Case No:C/2201/1546 QBACF
 Neutral Citation No. [2002] EWCA Civ 498
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon. Mr Justice Harrison
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 17th April 2002

Before :

LORD PHILLIPS MASTER OF THE ROLLS
LORD JUSTICE JUDGE
and 
LORD JUSTICE CARNWATH
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Between :

	MATTHEW WILLIAMS	Appellant	
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	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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 Tim Owen Q.C and Phillippa Kaufmann (instructed by Hodge Jones & Allen) for the Appellant
Philip Sales and Karen Steyn (instructed by The Treasury Solicitor) for the Respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice  JUDGE:

This is the judgment of the Court.
1.	This is an appeal by Matthew Williams, a post tariff discretionary life sentence prisoner, from the dismissal by Mr Justice Harrison on 27th June 2001 of his application for judicial review of the decision that he should continue to be categorised as a Category A (high escape risk) prisoner.
2.	Matthew Williams was born in April 1969.  In August 1988 he was remanded in custody and charged with extremely grave offences. They included conspiracy to cause explosions, possession of explosive substances, arson and criminal damage with intent to endanger life, and administering poisons.  Apart from a few days when he escaped from prison in 1995, he has been detained ever since.
3.	In April 1989, apart from a number of determinate custodial sentences, and taking account of orders subsequently made on appeal by the Court of Appeal Criminal Division, five discretionary  sentences of custody for life were imposed. They were imposed on well-established principles relating to the seriousness of the offences and the grave risk the appellant represented to public safety if he were released.  Although rehabilitation was no doubt an aspiration, we can find nothing to suggest that the sentences were imposed with that objective in view.  The essential consideration was the long-term protection of the public.
4.	The contemporaneous medical report from a consultant forensic psychiatrist described the appellant as an unusually intelligent young man who had unfortunately been exposed to his father’s extreme political views.  His personality was ‘very complex’.  He required to be contained in secure conditions for a considerable period. At the end of the report, the psychiatrist observed, with considerable caution, that there was ‘some hope’ that the appellant might mature.  Therefore, although inevitably extremely guarded, the prognosis was not utterly hopeless.
5.	In due course, the period specified for the purposes of Section 28(2) of the Crime (Sentencing) Act 1997 as the punitive element of the sentence (correctly described as the ‘relevant part’, colloquially summarised as ‘the tariff’) was set at 6½ years.  Although the process was not completed until December 1997, the tariff period formally expired in February 1995.
6.	Throughout his sentence, the appellant was categorised as a Category A prisoner, initially an ‘exceptional risk’, but from 1996, a ‘high risk’ prisoner.  His “escape would be highly dangerous to the public, the police or the security of the State, no matter how unlikely that escape may be.”
7.	Shortly after his arrival at an adult prison, in September/October 1991, the appellant was found to have made an explosive device and equipment capable of receiving radio transmissions and jamming prison radio services.  He was also implicated in a conspiracy to organise a major outbreak of prison indiscipline.  In 1993, while being transferred between prisons, the appellant attempted to escape.  In 1995, a second attempt was successful.  With others, the appellant escaped from HMP Parkhurst.  He was at large for a few days.  This escape was highly publicised.  It led to the Learmont Report, which was devastatingly critical of the Prison Service.  In July 1996, the appellant was tried and convicted and sentenced to two years’ imprisonment for this offence.
8.	Between October 1997 and June 1999, the appellant was detained in HMP Whitemoor.  Since then he has been confined in HMP Frankland, as a post tariff discretionary life prisoner.  His continued detention does not reflect any continuing punitive considerations.  That element of sentence has been completed.  Once the process of deciding the tariff was completed in December 1997, in accordance with the rights granted to him under S28(7) of the 1997 Act, the appellant was entitled to require the Secretary of State to refer his case to the Discretionary Lifer Panel of the Parole Board (DLP).  He may indeed continue to require a further reference every two years after the conclusion of a previous reference.
9.	The appellant’s possible release was first considered by the DLP in March 1998. At that time the appellant had done little to address the causes of his offence, or their effects, actual or potential. The risk of re-offending remained unacceptably high.  The DLP expressed concern that no life sentence plan had yet been formulated.  It thought that some progress could be made if the appellant were given ‘the opportunity of undertaking offending behaviour work, in particular courses in reasoning and rehabilitation, enhanced thinking skills and anger management’.  The final recommendation was that the next DLP review should take place two years later.
10.	The process which culminated in the appellant’s next DLP in March 2000 began in October 1999. In the meantime, from November 1999, the categorisation review was also in preparation.  At that time, in accordance with the decision in R v Secretary of State for the Home Department, ex parte Duggan [1994] 3 All ER 277, the appellant was provided with the ‘gist’ of the reports to be considered by the categorisation committee.  
11.	Before analysing this document however, we must identify a number of disquieting features about these separate but linked, virtually simultaneous, processes. Although there were some favourable reports from HMP Whitemoor, much of the material eventually considered by the DLP was HMP Frankland based.  Even by the date of the hearing itself in March 2000, the appellant had only been detained in HMP Frankland for about nine months.  On the other hand the source of the material produced for the Category A review team, and the basis of the ‘gist’ document, was largely, but not exclusively, produced from HMP Whitemoor.  In November 1999, when the process began, the appellant had only recently been transferred away from HMP Whitemoor. In the result the categorisation decision was delayed until September 2000.  In these circumstances, if the two bodies had been addressing the same rather than a different question, they might well have come to different conclusions, each properly reflecting the sources of the material put before it.  In the case of the DLP, the information could arguably have been regarded as too fresh, and untested: as to the review team, although the views of the DLP were drawn to its attention, the core material was arguably too stale.  In both cases the information was incomplete.
12.	Dealing with the issues chronologically, the first relevant document is the ‘gist’ served on the appellant in November 1999. It concluded by recommending that the appellant remain Category A, ‘high escape risk’.  The impression conveyed by the text as a whole, while not uncritical, was not wholly damning. During the relevant period there had been no adjudications.  The appellant’s recent behaviour in prison had caused no problems. He had started to communicate properly with staff. He acknowledged his personal responsibility for his crimes.  The significant passages come towards the end of the document. ‘Reports’ are said to draw attention to the absence of any evidence that the risk of re-offending had ‘significantly diminished’. ‘Reports’ are also said to suggest that the appellant ‘must still be regarded as potentially highly dangerous to the public’.
13.	An oral hearing was convened before the DLP on 15th March 2000.  The appellant, who was present throughout the hearing, was represented by counsel.  He gave evidence.  Representations were made on behalf of the Secretary of State by the Governor of HMP Frankland.  The written statement from the Secretary of State read:
“The Secretary of State’s view based on the material in the dossier is that Mr Williams is not suitable for release or transfer to open conditions.  
The Secretary of State notes that Mr Williams’ behaviour is good and that he is beginning to address his offending behaviour.
The Secretary of State also notes that further work is still required and, in particular, psychological assessment.  The Secretary of States notes that Mr Williams remains a Category A prisoner and therefore the outstanding work should completed in closed prison conditions”.
14.	Governor Robson agreed that the appellant’s categorisation was stopping his progress.  He pointed out that ‘this Catch 22 situation’ was ‘unique to Category A prisoners’, adding,  ‘there is nothing he can do here’. Judge Pugsley, the Chairman, recognised that there was a ‘terrible impasse’. ‘The problem’, he said,  ‘is that because we cannot re-write…categorisation, if we feel the categorisation is essentially marring a realistic prospect, it is our duty to say so’. 
15.	The DLP’s decision letter is dated 17 March 2000. The appellant continued to represent a risk to the public, sufficient to require his continued detention.  The DLP recorded that the appellant ‘had made such progress as had been possible in addressing (his) offending behaviour in Category A conditions,  ....... a move to conditions of lower security was justified both in terms of acceptable risk and the need for (him) to access further opportunities’ to undertake work to achieve greater insight into his offending. The DLP recommended that the case should be reviewed ‘18 months after transfer to closed conditions of a lesser security’.  The letter concluded:
“…whilst a Category A prisoner  you are unable to access opportunities to demonstrate reduced risk, but unless you do demonstrate such a reduction, you are unlikely to be re-categorised.  The panel was concerned that that impasse  should come to an end”.
16.	Armed with those favourable observations, Mr Owen presented a lengthy written submission on the appellant’s behalf to the Category A review team. Basing himself on the reasoning of the DLP, he suggested that the continuing allocation to Category A was ‘manifestly unjustifiable on risk grounds’.   Such an allocation would  make it impossible for a  future DLP  to conclude that Mr Williams was fit for release on licence. He referred to the ‘closed and secret deliberations of the Category A Committee’, contending that they were inhibiting the DLP’s review, and that there was a ‘basic unfairness in the system’ which the DLP’s reasoning had demonstrated.  He submitted that the appellant was entitled to an oral hearing, with, at the very least, a legal representative to attend and address the review team.  Furthermore, subject to public interest immunity considerations,  he sought disclosure of the full text of the reports which were referred to in the gist document.   The argument in favour of an oral hearing and full disclosure  was reinforced by reference to the humiliation caused to the Prison Service by the appellant’s escape from HMP Parkhurst in 1995.  It suggested a ‘compelling need’ to ensure a ‘full and fair hearing’ which was ‘seen to be fair’.
17.	The letter conveying the decision of the Director of High Security Prisons on the appellant’s categorisation is dated 5th September 2000.
18.	The application for an oral hearing was rejected. The reports from HMP Whitemoor were not disclosed.   No grounds were shown for departing ‘exceptionally’ from normal procedures.  In argument we were told that before the implementation of the Data Protection Act on 1st October 2001, full disclosure of reports had never taken place and that no application for an oral hearing had been granted by any review team considering a post tariff discretionary life prisoner’s categorisation. Beyond recording the concern expressed on his behalf that the appellant’s escape in 1995 had raised concerns about the procedural fairness of the process, this issue was not expressly addressed.
19.	The review team considered the DLP Report.  There was a relatively unimportant difference of view about the scope for one-to-one work with psychologists at HMP Frankland, in the opinion of the review team incorrectly taken into account by the DLP. In reaching a decision adverse to the appellant, the review team directed itself that categorisation and the grant or otherwise, of parole involved the exercise of distinct functions.  It accepted that the Category A decision ‘had a bearing’ on the DLP decision, but the suggestion that such categorisation made it impossible for the DLP to order release was rejected.  The Category A assessment was not, so it was held, ‘determinative’.  The Director of High Security Prisons approved the recommendation that the appellant should remain classified as Category A, high escape risk. This is the decision impugned in the present proceedings.
20.	Before addressing counsel’s submissions, our concerns about the effect of this decision, and the decision-making process, should be immediately, if briefly, summarised.  The punitive element of the appellant’s sentence is completed.  The only justification for his continued incarceration is the perceived risk to public safety.  As part of the normal two-year cycle, the appellant’s case would inevitably and has now been referred back to the DLP.  The clear recommendation from the DLP in March 2000 that the appellant should be re-categorised has been ignored. Certainly it has not been implemented.  The impasse, or deadlock, identified by the DLP is unbroken. Unless the DLP misdirects itself, the next application for release is bound to fail: the appellant’s release could not properly be ordered. 
21.	From the post tariff discretionary life prisoner’s  statutory entitlement  to a review of his detention after the expiry of the tariff period by an independent body exercising judicial functions, Mr Owen QC argued that the refusal to re-categorise the appellant was incompatible with his rights under Article 5(4) of the ECHR to a fair hearing at the next DLP. The categorisation review team  should follow and adopt the conclusions of the DLP.  In such circumstances, the logical consequence of his submission was that the DLP should effectively assume responsibility for the categorisation decision.  Certainly if the review team failed to implement the DLP’s recommendations, then any subsequent DLP review would be pointless.  The appellant was therefore deprived of his rights under Article 5(4).  R (Burgess) v Home Secretary (DC 3rd November 2000) was wrongly decided.
22.	We disagree. The DLP is an independent body.  It is required to decide whether a discretionary life prisoner should continue to be confined ‘for the protection of the public’.  The decision involves a contemporaneous assessment of the prisoner’s character and personality, and the extent, if any, of the risk to future public safety if he were released.  Subject to the ultimate responsibility of the Secretary of State, the prison authorities must ensure that the prisoner is confined until his release is directed, or he otherwise becomes entitled to release.  Every prisoner is subject to security categorisation, which affects the conditions in which he is detained.   For this appellant, the process is dealt with by the Category A Committee and the Category A review team.  In effect these are internal bodies, part of the Prison Service, administering the prisons and organising their security. Like the DLP, their concern is public safety.  The focus, however, is different.  They consider the risk to the public if the prisoner were to escape.  If the consequence would be high public danger, the appropriate category is Category A.
23.	As a matter of jurisdiction, there is in theory no legal restriction to prevent the DLP from exercising its functions under s28 in relation to a Category A prisoner, and directing his immediate release.  The reality is different.  The DLP’s judgment is bound to be better informed if the prisoner has been progressively re-categorised, and his response to decreasingly stringent conditions of detention observed and reported. Moreover, under Section 32(6) the Criminal Justice Act 1991, the DLP is subject to a statutory obligation to take account of any relevant directions issued to it by the Secretary of State while discharging its statutory functions.  Paragraph 1 of the directions governing the transfer of life sentence prisoners to open prison conditions states:
“A period in open conditions is essential for most life sentence prisoners.  It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons…open conditions require them to take more responsibility for their actions”.
	In the Lifer Manual, paragraph 4.10 identifies the purpose of Category D categorisation in the context of the progress of a life sentence prisoner towards release, as:
“To test lifers in more challenging conditions before  being considered for transfer to a pre-release employment scheme…or re-settlement prison prior to release and to provide facilities for supervision, outside activities and temporary release in preparation for final release on licence.”
24.	These directions reflect practical realities.  We are not surprised to be told that with the exception of the release of three prisoners under the ‘Peace Process’ in Northern Ireland, no Category A prisoner serving a sentence of life imprisonment has been released.  Certainly, as far as the DLP is concerned, the conclusion of the Categorisation Committee or review team inevitably has a direct and marked impact on its decision.
25.	The critical difference between these two decision-making processes in cases involving discretionary life prisoners is readily identified.  Release on licence is a formal step.  It means what it says.  The release can be and generally is made subject to supportive measures as well as stringent conditions such as supervision or treatment, or both.  The released prisoner is normally subject to a measure of immediate and continuing control.  In the event of non-compliance, the licence is revocable.
26.	The Category A Committee is concerned with the risks posed to the public by a prisoner who escapes, something which may occur unexpectedly, at any time.  If he escapes, and while he remains at large, the prisoner  is uncontrolled and unsupervised, temporarily, at least, untraceable, on the run, subject therefore to the inevitable increased stresses on an individual who, by definition, has not yet satisfied the DLP that it would be safe for him to be released on licence. 
27.	 In summary, the DLP is concerned with the protection of the public following a supervised conditional release of the prisoner, whereas the Category A Committee or review team concentrate on the risks to the public posed by an escape.  This is a difference of substance. They address the same broad issue – public safety – but they are resolving a different problem. There is no statutory, or any other basis, for concluding that one decision-making body has priority over the other, or that the judgment of one is binding on the other.  Indeed in our view it is an inevitable consequence of two distinct processes, addressing linked but different questions, that apparent inconsistencies of decision may occasionally happen. We therefore do not accept Mr Owen’s submission that if the information available to the Categorisation Committee is not markedly different to that available to the DLP, it must act in accordance with the views expressed by the DLP.  That would suggest that the DLP had been provided with some supervisory function or authority over the categorisation decision.  We cannot find anything to support this suggestion.
28.	In Burgess, a post tariff discretionary life prisoner case, counsel for the applicant exhaustively cited the relevant authorities, both domestic and Strasbourg based, including Ashingdane v United Kingdom [1985] 7EHRR 528 and KM v United Kingdom (3 December 1996), a decision of the European Commission considering the case of a post tariff discretionary life prisoner.  All consistently contradict the submissions by Mr Owen based on Article 5 (4).   Rose L.J. summarised their effect, and his own conclusion:
“Article 5(4) does not…. preclude the Secretary of State from taking a different view than the DLP of the Parole Board as to whether or not the applicant should be moved to open conditions”.
29.	We shall not burden this judgment by unnecessarily reworking Rose LJ’s detailed analysis of the authorities.  Precisely the same reasoning applies to the entire re-categorisation process and decision by the Director of High Security Prisons. The views of the DLP on categorisation, however strongly expressed, are not and cannot be determinative of the categorisation decision.  On this aspect of their decision, as Harrison J concluded,  the review team was right. 
30.	This does not produce the lamentable consequence that the recommendations of the DLP are irrelevant to the categorisation decision, or indeed the decision-making process. It was rightly accepted that these  must always be considered by the review team.  Our attention was focused on the adequacy, or otherwise, of the process adopted in this case. 
31.	Apart from the disquieting impression that the two decision making bodies concerned with this appellant were not working with the same material, the risk highlighted by this appeal is circularity.  The post tariff discretionary life prisoner may be trapped in an unending process.  This risk is mitigated by recognising that there are exceptional cases in which (subject to PII issues), the material available to the review team, in particular the reports on him, rather than their gist, should be disclosed and the prisoner permitted an oral hearing.  The successful operation of this system depends on the review team, and since January 2001, the Head of the Category A review team , correctly identifying the case or cases which should be regarded as exceptional.
32.	Mr Owen submitted that the decision that this was an ordinary or normal rather than an exceptional case was wrong. Unlike Harrison J., we agree that the review team failed to recognise the special circumstances of this case. At the risk of repetition, the appellant was a post tariff life sentence prisoner. An open hearing before the DLP, which had resulted in conclusions favourable to him, was followed by a closed hearing before the review team. On the basis of reports which had not been available to the 	DLP or been made available to the appellant or his legal advisers, the review team reached conclusions adverse to him which were seriously damaging to his prospects of release. In rejecting the application for an oral hearing, the review team misdirected itself by elevating the theory of the DLP’S statutory jurisdiction disproportionately above the practical realities, and over emphasising the differences between its own functions and those of the DLP, without sufficiently recognising the link between them.  The likely recommendation of the review team was foreshadowed by the ‘gist’ document.  Once notice of the DLP’s decision had been received, the review team should have recognised an obvious prospect of a major inconsistency between their respective conclusions. An oral hearing would have enabled the reasons for the contradictory views to be examined on behalf of the appellant and for the contents of any adverse reports to be directly addressed. In the final analysis the review team would, of course, have reached its own decision, but an oral hearing, and proper disclosure, would have ensured that the decision was the result of a better informed process, and the conclusions, and the reasons for them, would then have been received with correspondingly greater confidence.   
33.	We are less impressed with Mr Owen’s submission that the appellant’s escape in 1995, and its notoriety, was itself a feature justifying an oral hearing.  If so, that would give an escapee a greater opportunity for an oral hearing than a prisoner who had steadily worked his way through his sentence.  We do not see why the review team should be obliged to make its procedures more attractive to those who escape, and by comparison at any rate, less advantageous to those who do not.  
34.	We shall set aside the decision to refuse an oral hearing and full disclosure.  The parties will  agree the terms of the consequent order.  Provision should be made for a re-consideration of the categorisation decision on the basis of up-to-date information, at an oral hearing, with full disclosure (subject to PII), together with a further reference to the DLP as soon as practical after the decision on re-categorisation is known.
35.	This appeal will be allowed.
	Order:
1.	Appeal allowed as per agreed Minute of Order.
2.	Secretary of State to pay appellant’s costs.
3.	Public Funding taxation.
(Order does not form part of the approved judgment).