Dovegate. Ms. McCraw noted that the intensity of a Therapeutic Community “is commensurate to Mr Clarke’s risk and could allow for the targeting of critical risk factors, such as his association with antisocial peers and self-perception”. Ms. McCraw pointed out that this therapeutic pathway was not facilitated at the Claimant’s current establishment.

With respect to the domain of “Assessment of treatment gain during the reporting period”, Ms. McCraw repeated the position that professionals had expressed concerns regarding the Claimant’s approach to managing his response to recommendations that are contrary to his perception of risk and need. She acknowledged that the Claimant had not challenged professionals using “aggressive and/or violent behaviour”, but stated that he had contested their views through the use of formal applications and meetings with professionals, citing the view of other professionals and staff members to support his position as/when possible.” This behaviour had been perceived as “entitled”, although Ms. McCraw noted that the Claimant contested this assessment. Ms. McCraw stated that she considered the Claimant’s tendency to contest and/or challenge professionals on their assessments as “a potential form of offence-paralleling behaviour, based on the level of persistence and intent which accompanies this behaviour”. She was of the view that the Claimant “struggles to accept an appraisal of his behaviour that is inconsistent with his own, which could impact on his ability to comply with future treatment recommendations. I suggest this currently may operate as barrier to progression”.

In her description of “Case formulation”, Ms. McCraw discussed the “Predisposing factors” for the index offence. In doing so, she stated her view that the Claimant’s life choices in late adolescence and early adulthood were “potentially driven by how he wanted other[s] to perceive him rather than a sense of clarity about his own wants and goals for life”. Ms. McCraw considered these behaviours to be an early manifestation of Mr Clarke’s tendency for impression management, albeit in a positive manner at this stage in life.” Ms. McCraw then discussed the Claimant’s earlier offences for handling stolen goods, and his statement that he did not think he would get caught when he purchased a stolen computer from his uncle. Ms. McCraw stated that:

“this could be perceived as a level of conceit rather than naivety on Mr Clarke’s part, potentially linked with his desire to succeed in life and a perception he is able to circumvent certain societal rules and regulations if this enables him to advance with his objective. In such circumstances, when driven by a desire to succeed and present himself as capable and successful to others, engaging in impression management, I suggest Mr Clarke’s capacity for irresponsibility and reckless decision making is heightened.”

In assessing the “Precipitating factors” for the index offence, Ms. McCraw described what she regarded as “callous” behaviour and “potentially the emergence of a personality trait which had previously not been a prevalent feature of Mr Clarke’s behaviour prior to his association with antisocial peers.” The Claimant’s indignation towards the victim, along with “the emergence of traits of conceit, impression management callousness and attitudes condoning the use of violence to preserve status and material gain” were all functional in his decision to participate in the index offence.

Ms. McCraw summarised her assessment as being that although the Claimant had consistently applied his learning from therapeutic programmes since his last review, there remained aspects of his offence that:

“may warrant further exploration, for example the strength and nature of his association with antisocial peers, specifically the effect these relationships had on his thinking, attitudes and behaviour. I suggest the work he has completed to date in therapeutic programmes may not have adequately addressed this salient factor in his index offence, therefore I am of the view further therapeutic intervention may be of benefit to Mr Clarke’s risk management.”

Ms. McCraw concluded that the Claimant posed a “moderate/elevated risk of violence at the present time” and that he required some specialist management strategies to address his risk of violence. She did not consider that he posed “an imminent risk of violence”. The Claimant’s behaviour – the presence of insight into his behaviour and evidence of application strategies to manage his risk of violence – would indicate that he could be considered for downgrade. Nevertheless, Ms. McCraw stated that:

“it is my view there remain aspects of Mr Clarke’s thinking and behaviour both in the index offence and during his time in custody which could benefit from further exploration. Of particular concern is Mr Clarke’s association with antisocial peers and the impact of these relationships on his thinking and behaviour in the index offence, including the two years prior to the event. On this basis, I do not consider Mr Clarke to be suitable for a downgrade and recommend he remain a Category A prisoner at this stage of sentence”.

(emphasis in original).

As for treatment pathways for the Claimant, Ms. McCraw did not consider that the “Kaizen” programme was appropriate. (“Kaizen” is a programme for high or very high risk adult men who have been convicted of a sexual, Intimate Partner or general violent offence. It supports the development of optimism, and skills to strengthen pro-social identity). Rather, she suggested that the Claimant should be considered for an assessment to determine his suitability for the “Identity Matters” programme. That programme targeted several factors which she had identified in her assessment of the Claimant: group association, status and material gain obtained through association with such a group, and depersonalisation of others through association with a group. Ms. McCraw reasoned that the Claimant’s propensity for violence had significantly increased through his association with antisocial peers.

Ms. McCraw accepted that the treatment pathway of a Therapeutic Community would allow the Claimant to explore the areas that she had outlined. However, she considered that the group element of that format was a potential barrier to treatment, and in her opinion, the “Identity Matters” programme was a more appropriate programme for the Claimant. Ms. McCraw reasoned that that programme was delivered on an individual basis, and thereby reduced the possibility of influences from peers that would be found in a therapeutic environment. Ms. McCraw stated that she considered the Claimant’s “proclivity for impression management, specifically difficulties presenting himself in a vulnerable or negative way to others, to be more likely in a group setting than on an individual basis”. The Identity Matters programme was stated to be available in three other Category A establishments.

At the end of her report, Ms. McCraw described her exchange with the Claimant when they discussed the outcome of her assessment. She explained that the Claimant had queried the view that he engages in impression management. He had said that his decision to question information was not based on a desire to manipulate or change a professional’s view, but was based on his view that decisions should not be based on inaccurate or incorrect information; that it was justifiable to question information that he felt was untrue or not factually grounded. The Claimant also disputed attempting to circumvent procedures, and denied any association with organised criminal activity since his arrest for the index offence. The Claimant reported that he would be willing to engage in the recommendation for “Identity Matters”, but reiterated the threat posed to him if he was to move to one of the Category A prisons where that programme was facilitated. He enquired whether it would be possible to complete the programme in segregation at HMP Frankland, a Category A establishment.

The dossier also included an addendum report to that of Ms. Barton, produced by Tina Terrington, another Probation Officer. Ms. Terrington stated that “the conclusion remains that re-categorisation is not recommended until core risk reduction work is completed.”

On 10^th August 2020, the Claimant’s solicitors made representations to the LAP. They submitted that the Claimant’s risk had reduced sufficiently to warrant a downgrade to Category B. It was pointed out that professionals had determined that a PCL-R was unnecessary. Doubts were expressed about Ms. McCraw’s report, and in particular her concerns about the Claimant’s tendency to “impression management” and circumvention of normal channels in a “potentially offence-paralleling way”. It was submitted that this was at odds with the experience of staff who had worked with the Claimant over many years and that he had used formal complaint channels.

In the representations, the Claimant’s solicitors requested that the LAP recommendation be provided to the Claimant immediately, so as to enable him to make representations before a final decision was made. This was stated to be the Claimant’s “entitlement under PSI 08/2013”.

The Claimant’s solicitors also provided two reports from Dr. Pratt, an experienced independent Consultant Clinical and Forensic psychologist, dated 14^th May 2020 and 3^rd August 2020 (the latter report responded to the report from Ms. McCraw). The Claimant’s solicitors invited the LAP to prefer the analysis of Dr. Pratt to that of Ms. McCraw. They argued that Ms. McCraw’s recommendation was based upon a concern about the Claimant’s previous anti-social associations, however, she had failed to acknowledge that there was no evidence of those associations during the Claimant’s time in custody. As for Ms. McCraw’s recommendation that the Claimant undertake the “Identity Matters” programme on the basis that this was not done in a group, the Claimant’s solicitors submitted that this overlooked the fact that the Claimant had previously completed the RESOLVE programme which was a group activity. Furthermore, it was submitted that Ms. McCraw had failed to make clear how completion of the “Identity Matters” programme related to the reduction of risk and a future pathway towards risk reduction.

Dr. Pratt advised in his first report (dated 14^th May 2020), that the PCL-R should not be used. He also concurred with the previous year’s recommendation by the LAP that the Claimant’s risk of serious harm, if unlawfully at large in the community, had reduced for him to be appropriately managed in Category B. Dr. Pratt did not recommend that the Claimant complete the Kaizenprogramme before he could properly be downgraded. Rather, he supported a Therapeutic Community for the Claimant.

In his second report (dated 3^rd August 2020), Dr. Pratt addressed the risk assessments that had been carried out by Dr. Gregory in 2018 and by Ms. McCraw in 2020. Dr. Pratt disagreed with Ms. McCraw’s assessment that there was the presence of a Personality Disorder. He also rejected the suggestion that by making detailed representations, or completing numerous request complaint forms, the Claimant was evidencing a “personality pathology, or even a potential form of offence paralleling behaviour”. For Dr. Pratt, the use by the Claimant of the request complaint procedure, which was without menace or threat, was simply an example of the Claimant “wanting to thoroughly engage with professional processes, which will have a major impact on his future.” Dr. Pratt pointed out that at no stage had the Claimant attempted to discredit report writers, and his complaints were not considered vexatious.

With respect to “Violent attitudes”, Dr. Pratt regarded its presence as “Partial”, whereas Ms. McCraw had assessed this as a “Yes”. Dr. Pratt said there seemed to be no evidence of violent attitudes and beliefs intensifying within the custodial environment, or being present recently. With respect to clinical factors, Dr. Pratt stated that the consistency of the Claimant’s “pro-social behaviour and evidently good relationships, at least with uniformed staff, is a strong indication, in its own right, that he is not consciously trying to manipulate or manage the impression that everybody has of him, but is simply reacting instinctively and naturally.” With respect to “Risk management factors”, Dr. Pratt stated that it was evident that the Claimant was fearful for his life should he be transferred to HMP Long Lartin or Whitemoor.

Dr. Pratt concluded that “there is little or no indication, it seems for some time, of offence paralleling behaviour, e.g. via the use of violence or advocating violent solutions to others, and his reliable pro-social persona is, in my opinion, to his credit.” Dr. Pratt did not consider that the “Identity Matters” programme was necessary before the Claimant could be formally re-categorised. Dr. Pratt considered that a Therapeutic Community should be the next stage. This might explore the thinking styles behind the callous murder and destruction of somebody with whom the Claimant had been in an intimate relationship, the issue which was “perhaps an outstanding area of concern” and would “almost certainly not be covered by Identity Matters.” Dr. Pratt confirmed that the Claimant should be downgraded to Category B.

The Claimant’s solicitors asked the LAP to give a view as to whether it could be beneficial for the Director to hold an oral hearing, so as to resolve any doubts as to the Claimant’s progress and to professional disagreements as to the outstanding levels of risk.

On 14^th January 2021, the LAP issued a letter setting out its recommendation, and provided the minutes of their discussion. It was noted that the Claimant needed to address the domestic abuse elements of his offending. It was also stated that the Claimant presents very well, but requires some specialist strategies for violence management. It was recommended that he undertake the 1:1 programme “Identity Matters”. It was noted that the Claimant was keen to preserve his lifestyle from before prison, and he chooses to overlook or minimise any use of violence and can be evasive when answering direct questions. The Claimant’s educational achievements were acknowledged, and his positive relationship with his keyworker and positive references to his work and contributions on the wing were noted. Similarly, his regular contact with family and friends.

The minutes contain reference to “Security Information”, where it was stated that the Claimant was moved from A to B wing “due to allegations of bullying in October.” This allegation had not been disclosed to the Claimant as part of the dossier.

The LAP minutes also record that there had been an adjudication which was dismissed in April 2020 regarding a possible physical altercation between the Claimant and another prisoner. It was stated that:

“In the last year he has displayed offence paralleling behaviour with violence and bullying, and while he gives a consistent impression of having changed there are some concerns that he very much manages the image that he presents. This requires further assessment.”

The LAP’s recommendation was for the Claimant to remain at Category A. It was recommended that for a reduction in risk to be evidenced, the Claimant should complete the “Identity Matters” programme and continue to engage with the case management team.

The LAP recommendation was provided to the Claimant on 18^th January 2021. On 19^th January 2021, the CART completed its review. The CART decided that the Claimant should remain at Category A (Standard Escape Risk). The decision letter contained the following:

“The Category A Team considered your offending showed you would pose a high level of risk if unlawfully at large, and that before your downgrading could be justified there must be clear and convincing evidence of a significant reduction in risk.”

Your recent reviews have shown your good behaviour and engagement in education. You completed the Resolve programme in 2016 followed by a period of consolidation. However the extent of your treatment gain and full acceptance of responsibility for your offending remained unresolved after this work. Both further assessments and possible further treatment was therefore recommended. This included assessment of your personality traits and the part these played in your offending. No significant risk reduction has therefore been shown.

The Category A Team recognised your overall behaviour has been satisfactory since your last review. There is some alleged negative information, including possible bullying, but you have received no recent adjudications and continue to make good use of the regime. It considered however your general regime adherence is insufficient to show a significant reduction in your risk if unlawfully at large. It still needed convincing evidence of your progress addressing and amending the risk factors shown by your serious offending.

The Category A Team noted you have engaged with psychological services since your last review. The resulting assessment confirms you accept involvement in the present offence, with some provisos. You have in recent years willingly engaged in identified intervention work and made good use of your time through education. The assessment nonetheless concludes there are key issues influencing your present offence and subsequent behaviour in custody requiring further exploration. The assessment shows your personality traits are an important factor in your offending and behaviour, suggesting both impression management and that your progress through interventions may be unreliable as an indicator of significant change. The assessment concludes you should remain in Category A at this time on the basis of these issues and should take part in the IM [“Identity Matters”] programme.

The Category A Team supported the view of the LAP that these outstanding matters need to be further explored and resolved before significant progress can be properly established. It considered that convincing evidence of a significant reduction in your risk of similar reoffending if unlawfully at large is still not shown. It is therefore satisfied you must stay in Category A at this time.

The Category A Team carefully noted your representations, but considered these also provide no convincing evidence you have achieved a significant reduction in your risk of similar reoffending if unlawfully at large. It noted these rely to a great extent on the submitted private psychology reports, which take a different view on your level of progress and treatment needs. It notes these reports however also conclude you need to complete further substantial treatment to address the core risk factors influencing your present offence, albeit through a different route. These reports recommend your downgrading on the basis of your suggested manageability in Category B, which is not the correct test for downgrading from Category A. It did not believe these reports show the prison and LAP conclusions on your progress and unsuitability for downgrading to be irrational”.

On 24^th March 2021, the Claimant’s solicitors submitted post-decision representations along with a further report from Dr. Pratt. The Claimant’s solicitors requested that the Director convene an oral hearing, on the basis that fairness demanded an oral hearing given the complexities of the case, the disputed expert evidence and the current impasse.

The Claimant’s solicitors contended that there were a number of allegations of unfairness as to the process: (i) that the Claimant was given no opportunity to make representations on the LAP’s recommendation; (ii) the LAP recommendation contained a number of inaccuracies or was based on material not disclosed to the Claimant: there was no evidential basis for the assertion that he had displayed “offence paralleling behaviour”; to the Claimant’s knowledge he had not been accused of bullying, an assertion which was inconsistent with Mr. Cook’s report who confirmed that there had been no adjudications, negative behaviours or concerns; concerns as to impression management were not reflected in the reports of those who work with the Claimant, and references to evasiveness were not sourced or substantiated; the LAP was wrong to say that a PCL-R had been carried out, that the Claimant had been assessed as unsuitable for interventions regarding domestic violence; and there was no engagement with Dr. Pratt’s suggestion that the “Identity Matters” programme was a disputed pathway; and (iii) the CART decision was flawed: weight was put on the unsubstantiated allegations of bullying, no account was taken of Dr. Pratt’s views as to the suitability of the “Identity Matters” programme; and Dr. Pratt had applied the correct test for a downgrade.

In addition, it was submitted that there was a clear and important dispute of fact as to the Claimant’s behaviour, and this could be assessed first-hand through the Claimant’s presentation at an oral hearing. It was submitted that there was a very significant dispute on the expert materials (on whether the downgrading test had been met; as well as the suitability of the “Identity Matters” programme for the Claimant as a means to demonstrate necessary risk reduction and an appropriate pathway; and the assertions as to image management). It was argued that the practicalities of the “Identity Matters” programme could be canvassed at the hearing, as could the experts’ views on any allegation of offence paralleling behaviour. It was contended that there was an impasse of some years’ standing: only the “Identity Matters” programme was being proposed, and not only might this programme be unsuitable for the Claimant, the Claimant may have to wait many years before a place is available. On the other hand, it was noted that Dr. Pratt had identified the Therapeutic Community as a pathway, but it was noted that this was not achievable without a downgrade.

The further report from Dr. Pratt submitted with the solicitor’s representations was dated 17^th March 2021. In his report, Dr. Pratt concluded that he could not recommend that the Claimant be required to complete the “Identity Matters” programme before the CART could conclude that there was cogent evidence of risk reduction. Dr. Pratt stated that there was little indication that the Claimant’s risk of violence was imminent. The Claimant had completed the RESOLVE programme which had enabled him to review his index offence, and this process should continue in a Therapeutic Community. Dr. Pratt said that he maintained the view that the risk, if the Claimant was unlawfully at large, did not merit Category A status.

On 25^th March 2021, the CART responded to these further representations. The CART stated that its previous decision was “rational” on the basis of the available information, and that appropriate responses had been provided to the representations.

The CART continued as follows:

“there is no basis to your claim it acted unfairly or unlawfully in completing Mr Clarke’s review on 19 January. It is satisfied it completed this review precisely in accordance with PSI 08/2013. There is no requirement for the [CART] to await further representations on the LAP recommendation before completing a review. It notes you disagree with the decision and with information in Mr Clarke’s review. It considers you have however provided no coherent evidence that information having a material bearing on the decision was insufficiently disclosed, misrepresented or overlooked.

The [CART] considered there are also no grounds for an oral hearing in relation to Mr Clarke’s recent review, in accordance with the criteria in PSI 08/2013. It is satisfied that your disagreement with prison reports, LAP recommendation or [CART] decision does not represent a significant dispute warranting an oral hearing. The decision provided clear and detailed reasons why the recommendations in the private psychology reports do not provide coherent evidence of significant risk reduction, in accordance with PSI 08/2013. These recommendations do not therefore represent a significant dispute warranting an oral hearing. It notes Mr Clarke has been in custody some years and has never had an oral hearing, but considers these facts alone provide insufficient grounds for an oral hearing without other supporting reasons. It considers there is no evidence Mr Clarke is in an impasse and that he has the means to show risk reduction enabling his consideration for downgrading at this time. It notes also Mr Clarke is over 10 years from tariff expiry, therefore no credible claim can be made [that] his Category A status is preventing his consideration for liberty. It considers there are no other issues relevant to his review and risk assessment that can be resolved only through an oral hearing.”

Judicial review proceedings were issued on 19^th April 2021. Permission was granted on 15^th September 2021. Since that date, a further annual review has been held, and a further decision has been made that the Claimant should remain at Category A. Permission to amend the pleadings to challenge that decision was refused by Dan Squires QC, sitting as a deputy judge of the High Court on 13^th May 2022. The parties are agreed that the more recent re-categorisation decision is not relevant to the issues of substance that I have to decide, although the Defendant suggests that it may be relevant to any relief if the judicial review claim succeeds.

Section 12 of the Prison Act 1952 confers a power on the Secretary of State to allocate prisoners to confinement in a particular prison. Section 47 of that Act empowers the Secretary of State to make rules for the classification of persons required to be detained in prison.

Rule 7(1) of the Prison Rules 1999 (SI 1999/728) deals with the classification of prisoners. It provides that:

“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”.

The main policy guidance relating to the classification of Category A prisoners is PSI 08/2013: The Review of Security Category – Category A/Restricted Status Prisoners.

The policy guidance explains that Category A prisoners are those “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” (paragraph 2.1). Within Category A there is a sub-classification of escape risk: exceptional/high/standard. The Claimant’s escape risk is classified as ‘standard’.

I also consider that the CART were right to conclude that an oral hearing was not called for under the policy on account of an alleged impasse or merely because of the length of time that the Claimant had served in Category A. There was no impasse, as there was available to the Claimant means to demonstrate risk reduction. Furthermore, the Claimant was some considerable time away from tariff expiry. His consideration for liberty was not precluded by his Category A status.