Staff Blog: Putting the CART before the horse - Fair hearings for Category A prisoners
The Category A Review Team (CART) is made up of unnamed civil servants within the Ministry of Justice. Their membership is not publicised and details of their expertise and training are not readily available. They make decisions which can have a significant impact on the day-to-day lives of prisoners and their prospects of making progress.
A Category A review involves the consideration of a prisoner’s security category status. Category A is the highest security category a male prisoner can be held in. Category A status is given to prisoners whose escape risk is deemed high, and as a consequence these prisoners would be extremely dangerous to the general public and national security if they were to escape. The aim of such a high level of security is to make the escape of that prisoner impossible. The equivalent for female and young prisoners is Restricted Status.
Restricted Status prisoners also have reviews by the Category A Review Team.
Being Category A means that you are heavily monitored and your day to day activities are typically restricted such as being away from normal association and identified by wearing different clothing to other prisoners. It is even the case that Category A prisoners can be restricted access to the same offending behaviour programmes.
Category A or Restricted Status prisoners have a right to regular reviews. The format of those reviews was the key issue in a recent case of M v Secretary of State for Justice.
The Case of M
A prisoner (M) challenged the refusal to allow him an oral hearing in order to put forward his case that he should no longer be a Category A prisoner.
M, the applicant, is a lifer who has served slightly over five years of his 15 year minimum term; five years at Category A status where he was restricted from engaging in the prison’s accredited, rehabilitative courses identified for him.
The Category A Review Team (CART) had considered M’s case on the papers and decided that an oral hearing was not necessary in his case and that he should remain at Category A status.
From the one to one risk focused work he had engaged with, it was decided that whilst some progress had been made, more consolidation was necessary. An independent forensic psychologist instructed by the prisoner made the same findings.
What M had argued before the High Court, was that the same principles identified in the Supreme Court case of Reilly’s application for Judicial Review, (and Osborn & Booth vs the Secretary of State for Justice) whereby a prisoner has the right to an oral hearing at a Parole Board review, should apply to prisoners undergoing reviews before CART.
In Reilly and Osborn & Booth, it was successfully argued that the Parole Board had a necessary responsibility to debate at a live hearing, with relevant witnesses and report authors, how the prisoner had progressed in order to provide clarity about his risk reduction.
Engaging in an oral hearing process was the only means by which this clarity could be achieved and fairness preserved.
M argued that a similar process should be applied to his CART review. He emphasised that his inability to access ‘traditional’ offending behaviour programmes furthered the need for an open conversation about his rehabilitation and risk reduction.
The Court found that the circumstances which made Reilly’s application successful could not be directly transferred to reviews before CART, as the Parole Board’s role and responsibilities were innately different to that of the internal administrative role of CART, with the additional importance of the Board’s decision having direct effect on the prisoner’s access to liberty, (ECHR art. 5(4)).
Unfortunately for M, what was lacking in his case was the material conflict between the prison and independent psychologists, both of whom agreed that his progression and work geared at risk reduction was doing an effective job. If there had been a discrepancy in this material opinion, perhaps the Court would have been persuaded by the notion that oral hearings in CART reviews were important for the same reasons that Parole Board oral hearings are.
As M could not demonstrate that there were failures in relation to his sentence progression or any evidence that was not considered when his case was reviewed on the papers alone, he failed to show why an oral hearing in his case was needed when it came to reviewing his Category A status.
However, the Court did provide useful guidance as to when procedural fairness would require an oral hearing before the CART:
an oral hearing should be held before determining an application whenever fairness to the prisoner required it;
the circumstances in which an oral hearing was necessary would often include a situation where important facts were in dispute, where it would not otherwise be possible to properly or fairly assess risk, or where it was maintained on tenable grounds that a face-to-face encounter was necessary to enable the prisoner to put his case effectively or test the views of those who had dealt with him;
CART should consider whether its independent assessment of risk would benefit from the closer examination which an oral hearing could provide;
the purpose of holding an oral hearing was not only to assist in CART's decision-making, but also to reflect the prisoner's legitimate interests in being able to participate in the decision, where he had something useful to contribute;
the question of whether fairness required a prisoner to be given an oral hearing was different from the question of whether he had a particular likelihood of being released or transferred to open conditions;
CART had to be, and appear to be, independent and impartial;
CART had to guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense;
CART's decision was not confined to its determination of whether to recommend the prisoner's release or transfer to open conditions, but included other aspects of its decision which would have an impact upon his management in prison or on future reviews;
it would be prudent for CART to allow an open hearing if it was in doubt about whether to do so.
CART reviews have operated in a secretive and unaccountable manner for many years.
The point of an oral hearing is not necessarily to make a different decision but to ensure that there is a fair process of enquiry.
Although M did not succeed with his application, this decision should be useful for Category A or Restricted Status prisoners who believe that an oral hearing should be held in their case.
The government took away the right to legal aid for category A hearings in 2013.
This decision forms part of a challenge being brought by the Prisoners’ Advice Service and the Howard League to a raft of legal aid cuts introduced at the same time.
At present, prisoners who apply successfully for CART oral hearings should be allowed representation but will only be able to take advantage of this if they can afford to pay privately for it.
As such, a category A or Restricted Status prisoner with, for example, a low IQ or a learning disability will be expected in most cases to argue their case without any help at all.
Making fair decisions also requires protecting the basic right of access to legal advice and representation.