Weekly Digest: 2 December 2019

This case concerned five individual immigrants who were placed in detention for various periods pending possible removal to other EU Member States pursuant to the asylum arrangements under the Dublin III Regulation. In particular, the principal issues in the appeal concerned the meaning and effect of Article 2(n) and Article 28 of the Dublin III Regulation.

At the relevant time, the Secretary of State had published a policy in relation to detention pending removal in the Enforcement Instructions and Guidance. The judicial review claims were first considered by three different judges. The claims of HH and FK were dismissed by Garnham J. The claims of JA and JM were dismissed by Irwin J. The claim of SS was allowed by Deputy High Court Judge Howell. The appeals by HH, FK, JA and JM were joined with the Secretary of State’s appeal in SS to be heard together by the Court of Appeal. The Court of Appeal, by a majority, found that the Respondents were entitled to damages for the tort of false imprisonment as a result of the failure of the Secretary of State to implement correctly the requirements of Article 2(n) and Article 28 of the Dublin III Regulation. Sales LJ dissented. The Secretary of State appealed to the Supreme Court.

The issues were whether the Secretary of State’s published policy in Chapter 55 of the Enforcement Instructions and Guidance satisfied the requirements of Article 2(n) and Article 28 of the Dublin III Regulation. If not, whether damages are payable in respect of the detention of the Respondents either for the tort of false imprisonment or pursuant to EU law under the principle established by the Court of Justice of the European Union in the Factortame case.

The Supreme Court unanimously dismissed the appeal.

There were two particular questions before the Supreme Court [2]. First, was the detention of each respondent lawful, given that article 28 of the Regulation permits detention where there was a “significant risk of absconding”? The phrase “risk of absconding” was defined in article 2(n) of the Regulation as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond. Secondly, if the detention was not lawful, are damages payable either under domestic law for false (or wrongful) imprisonment, or pursuant to what is known as the Factortame principle established in Brasserie du Pecheur SA v Germany; R v Transport Secretary; Ex p Factortame Ltd No 4 (Joined Cases C-46/93 and C-48/93) [1996] QB 404?

A policy such as that embodied in Chapter 55 of the EIG is published so that an individual affected by it knows the criteria by which the executive has chosen to exercise the power conferred upon it by statute. Its publication also allows the individual to make appropriate representations in relation to that exercise of power as it affects him or her [49]. The executive must follow its stated policy unless there are good grounds for not doing so [50].

Chapter 55 does not establish objective criteria for the assessment of whether an applicant for international protection who was subject to a Dublin III transfer procedure may abscond. Its contents do not constitute a framework with certain predetermined limits. Further, it does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which was binding and known in advance. Therefore, the Court of Appeal was right to hold that Chapter 55 cannot satisfy the requirements of articles 28(2) and 2(n) of the Regulation [65]. Chapter 55 does not satisfy the requirements laid down by the Court of Justice of the European Union in Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Al Chodor (Case C-528/15) [2017] 4 WLR 125. Because Chapter 55 does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which was binding and known in advance, it lacks the necessary qualities of certainty and predictability. It therefore does not constitute a “law” for the purposes of articles 28(2) and 2(n) [74]. A broader question was whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a “law” within the meaning of article 2(n) [75]. That question should be decided in a case in which it was necessary to do so [79].

Any claim by the respondents for damages under European Union law must be judged by reference to the principles established in Francovich v Italy (Case C-6/90) [1993] 2 CMLR 66 and Factortame. However, those principles do not constrain the claim by the respondents for damages for wrongful imprisonment [88]. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, the Supreme Court considered the test for when a public law error bearing upon and relevant to a decision to detain can found a claim for damages for false imprisonment. That test was met in the cases in this appeal. There was a requirement for a binding provision of general application containing objective criteria underlying the reasons for believing that an applicant might abscond, and that requirement was not satisfied. This was fundamental to the decision to detain and it makes no difference whether the source of that requirement lay in European Union or domestic legislation [98].

Chapter 55 did not comply with articles 28(2) and 2(n) of the Regulation, with the consequence that, in the case of each of the respondents, the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act. The ingredients of the tort of wrongful imprisonment were undoubtedly present. The right under domestic law to claim damages for wrongful imprisonment was not dependent on the law being clear. Nor was it dependent upon whether the illegality was the consequence of a failure to comply with European Union legislation (as in this case) or has some other cause [101].

The majority in the Court of Appeal were right to hold that the respondents were wrongfully detained. The respondents are entitled to compensation under domestic law for any loss that the wrongful detention has caused them [105, 114]. The Secretary of State’s submission that the respondents should only be entitled to nominal damages was rejected [106-112]. It was not necessary in this appeal to consider the respondents’ alternative claim for damages under European Union law, since it was not contended that any such damages would exceed those payable for false imprisonment under domestic law [113]. The County Court will assess the amount of damages, if it cannot be agreed [114].

The appellant (L) appealed against his conviction for conspiracy to cheat the public revenue, and against a 54-month custodial sentence.

A co-defendant (G) had worked for HMRC. She dealt with unallocated VAT payments which could not be attributed to individual companies’ accounts due to lack of information. L and another man (S) were co-directors of certain companies. G transferred some of the unallocated funds to their companies’ accounts. When HMRC discovered the fraud, L and G were arrested and charged; S was not. On one count it was alleged that G and L had conspired to make false claims for VAT repayment; on the second it was alleged that L had conspired with others to make a false claim for a specific sum of £330,000. In the year preceding L’s trial, the CPS provided disclosure on at least five different occasions. L twice unsuccessfully applied for a stay of proceedings based on an alleged abuse of process due to a flawed disclosure process. He also unsuccessfully applied to adduce bad character evidence about S and G. L was convicted and sentenced to 54 months’ imprisonment.

L submitted that (1) the prosecution had erred by failing to investigate and arrest S; (2) by framing one count as a conspiracy between himself and G only, the prosecution had pressured the jury into convicting him so that they could convict G; (3) the judge had erred in rejecting the abuse of process submissions; (4) the judge had erred in refusing bad character evidence; (5) the sentence was manifestly excessive.

The convictions were safe and the appeal was dismissed. Although there had been failures in the prosecution’s disclosure process, they had not been in bad faith and they had been cured by the time of the trial. The prosecution had also been entitled not to investigate further the allegation that there had been another conspirator, due to insufficient evidence against him.

Failure to investigate S

The prosecution’s original decisions as to who should be investigated and interviewed were sustainable: they had focused on those who had submitted or signed false paperwork to HMRC in support of the fraudulent claims. That was a proportionate and fair approach to the expenditure of scarce resources. As material had emerged about S during the disclosure process, arguably he should have been questioned, and the prosecution had taken an inflexible approach to his possible involvement. However, the question was whether L’s conviction was safe. The prosecution had disclosed material potentially implicating S, which L had deployed during the trial. Although it might have been better to interview S, the prosecution had been entitled to conclude that the evidence against him was insufficient. There was no reason to doubt that full disclosure had been made, and L had been able to set out his case that S had been involved (see paras 54, 57 of judgment).

Conspirators

There was no basis for suggesting that the jury would have felt compelled to convict a defendant about whose guilt they were unsure. G had also been convicted on another, more serious count. The Crown should only name an alleged co-conspirator when the evidence was capable of founding the assertion that the person had conspired with the person on the indictment. L could only point to S’s position as co-director of the companies and his occasional contact with G; that was insufficient evidence that he had played a part in seeking fraudulent repayments. There had been clear evidence that L had conspired with G, but a generalised suspicion that S had been involved was insufficient evidence to name him as a co-conspirator (paras 60-62).

Abuse of process

The judge’s decisions were unimpeachable. She had recognised that the disclosure process had been flawed, but the question was whether L’s convictions were unsafe. There was no evidence of bad faith by the prosecution; its substantive failings in disclosure had been cured in time for the case to be presented to the jury and the defence (para.64).

Bad character

The judge had been correct to reject the application to admit evidence of the fact that S had been a target of another investigation which had no relevance to the issues before the jury. It was not “important explanatory evidence” or of “substantial probative value” as required by the Criminal Justice Act 2003 s.100. Equally, S’s recent arrest for a drug offence was of no probative value; he had still been awaiting a charging decision at the time. The judge had allowed significant other evidence regarding G’s bad character to be adduced, showing that she had made misallocations to companies with which L had not been involved. The jury had had substantial evidence on which to consider G’s and S’s characters (paras 69-72, 76).

Sentencing

The judge had not erred in finding that L had a high level of culpability. The fraudulent activity had been carried out over a significant period, there had been significant planning, and L’s role as a middleman had been of considerable importance. He had had a leading role. The sentence had been consistent with the relevant guidelines. The sentences for other conspirators accorded with their roles and there was no relevant disparity (paras 84-85, 89).

On 13 January 2017, the applicant Cunningham was convicted in the Crown Court at Preston on four counts of rape, a single count of controlling or coercive behaviour in an intimate or family relationship, a count of making a threat to kill and six counts of common assault. He was sentenced on 3 March 2017 on each count of rape to an extended sentence, comprising a custodial term of 16 years and an extended licence period of 4 years.

On 14 March 2019 the applicant made a written application, under Criminal Procedure Rule (“Crim PR”) 36.15, to re-open his renewed application for an extension of time for leave to appeal against conviction. The application was considered by the Registrar, which she refused applying the relevant limb of the test governing applications to re-open a decision of the Court of Appeal, on the basis that no defect in procedure which may have led to a real injustice had been identified. The Registrar additionally considered the substantive merits of the argument raised by the applicant and concluded that Sir Peter’s determination of the application for leave to appeal was not incidental or preliminary to an appeal against a conviction “before himself or a court of which he was a member” and, thus, there had been no breach of section 56.

Sweeney J was asked to consider the application, with a view either to referring it to the full court or refusing it. On 30 May 2019, he concluded that the application wholly lacked merit. However, he determined there were issues in relation to the Registrar’s role in dealing with such applications, and any appellate process in the event of a refusal by the Registrar, which needed to be addressed. In the result, he recommended the Registrar refer the instant application to the full court.

The applicant Di Stefano was extradited from Spain and convicted at Southwark Crown Court on 27 March 2013 on a 25-count indictment alleging dishonesty, which included offences of obtaining a money transfer by deception, theft, acquiring criminal property by deception, using criminal property, and fraud. After his conviction he pleaded guilty to two further offences and was sentenced to a total of 14 years’ imprisonment.

The applicant sought to re-open his application for an extension of time for leave to appeal sentence pursuant to rule 36.15 Crim PR. The application was considered by the Registrar, who refused to refer it to the Full Court on the basis that even if a procedural irregularity was established, the applicant had an alternative effective remedy through the Criminal Cases Review Commission (“CCRC”). The applicant submitted a second written application on 21 March 2019, in which he advanced a further ground for re-opening the decision of the Court of Appeal. He maintained that before conviction he had been on bail for 731 days with a curfew condition, to which the judge did not refer, and the court had failed to obtain the relevant records.

The applications were referred to Sweeney J. On 30 May 2019 he determined the submissions were wholly without merit but he again cited the need for procedural clarification, and recommended that the Registrar refer the matter for consideration by the full court.

The Court refused both applications. Concerning the procedural questions identified, it was held that the correct approach for the Registrar to adopt is to refer any procedurally correct application to the Full Court. The Court noted its previous guidance that there is no right to an oral hearing in such a situation unless the Full Court so directs.

On their merits, these applications failed to satisfy the criteria for re-opening a decision, namely there was a procedural error that was clear and undisputed, and there was no other effective remedy. For Di Stefano, the alleged forgery of the PNC record and the dispute as to the qualifying days on curfew are complicated and they are not procedural matters which are uncontested, in the sense of being the subject of agreement with the Crown. The complaint by Di Stefano that consideration of his case by the CCRC will take time was not a justification for seeking to re-open a decision of the Court of Appeal, not least because that argument, if correct, would potentially apply to all cases. As regards Cunningham, his complaint about the position of the single judge, based on his connection with the court where he was tried, was equally not a procedural error that was “clear and undisputed”.

Cunningham’s submission that the position of Sir Peter as the single judge renders the proceedings a nullity because he presided over the court which convicted him, or he had sentenced him, or he had been a member of the court which convicted or sentenced him, for the purposes of section 56 (2) Senior Courts Act 1981, was totally without merit. This provision was directed, not at the court building, but at the tribunal that dealt with the case. Sir Peter had not presided over the proceedings resulting in the applicant’s conviction or sentence, nor had he been a member of that court in some other way, and his regular sittings at Preston Crown Court, including as Recorder, are irrelevant. Sweeney J had earlier observed:

“8. […] A Circuit Judge is assigned to the Court where he or she sits. They are not a member of it. The prohibition in s.56(2) is clearly intended to ensure that the trial and/or sentencing judge, whether sitting alone or with one or more others (which, in the Crown Court, would be with one or more Magistrates) is not involved in any appeal process. Nor, on any view, was the applicant convicted and sentenced when Sir Peter was a member of the court.”

Given these applications did not come within the criteria of procedural errors that are clear and undisputed when there was no alternative effective remedy, and since they do not arguably reveal any other exceptional basis for re-opening an earlier decision of this court, the Court did not consider it necessary to address in detail the suggested underlying merits of the various submissions.

The Court noted that in the event of unmeritorious applications to reopen concluded appeals, it had the power to make a loss of time order under section 29 of the Criminal Appeals Act 1968, with the result that the Applicant would spend longer in custody. However, no such order was made in either of these cases.

On 21 September 2018 at the Crown Court sitting at Warwick the appellant was convicted of indecent assault. On 28 January 2019 he was sentenced to four years’ imprisonment. He appealed against conviction by leave of the single judge on three grounds. A fourth ground, refused by the single judge, was renewed at the hearing on 10 October 2019. The grounds of appeal on which leave to appeal was originally granted were:

i) The judge erred in rejecting an application that the appellant should be tried separately from two co-accused – the severance ground;

ii) The judge erred in rejecting an application for disclosure – the disclosure ground; and

iii) The judge failed to give a good character direction – the good character ground.

The additional renewed ground was:

iv) The judge erred in refusing an application to allow the complainant to be cross-examined on an issue of bad character – the bad character ground.

The Court allowed the appeal against conviction and also granted leave to appeal on the fourth ground.

Good Character

The Court remarked that, regrettably, the judge did not give a good character direction. The judge did make reference to the fact that the appellant had no previous convictions and contrasted that with the position of the complainant. The appellant was entitled to a good character direction comprising what, for shorthand, was described as “both limbs”. That calls for a direction that explains the relevance of the defendant’s good character to his credibility when he has given evidence or made a pre-trial statement and, secondly, to the relevance of good character to the likelihood of the defendant having committed the offence charged.

The context of this case was a straightforward conflict of evidence between the complainant and the appellant in circumstances where there was little independent evidence to assist the jury in deciding the issue. Credibility was all. In those circumstances the Court considered that the good character direction was of importance. [16]

The evidence called by the appellant, in addition to his own, consisted of an account of all material events from his wife which supported his own and a series of character witness statements which, as we have already indicated, were read to the jury with the agreement of the prosecution. In connection with the character witness evidence, the judge quoted from the statements and then added:

“Now, members of the jury, there’s always a danger with character references. Of course, they see this person, they’ve known this person for years and, obviously, they are friends, aren’t they? So, you have to bear that in mind you’re looking at these things. Approach them with some degree of caution for obvious reasons.” [17]

There was an absence of any evidence pointing to the guilt of the appellant other than the complainant’s account. The credibility of the competing versions of events was central to the decision of the jury. The Court considered that the absence of a good character direction in this case leads inevitably to the conclusion that the conviction was unsafe. That was all the more so in the context of a positive direction to the jury to be cautious about the good character evidence called by the appellant, which itself followed a direction for caution in respect of his wife’s evidence. [20]

Severance

As a result of its decision on character, the Court considered it unnecessary to deal in detail with the remaining grounds of appeal. It dealt with each only briefly. The complaint in respect of the severance ground was that the judge erred in failing to sever the appellant’s case from the other two defendants charged with sexual offences in respect of different alleged victims, on different occasions, albeit resident in the same children’s home. [21]

The judge had been confronted at the outset with an unmanageable indictment including far too many complainants and defendants. His decision to break it down into physical and sexual abuse trials was admirable. On the subsidiary question whether to try this appellant separately from the other two indicted for sexual offences, the judge directed himself by reference to the correct statutory provisions, Criminal Procedure Rules and authority. He was entitled to conclude that it was convenient to try the three accused together and that there was no unfairness to this appellant in doing so. His decision was vindicated by the outcome. The two co-accused were both acquitted. [22]

The Complainant’s Bad Character

Whilst the Court considered the point arguable it concluded, having regard to section 100 of the Criminal Justice Act 2003, that the judge was correct to decide that the two pieces of evidence did not have substantial probative value. The incident in which the complainant was said to have walked around in pyjamas exposing himself had no probative value at all and would do no more than attack his character generally. Moreover, it was not part of the prosecution case that the complainant could have known of oral sex only as a result of what was alleged against the appellant. The limit of the point the appellant might have made in connection with the earlier incident was that the complainant had used his own conduct when aged 13 as a template or background for a false account against the appellant. Such a link was tenuous. The admission of this evidence, in the absence of a positive averment by the prosecution that the sexual activity in question was known to the complainant only on account of the conduct of the appellant, would be simply to undermine credibility with evidence that would not assist the jury in determining whether the complainant’s evidence was true. [23]

Disclosure

Substantial quantities of records from the children’s home has been secured by the prosecution for the purposes of the wide-ranging series of prosecutions underway. In the course of oral argument, the Court heard conflicting descriptions of the nature of the documentation available and the ease with which the necessary checks might have been made. An issue arose whether each child had his or her own signing in and out sheet, but no precise description of the nature of the documents held appeared in the written arguments on this issue before the judge or in his ruling. The Court was troubled that no investigation appears to have been made by the police or prosecution into the question whether children visited the smallholding individually or in pairs, despite that being a point raised by the appellant when he was interviewed after his arrest. That said, the Court was not persuaded that the judge, who was close to the detail of the substantial extended cases arising out of the running of the children’s home and the available documentation, was wrong in his assessment of the disclosure question. [27]

The failure to give a good character direction in this case resulted in an unsafe conviction. The Court quashed the conviction. The prosecution applied for a retrial. The Court considered that it was not in the interests of justice for there to be a retrial. That was because the appellant has served a large part of any sentence he might receive if convicted. He also had faced a second trial in respect of alleged physical abuse and was acquitted. He was 78 years old, frail and in poor health and these matters have been running for over five years since his arrest. [28]

AC, the Applicant, applied for permission to appeal against the decision of District Judge Brennan (“the DJ”), made on 14 January 2019 (“the Decision”), to order her extradition to Sweden pursuant to an accusation European Arrest Warrant (“EAW”) issued on 12 January 2018 and certified by the NCA on 29 January 2018.

The single ground of appeal was that the DJ ought to have concluded that it would not be a proportionate interference with the Applicant’s Article 8 ECHR rights and those of her children to order her extradition.

The Court allowed the appeal and quashed the order for extradition pursuant to EA 2003.

In the Court’s view all the documents that the Applicant sought to admit in evidence are properly admissible as fresh evidence. None of the evidence was available at the time of the extradition hearing. The documents directly bear on the issue as to whether there has been a material change in circumstances since the extradition hearing and consideration of the best interests of the children in the changed circumstances. They were plainly relevant to the principal Article 8 issue in this case. [38]

The Court was satisfied from all the new evidence that the Applicant, her sister and their mother were concerned to provide the best care arrangements for M and A (the Applicant’s children) that they can, if the Applicant was to be extradited. This was not a case where a person who was prepared to look after a child or children changes his or her mind after an extradition order was made in order to assist the requested person in avoiding extradition. If that had been this family’s objective they would not have proposed arrangements that involved the children moving from the UK to Mongolia to live with their grandmother. There was no suggestion that the Applicant, her sister and their mother are acting other than genuinely in the best interests of the children. [41]

Counsel for the Respondent suggested that another option was for the Applicant’s mother to come to the UK, which would plainly be a less disruptive solution for the children than them moving to Mongolia. However, the Court did not consider it practicable for the Applicant’s mother to have to travel to the UK to take full responsibility for the care of M and A at her age and in her condition. [42] Further, if the Applicant’s mother was to come to the UK it was not clear what immigration status she would have and how she could pay for medical care, if she required it. [44]

Counsel for the Respondent submitted that the Decision that extradition was proportionate and cannot be considered wrong. The Court accepted that it was not for it to go behind that decision. Defying a court order in relation to children was a serious offence, but there are significant mitigating circumstances in the account of the physical domestic abuse suffered by the Applicant which the DJ appeared to believe. [46]

In the light of the new evidence the Court had to  conduct the required balancing exercise on the Article 8 issue afresh. Four of the five factors favouring extradition to which the DJ had regard remained relevant. The fifth factor did not. The Applicant’s sister was no longer “able and willing to look after the children at their flat”. The four factors against extradition to which the DJ had regard all remained relevant; but the fourth factor was of greater significance in the light of the new evidence, in particular, if the children had to go to Mongolia. [27]

The DJ’s decision was heavily dependent on the fact that the children will be cared for by their aunt in the UK, in their mother’s absence. [49] The fresh evidence demonstrated that the uprooting of the children from their stable environment in the UK to go and live with their grandmother in Mongolia would be very disruptive and a significant increased interference with their family life. [50] There was no realistic prospect of the Applicant’s mother being able to travel to the UK to live with and take care of the children. [51]

The Court was satisfied that the fresh evidence demonstrates (1) there were good reasons why the Applicant’s sister can no longer care for the children if the Applicant was extradited; (2) this amounted to a fundamental change of circumstance in relation to a highly significant factor that underpinned the DJ’s decision; (3) it would be contrary to the interests of the children for them to go to live in Mongolia with their grandmother; (4) there was no realistic prospect of their grandmother coming to the UK to care for them; (5) there was no person, other than their mother, to care for the children in the UK; (6) putting the children into local authority care was not an option; and (7) neither was uprooting them to go and live in Sweden. [55]

The Claimant, Mark Harrison, was a serving prisoner at HMP Full Sutton. In these proceedings he challenged the decision made on 11 December 2018 by the Deputy Director of Custody High Security (“the Director”) not to hold an oral hearing when deciding whether to downgrade his prison security classification from Category A.

The Grounds accompanying the Claim Form contended: (1) the decision to maintain the Claimant’s Category A status was unlawful as the Director had applied the wrong test (“Ground 1”); (2) common law procedural fairness required the provision of an oral hearing (“Ground 2”); and (3) in declining to hold an oral hearing, the Director had failed to follow the Defendant’s published policy in Prison Service Instruction 08/2013 (“Ground 3”). At the outset of the hearing, Mr Bunting indicated that Ground 1 was no longer pursued. Accordingly, the parties’ submissions focused on the absence of an oral hearing.

The Court concluded that the Director’s decision not to hold an oral hearing was unlawful and that this application for judicial review was allowed.

Ground 1

The Claimant submitted that “significantly” in para 4.2 of PSI 08/2013 entailed the application of an objective test as to whether the prisoner’s risk had been sufficiently reduced. The Court considered that whether a prisoner’s risk has reduced “significantly” or not, for the purposes of para 4.2 of PSI 08/2013, must be viewed in the context of the definition of a Category A prisoner in para 2.1.

If a prisoner’s risk has reduced to some degree, but he remains a prisoner “whose escape would be highly dangerous to the public or the police or the security of the State“, it was difficult to understand how the reduction could be considered sufficiently significant. In this regard, the Court noted that in R (Hassett and Price) v Secretary of State for Justice [2017] 1 WLR 4750, after setting out the para 4.2 PSI 08/2013 test, Sales LJ observed: “This paragraph has to be read subject to the definition of a Category A prisoner set out in paragraph 2.1 of PSI 08/2013…Downgrading from Category A pursuant to paragraph 4.2 will only be appropriate if the significant reduction in risk takes the prisoner outside that definition“. [50]

Grounds 2 and 3

The Defendant accepted that other than the presence of an impasse, the factors identified in sub-paragraphs (c) and (d) of para 4.7 of PSI 08/2013 were present. The Claimant had been a Category A prisoner for almost 20 years. He was nearly ten years post-tariff and he had not had an oral hearing at any of his previous Category A classification reviews. [54]

Counsel for the Defendant submitted, and the Court agreed, that in and of themselves these factors are unlikely to give rise to a requirement to hold an oral hearing, as it would not necessarily follow from them being present, that there was an issue of substance that would benefit from consideration at such a hearing. The Court added that if there was also a more specific reason for a hearing (an important dispute of fact / a significant dispute between the experts and/or an impasse), then the extent to which these factors are present will provide important context within which to evaluate the potential value of an oral hearing. [55]

As the wording of para 4.7 of PSI 08/2013 makes clear, this feature will only be in play if there was “a real and live dispute on particular points of real importance“. In this instance, the central issue on which there was said to be a dispute was the extent to which the Claimant had achieved a reduction in the risk of him re-offending if he was at large; that was undoubtedly a matter of real importance. [56]

The Director identified numerous features as indicating the Claimant’s level of risk was such that he should remain in Category A. In this regard, the thrust of the Director’s analysis and conclusions ran contrary to the views expressed by Ms Sales (the prison psychologist) and by the LAP. They concluded: that the Claimant had no outstanding areas of treatment need; that he had undertaken all recommended intervention work in Category A; that it would remain the position that there was no outstanding treatment work for him to undergo in Category A even if he admitted his guilt of the main offences and were that to occur, offending behaviour work could be facilitated in a lower security category; that his risk had substantially reduced; and that further progress would most likely be made in a TC environment (which was not available to a Category A prisoner). [59] In addition, the Director’s reasoning appeared to indicate material misunderstandings of the assessments that were before him. [60]

Given the substantial divergence between his view and those of the prison psychologist and the LAP (who were familiar with the Claimant at HMP Full Sutton) and given the Director’s apparent misunderstanding of aspects of their assessments, the Court considered that there were strong reasons falling within para 4.7(b) of PSI 08/2013 for holding an oral hearing in this instance. [62]

In addition, the Claimant submitted that his continued classification as a Category A prisoner gave rise to an impasse, in that he had completed all intervention work available to him whilst in Category A, so that whilst he remained in this security classification he was without additional opportunities to demonstrate his reduced risk, yet without such demonstrated risk reduction he would not be downgraded.

The Court considered that a genuine impasse existed and was liable to continue for the foreseeable future without resolution, if the Claimant’s security classification was simply maintained, without addressing this aspect. This was not to doubt that denial of guilt was relevant to risk assessment, as discussed in R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522 (paragraph 40 above), but, as PSI 08/2013 recognises in para 4.7(c), there are impasse situations where there was a real value in having an oral hearing at which potential solutions can be explored. For the reasons identified above, this was such a situation, especially when allied with the substantial difference in views on key issues concerning risk reduction. [71]

The Court concluded that Ground 3 was made out and that the Director failed to follow the Defendant’s published policy in declining to hold an oral hearing. Ground 2 was made out, because common law fairness required there to be an oral hearing, for the same reasons that I have identified and discussed when considering the applicability of the PSI 08/2013 factors.

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