[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Falconer, R (on the application of) v Secretary of State for Justice [2009] EWHC 2341 (Admin) (02 October 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2341.html Cite as: [2009] EWHC 2341 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/10/2009

Mr Justice Pitchford:

1. This is a claim for judicial review of the defendant's Category A Review Team's decision of 12 December 2008 to maintain the claimant's status as a Category A prisoner. The claimant seeks declaratory relief to the effect that (1) the Secretary of State is in breach of his obligation to provide the means by which the claimant can demonstrate timely progress towards a reduction in the level of his risk to the public and (2) procedural fairness required the Secretary of State to hold an oral hearing at the review of the claimant's categorisation on 12 December 2008.

Proceedings

2. The claim form was issued on 4 February 2008. It challenged the Secretary of State's previous decision of 5 November 2007 declining to place the claimant in Category B. The claimant sought an order that (1) he should be re-categorised and (2) he should be assessed for placement on an appropriate offending behaviour programme.
3. The claimant relied on two grounds: (1) the Category A Review Team ('CART') had applied an incorrect test for re-categorisation and had demanded from the claimant a requirement for progress it was impossible to perform and (2) non-disclosure of particulars of threats allegedly made by the claimant to other prisoners.
4. His Honour Judge Pelling QC sitting as a Judge of the High Court gave permission limited to the claim that the Secretary of State had deprived the claimant of the means to demonstrate his progress.
5. On 28 October 2008 the claimant renewed his application for permission and sought to add a third ground of claim that the process of review lacked procedural fairness by reason of delay and refusal of an oral hearing. This ground was doomed to failure since it was aimed at the review decision of 5 November 2007 when no application was made for an oral hearing.
6. At the commencement of the hearing it was accepted on both sides that the review of 5 November 2007 had been superseded by the further annual review of 12 December 2008. I granted the claimant's application to amend section 3 of the claim to challenge the decision of 12 December 2008 and to add ground 3 as aimed at that decision.

The Claimant's Life Sentence

7. The claimant was born on 31 October 1962. He was brought up in Jamaica before spending his formative teenage years in Bristol. Between 1980 and 1997 he was convicted of several relevant offences. His convictions for violence occurred in 1980, 1981, 1985 and 1997. Those offences comprised wounding, common assault, battery, assault police and robbery. In 1989 the defendant was convicted of living off immoral earnings and in 1991 of possessing a bladed article. He was, in addition, convicted of several offences of theft, taking a conveyance and road traffic offences. In June 1999 the claimant appeared before the Crown Court at Bristol charged with four offences, first, the murder of Vincent Bean; second, the attempted robbery of Vincent Bean; third, having in his possession a 9mm pistol with intent to commit the robbery; and fourth, assaulting a woman, Bridget Criddle, occasioning her actual bodily harm.
8. The jury convicted him of all four offences. The first offence in time was count 4. At the Caribbean Club in Bristol the applicant pointed a gun at Ms Criddle's head and then struck her across the cheek with it. The defendant admitted a "small slap". The first three counts concerned events at a gambling club later the same evening. There was a disagreement about money. The prosecution's case was that the claimant started an argument and threatened to rob somebody. He asked the deceased how much money he had and was told "£100". The claimant stood up and the gun which had been in the complainant's waist band fell to the floor. He picked it up and held it in a threatening manner. Someone went to fetch a machete from the kitchen but a third man, Lloyd Stewart, attempted to intervene to calm the situation down. The claimant left the room for a short time and when he returned struck Vincent Bean over the head with the pistol causing Mr Bean to fall to the floor. The claimant searched his pockets, placed the gun against the back of Mr Bean's head and shot him dead. The claimant told those present to say that the shooting had been done by a stranger who had come to the club to commit a robbery. The evidence of the pathologist was that the gun was fired while it was in contact with the deceased's head. A firearms expert gave evidence that the gun could not have been cocked by accident and, without being cocked, it could not have been fired. This implies that the gun was deliberately cocked by the claimant before the shooting took place. The claimant's account was that the gun went off because Lloyd Stewart intervened and it must have been Mr Stewart who pulled the trigger. He denied that the gun had been cocked before it was fired. The claimant was convicted by the jury and sentenced to life imprisonment for the offence of murder. The minimum term was assessed at 19 years. The claimant appealed against his conviction, complaining that no firearms expert was called on his behalf to support the view that the gun could have been fired accidentally without first being cocked. He agreed that he had lied in interview but said that was because he had panicked and thought that Stewart would never admit that it was his fault the gun had fired. However, the claimant declined to waive the privilege of confidentiality between himself and his legal advisors which meant that he could not advance his complaint that no expert evidence was called on his behalf. His other grounds had been fully aired before the jury. Accordingly, the claimant's application for leave to appeal was refused by the full court on 26 May 2000. The claimant has ever since maintained his denial of guilt.

Progress in Prison

9. The claimant is eligible for his first parole hearing in the form of a paper review in 2015. His first full parole hearing will be in 2018. While the claimant was serving his sentence as a Category A prisoner at HMP Long Lartin he completed the Enhanced Thinking Skills Course, the Anger Management Programme (CALM) and a Drug and Alcohol Awareness Course.
10. On 2 November 2004 the claimant was interviewed by Catherine Jones, forensic psychologist in training, supervised by a senior colleague. Ms Jones is now a chartered forensic psychologist at HMP Long Lartin. She noted that psychological reports by others, prepared in January 2003 and April 2004, had recommended that the claimant undertake a psychopathy check list to determine whether he could benefit from the Cognitive Self Change Programme (CSCP), an intensive group-based programme aimed at reducing violence through restructured thinking. The claimant was reported to be "very concerned about the implications of the results" of such an assessment, but agreed, after consulting his solicitor and personal officer, to embark upon the assessment.
11. The claimant underwent the Hare Psychopathy Checklist–Revised ('PCL-R') on 8 November 2004. The interview process revealed significant psychopathic traits. Ms Jones' work was checked on 19 November 2004 by her supervisor and on 22 November 2004 they concluded:

"Mr Falconer's assessment places him above a threshold indicative of high PCL-R psychopathy. In general, individuals with higher scores on the PCL-R are more likely to repeat acts of violence and be more predatory, dispassionate and instrumental in their use of violence (HART 2001). Mr Falconer's total score placed him within the 98^th percentile relative to a normative sample of incarcerated adult male English offenders. This means that only 2% would have a higher score than Mr Falconer on this assessment.

The PCL-R is divided into two factors. The first factor focuses on affective and interpersonal features and for this Mr Falconer scored within the 97.5^th percentile. Evidence for this factor comes from his difficulties in experiencing a normal range and depth of emotions, attempts to manage the way he presents to others, apparent lack of awareness of how the victims of his offending have been affected, callous use of violence towards his victims, inflated opinion of himself, inconsistent accounts of life history-offending and lack of responsibility.

The second factor reflects those features of psychopathy associated with an impulsive, antisocial and unstable life style. Mr Falconer scored within the 81.6^th percentile on this factor with one omit for early behavioural problems due to a lack of official information to refer to. Evidence for this factor comes from his promiscuous sexual behaviour, failure to act responsibly, ability to manipulate others, parasitic lifestyle, lack of realistic long term goals, failure to comply with probation/bail requirements and criminal versatility. Evidence against this item is drawn from his late onset of offending, lack of impulsive offending behaviour, some evidence of ability to manage his emotions effectively, and his ability to maintain interest in activities.

In conclusion, the results from this assessment therefore indicate that Mr Falconer will need to be referred to the Dangerous and Severe Personality Disorder Unit at HMP Whitemoor for further assessment."

12. In his witness statement of 30 May 2008 (paragraph 3), the claimant accepts that he was offered and accepted a move to HMP Whitemoor shortly after April 2005 for a DSPD assessment. As Ms Jacqueline Saradjian, clinical director of the Fens Unit at HMP Whitemoor, explained in her witness statement of 19 November 2008 assessment for the DSDP programme takes place within the Fens Unit for a period of 16-20 weeks and the treatment programme is 5 years in length during which the prisoner undertakes individual therapy and work group programmes. At the completion of the programme the prisoner is individually assessed for a reduction of risk.
13. The claimant, at paragraph 6 of his witness statement, said he had not been given any reason why he could not have a DSPD assessment on his own wing at HMP Whitemoor and concluded "I have been waiting since I came here for someone to see me about this but no one has".
14. In his witness statement of 24 June 2009 the claimant expanded upon this. He said he was not told exactly what the DSPD assessment was. He was not told it was voluntary and had therefore made the move to HMP Whitemoor in ignorance of what was involved.
15. The claimant's recollection is not supported by the contemporaneous documents. On 22 November 2004 Catherine Jones saw the claimant with her supervisor to explain that he was being referred for the DSPD assessment at HMP Whitemoor. Ms Saradjian in her witness statement of 19 November 2008 (paragraph 4) said that on initial review on 4 July 2006, following transfer, a letter confirming the Fens Unit's acceptance of the claimant was not sent because the claimant was non-compliant, meaning that he was not prepared voluntarily to attend. A decision was made to keep the claimant on the waiting list because it was highly likely that he met the criteria. At a referral meeting held on 25 January 2007 at HMP Whitemoor it was noted, "'A' wing will inform us if he is compliant, as he has always been consistently non-compliant for DSPD". On 4 July 2007 the referral panel confirmed the claimant's suitability and placed him in a higher priority.
16. Counsel for the claimant, Mr Rule, suggested that there may have been a misunderstanding between the claimant and the Fens Unit. The claimant continued to deny the offence of murder; he may have understood that while he denied the offence he was unsuitable for DSPD assessment. As Ms Saradjian explains that is not so provided the claimant admitted being present at the event, which he did. However, contrary to Mr Rule's suggestion, subsequent events seemed to demonstrate that the claimant had other concerns.
17. On 4 June 2007 the claimant attended a Risk Assessment Management ("RAM") board meeting. Others attending included his supervisor, a member of the psychology team and a wing representative. During review of the claimant's progress during the past year, the claimant's suitability for DSPD was discussed. The claimant is reported as responding as follows:

"He stated he had been advised to go on to the DSPD unit for assessment, but is apprehensive about the unit as he sees it as punishment again, though he is already being punished by being in prison. The Board advised Mr Falconer that he was being misinformed by some people as to what went on in the DSPD unit and it was not a punishment, but a chance to progress further. Mr Falconer stated he is concerned that the Unit will change him for the worse, but he hasn't heard from them since he arrived. The Board advised they would get some guidance from the DSPD unit over the likely time scales."

Category A Review 5 November 2007

18. On 5 November 2007 the Category A Review Team reported its decision to the claimant as follows:

"The Review Team noted your behaviour had remained satisfactory since your last review. It noted you had remained free of adjudications and had been fully compliant with the regime. The Review Team, however, did not accept that your satisfactory compliant behaviour within your present secure conditions could provide sufficient evidence of appropriate risk reduction. It required further evidence to show you had addressed the risk factors relating to your offending. The Review Team noted there had been no significant changes in your progress addressing your offending since your last review was completed in September 2007. While it noted you had in the past taken part in a number of programmes and education-lead courses, and had made some progress in this work, it also noted you had yet to complete any substantial offence-focused work to address specific risk factors relevant to your violent offending. The Review Team noted your suitability for the DSPD unit remained a possibility, despite your denial of guilt to the present offences. It also noted the CSCP remained a possible option to address outstanding risk factors relating to your use of violence. The Review Team noted your extensive history of violent offending. It considered that your offending indicated a high level of potential dangerousness, and that your downgrading could not be justified until there was convincing evidence of significant reduction in your risk of re-offending in a similar way if unlawfully at large. The Review Team was satisfied that no such evidence was available and that you should remain in Category A at this time."

19. On 23 May 2008 the Fens review panel noted that the claimant was now on 'B' wing at HMP Whitemoor. The claimant realised that DSPD was the only option available to him. He had requested a visit from someone at the Fens Unit. In June 2008 the claimant was visited by a DSPD Chartered Forensic Psychologist, Warren Dennis, and an OASys assessor. They explained that the claimant was suitable for DSPD assessment but the claimant told them he was unwilling to attend the assessment if it meant he had to transfer to the Fens Unit from his wing. In his witness statement of 24 June 2009 the defendant says that in about February 2008 he discovered that DSPD assessment would take place in D wing. A friend of his had been to the unit for assessment and, having been diagnosed with DSPD, was having difficulty leaving the unit. At paragraph 11 the claimant said that he was scared about being assessed in the unit rather than on his own wing. He would only agree to an assessment if it was conducted on his own wing but if he was found to be suffering from a psychopathic disorder he would like to do something about it and recover properly.
20. It will be recalled (paragraph 11 above) that in her psychological report to the RAM Board in 2004, Catherine Jones had considered two possible programmes, DSPD and the Cognitive Self Change Programme ("CSCP"). In July 2008 Ms Sharon Jones, a trainee psychologist at the HMP Whitemoor Offender Management Unit, reviewed the claimant's possible suitability for the CSCP programme. She concluded that there was "a clinical need for the full CSCP assessment to be conducted", and sought advice from the CSCP Treatment Manager, Nina Storey, at HMP Long Lartin. Ms Storey advised that it remained necessary for the claimant to undergo DSPD assessment "before it can be established whether the CSCP can meet his needs". Foundation for this advice is provided by the guidance for referrals to the CSCP programme:

"…. a psychopathy measure should form part of any risk assessment for violence and ….. a high scoring violent offender should be considered a candidate for the high risk violent offender programme. The inclusion of psychopaths in treatment programmes is fraught with difficulties however. A number of studies have evaluated treatment participation and impact of treatment interventions with psychopaths. Evidence suggests that not only do psychopaths demonstrate less effort, motivation and improvement; they are more likely to terminate treatment prematurely and present security-related problems during the treatment process…. Of even more concern is the evidence that following treatment, psychopaths were found to have a higher rate of general and violent recidivism than non-psychopaths with some evidence that milieu therapy may even increase recidivism in this group…. This suggests that offenders who score within the psychopathy range are unlikely to respond to the CSCP. The programme requires offenders to be honest and to develop skills that enable them to report objectively their internal experience and external behaviour. The group dynamics require an atmosphere of collaboration and participation offenders who have a predisposition for lying, conning, duping and other Factor 1 characteristics are likely to be disruptive within the self-change process, and negatively influence the progress of others as well as themselves. It is therefore recommended that high scorers (30 and above) be deselected from the programme and offenders scoring 25-30 be included, with caution, under close monitoring".

In his November 2004 assessment the claimant scored over 30.

Category A Review 12 December 2008

21. I have not been provided by the claimant with the documents considered by the Review Team for the 2008 review and made available to the claimant's solicitors. I have been addressed on behalf of the claimant on the footing that the material before the Review Team would have been similar to that considered in 2007. On the one hand the claimant was a model prisoner in his general conduct. He was a listener. He was enjoying enhanced status and he had completed the Victim Awareness Programme, the Sycamore Tree course. On the other hand, the claimant had taken no steps towards confrontation and resolution of his violent offending behaviour.
22. The claimant's solicitors sought an oral hearing relying on the following factors:

i) Re-categorisation from Category A to Category B was an important decision since Category B opened up further training for the claimant.

ii) The Review Team would benefit from a closer examination of the claimant's circumstances. In particular the views of the local prison were important and could be explored.

iii) The suitability of DSPD required further exploration.

iv) A review had been missed in 2006.

v) Nothing had been done to advance the claimant's rehabilitation since 2004. He had not been assessed as he should have been.

23. In written representations, the claimant's solicitors relied principally upon the claimant's conduct as a prisoner, that he was still awaiting a DSPD assessment after 3½ years, that it was the fault of the prison authorities that no assessment had been conducted, and that little or nothing more could be done by the claimant to demonstrate his suitability for re-categorisation.
24. Having considered the claimant's representations, the Category A Review Team declined an oral hearing. They considered that:

"The information available, including your submitted representations, provided sufficient means of assessing your current level of progress and suitability of downgrading. While it is accepted that in some cases an oral hearing might be the fairest way of assessing a prisoner's suitability for downgrading, it considered there were no grounds for requiring an oral hearing for your present review."

25. On the merits of the review the Team informed the claimant:

"The Category A Team noted your overall behaviour had been acceptable since your last review. It noted you had received one recent adjudication but had otherwise posed staff no serious disciplinary problems. It also recognised that you made constructive use of your time through a number of positive activities. The Category A Team also noted you had taken part in several offending behaviour programmes including the ETS and CALM programmes and the recently completed Sycamore Tree project. It noted you had shown good levels of participation and motivation in this work and have made some progress on the issues addressed. The Category A Team noted however that despite your general compliance in terms of behaviour and sentence planning, the work you had completed to date had not been offence-focused and will not have specifically addressed your use of extreme violence in your offending. The Category A Team noted your suitability for a DSPD unit or the CSCP programme to address this important outstanding treatment need was still unresolved. It considered that this issue should be resolved and the relevant treatment should take place before an appropriate reduction in your risk could be reliably measured. The Category A Team was satisfied that further work to show a reduction in your risk was available to you while you remained within Category A. It did not accept that your reasonable custodial behaviour provided sufficient evidence of significant risk reduction, even if considered in addition to the programmes you have completed. It also did not accept your downgrading could be warranted solely to help you progress before the Parole Board considers your case. It considered that an appropriate reduction in your risk must precede your downgrading…. The Category A Team considered your violent offending showed you would possess 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 your downgrading from Category A could be justified."

Sentence Planning Meeting 2 June 2009

26. I have been provided with the report of the Sentence Planning Team, the successor to RAM, for 2009. It has made an unequivocal recommendation, notwithstanding the claimant's refusal to attend the Fens Unit for a DSPD assessment, that the claimant should within 12 months complete a full CSCP assessment. The prison psychology unit has not yet carried out a further PCL-R assessment. It is awaiting the outcome of these proceedings. However, the claimant commissioned his own assessment which was carried out by chartered forensic psychologist Louise Starkie, on 14 May 2009. Its results and interpretation are controversial. I need make no decision about the report since it was not available for the 2008 Review and could not, therefore, have affected the Review Team's decision.
27. Nevertheless Mr Rule submitted that the report was useful if only for the purpose of noting that with the gathering of years a prisoner's personality can change. It demonstrates, he submits, that the defendant should reasonably have ensured that a further assessment was carried out well before December 2008. I reject this submission. I accept the evidence of Catherine Jones that the interview and assessment of 2004 tested the claimant's life time personality traits. The fact that 3-4 years passed without further assessment is not a matter for criticism although, no doubt, Ms Starkie's report will require Miss Jones to consider what further assessment within the service, if any, may be appropriate.

The Significance of DSPD/CSCP

28. It is a striking feature of the claimant's period of imprisonment, noted by the CART for the last two years, that while making consistent and useful progress as a prisoner, there has been no effective challenge to the claimant's personality traits as revealed by his PCL-R assessment in November 2004. A close reading of that assessment demonstrates how compelling is its conclusion.
29. There are two programmes currently available to ensure that the claimant's offending is confronted in a frank and realistic way. As the guidance extracted at paragraph 20 demonstrates, the judgement of the clinician in the DSPD assessment is an important one. If the prisoner has a psychopathic personality or has significant traits of a psychopathic personality as revealed by a high RCL-R score, he is unlikely to thrive on the CSCP programme, and more likely to make progress under the long term DSPD programme. If he fails to thrive, the CART will be less likely to take a favourable view for downward re-categorisation, in anticipation of the Parole Board's first review, since the prisoner will not have demonstrated that he had addressed the significant risk of further violent offending. This is plainly the reasoning underlying Mr Dennis' advice to the claimant (paragraph 19 above) that DSPD was his only alternative. It is in the prisoner's own interests that he undertakes the work required by the DSPD programme, onerous as it is, so as to establish the grounds for a finding that the risk he presents is substantially reduced.

Ground 1: Failure to Provide Treatment Programmes Within a Reasonable Time

30. The importance of the review of categorisation for a Category A prisoner was well demonstrated by Rose LJ in R v Secretary of State for the Home Department ex parte Duggan [1994] 3 All ER 277, and, by Judge LJ (as he then was), in R (Williams) v Secretary of State for the Home Department [2002] 1 WLR 2264 and I need not repeat those observations.
31. The proposition of law on which ground 1 is founded is now well known, and is accepted on behalf of the Secretary of State. It would be a breach of the Secretary of State's public law duty to put beyond the prisoner the means of demonstrating progress towards rehabilitation while at the same time demanding such progress from the prisoner before granting him re-categorisation (see James and Others v Secretary of State for Justice [2009] UKHL 22).
32. In my judgment, however, ground 1 must fail on the facts. The reason why the defendant was unable to demonstrate the progress the Category A Review Team wished to see was that he was reluctant and ultimately refused to embark on a lengthy assessment period at the Fens Unit. I am not persuaded that the failure of the assessment to take place had anything to do with equivocation by or on behalf of the Secretary of State. The contemporaneous evidence is that the claimant was at all times resistant to leaving his cell in order to undergo the necessary period of assessment.
33. Mr Rule's submission was that if, which he did not concede, the offer of DSPD assessment was explicitly offered and rejected, the claimant should have but was not given the opportunity to undertake assessment for the CSCP programme. In my view, the defendant had compelling grounds for keeping open to the claimant the opportunity to elect assessment for the DSPD programme between 2005 and 2008. It was palpably in the claimant's own interests to accept the advice of those qualified to give it. It was well within the scope of rational decision making that, while seven years remained before the first paper review by the Parole Board, the claimant should be given the opportunity to reflect and elect to embark upon the assessment.
34. The claimant has now explicitly declined the opportunity to attend the Fens Unit (paragraph 11, witness statement 24 June 2009 & report of Louise Starkie 15 May 2009, page 1). The Sentence Planning Meeting has therefore made the only alternative recommendation available to it. In view of the claimant's refusal to accept DSPD assessment, it would certainly be in his interests to undergo CSCP assessment as soon as he can be accommodated. The next review falls in December 2009. It is unclear whether he can be assessed before that date.

Ground 3: Oral Hearing

35. I have considered the requirements of procedural fairness in the present context as described by the Court of Appeal in R (Williams) v Secretary of State for Home Department and, by Lord Bingham, in R (on the application of Smith) v Secretary of State for Home Department [2005] 1WLR 350, [2005] UKHL1 at para 35. The claimant was, in 2008, seven years away from his first Parole Board review on the papers. There was therefore no risk of conflict created by the exercise of the separate jurisdictions of CART and the Parole Board.
36. There were, however, in my judgment, two factors which were capable of requiring, in fairness to the claimant, an oral hearing by CART in December 2008.
37. Mr Rule endeavoured to demonstrate a difference of opinion between experts which required exploration at an oral hearing. In fact, I find there was none. The advice received from the experts was all to the same effect. While the claimant may have been suitable for DSPD and CSCP assessment, it was, for the reasons explored at paragraphs 28 and 29 above, preferable for the claimant to undertake the DSPD assessment in the first instance. Embarking on the CSCP programme may have been, and may yet be, unhelpful to the claimant's rehabilitation.
38. Secondly, there was an apparent contradiction between the written submissions made on behalf of the claimant and the information disclosed by HMP Whitemoor that the claimant was unwilling to take the DSDP assessment. In his witness statement of 30 May 2008 the claimant was giving the impression that he was happy for the assessment to begin but that he had not been asked to begin it. That impression was reinforced by paragraph 8 of his written submissions to the CART dated 20 October 2008:

"He feels that he has complied with all the recommendations made by the Board in June 2006 and 2007. He is obviously not responsible for making arrangements for any psychological assessments but is happy to undergo any that are required. The RAM summary dated 12 June 2006 stated an objective that he be assessed for his suitability for the DSPD (Fens Unit) and this was again stated in the Sentence Planning Meeting report 26 June 2008, but he has been on the waiting list for an extremely long time and it is submitted that the failure of the prison authorities to conduct that assessment, or provide appropriate facilities, should not prejudice his position with regard to categorisation."

39. As I have found, the real situation was very different. The claimant was unwilling to subject himself to the assessment at the Fens Unit because he was fearful of it. That is what he had told the RAM Board in 2007.
40. In the absence of the RAM Board report of 2008, referred to in the written representations, I do not know the terms in which the claimant's attitude was represented to the CART in December 2008 by the Risk Assessment Management Team. The claimant is unable, therefore, to demonstrate to me that there was any controversy of fact which could have been resolved by an oral hearing. On the face of it, the CART would have understood that the claimant was on the waiting list for the assessment and that the claimant was willing to attend. In whatever terms the claimant's attitude towards DSPD assessment was expressed on behalf of the Prison Service, CART would have had no alternative but to find as it did, namely that the claimant's attendance on an appropriate course was still unresolved. An oral hearing could not have led to re-categorisation, however the factual dispute, if any, would have been resolved.
41. In my judgment, the claimant has not made out his claim that an oral hearing was required in the interests of fairness. However, any future request made at annual review should be considered on its merits. In the light of the specific recommendation made by the Sentence Planning Meeting it may be there will be no need for an oral hearing. If, however, there is a case for closer examination of issues arising between the prisoner and the prison service psychology team, an oral hearing with the presence of relevant witnesses may be required.

Ground 2: Undisclosed Evidence

42. The claimant has been refused leave on this ground. He complains that attached to the material provided to CART in 2007 was an assertion from the security department at HMP Whitemoor that "Mr Falconer has made threats towards other prisoners". Particulars of the assertion made was sought by the claimant's solicitors, but refused. It is plain that if this unsubstantiated assertion had been regarded as of any relevance to CART's decision, the Review Team would have said so. On the contrary, in the decisions of both 2007 and 2008, the Review Team praised the claimant's progress as a prisoner and acknowledged the acceptability of his behaviour. It is clear to me, as it was to Judge Pelling QC considering the permission application, that the unidentified and unspecified assertions made in 2007 played no part in CART's decision. On the contrary, it is plain that CART's decisions were based upon a consideration of the claimant's failure to address his offending behaviour before he became a prisoner in 1999 and had nothing to do with his behaviour as a prisoner between 1999 and 2008. For these reasons I refuse permission upon Ground 2.

Conclusion

43. For the reasons given the claim is dismissed.