Case No: C0/5000/2009
Neutral Citation Number: [2009] EWHC 2168 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX

Date: Tuesday, 9th July 2009

Before:

HIS HONOUR JUDGE WAKSMAN QC
 sitting as a Judge of the High Court 
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Between:

	THE QUEEN on the application of STORM 	
Claimant	
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SECRETARY OF STATE FOR JUSTICE	

Defendant	

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Miss Plimmer appeared for the Claimant.
Mr Hilton appeared for the Secretary of State for Justice.

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Judgment
HHJ Waksman QC:

Introduction
 
1.	The applicant in this case, Mr Ashleigh Storm, is serving a life sentence with a tariff of 15 years for the murder and sexual assault of a 54 year-old woman in 1992.  He is a category A prisoner at HMP Whitehall.  

2.	On 24 February 2009 the Director of high security prisons (“the Director”) decided that he should not be re-categorised as a category B prisoner. On 31 March 2009 the Director declined to order an oral hearing on that issue.  

3.	Mr Storm now challenges those decisions on three grounds. Ground 1 is that the decision was irrational in that reports before the Director demonstrated a significant risk reduction, yet he concluded that the evidence of significant risk reduction was not yet available. Ground 2 is that the Director failed to give any or any sufficient reasons for a conclusion which was said to be against the weight of specialist opinion. Ground 3 is that the Director failed to convene or order an oral hearing, thereby acting in breach of the principle of procedural fairness. 

4.	On 18 June 2009 HHJ Stewart QC granted permission on Ground 3, saying that it was arguable the principles in the case of H v SSJ [2008] EWHC 2590 (Admin) applied to the claimant’s case. He refused permission on Grounds 1 and 2, but gave leave to the applicant to make an oral renewal of those applications for permission to come on at the same time as the substantive application under Ground 3. That hearing took place on 2 July 2009 together with a rolled-up hearing for permission in relation to Grounds 1 and 2.  Having heard detailed submissions from both counsel, I took the view Grounds 1 and 2 were at least arguable.  Accordingly, this judgment deals with all three grounds on the basis of a substantive application for judicial review. 

The legal framework

5.	Paragraphs 5 to 8 of Mr Hilton’s skeleton argument contain a neutral and uncontroversial account of the essential legal materials relevant to re-categorisation generally and, accordingly, I summarise those paragraphs here.  First, the scheme is established by rule 7(1) of the Prison Rules 1999 providing that a prisoner should be classified in accordance with any directions of the Secretary of State in regard to their age, temperament and record and, with a view to maintaining good order and facilitating training in the case of convicted prisoners, and furthering the purposes of their training and treatment. A category A prisoner is one whose escape would be highly dangerous to the public or the police or the security of the state and for whom the aim must be to make escape impossible.  Prison service order 1010 makes provision for review of the categorisation of category A prisoners. Such prisoners must have their security category reviewed at least annually. That review was conducted initially by the local advisory panel (the “LAP”) which, through the governor or deputy governor, would make a recommendation as to whether or not downgrading of security category should be considered. The case is then considered by the category A review team (“CART”). If CART supports the LAP’s recommendation for retention of category A, the decision is made and issued by the head of CART. If CART supports a recommendation for downgrading, the case goes to the Director. Where CART does not support the recommendation of the LAP, the case is referred to the Director.

6.	On a review of the category A status of a prisoner by the Director, he is obliged to consider all available information, including any representations relevant to the determination of the prisoner’s security category and escape risk classification.  Account will be taken of all that, including the nature and circumstance of the present offences or offence, any relevant offending history, participation in and progress made with offence-related work, custodial behaviour and maturation. Before making a decision for downgrading from category A the Director will need to be satisfied that the prisoner’s level of dangerousness has diminished; in particular that there has been significant reduction in the risk of reoffending in a similar way if unlawfully at large.

7.	In terms of the task to be undertaken in connection with the categorisation of a Category A prisoner, I refer also to paragraphs 22 and 26 of the judgment of the Court of Appeal given by Judge LJ in the case of Williams v SSHD [2002] EWCA Civ 498, a case to which I shall return hereafter.  Judge  LJ said, in paragraph 22, that, like a parole board, the concern of the Director was public safety, but the focus was different: they (that is to say CART and the Director) “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”.  In paragraph 26 he stated that:

“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.”

Parole

8.	Mr Storm is expected to have a parole board hearing at some point in the near future on the basis that the 15-year tariff expired in June of this year.  However, I am told that no date has yet been set for such a review and certainly it is not imminent. It is common ground that until Mr Storm is re-categorised there is no realistic prospect of parole.  

Relevant factual materials
9.	Mr Storm was assessed some years ago as having a dangerous and severe personality disorder (“DSPD”), which meant that he was excluded from traditional accredited prison treatment courses due to his personality psychopathy or that he continued to pose a high risk of reoffending despite completing such courses. Within HMP Whitehall, there is a high secure assessment and treatment unit for DSPD prisoners with 65 beds. It is called the Fens Unit. Mr Storm has been receiving therapy and treatment at this unit since about 2004. The nature of the FENS Unit programme, which is intensive and highly tailored to the individual prisoner, is set out in a document reproduced at pages 35 to 37 of the hearing bundle before me.  

10.	At this stage I need only refer to the last paragraph on internal page 3, page 37 of the bundle,  headed comparison with prison programmes. This paragraph states as follows:

“…it can be seen that all the programmes that are provided by the prison service are covered in the treatment that is carried out on the unit but in greater depth, for a longer period of intervention and, most importantly, using an individual formulation so that the EXACT factors that are associated with offending for each individual are directly assessed. All changes made are monitored on a daily basis by the large number of staff on the unit, clinical and operational, who work closely with the prisoners, know formulation and closely observe behaviour. Hence it is very difficult for prisoners on the unit to feign change as they are so frequently observed in every aspect of daily living, in groups, at work, in individual sessions and in their relationships and everyday interactions with males and females”

11.	Within the Fens unit programme, which consists of different elements, Mr Storm started to receive an offence-focussed therapy in April 2008. His treatment at the unit will come to an end in April 2010. In his final 20 months on D wing within the prison, which is the location of the Fens unit, Mr Storm was expected to be participating in two further interventions, addictive behaviour group therapy and adapted healthy sexual functioning. Whatever happens on the question of re-categorisation, Mr Storm will remain housed in the Fens unit on D wing until April 2010 but, obviously, aspects of his prison regime would alter if he were downgraded to category B.

12.	The position as at March 2008 in relation to Mr Storm is recorded in a sentence planning meeting report dated 12 March 2008, i.e. before the offence-focussed element of the FENS Unit programme had commenced. I refer to certain parts of this document. At page 21 of the hearing bundle, there is an index summary and sentence details recording that Mr Storm was sentenced for murder on 10 November 1993. The circumstances were that he lured the victim back to his house after telling her he had some rent money for her.  The victim followed him, sat in his lounge while Mr Storm went upstairs to get the money and, going back to the lounge, he went into the kitchen and took a potato peeler which he used to threaten her in order to get her satchel which contained money. When she resisted, there was a violent struggle where she was severely beaten, sexually assaulted and strangled with a neck tie. He then hid the body in an outhouse at his address and went shopping to spend the money he had taken.  

13.	Under the heading “previous convictions”, it is recorded that he had a history of offending beginning when he was eight years old. He had previous convictions for ABH, criminal damage, burglary, theft, driving offences, handling, indecent assault, rape and breach of community service order.  The DSPD assessment reports that the first recorded sexual incident was when Mr Storm was eight years old though due to his age it was not recorded on police records.  He then continued offending from the age of 10 when he was convicted of ABH and criminal damage and at the age of 13 convicted of two counts of indecent assault against elderly women.  At the age of 15 Mr Storm raped his girlfriend’s mother.

14.	At page 22 there is a risk assessment which says that women of all ages are at risk of serious physical harm and sexual assault. The risk is likely to be increased if Mr Storm is in a situation where he becomes upset by a female.  This risk could be reduced if Mr Storm represses his offending behaviour further through his intervention work on DSPD.  Mr Storm wished to state that he and his individual therapists disagreed with the risk of harm summary because not all women were at risk.  He stated that it would only be someone who would remind him of when he was abused in care who would be at risk.

15.	The risk assessment also refers to the fact under “emotional wellbeing” that there was a diagnosis of anti-social personality disorder and narcissistic personality disorder. The particular risk factors included personality traits, poor emotional management, impulsivity, difficulties in relationships, sexual offending, violence in attitudes to women. He had suffered from extensive sexual and physical abuse as a child.  Reports confirmed that he had made slow but steady progress in therapy.

16.	And then at page 23 of the court hearing bundle it was stated under a heading review that: 

“All the previous targets from the last board have been achieved, because Mr Storm has engaged in therapy, he stated that his over familiar flirtatious and interpersonal style had always been part of him and this will be hard to change.”

And then at page 24 the short-term objectives were said to be “To remain on the DSPD unit and engage in therapy”, which was ongoing. The long term objectives were “To remain on the DSPD unit and engage in therapy”.

17.	Then the reference was to Mr Storm’s attendance at the meeting of the board and the author says that since that meeting, he had been informed that there appeared to be no significant change. The risk of harm was also discussed with Mr Storm, who disagreed with the statement on the relevant risk in the terms which I have identified above.

18.	The recommendation was that Mr Storm should remain enhanced and it was of course not for this board to make any recommendations about re-categorisation from A to B.  It was concerned with sentencing and planning only. 

19.	Then in late 2008 reports were prepared for the purpose of the LAP making its recommendation as to whether Mr Storm should be re-categorised. The first report was prepared some time in October 2008 by Dr Naomi Murphy, a consultant clinical and forensic psychologist. She had been working with Mr Storm on the Fens Unit since late 2003, so she had had a very substantial personal experience of him and his treatment, including a total of 142 personal sessions. Her report begins with the question posed at the top of page 27 under the heading “Section 4:Psychology” and I quote: 

“Has the prisoner demonstrated any evidence that his/her risk of serious reoffending has reduced?  Please give specific details and include implications for future treatment and progress”

20.	That question is not answered directly, but Section 4.1 of the report, which itself will have formed part of a larger report (hence the numbering starting at “4”) is headed “Progress in therapy.”  There was said to be, in overall terms, progress in  the following areas.: Attendance, reduction in use of conflict as a coping strategy, reduction in psychological defensiveness, increased capacity for emotional intimacy, increased psychological understanding of his difficulties and enhanced affective regulation. These are dealt with in some detail. They reveal the nature of and complexities within Mr Storm’s personality.  I give simply one example of that. At the bottom of page 29 reference is made to Mr Storm’s presentation as a warm, likeable man, who can appear frank and who prides himself on being able to speak his mind, but it was also the opinion of the author that he was not always honest with himself about his thoughts, feeling and motives. He could be extremely concrete minded and could choose not to comprehend that he may have a subconscious or parts of himself that he does not know well. Initially the concrete mindedness was quite striking. Over time it did become apparent that he had some capacity to use his imagination and could apply lateral thinking.  He was acutely sensitive to shame and discussions around the author’s perception of his difficulties had in the past been perceived as an attack by him, but he had been able to discuss how attempts to highlight areas of psychological vulnerability leaving him “inadequate” and abnormal could cause him to reject notions about what he needs to address to reduce his risk. Discussions with him highlighted that in fact he did absorb these discussions but could not acknowledge that there was a need to address something extra until after he believed he had made progress in each area. When he started his treatment he had a cognitive style characterised as “all or nothing” thinking. Although he could still resort to these cognitive strategies when in conflict, he had demonstrated more flexibility of thinking than was previously the case.  He was also prone to distorting cognitive information. He would take information out of context in order to preserve his self-image.  His tendency to deny material from previous conversations had greatly diminished and this kind of situation now only arose rarely.

21.	At page 31 the author noted that earlier in the therapy Mr Storm was most able to tolerate emotional intimacy when the sessions focussed around sexual materials and these discussions rarely involved conflicts. Her experience now was that Mr Storm could tolerate warmth and intimacy within sessions without having to connect this to sexual material and it was now possible to have conflict-free sessions that did not require discussions of his sexuality or sexual material.

22.	Dr Murphy then deals, in section 4.2, with what are said to be outstanding areas to be addressed. First of all “Understanding sexuality in affect regulation and interpersonal relationships”. She said that he had been able to explore why an over-reliance on sexuality formed part of his presentation, but had yet to understand the connection between anger and sexual aggression towards women. This would be addressed within both individual and offence-focussed therapy groups.

23.	In 4.2.2 she noted that he had taken risks in being more emotionally honest in established relationships with people where there was an existing reasonable degree of trust. A recent incident where he behaved aggressively to manage his fear of another prisoner had led him to recognise that he needed to make more effort to be more open about what he experiences emotionally within a broader range of relationships.

24.	4.2.3 dealt with further work to be done to enhance Mr Storm’s ability to seek care from others and 4.2.4 dealt with the need to develop an adequate formulation of his offending behaviour and understanding his own offence-paralleling progress. She recorded here that offence-focussed therapy commenced in April 2008. He had made an active commitment to this work.  The group would offer an appropriate forum for him to develop more detailed formulation of his offending behaviour including those behaviours and processes that mirrored his offending within a restricted environment.  

25.	Section 4.3 then deals with the further treatment to be offered on D wing, to which I have already referred.

26.	At page 34 of the bundle Dr Murphy concludes her observations in this way: 

“Fens unit treatment will cease in April 2010. It is anticipated at this stage he will require ongoing support to maintain any changes he has made and to continue to address his interpersonal style rather than referral to any existing offending behaviour programmes that his PCL-R would not preclude him from participating in.  [He] has highlighted that he wishes to progress to HMP Grendon in order to be offered a supportive environment in which he can continue to receive feedback about his own presentation whilst also contributing to the treatment of others but recognises this is not achievable if his security status continues to be maintained as Category A. If the board are unable to consider him suitable for Category B status at this time, it would be immensely helpful for [Mr Storm] to receive explicit feedback about what he needs to address in order to enhance his chances of meeting criteria at his next Category A board.”

Again it was not for Dr Murphy to make an actual recommendation as to the categorisation.

27.	One then turns to the section of the report compiled by the clinical Director of the FENS Unit, Ms Saradjian. Page 38 sets out a summary of his progress towards risk reduction as follows in a number of bullet points: that his progress was reviewed in depth by the multi-disciplinary team three times a year. His progress had been positive and concluded he was working well in all areas. He had made substantial changes which were detailed in the table. The changes were fundamental to his offending behaviour and the changes had persisted over time.  He had 15 months left to complete the programme. He would not be leaving the FENS unit until that time.  Whilst “there is still some work to be done it is the view of the unit that his risk of re-offending is significantly reduced and it would be important for his continuing rehabilitation to be acknowledged by his decategorisation. This will then allow him some time to be tested within this environment and then ensure that he is able to progress through the system in a manner which will test the robustness of his progress.”  If he was decategorised, his next move was planned to be a step down to HMP where intervention would continue at the lower level of security.

28.	Pages 39 to 42 of the bundle then set out areas of progress in risk reduction by reference to cognitive, affective and behavioural factors.  There was then the form for the recommendation of the LAP to be made through the governor.  The question is posed in the form in this way at page 43: has the prisoner demonstrated evidence of a significant reduction in his risk of reoffending in a similar way if unlawfully at large?  Those who make a recommendation were mandated to take into account all the evidence, including progress on offending behaviour work and current behaviour and then to consider whether the prisoner still posed a serious risk of reoffending in a similar way if unlawfully at large, ie with no supervisor or support.

29.	Then there is the recommendation itself at page 44. This was to the effect that the LAP had been advised that Mr Storm had been positive in concluding he was working well in all areas.  He had made substantial changes that were fundamental to his offending behaviour and which had persisted over time. He had approximately 15 months left to complete the programme.  He would not be leaving the FENS unit at that time.  While there was still some work to be done, his risk of reoffending was significantly reduced and it was important for his continuing rehabilitation for that to be acknowledged by the categorisation.  This would allow him some time to be tested within that environment.  The next move was planned to be HMP Grendon. In other words this part of the report, the recommendation section by the LAP, followed closely the bullet points listed by Ms Saradjian to which I have already referred. The recommendation was that Mr Storm be downgraded to category B. That was made on 8 December 2008 and signed by the governor.

The Director’s decision

30.	This was given in a letter which was sent out on 24 February 2009 following a review on 27 January 2009. It declined to follow the LAP recommendation and stated that Mr Storm should remain a category A prisoner. The circumstances of the index offence, to which I have already referred, were set out, as were the relevant circumstances concerning his background. So far as present circumstances were concerned, it was recorded that his behaviour had posed no major problems since February 2007. He remained touchy and prone to verbal outbursts if he felt he was not getting his way but he had made efforts to curb this. He had been taking part in DSPD Unit therapy since 2004.  Before then he had made some limited progress through mainstream offence-related work including the core and rolling SOTP and courses on thinking skills, anger and drugs. His participation and motivation within DSPD therapy had been consistent. He was initially resistant to individual therapy, but this had gradually improved and he had reached an understanding of the thinking and behaviours of that then influenced his reactions.  I then quote:

“He began offence focussed therapy in April 2008 and this is also going well, but not due for completion until 2010.  The overall DSPD assessment is however that his work on such issues as his interaction with others, feelings of vulnerability and childhood sexual abuse are sufficient to indicate significant risk reduction”

31.	It then records the LAP recommendation to which I have already referred and then come the reasons for the decisions, which I quote: 

“The Director recognised Mr Storm’s generally acceptable behaviour and also his efforts to address his risk through mainstream programmes in the DSPD regime.  He noted Mr Storm had achieved definite progress in terms of his insight into his behaviours and attitudes. 

The Director also noted Mr Storm had now started offence-focussed work that should both consolidate Mr Storm’s previous progress and enable him to apply new skills directly to the causes of his violent offending.  

The Director noted the [LAP]’s recommendation for Mr Storm’s downgrading on the basis of the progress which he had achieved so far.  He considered however that current offence-focussed work should be continued before an accurate assessment could be made of a significant reduction in Mr Storm’s risk.  

The Director noted the highly violent nature of Mr Storm’s present offence and his previous history of physical and sexual violence. He considered that Mr Storm’s offending showed he would pose a high level of potential dangerousness if unlawfully at large, and that there must be clear evidence of a significant reduction in this risk before his downgrading could be approved.  

The Director accepted that Mr Storm was taking appropriate steps to reduce his risk, but considered that evidence of significant risk reduction was not yet available. On that basis the Director considered Mr Storm should remain in category A at this time.”

32.	By letter dated 25 March 2009, Mr Storm’s solicitors wrote to the Director referring to that decision. They said that they had sight of the decision which refused downgrading, notwithstanding the LAP’s recommendation for Mr Storm to be downgraded on the basis of progress achieved so far. They said that the Director would be aware of a “recent High Court decision which indicates the circumstances that prevail in this case it is appropriate for an oral hearing to take place”. They went on to say that as he was located in the DSPD unit it seemed especially appropriate for this case to be considered by means of an oral hearing.

33.	It was further said that he had undergone extensive treatment and interventions in this unit and that they considered the opinion of those who administered the treatment was that it should be downgraded. The reason provided for this decision was simply that the Director considered that the current offence work should be continued before an accurate assessment could be made. There was no further explanation as to why the Director came to that decision and why he chose not to take on board the advice of the specialist team’s recommendation.  The letter concluded by saying that an oral hearing was appropriate and threatened judicial review in the absence of a decision to that effect.

34.	That letter was responded to by the Director on 21 March 2009. In it he stated that CART considered that the Director’s decision that Mr Storm should complete his current offence-focussed work before a significant reduction in his risk could be accurately determined was rational for the reasons given.  CART noted the recent appeal hearing in the case of H, which concluded that the circumstances of that case were not generally applicable.  It was satisfied that the High Court decision did not direct that the Director must hold an oral hearing in all cases where he disagreed with the recommendation of LAP.  CART considered there were no grounds for the Director’s decision to be amended or reconsidered through an oral hearing. Mr Storm’s further progress through offence-focussed work could however be taken into account at the time of his next review in 2010.

Ground 3 - The need for an oral hearing
  
35.	Ground 3 was advanced as Miss Plimmer’s first submission at the hearing before me and, accordingly, I deal with it first. She said that an oral hearing was clearly called for here and the Director acted unlawfully or irrationally in refusing it. What she seeks by way of relief is not reconsideration on that issue, but an order mandating an oral hearing.  In this context it is necessary to refer to a number of cases.  First, the Divisional Court decision in the case of R v SSHD ex parte Duggan [1994] 3 All ER 277. Here, Rose LJ emphasised the need for reasons to be given by the body considering the question of re-categorisation from category A as a matter of procedural fairness. At page 9 of the report, he quoted from Lord Oliver in an earlier case in which the learned judge said that the function of adjudicating upon charges of infraction of prison discipline is a public function which affects liberty and, to a degree, the status of the persons affected by it.  It should be subject to a general common- law principle imposing a duty of procedural fairness when a public authority makes a decision not of a legislative nature that affects the rights, privileges and interest of individuals.  Rose LJ then stated that in his judgment:

“Those words apply a fortiori when what is sought to be challenged is not really a disciplinary decision with limited significance, but a decision which has a direct impact on the date of a prisoner’s ultimate release.”

This decision arose in the context of the question of the disclosure of reports which is not something that arises here. Unsurprisingly Mr Hilton did not gainsay those observations.  

36.	The next case is the case of Williams v SSHD (supra), to which I have already referred.  It concerned a dangerous prisoner sentenced to five discretionary life sentences for offences including conspiracy to cause explosions, arson, and criminal damage with intent to endanger life. He was entitled to review via the discretionary life panel of the parole board (“DLP”). Following a review hearing in March 2000, the DLP recommended re-categorisation, although the Secretary of State had recommended to the contrary. This recommendation was strictly beyond the remit of the DLP but that it what it said.  As part of its recommendations, the DLP observed as follows: 

“…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 recategorised. The panel was concerned that that impasse should come to an end”.

37.	This recommendation was then deployed by the prisoner as part of his representations that he should be re-categorised, a decision to be taken by CART. The decision of the CART team was given in September 2000. It rejected the call for an oral hearing and it concluded that a prisoner should remain category A. In that case there was a serious difference between the materials before each of the two bodies. The DLP had very recent material from the prison, where Mr Williams had been for a period of only nine months, without the material from the previous prison. By contrast the CART considered principally the historical material. It could thus be said that the material before the DLP was too fresh or that the material before the CART was too stale. Importantly Mr Williams was not shown the material presented to CART which he did not otherwise have.

38.	The CART of course did have the earlier material before the DLP. The Court of Appeal did not accept that the DLP recommendation should be regarded as determinative, though its recommendations should be considered by CART and they were.  The different functions of the two bodies were noted in paragraphs 25 and 27 in the judgment of Judge LJ. I have already cited paragraph 26.  In paragraph 25 he referred to the critical difference between the two decision-making processes. Release on licence was a formal step. The release can be and generally is made subject to supported measures as well as stringent conditions such as supervision or treatment. The released prisoner is normally subject to a measure of immediate and continuing control. In the event of non-compliance the licence was revocable and that was not the position to be considered by the category A committee as he set out in paragraph 26.  In paragraph 27 he said that: 

“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”

39.	The court then reached its conclusion so far as Mr Williams’s claim to an oral hearing, in paragraphs 31 and 32, which I will quote: 

“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.”

40.	Unlike that case, in this case (a) the prisoner Mr Storm had access to the relevant material and was able to make representations in the light of it and (b) there was no discrepancy between the material available to the LAP and that before the Director.  Moreover, and as noted above, in this case there is no impasse so far as access to the relevant programmes were concerned or, to use another phrase, there was no Catch-22 situation. The Court of Appeal’s reference to “circulatory” in paragraph 31 of the judgment is a clear reference back to the impasse problem which was present in that case.

41.	There has been some debate before me as to whether it was being laid down in Williams (supra) that there needed to be exceptional circumstances before an oral hearing was to be ordered. On any view the Court of Appeal in Williams was not saying that, in the case of any determination of whether a category A prisoner should be re-categorised, there should be an oral hearing, so the question is when? Miss Plimmer accepts that the import of the second sentence of paragraph 32 of the decision was that there should be special circumstances but this was not the same, or may not be the same, as exceptional circumstances. I do not agree. The clear import of the first and second sentences of paragraph 32 read together, and read together with paragraph 31, is that the court would only order an oral hearing in an exceptional case, which was the same as saying “special circumstances”.  That said, I of course accept Miss Plimmer’s secondary point that, even if exceptional circumstances required to be shown, they do not have to be precisely the same exceptional circumstances as those present in the case of Williams.  That is obviously correct and Mr Hilton did not suggest otherwise.

42.	What is also clear from paragraph 31 of the judgment was that the mere fact that the case concerned a Category A discretionary life prisoner whose tariff had expired was not enough to call for an oral hearing. Only exceptional circumstances within that type of case would do so.

43.	I now turn to the case of H (supra). It was on the basis of the supposed non-conformity with principles said to have been laid down in this case that permission on paper was granted for Ground 3. It is heavily relied upon by Miss Plimmer. Accordingly, it is necessary to set it out in some detail. The prisoner in that case had a long history of offending. Whilst serving sentences imposed on him in 1995 for robbery, he was placed in a protected witness unit (“PWU”) as he had turned Queen’s Evidence against his co-defendant.  In January 1999 he was sentenced again for offences committed in 1998, being wounding with intent, robbery and firearms offences. He received six life sentences with a tariff, which expired in July 2006. He was again placed in a PWU.  He asked the LAP to recommend re-categorisation and relied upon psychological reports which referred to a reduction in risk. He also relied upon the fact that his allocation to a PWU limited access to the full range of offending behaviour work and that mainstream offending behaviour programmes would not meet his needs. The relevance of his location in a PWU appears to be twofold.  First, it was said that as a protected witness he was in practice unlikely to escape, presumably because of possible retribution against him.  He had no legal protection in the community.

44.	Secondly, there was his restricted access to the programmes because he was on that unit. The implication seems to be that if he were re-categorised he could somehow have more access to programmes, perhaps because he would no longer be on the PWU or not subject to the PWU in the same way so as to enable that further access. In August 2006 the LAP recommended re-categorisation on the basis that, although there remained a high risk of reoffending, his PWU status rendered escape unlikely. The Director refused to follow that recommendation. 

45.	In December 2007 the LAP again recommended downgrading to category B.  It noted that mainstream accredited behaviour courses were not available to him because of his location in the PWU, but in February 2008 the Director again refused to follow the LAP recommendation and this led to the judicial review application heard by Cranston J. I should add that the Director had also declined to order an oral hearing, saying that, while it might be appropriate in some cases, it was not a sufficient reason to have one just because the Director disagreed with the recommendation.  He referred to “a lack of exceptional circumstances”.

46.	In paragraph 20 of his judgment in the case of H, Cranston J said that, whether there should be an oral hearing was to be decided as a matter of general principle. In paragraph 21, he cited paragraph 35 of the judgment of Lord Bingham in the case of Smith v SSHD [2005] 1 WLR 350.  Cranston J considered that this made it clear that standards of procedural fairness affecting an oral hearing are flexible and, while an oral hearing was not required in all or even in most cases, the context in which the question arose was determinative. Lord Bingham, who was giving his decision in the different context of a Parole Board determination following recall for breach of licence conditions had stated this: 

“While the Board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.

Having regard to all of those matters Cranston J stated in paragraph 21 that there was “no test of exceptionality”.

47.	In paragraph 22, in the context of the case before him, he said that the consequences of the categorisation decision were sufficiently important that “they require a standard of procedural fairness whereby the claimant is able to put his case at an oral hearing”. He referred to five facts and I quote:

“First, he is a Category A prisoner.  Secondly, his tariff has expired. Both are significant because their combination means that delay in moving from Category A conditions is highly likely to delay his eventual release. Liberty is obviously affected. Since the consequences of an adverse Category A decision are so serious, these two factors point in the direction of a particularly high standard of procedural fairness.  
23. Next, on two occasions the local prison has recommended that the claimant should be recategorised.  As a consequence, there is an inconsistency between, on the one hand, the approach of the local prison and, on the other hand, that of the Director of High Security Prisons.  I do not accept the claimant's submission that this results in an impasse. The matter is also different from that considered in the Williams decision, since the recommendation of a local prison on categorisation is not the same as a decision of the Parole Board.  Nonetheless, this inconsistency supports the case for an oral hearing to explore it in greater depth. At the end of the day there may be no inconsistency but simply a difference of opinion, and for very good reasons, but it is as well that the matter be explored at an oral hearing. 
24. A closely related point is that the approach of the Category A Review Team may well benefit from the closer examination which an oral hearing could provide. After all, the local prison has responsibility for the care of the claimant and its views on risk and its management are matters which might be better tested by way of an oral hearing.  Finally, the claimant is in a Protected Witness Unit. That bears on various factors such as risk and his ability to undertake work which could have an impact on a reduction in that risk. An oral hearing may better explore the special factors appertaining to the claimant's location in the unit.  
25. In my judgment, therefore, the cumulative effect of these five factors tip the balance in favour of an oral hearing.  If it were necessary to do so in terms of Williams I would categorise these as exceptional circumstances.  In any event, my conclusion is that as a matter of principle an oral hearing is demanded.  The principle of procedural fairness requires a focus on the context of the case, taking into account the nature of the decision and its consequences and the interests at stake.  In this case my view is that the combination of the five factors point firmly in favour of an oral hearing.”

48.	So if it were necessary to find exceptional circumstances, Cranston J found them, in any event, in the case before him.  That important finding is reflected in his decision not to grant permission to appeal in which he observed that:

“In my judgment the number of special factors in this case are such that it is not inconsistent with an existing authority.”

49.	In fact permission was subsequently granted by the Court of Appeal on the question of the oral hearing, but by the time it came on it transpired that, on his subsequent review, the LAP now recommended no re-categorisation.  That rendered the appeal academic, since an important element in the appeal had been that there was a difference of views between the LAP and the Director.

50.	However, I need to read paragraph 5 of the brief decision given by Longmore J for the Court of Appeal which says this:

“Mr Patel urges us to hear the appeal nevertheless because he maintains there is a point of principle at stake. Nevertheless, the precise facts are always going to be very important in a case of this kind and the important question of when an oral hearing should be required in a case like this should in our view be decided in a case where the facts really matter, not in a case where the facts have moved on, and we accept Mr Southey’s submission that it would be in those circumstances disproportionate for this court to decide questions which have now become academic in the light of subsequent events.  We will therefore make an order declining to hear this appeal on the basis that it is academic, and we also record Mr Southey’s acceptance on instructions that it would be difficult to say that the case is one of any general application because of the five specific factors on which Mr Justice Cranston relied, and the decision should certainly not be taken as a precedent for any wider concept of any oral hearing than the judge ordered in the particular circumstances of this case. So in those circumstances, as I say, we will declare that the appeal is academic and we will not proceed further on it.”

51.	It seems to me that the Court of Appeal was here of the opinion that in truth no new point of principle emerged from the case of H and that it should, in effect, be confined to its own facts.

52.	As I have already noted, as Cranston J found exceptional circumstances, his earlier view that there was no test of exceptionality strictly became irrelevant.  But I should add that, for my own part, I am far from convinced that paragraph 35 of the judgment of Lord Bingham in the case of Smith could be deployed so as to reject the notion of exceptionality laid down by the Court of Appeal in Williams in the context of re-categorisation decisions.  Read as a whole, it is clear that the decision of the House of Lords in Smith was indeed focussed upon the particular context before them, namely when the Parole Board is considering a challenge to its revocation of a prisoner’s previous licence: for example by reason of a breach of his licence conditions.  The Parole Board decision, therefore, had a direct impact on the liberty or otherwise of the prisoner who had previously been assessed as fit for parole.  It is difficult in my view to extrapolate beyond that particular context.

53.	I was also referred to the first instance decision of HHJ Jarman QC in the case of Wilkinson v SSJ 24 March 2009. The learned judge there held that procedural fairness required an oral hearing, but there was no detailed analysis of either the case of Williams or H and, in refusing permission to appeal, the learned judge said that the case turned on its own facts. As I understand it, this case also went to the Court of Appeal but, as with H, the appeal was ultimately overtaken by events and became academic. In those circumstances I do not consider that I can derive any real assistance from the decision of the judge in the case of Wilkinson.

54.	Although Ground 3 is not concerned directly with the substance of the Director’s decision in this case, Grounds 1 and 2 are, it is sensible to make some observations about the decision letter at this stage.

55.	First, as noted above, the Director clearly accepted that the DSPD assessment was to the effect that there had been sufficient risk reduction.  Secondly, when the Director said that the current offence-focussed work should be continued before an accurate assessment could be made of a significant reduction in risk, he was clearly saying that, as far as he was concerned, the present indications of risk reduction were not reliable enough. They would be more reliable and more persuasive once the present programme had finished in April 2010.  There is nothing surprising about that. It obviously follows that, once the prescribed course has come to an end, there would be a more complete picture.

56.	Thirdly, when the Director said in his letter in his concluding paragraph that: “evidence of significant risk reduction was not yet available”, that has to be read in context. He clearly did not mean that there was no evidence of significant risk reduction at all. He had already said that there was. The meaning is clearly that there was not sufficient evidence of significant risk reduction or not enough evidence of it from his point of view to warrant re-categorisation. That, of course, is in the context of the task before him, which was to consider the risk posed to the public if this prisoner was unlawfully at large.

57.	In the paragraph immediately preceding this, he had referred to the highly violent nature of Mr Storm’s present offence and his previous history and considered that the offending showed that he would pose a high level of potential dangerousness if unlawfully at large and that therefore there had to be clear evidence of a significant reduction in risk before downgrading could be approved.

58.	On the question of an oral hearing, Miss Plimmer submits that there were special or exceptional circumstances here. I will deal with each of her submissions in turn.  

59.	First, she pointed out that Mr Storm was a category A prisoner whose tariff was about to expire. That is obviously correct but it will be so in many re-categorisation cases involving Category A prisoners. Of itself this cannot amount to a reason compelling an oral hearing and indeed Miss Plimmer accepted that. 

60.	She then pointed to the fact that this prisoner was placed in the Fens Unit, but aside from the significance of any conclusions about his progress on that programme (see below) his placement on the unit is not relevant. Indeed, unlike other cases, Mr Storm has access to the right kind of treatment programme.  That will continue whether he is re-categorised or not.  As already noted, there is no impasse or Catch-22 problem here.

61.	Thirdly, it was said that Mr Storm had come a long way. That was undoubtedly the case but again I do not see how that, in and of itself, leads to the need for an oral hearing. Indeed on all the points referred to thus far, Miss Plimmer accepted that they did not in themselves or cumulatively require an oral hearing.  

62.	However, she said there were other factors which, when taken with the factors already mentioned, did entail that conclusion. First, she said there is the conflict between the LAP recommendation and the Director’s decision.  Again it was recognised that this can of course happen. Directors are not bound to follow the LAP recommendation, although obviously they should take it into account. What is said to be special here is that more weight should be given to the statements about progress on the Fens Unit, because that programme is so individualised and intensive.  I accept that, but I do not see that the fact that the Director differed from an assessment made on the basis of this kind of programme as opposed to a more mainstream one leads to the conclusion that such a difference must be explored further at an oral hearing.

63.	As already indicated, what of course Miss Plimmer could not and did not submit was that this was an impasse case. The very facts of an individual programme designed for DSPD offenders meant that there was no problem in access for a category A prisoner like Mr Storm, which there might have been if the only available programmes had been of the more mainstream type.

64.	Finally Miss Plimmer submitted, in effect, that an oral hearing is demanded here because, as matters stood, the Director’s own conclusions could not be properly understood or were prima facie irrational in some way. Part of this was based on a reading of his conclusion about there being no evidence of significant risk reduction, but I have already set out above how that must be read, applying common sense. Miss Plimmer suggested that the oral hearing would be useful to the Director because he could clarify with the professionals his doubts as to re-categorisation either way. I did not really follow this.  Read properly, there is no difficulty in understanding his conclusion and nor did he seem to have any difficulty understanding the professionals’ reports.

65.	Miss Plimmer also suggested that the Director’s decision was difficult to understand given the LAP recommendation, itself another reason for an oral hearing, but it seems plain enough to me that this is all about the assessment of risk which the Director needs to make in the light of all the material including the reports of treatment, index offence, previous offending and further work to be done. The LAP says that there is significant reduction, including a reduction in risk of re-offending, but it also says that further work should be done. That work will be completed in April next year. The Director is not satisfied that he can make the judgment on risk which he is required to make without the whole six years of the Fens Unit programme being completed and where there is, in particular, further offence-related work to be done. I do not see this as so an unusual view that in and of itself it required an oral hearing, either for the benefit of the Director or for Mr Storm. In this context it is worth noting some differences between this case and the facts of both Williams and H.  In relation to Williams, the obvious difference is that there were two sets of materials available to the bodies which reached different conclusions.  Nor was there in this case any material denied to the prisoner; nor in this case was there an impasse.  As far as H is concerned, there had been two successive LAP recommendations for re-categorisation and, in addition, there was the fact that the prisoner was in a PWU, which was said to bear on the question of risk and his ability to undertake work, which could itself bear upon the question of risk.  Moreover for my own part I am far from persuaded that the fact of the prisoner being in category A and his tariff expiry was as significant as Cranston J seems to have suggested.

66.	In Mr Storm’s solicitors’ letters of 25 March 2003, which I have already read, there was a reference to “the recent case”, which I infer was a reference to H.  The proposition which was cited appears to have been that, where there was a refusal to follow the recommendation for downgrading, then there should be an oral hearing.  If that was a reference to the decision of Cranston J, it certainly overstates the position and if it was a reference to the Court of Appeal decision it is simply incorrect.

67.	In response, the Director dealt with the reference to the High Court’s decision.  He referred correctly to the Court of Appeal decision and said, also correctly, that the High Court did not say that there should be an oral hearing in all cases of disagreement.  In general I consider that the Director dealt adequately with the request for an oral hearing in his letter of 31 March 2009.

68.	These cases clearly turn on their own facts, which have to be assessed against the test of exceptionality or special circumstances set out by the Court of Appeal in Williams.  I am quite satisfied that the Director’s approach to the question of an oral hearing cannot be interfered with and indeed, looking at all the facts and of itself, it cannot be said that procedural fairness demanded an oral hearing.  That therefore disposes of Ground 3 which I reject.

Ground 1

69.	Ground 1 is that the Director was irrational in concluding that evidence of significant risk reduction is not yet available. I have dealt with this above.  Properly understood, it is not irrational at all and it is certainly well within the range of reasonable responses open to a reasonable decision-maker in the position of the Director when taking a decision about re-categorisation: see also the observations of Plender J in McKenzie v SSJ [2008] EWHC 3302 (?) at paragraph 14, the subject of footnote 2 in Mr Hilton’s skeleton argument.

Ground 2 

70.	This is that the Director failed to give any or any sufficient reasons for reaching a conclusion which is against the weight of specialist opinion.  The essential point made by Miss Plimmer here is that the Director failed sufficiently to engage with or comment upon the detail of the reports put before him and that he should have said more about why he could not be satisfied with the question of risk in the light of them. I think that this is an over-sophisticated analysis of the situation.  In my view the position before the Director was very simple. He was dealing with an admittedly dangerous offender with a serious and troubling history and with index offences of sexual assault followed by murder. The psychologist who also knew him best indicated significant progress, but pointed out the outstanding areas to be addressed and in any event said that the specialised treatment programme for him, with a timetable set up for him as a dangerous and severely disordered offender, did not end until April 2010.  The Director considered that he would have a fuller and better picture on which safely to assess risk once the course was completed and the data from it made available.  He decided that he should wait.  That is really the beginning and end of the matter and in my view his reasoning was clear and explicable. Other Directors might have taken a different view but that is not the point.

71.	Miss Plimmer also made the submission that the Director’s reference to the DSPD assessment at the top of page 47 of the hearing bundle was inadequate.  That was because he did not refer to each of several of the cognitive effective and behavioural factors listed by Miss Saradjian but referred instead only to progress on “such issues as interaction with others, feelings of vulnerability and childhood sexual abuse”.  There is in my judgment nothing in this point.  He listed some factors as examples of where the DSPD had said progress was made as noted by his use of the words “such as”. He clearly had read the detail of Miss Saradjian’s report. What was not required in my view was a detailed analysis or critique of it given his approach, which was to acknowledge a reduction of risk, but nonetheless to wish to have a more complete picture by reference to the completion of the programme.

72.	Finally Miss Plimmer placed reliance upon the usefulness of re-categorisation, first as an acknowledgement to Mr Storm that he had made progress and secondly in allowing the robustness of that progress to be tested in a less restricted environment. This was not at the forefront of her submissions, but she said it was not an irrelevant feature. It is true that the Director did not consider this particular point expressly but in my judgment he did not need to.  Factors such as these could hardly be expected to outweigh the question of risk, which is essentially what the exercise of the categorisation is all about. I note that Cranston J in the case of H rejected the complaint that the Director had in that case erred by failing to take account of the prisoner’s need for courses which might only be available if he was re-categorised. Moreover here any lack of the ability to test the robustness of the progress in a less secure environment is a very long way indeed from an ability to undertake an important course or programme itself so as to demonstrate risk reduction.

73.	For all those reasons I reject Ground 2 as well.  

Conclusion 

74.	As a result, the application for judicial review must be dismissed. I am extremely grateful to both counsel for the excellence of their oral and written submissions and I will now deal with any consequential matters.

MISS PLIMMER:  My Lord I have an application for permission to appeal to the Court of Appeal.  I accept what your Lordship (inaudible) and other judges have (inaudible) this is a fact sensitive matter.  However one can’t ignore that both in H and in Wilkinson, although the judges below concluded that there were sufficient circumstances to justify an oral hearing, the Court of Appeal granted permission and it seems to me, my Lord, that they granted permission for this reason: that it appears that the view of the Director is that H and Wilkinson is wrong and there needed to be clarification on the important question of when an oral hearing should be required in a non-impasse type case.  Your Lordship has reached a view on the facts of this case, but has also reached a view that there needs to be exceptional circumstances.  In H, as your Lordship observed, Cranston J did not feel that to be necessary but regarded the difference in approach between those on the one hand who dealt with the prisoner on a day-to-day basis and the Director as being an important factor.  The point, in amongst others, in favour of an oral hearing (inaudible) the reasoning employed by HHJ Jarman in the case of Wilkinson.  And for those reasons, my Lord, I would seek permission only in relation to your Lordship’s judgment on ground 3.

HHJ WAKSMAN: Ground 3.  Well, thank you very much, Miss Plimmer.  That has been very eloquently put, but I am afraid you will have to go elsewhere for that for these brief reasons.  First of all, I do not have the reasons before me as to why the Court of Appeal granted permission to appeal in the case of H and in the case of Wilkinson. What can be said is that that is where they granted permission to appeal from a decision that there should be an oral hearing as opposed to one where there should not be an oral hearing. Secondly, as my judgment makes clear, I have simply followed clear Court of Appeal authority.  I have not enunciated any new principle of law and, as I have stressed, this is very much a fact-based decision.  But Miss Plimmer, I will of course in due course let you have the usual form setting out those reasons for refusing your application for permission.

MISS PLIMMER:  I am most grateful.

HHJ WAKSMAN:  Now, Mr Hilton?

MR HILTON: My Lord there is an application for costs

HHJ WAKSMAN: Yes, right?

MR HILTON:  (inaudible) 

HHJ WAKSMAN:  You mean you would like your costs?

MR HILTON:  I would like my costs.  Yes, I anticipated that if costs were awarded it would be subject to the provision that they should not be enforced without the permission of the court.

HHJ WAKSMAN:  Your client is publicly funded ?  Miss Plimmer?

MISS PLIMMER:  That’s right, my Lord.

HHJ WAKSMAN:  Yes.

MISS PLIMMER:  I think that usually in these cases the more recent stance would be not to apply for costs but, if your Lordship is prepared to make an order  for costs I would ask that it is made in the manner that my learned friend puts …

HHJ WAKSMAN: Yes.

MISS PLIMMER: That is that they need to apply to the court before …

HHJ WAKSMAN: Right.  So the formal part of the order which we in the court have to draw up is, first of all, application for judicial review is dismissed and, secondly, that the claimant should pay the defendant’s costs of the application.  Before we come to the question of enforcement, Mr Hilton, do we need to have any reference, if they were not agreed, to assessment on the public funding basis?

MR HILTON:  Do you mean if not agreed?

HHJ WAKSMAN:  If it were otherwise enforced, do I need to say anything at this stage about the nature of the assessment of those costs?

MR HILTON:  I don’t believe so.

MISS PLIMMER: My Lord, that would take up a separate paragraph and then there would be the final usual paragraph on detailed assessment of the claimant’s publicly funded costs.

HHJ WAKSMAN:  Oh yes, we had this discussion before …

MISS PLIMMER: Yes, my Lord.

HHJ WAKSMAN:  Right, so the claimant shall pay the defendant’s costs of the application, such order not to be enforced without the permission of the court.  And then the separate limb is ….

MISS PLIMMER:  There would be detailed assessment of the claimant’s …

HHJ WAKSMAN:  Detailed assessment of the … Is this the claimant’s costs?

MISS PLIMMER:  This is the claimant’s costs.

HHJ WAKSMAN:  … of the claimant’s costs on the public funding …?

MISS PLIMMER:  Of the claimant’s publicly funded costs.

HHJ WAKSMAN: Claimant’s publicly funded costs.  Yes, but do I need to say anything about the assessment of the defendant’s costs?  They are not to be enforced at the moment without the permission of the court?

MR HILTON:  I don’t think we do.  I think it can be left as it is. 

HHJ WAKSMAN:  So just those three.  The application is dismissed. The claimant is to pay the defendant’s costs of the application, such order not to be enforced without the permission of the court and thirdly, that there shall be a detailed assessment of the claimant’s publicly funded costs.

MISS PLIMMER:  Thank you, my Lord.

HHJ WAKSMAN:  Thank you both very much indeed for your assistance, and I will rise now.