PETITION OF BRIAN HANDS FOR JUDICIAL REVIEW OF A DECISION OF THE SCOTTISH MINISTERS
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 9
P265/15
OPINION OF LORD JONES
In the Petition
BRIAN HANDS
Petitioner;
for
Judicial Review of a decision of the Scottish Ministers
Petitioner: Dewar; Drummond Miller LLP
Respondents: Ross; Scottish Government Legal Directorate
15 January 2016
Introduction
[1] The petitioner is serving a sentence of imprisonment. The respondents are the Scottish Ministers. They are responsible for the general superintendence of prisons and for the rules regarding the regulation and management of prisons. The respondents act in part through the Scottish Prison Service ("the SPS") which is their executive agency. Through the SPS, the respondents are responsible for the detention of the petitioner and the management of his imprisonment.
The petitioner’s averments
[2] The petitioner avers that he was convicted of murder on 12 February 1999. He was sentenced to life imprisonment on 31 May 1999, of which the punishment part was fixed at 12 years, and the sentence was backdated to 11 February 1999. On appeal, the punishment part of the petitioner’s sentence was reduced to 11 years and six months. He was initially imprisoned at Her Majesty's Prison, Barlinnie ("Barlinnie") in what are officially known as “closed conditions”. His supervision requirement level was initially categorised as "high supervision" by the respondents.
[3] The punishment part of the petitioner’s life sentence expired in August 2010. Thereafter, he became eligible to be considered for release on license by the Parole Board for Scotland. In or about January 2011, the respondents decreased the petitioner's supervision requirement level from "medium supervision" to "low supervision". He was also upgraded from closed conditions to "national top end” conditions. On 5 January 2012, the petitioner received a “first grant of temporary release” in order that he could participate in a work placement scheme. The purpose of a work placement scheme is, among other things, to facilitate a proper assessment by the respondents of a prisoner's suitability for transfer to “open conditions”. He began work with the Restorative Justice Team at North Lanarkshire Council. Thereafter, he participated in a work placement with a Timber Merchant.
[4] It was explained to me by counsel for the respondents during the first hearing in this case that “national top end” is that part of two prisons in Scotland, Her Majesty’s Prison Greenock (“Greenock “) and Her Majesty’s Prison Barlinnie (“Barlinnie”), to which a small number of prisoners are allocated. In the case of someone in the position of the petitioner, having served his tariff and looking to move on, allocation to national top end will allow that person to go on community placements and family visits, and so forth. Such allocation does not happen automatically; there is a process which has to be followed, in order to enable an assessment to be made of the suitability of the individual to be allocated to national top end. Whilst national top end is a part of Barlinnie and Greenock, it is not wholly separate. It is still within closed conditions. There are 64 national top end places in Greenock, out of a total of 240 places and 61 national top end places in Barlinnie, where the total number of places is greater than in Greenock. These 125 national top end places represent a small portion of the total prison population in Scotland which, as at the date of the hearing, numbered 7,737. There is accordingly “some pressure” on national top end places - they are very much in demand. In a case where there is a concern that a prisoner is no longer suitable for national top end, it is standard procedure that the individual will be moved, pending an investigation into the cause for concern and a further decision-making process.
[5] It is averred on behalf of the petitioner that, on 1 April 2013, his work placement at Shanks Timber Group closed early. Consequently, the petitioner had to leave the premises unexpectedly. He had no means of transport back to Barlinnie. He had been given a £1 coin and was permitted to use a nearby public telephone in case he needed to call Barlinnie for assistance. He attempted to do so, but discovered that the public telephone had been vandalised. He made no other attempt to contact Barlinnie. The petitioner sat outside a local shop for two hours and awaited collection at the usual time. When he was collected, the petitioner told the prison van driver what had happened. The respondents were then made aware of what had happened. They were not satisfied that the petitioner had done what he reasonably could to contact Barlinnie to alert the respondents to the fact that he had left his work placement early.
[6] On or about 2 May 2013, the respondents downgraded the petitioner from national top end conditions to closed conditions. They transferred him from Barlinnie to Her Majesty’s Prison Shotts (“Shotts”). On 9 May 2013, the petitioner was afforded the chance to make representations, which he did. On 10 May 2013, the respondents increased the petitioner's supervision level from low supervision to medium supervision. The petitioner submitted various prisoner complaint forms. He sought effective alternative remedies before the Internal Complaints Committee. He engaged the Scottish Public Services Ombudsman ("SPSO"). He complained that, among other things, the respondents had unreasonably failed to provide relevant and accurate information in his parole dossier. SPSO upheld his complaint on 8 August 2013. The petitioner sought judicial review of the respondents' decisions. On 4 June 2014, the Lord Ordinary granted the petitioner's application and reduced the decisions complained of. It is averred in behalf of the petitioner that the circumstances of the termination of his workplace in 2013, the decision of the SPSO, and the judicial review proceedings in 2014 are relevant to the present application.
[7] On or about 11 August 2014, the respondents placed the petitioner on what is described as “a short management plan”. The petitioner avers that it was anticipated that he would be transferred to open conditions in February 2015. At or about the end of August 2014, the petitioner began a work placement with a carpet retailer. It is averred that he “performed well” during his time on the work placement, and that he did not misbehave.
[8] In the course of the work placement, the petitioner and his placement supervisor discussed various ex-showroom carpets which were lying within the premises. The petitioner asked his supervisor whether he could have the carpets for a friend. The petitioner was told that he could have them for his friend, because they were two years old and would otherwise be discarded. The petitioner was told that he could arrange for his friend to collect the carpets, which he did. On or about 22 September 2014, the petitioner spoke with another placement supervisor at Spruce Carpets about the carpets. He was told that they were to be sold or shredded. The petitioner cancelled the collection arrangements he had made with his friend.
[9] On or about 28 September 2014, the petitioner used a telephone at Greenock and spoke with his friend. His telephone call was monitored and recorded. On 7 October 2014, the respondents transferred the petitioner to Ailsa Hall at Greenock, which, I was informed by counsel for the respondents, is a mainstream closed conditions hall within the prison. He was told that he had been transferred pending an investigation into the respondents' concerns that (i) the petitioner was involved in the introduction and distribution of illicit substances within Greenock and (ii) the petitioner had access to a mobile telephone at Spruce Carpets. The petitioner became the subject of an “Adverse Circumstance Report”. On 10 October 2014, he appeared before the Risk Management Team ("RMT") for a hearing, during which the petitioner denied any wrongdoing. He repeatedly sought disclosure of the substantive intelligence from various sources said to have been gathered by the respondents, and he asked to be allowed to listen to the monitored telephone call. His requests were refused. The petitioner raised concerns about the procedural fairness of the hearing. He tried to leave early twice during the hearing and succeeded at the second attempt. Thereafter, the petitioner was invited to make written representations, but he refused, because he had been led to believe by prison staff that the decision to transfer him to Shotts had already been ratified by the Governor at the RMT meeting.
[10] It averred that, on 13 October 2014, the respondents made a decision to: (i) increase the petitioner's supervision requirement level from low supervision to medium supervision; (ii) downgrade the petitioner from national top end conditions to closed conditions; and (iii) transfer him to Shotts from Greenock.
Remedies sought
[11] On the basis of the foregoing averments, the petitioner seeks reduction of the decision narrated in the foregoing paragraph.
The first hearing
[12] The application came before the court for a first hearing on 4 June 2015. At the request of the court, further written submissions were lodged in late October 2015.
Submissions for the petitioner
[13] Mr Dewar, advocate, who appeared for the petitioner, submitted that the decision complained of is unlawful, because it was made in a manner that was procedurally unfair. There were three aspects to that procedural unfairness. The first was a breach by the respondents of rule 21(4) of The Prisons and Young Offenders Institutions (Scotland) Rules 2011 (“the Rules”); the second was inadequate disclosure by the respondents as required by the terms of rule 21(3); and the third was the apparent failure by the respondents properly to investigate the complaint. Counsel submitted, further, that the decision was unreasonable, because: (i) the respondents failed to obtain and consider the petitioner’s representations in advance of the hearing of 13 October 2014, as is intended by rule 21(4); (ii) the respondents’ case against the petitioner, and the decision complained of are so vague that it was impossible for the petitioner adequately to answer them; (iii) the respondents failed to demonstrate proper analysis of the evidence, particularly with respect to the petitioner’s account, or to give reasons for their findings; and (iv) the respondents failed to give reasons for the application of rule 27 of the Rules.
[14] Rule 21 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 provides as follows:
Assigning certain supervision levels on review
21.--(1) This rule applies to the assignment of a prisoner's supervision level in the following circumstances:-
(a) the prisoner is assigned a higher supervision level than that previously assigned to the prisoner; or
(b) a supervision level other than low supervision level is assigned to a prisoner who is-
(i) a long-term prisoner who is eligible to be considered by the Parole Board for Scotland in terms of Part I of the 1993 Act;
(ii) a life prisoner who has served the part of his or her sentence specified in an order made under section 2(3) of the 1993 Act; or
(iii) a long-term prisoner or life prisoner who has not yet served the part of his or her sentence specified in sub-paragraph (i) or (ii), as the case may be, but who has served such part of his or her sentence as may be specified in a direction made by the Scottish Ministers.
(2) Prior to the assignment of a supervision level to which this rule applies, the Governor must provide the prisoner with a written notice informing the prisoner of-
(a) the supervision level that it is proposed should be assigned to the prisoner;
(b) the reasons for that proposal; and
(c) the procedure by which the prisoner may make written representations in relation to the proposed assignment of the supervision level.
(3) The Governor must, if asked to do so by the prisoner concerned, but subject to rule 27, provide the prisoner with-
(a) a copy of any document to which the Governor has had regard in considering the matter; and
(b) a summary of any other information of which the Governor was aware and to which he or she has had regard in considering the matter.
(4) The Governor must-
(a) consider any representations made by the prisoner prior to making a decision in relation to the assignment of a supervision level; and
(b) if the supervision level is assigned in circumstances as mentioned in paragraph (1), provide the prisoner with a written statement of reasons for his or her decision."
Section 27 relieves the Governor from complying with the terms of section 21(3) in certain specified circumstances, and subject to certain conditions.
[15] Mr Dewar submitted that the respondents had a common law duty to act in a procedurally fair manner when carrying out a function affecting the liberty and/or status of the persons affected by it. In support of that contention, he referred to: R (on the application of Ali) v Director of High Security Prisons [2009] EWHC 1732 (Admin), per Judge Pelling QC at paragraph 19; and R v Secretary of State for the Home Department ex parte Duggan [1994] 3 All ER 277 (“Duggan”). In the circumstances of the present case, the respondents have failed to discharge that duty. Each of the instances of procedural unfairness which are complained of renders the decision unlawful as a totality. When considered together, it is clear that there has been a breakdown of fair procedure such that the petitioner did not have a fair hearing at all.
Breach of Rule 21(4)
[16] Mr Dewar submitted that, in terms of rule 21(4)(a), the petitioner was entitled to make representations, and have those considered, in advance of the respondents’ making a decision to downgrade him. The respondents denied the petitioner that entitlement. The petitioner declined any pretended opportunity said to have been afforded to him subsequently, because he was told by his unit manager, Mr McGuckin, that his representations would amount to "mitigation" only.
[17] Where it is proposed to change a prisoner’s supervision level, following an adverse change in circumstances, a re-assessment form, PSS3, is to be used. Mr Dewar noted that the form which was completed in this case, joint production 12, is signed and dated on 13 October 2014 by Mr McGuckin at pages 2, 5 and 6. At page 5, Mr McGuckin wrote: "I fully concur with the information presented by First Line Manager". On page 6, he wrote: "the RMT agrees unanimously that Mr Hands be downgraded from National Top End with immediate effect". Accordingly, submitted counsel, the decision complained of was approved and ratified by Mr McGuckin on 13 October 2014, before any opportunity was given to the petitioner to make representations. The petitioner's prison conditions were expressly downgraded on that date. In any event, the decision complained of records that the respondent had begun implementing the decision on 13 October 2014 at the latest: "Mr Hands has been relocated to Ailsa Hall pending return to HMP Shotts". Under Section G, entitled "Prisoner's Representations", the petitioner wrote: "I am not filling in my self rep due to the fact Kenny McGuckin as already agreed with the proposal". (The quote is accurate) Counsel contended that the respondents do not dispute that the decision had already been signed by McGuckin in advance of the petitioner’s being asked to make representations. In any event, the respondents have not averred an alternative account as to the date of Mr McGuckin's signatures.
Inadequate disclosure
[19] Mr Dewar submitted that there is a rebuttable presumption under rule 21(3) that full disclosure of any document, or any other information, to which regard is had in the decision-making process will be provided to a prisoner upon request. That presumption is rebutted if, and only if, the Governor is of the opinion that such disclosure would be likely to be damaging on any ground mentioned in Rule 27. In such a case, the Governor would not be obliged to provide the prisoner with a copy of that document or a summary.
[20] Crucially, unlike Rule 21(3), Rule 27 does not apply routinely in every case where there is a request. The decision complained of does not record whether the Governor actually formed the necessary opinion triggering the application of Rule 27. One is unable to judge whether any such opinion was formed at all and, if it was, whether it was formed reasonably. The subsequent full disclosure of monitored telephone call recordings, transcripts (joint productions 4, 9 and 10) and a letter concerning information said to have been gathered by Spruce Carpets (joint production 6) indicates that such an opinion (i.e. that disclosure ought not to be made in this case) had probably not been formed. None of the circumstances contemplated at Rule 27 apply to the present case and the respondents were wrong to apply it simply as a matter of course.
[21] The default position prevailed i.e. Rule 21(3) only was applicable. Adequate disclosure of all considerations ought to have been made to the petitioner at the RMT upon request under rule 21(3) of the Rules. It was not made. The respondents failed to give effect to Rule 21(3). The respondents' failure amounts to a material error of law. In consequence of that failure, the petitioner was denied the opportunity of a fair hearing before the RMT. He was denied a right of reply and the chance to test the evidence, if any, against him.
[22] If Rule 27 was applicable, the respondents still required to disclose the gist, of any document, or any information, under that rule. They failed to do so as they ought to have done. The decision complained of, and the attached Adverse Circumstance Report, merely refers to "intelligence" and "information" that is "suggestive". The petitioner was provided with no more than, at its highest, vague written and oral allegations of guilt. Where supervision level reviews are concerned, fairness requires that the gist of reports be revealed in order to give the opportunity for comment. In support of that proposition, counsel referred to the dicta of Rose LJ in Duggan, at page 288F. In any event, the respondents failed to comply with the requirement under Rule 27(2). That amounts to a material error of law.
Failure properly to investigate
[23] What procedural fairness requires varies according to the circumstances. The allegations against the petitioner were of a quasi-criminal and criminal nature. A key element of procedural propriety in the present case would have been for the respondents to carry out a proper internal investigation into the allegations against him. It was further submitted that such an investigation could have included, but need not have been restricted to, a search of the petitioner's cell for drugs and the deployment of sniffer dogs. Nothing of the sort was undertaken. No adequate fact-finding exercise was undertaken.
Unreasonableness
[24] In the circumstances of the present case, fairness demanded that plain and intelligible reasons were given. That proposition applies "a fortiori where what is sought to be challenged is not merely a disciplinary decision of limited significance but a decision which has a direct impact on the date of a prisoner's ultimate release". Counsel referred to Duggan, at page 288A. It was unreasonable not to have given an adequate decision, containing plain and intelligible reasons, was not given is unreasonable. That proposition has particular resonance in view of the lack of conclusive evidence against the petitioner.
Failure to obtain and consider prisoner representations
[25] The requirement to obtain and consider prisoner representations appears at rule 21(4)(a). The express requirement on the decision-maker to give a written statement of reasons appears afterwards, at rule 21(4)(b). Mr Dewar submitted that the structure of the rule is not accidental. In particular, what is intended is that (1) a decision will not be made, nor should the reasons for it be given, until such time as prisoner representations have been obtained and considered by the decision-maker and (2) the adequacy (or otherwise) of reasons is predicated upon that having been done. Consequently, reasons purportedly given where the requirements under Rule 21(4)(a) have not been met, as in this case, are inherently inadequate.
The respondents’ vague case
[26] The petitioner was presented with oral and written allegations in vague terms. That included veiled references to "telephone monitoring information", and repetition of the expressions "intel" and "multiple intelligence entries from a variety of sources". It was not made clear at all what the respondents' case against the petitioner actually was. There was no conclusive evidence, an inadequate enquiry had been conducted and proper disclosure had been thwarted. The petitioner was essentially presented with an impossible task in defending himself, with reference to ambiguous documents, against allegations lacking clarity and brevity.
Lack of proper analysis of the evidence and reasons
[27] No drugs, drugs paraphernalia, money, mobile telephone nor any mobile telephone records were recovered by the respondents in this case. The petitioner has accounted for each of the respondents' suspicions and accusations. Neither of these highly favourable, material facts is mentioned in the decision complained of. The decision-maker has seemingly failed to take account of them. Nevertheless, the decision-maker purports to have "carefully considered all available information". Counsel submitted that the decision-maker proceeded on the basis that the petitioner was guilty and bound to be disbelieved. It is not clear from the decision complained of how or why he came to such a view. It is not clear what evidence he had before him, or how he apportioned weight to each piece of it. It is not possible to know, therefore, whether he went plainly wrong. In reliance on the decision in Wordie Property Co. Limited v Secretary of State for Scotland1984 SLT 345, counsel contended that the decision complained of does not "leave the informed reader and the Court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it". (Page 348)
Rule 27
[28] The decision-maker has given no reason why rule 27 applies in the present case. No mention is made of the Governor's "opinion". The pretended application of rule 27 had drastic consequences in that it effectively restricted the disclosure that was made to the petitioner. There ought to have been a reason given for its application. Where the case involves the application of a statutory provision to particular facts, the reason must explain why the provision does or does not apply to the particular case. In support of that proposition, Mr Dewar referred to Clyde and Edwards: Judicial Review [2000] W. Green, at paragraph 17.24.
Submissions for the respondents
[29] Ms Ross, advocate, who appeared for the respondents, moved the court to sustain their third pleas-in-law, which asserts the lawfulness of their decision, and to dismiss the petition. She said that she did not dispute any of the propositions in law which were advanced on behalf of the petitioner and contended that this case turns on its own facts. Contrary to what is averred in the answers for the respondents, she recognised that the decision under challenge may result in the slowing of the petitioner’s progress towards release and that, therefore, he has an interest to bring these proceedings.
[30] Counsel referred to a number of documents which, she submitted, set the petitioner’s complaints in context. Joint production 6 is a letter from the Governor at Greenock to solicitors acting for the petitioner, advising them that, on 7 October 2014, Spruce Carpets contacted the prison to advise that two members of their staff had heard the petitioner having what sounded like a telephone conversation in the toilets. The inference that was drawn from that was that the petitioner had access to a mobile phone. On the same date, the petitioner was relocated to Ailsa Hall, pending investigation. The relocation is recorded in joint production 11, the “Adverse Circumstance Report”. According to its terms, the purpose of the form is “to evaluate changes in a prisoner’s circumstances or behaviour which suggest a change in risk and consider his future management and suitability for Community Access.”
[31] Under the heading “Adverse Development” it is noted that there had been “a substantial amount of intelligence accumulated from various sources to suggest Mr Hands may be involved in the introduction and distribution of illicit substances in HMP Greenock.” There was also intelligence to suggest that he had access to a mobile phone at his community work placement. It is noted that the petitioner denied any involvement in such activities. In a section headed “Recommendation” the entry reads as follows: “RMT to consider Mr Hands’ continued suitability for National Top End and supervision level based on a violation of recent intelligence information.”
[32] It is recorded in the same form that an RMT meeting took place on 10 October 2014, chaired by the Governor, at which the petitioner was present. Under the heading “Decision of RMT” it is recorded that the RMT carefully considered all available information in the case, including Mr Hands’ input. The entry continues in the following terms:
“After considerable debate the RMT decided that the large amount of recent intelligence, from a range of sources including random telephone monitoring information, precluded Mr Hands’ continued suitability for inclusion at NTE. Current intelligence coupled with factual information from telephone monitoring such as; Mr Hands discussing 100 Rangers Tops which is common prison slang for blue Valium tablets and organising for associates to come to his placement to collect carpets without permission from the placement provider gave a clear indication to the RMT that Mr Hands is involved in the introduction of illicit substances into the establishment and was prepared to knowingly breach licence conditions. Mr Hands continued to deny any wrongdoing throughout the proceedings and left the room just prior to the actual conclusion of the meeting having already tried to leave earlier. Given the fact that Mr Hands had been given a short term management plan for progression through NTE to the OE [open estate] the RMT had concerns regarding his poor decision making and lack of consequential thinking and recommend the receiving establishment conduct an assessment of his needs in this area. The RMT also had concerns that this is Mr Hands’ third downgrade from NTE and with his continued non-compliance with licence conditions and prison rules. Mr Hands will be subject to a review of his supervision level prior to transfer back to closed conditions.”
[33] Ms Ross noted that the petitioner seeks reduction of a decision made by the respondents on 13 October 2014, whereas the respondents' position is that it was made on 14 October 2014. Ms Ross said that their position is supported by a computer screenshot, number 15/27 of process, showing that the petitioner’s supervision level was changed on 14 October 2014.
[34] Counsel for the respondents submitted that it is important to remember the function that the respondents exercise. They are responsible for, among other things, risk management. Determining the appropriate supervision level for an individual prisoner comes within their risk management function. They are entitled to exercise their discretion in deciding what weight to give factual matters before them. The approach taken in the petition appears to be to criticise the respondents for having regard to factual matters, but this is cast within a complaint about the fairness of their procedures. In essence, counsel contended, it a reasonableness complaint, although it is not expressed in such terms by the petitioner. It is not open to the petitioner to ask the court to review the merits of the decision in these proceedings. It was against that background, said counsel, that she addressed the petitioner's criticisms. The order of Ms Ross’ submissions in response to the criticisms advanced on behalf of the petitioner differed from that of Mr Dewar.
It was unreasonable of the respondents to conclude that the petitioner had a mobile phone, or the use of one
[35] The petitioner was on a work placement at Spruce Carpets. Spruce Carpets advised the respondents that two members of staff had heard the petitioner having what sounded like a mobile phone conversation in the toilets. Having, or using, a mobile phone was contrary to the conditions of his placement. The respondents inferred from the information provided to them that the petitioner had access to a mobile phone. That, argued counsel, was a reasonable inference. It was put to the petitioner and he had the opportunity to respond to it. There was no need for the respondents to recover a mobile phone.
The respondents should have used more methods of discovering that the petitioner had a mobile phone
[36] The respondents’ concern was that the petitioner may have had access to a mobile phone rather than possession of one. It was the use of the mobile phone that was relevant. On the information that was before them, the respondents were entitled to infer that the petitioner had used a mobile phone at Spruce carpets. In drawing that inference, the respondents acted reasonably. The question was investigated further with the petitioner, and he refused to make any representations.
The respondents gave too little weight to their not having recovered either drugs or a mobile phone from the petitioner
[37] Ms Ross contended that this criticism is ill-founded. It was for the respondents to determine how to assess the factual information before them, and in so doing they exercised their discretion reasonably. It was not necessary for the respondents to recover either drugs or a mobile phone in order for them to make their decision. They had the evidence of the phone call made on 28 September 2014, which they reasonably interpreted as indicating the petitioner's involvement in introducing drugs into the prison. It was unnecessary for them to search the petitioner's cell, or to use dogs. It would not have been within the respondents' powers to search the property of the work placement provider. It was for the respondents to determine the circumstances in which it is proportionate for them to deploy particular security measures. The petitioner appears to suggest, argued counsel, that, not having used alternative security measures, the respondents were not entitled to rely on the information available to them. There is no merit in that complaint.
The respondents did not give adequate reasons for preferring their intelligence sources' accounts to that of the petitioner (so far as he gave one).
[38] The respondents had access to a range of intelligence sources suggesting that the petitioner had access to a mobile phone and was involved in bringing drugs into the prison. They assessed that information in a reasonable way. The petitioner seeks to found on a purported failure by the respondents to vouch their understanding of prison slang. That, contended counsel, is misconceived. The RMT had information before it to the effect that “Rangers tops” is common prison slang for blue Valium tablets. The petitioner does not appear to contradict that, but he appears to suggest that the RMT ought not to have accepted it.
[39] Ms Ross referred to the petitioner’s affidavit, joint production 8, which was sworn on 2 May 2015. His explanation now is that his cousin had bought 100 Rangers tops at an auction. Counsel argued that his explanation is inherently implausible and, in any event, the petitioner failed to make any representations to challenge the respondents' view, at the time.
It was irrational of the respondents to consider the petitioner's attempt to dispense carpets from his work placement as capable of meeting the criteria in their Risk Management Manual.
[40] Counsel submitted that the attempts made by the petitioner to give free carpets to associates are only a part of the set of factual circumstances which were taken into account by the respondents. The significant matters were the use of the mobile phone and the petitioner’s involvement in introducing drugs to the prison. However, making arrangements to give free carpets to associates without permission involved a breach of trust. That was sufficient to be categorised as an adverse development warranting attention from the RMT.
The petitioner had no, or no adequate, advance notice of the case against him.
[41] The petitioner received adequate notice of the case against him. He was provided with the gist of the information relied on, in accordance with rule 21(3) of the Rules. He could not have full access to the information that the respondents had received. Telling him who had informed the respondents of his activities, or even in what circumstances they had observed those activities, might have endangered the informants. The respondents had a duty to prevent such danger. Following this course is consistent with the respondents' policies in dealing with sensitive matters involving intelligence. It is a reasonable and proportionate approach.
On the other side of the balance, the allegations against the petitioner were not complex. They were to the effect that he had made calls from a mobile phone at his work placement and that, on another occasion, he had made a telephone call concerning the supply of Valium. These allegations were sufficient to found the respondents' decision. The gist of them was sufficient for the petitioner to appreciate the case against him.
[42] The petitioner was also provided with that notice in good time, both objectively and in terms of the Rules. The legislative framework imposes a requirement that notice be given at least 48 hours before the prisoner is invited to make written representations. The petitioner was provided with a copy of the Adverse Circumstance Report, containing the gist of the information, on 9 October 2014. He attended the RMT meeting on 10 October 2014. He was given the opportunity to make written representations on 14 October 2014.
The respondents failed to give the petitioner a proper opportunity to make representations before making their decision.
[43] The petitioner was invited to make representations at the RMT meeting, but he declined to do so. That opportunity of making representations was a proper one because the decision was yet to be made and he had been adequately informed of the case against him. That procedure accorded with rule 21(2) and (4) of the Rules.
[44] The procedure adopted went at least as far as administrative law requires. That requirement is context sensitive, and it does not require the panoply of a trial, or something like it, for relatively straightforward administrative decision making. Counsel referred to R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 and (“Doody”), per Lord Mustill at page 560. Indeed, she argued, the respondents were under no obligation to let the petitioner make oral submissions in the first place. While the manner of his imprisonment was important to him, the procedure did not have the gravity of a parole hearing and even that would not necessarily have required an oral hearing. Ms Ross referred to Osborn v Parole Board [2014] AC 1115. It is not the case that fair procedure necessarily requires that a person in the petitioner's position be given a prior opportunity to answer the case to be put before the decision maker. For that proposition, counsel relied on R (Ali) v Director of High Security Prisons [2009] EWHC 1732 (Admin) at page 26.
The respondents reached, or appear to have reached, their decision before the meeting at which the petitioner was invited to make representations
[45] This complaint is based on a misunderstanding. The petitioner takes issue with the comment in section E of the PSS3 form that Mr McGuckin concurred with the information presented by the first line manager, and with the proposal to increase the supervision level. The petitioner appears to have believed the proposal referred to in section F to be a final decision. In fact, section F is expressly marked "Proposed Access Level and Location". The next section of the form, section G, is to be completed by the prisoner, allowing him to make representations in response to the proposal. There was, therefore, only ever an agreement to propose this course of action and to put it to the petitioner for his comment. Thereafter, the final stage in the process was to determine the outcome, having had regard to those representations. The petitioner declined to make representations. To the extent that he has sustained any prejudice, it is at his own hand.
Further considerations
[46] Ms Ross contended that the petition is framed as a challenge to the respondents' decision essentially on the basis of procedural unfairness. Counsel submitted that an additional challenge appears in the petitioner’s note of argument, relating to the adequacy of the respondents' reasons. That appears to be linked with the disclosure of information by the respondents and to their final decision. The complaint is not made out. The respondents' records, in particular the Adverse Circumstance Report and the PSS3 form, (joint productions 11 and 12) contain ample information setting out the basis of the respondents' position and the reasons for their decision.
Decision and reasons
[47] To place the petitioner’s challenge in its legal context, it is appropriate to note certain of Lord Mustill’s observations in Doody, at page 560 of the report. The case concerned four life prisoners each of whom challenged the Secretary of State for the Home Department’s determination as to the period that the prisoner should serve for the purposes of retribution and deterrence, before the Secretary of State set the date of the first review of the prisoner's sentence. The ground of challenge in each case was that the prisoner was not given an opportunity to make representations before the determination was made.
[48] Having asked himself what fairness requires in a case such as those before the appellate committee, Lord Mustill said this:
“From (the authorities), I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.
My Lords, the Secretary of State properly accepts that whatever the position may have been in the past these principles apply in their generality to prisoners, including persons serving life sentences for murder, although their particular situation and the particular statutory regime under which they are detained may require the principles to be applied in a special way. Conversely, the respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made.”
[49] Having regard to the terms of the documents which have been lodged in this case, the petitioner was the subject of not one, but two decisions. The first was to return him to closed conditions. The second was to re-assign his supervision level.
[50] The petitioner was returned to it Ailsa Hall on 7 October 2014. That was, in fact, a return to closed conditions, but it was “pending investigation”, and might only have been temporary, depending on the outcome of the investigation (joint production 11). That move was closely linked in time to the report from Spruce Carpets, which had been made the same day, that the petitioner had been heard having what sounded like a phone conversation in the toilets (joint production 6). It is clear from the terms of the Adverse Development Report that, on or shortly after the date of his relocation on 7 October, the petitioner was told that the allegations against him involved drugs and access to a mobile phone. He himself says so, in statement 4(viii) of the petition. On 9 October 2014, the line manager, Mr O’Dade, recommended that the RMT should consider the petitioner’s continued suitability for national top end and his supervision level, based on an evaluation of the intelligence concerning his involvement with drugs and the use of a mobile phone.
[51] That evaluation took place at the RMT meeting which was held on 10 October 2014. It is clear that the petitioner was given the opportunity at the meeting to comment on the allegations of which he had been informed on 7 October, because he denied any involvement in either activity. It can be seen from the terms of the Adverse Circumstances Report which are set out in paragraph [32] of this opinion, that there was “considerable debate” at the RMT meeting, after which the RMT decided that the petitioner’s continued suitability for national top end was “precluded”. There was, therefore, to be a “transfer back to closed conditions”, which I take to be a reference to the move to Shotts. Prior to that, the petitioner would be “subject to review of his supervision level”. The petitioner was present at the RMT meeting until “just prior to (its) actual conclusion”. He knew, therefore, that an area of concern was his mention of 100 Rangers tops, which was regarded as reference to blue Valium tablets. The petitioner was aware that he had been party to such a telephone conversation as is clear from the terms of the transcript, which is joint production 4, and from his own affidavit, joint production 8, in which she now offers an explanation for that reference. He knew that another cause for concern was his having organised associates to come to his placement to collect carpets.
[52] Not only does that narrative make it clear that the decision to transfer the petitioner to closed conditions was made on 10 October, but so also does the structure of the form itself. As has been noted, the RMT meeting followed on the recommendation of 9 October 2014, which is recorded in section 5 of the form. The narrative appears in a box which is headed “Decision of RMT”, which is accompanied by the words: “Please provide clear reasons for your decision and any further actions:”. It is recorded at section 7 of the form that the petitioner was “Advised of Outcome”, on the same day.
[53] The power to allocate a prisoner to a particular prison or part of a prison is conferred on the Governor by rule 15, which appears in Part 2 of the Rules. The allocation of prisoners is a matter for his or discretion. The Rules do not require that any particular procedure be followed when allocating prisoners, as they do for the assignment of supervision levels. It was not until after the relocation decision was taken on 10 April 2014 that rule 21 came into play. Rule 21 appears in Part 3 of the Rules which makes provision in respect of “Supervision Levels” and, according to its terms, it applies to the assignment of a prisoner’s supervision level in certain specified circumstances. Rule 17 provides that every prisoner must be assigned a supervision level which may relate to the amount of supervision the prisoner requires within the prison. A prisoner who is assigned a “Low Supervision” level is described as one “for whom activities and movements are subject to minimum supervision and restrictions, and who may be given the opportunity to participate in supervised or unsupervised activities in the community.” A prisoner who is assigned a “Medium Supervision” level is one “for whom activities and movements are subject to limited supervision and restrictions.”
[54] The PSS3 form, joint production 12, is headed “Prisoner Supervision System”. Section A is headed “Prisoner Details” and has been completed with the petitioner’s details. Section B is headed “Type of Information” and a box, headed “Incident” has been filled in. The heading is described as “i.e. known, or suspected involvement, in activities; e.g. assaults, disruption, supply of illicit substances, failure to comply with licence conditions”. The handwritten text reads as follows:
“Multiple intelligence entries from a variety of sources provide that Mr Hands is involved in the introduction and distribution of illicit substances in HMP Greenock also provides that he has access to a mobile phone at his work placement and arranged for associates to collect products from placement without permission.”
A box indicating that further action is required has been ticked, and the information sheet is signed by the first line manager, Mr McDade, and dated 13 October 2014. It is countersigned by Mr McGuckin as unit manager.
[55] Section C is a flowchart which is to be completed by the first line manager if further action is required and is to be based on the assessment of the information supplied at section B. There then follows a number of “risk factors”. Where a risk factor, which may be regarded as serious, is noted as being present, it leads to an assignment to high supervision. Where any one or more of a number of other risk factors are present, that leads to an assignment to medium supervision. The absence of all of those risk factors leads to an assignment to low supervision. In the petitioner’s case, two of the less serious risk factors were found to be present. They were “Means and willingness to organise serious indiscipline, (including drug dealing)” and “Impulsive behaviour now or in the past year”, which led to a medium supervision assignment.
[56] Where any of the risk factors in section C is present, full details are to be given in a narrative box in section D. The narrative comment on the “serious indiscipline” risk factor is as follows:
“Multiple intelligence reports and phone monitoring information provided that Mr Hands is involved in the introduction and distribution of illicit substances in HMP Greenock.”
The narrative comment on the “impulsive behaviour” risk factor is as follows:
“Mr Hands was at NTE on a short management plan which would have seen him transferred to open conditions in February 2015. His adverse development is indicative of impulsive behaviour.”
[57] In section E, the first line manager is required to indicate which level of supervision he or she considers appropriate for the prisoner. A tick box, offering a choice among “High” “Med” or “Low” is to be completed by reference to “Supervision Level Indicated by the flowchart”. The first line manager in this case has ticked the “Med” box. Further down in the same section, the unit manager is required to tick the appropriate box to indicate the supervision level which he or she “is minded to assign”. Mr McGuckin ticked the “Medium” box and it is in explanation of that that he wrote “I fully concur with the information presented by first line manager.” In ticking that box, he was complying with the terms of rule 21(2)(a), which provides that, prior to the assignment of a supervision level, the Governor must provide the prisoner with a written notice informing him of, among other things, the supervision level that “it is proposed” should be assigned to him. Rule 21(2)(c) makes it clear that the written representations which the prisoner may make are “in relation to the proposed assignment of the supervision level”.
[58] Section F contains the further comment by Mr McGuckin on which the petitioner founds as having indicated that a decision on his management was taken before he was asked for his representations. As is noted at paragraph [17] of this opinion, that comment was in these terms: “the RMT agrees unanimously that Mr Hands be downgraded from National Top End with immediate effect”. That comment appears in a longer, hand-written, narrative which is in the following terms:
“The RMT met on Friday 10th October 2014 to discuss intelligence entries and information provided by intelligence management unit from recent phone call monitors. The RMT agrees unanimously that Mr Hands be downgraded National Top End with immediate effect. Mr Hands has been relocated to Ailsa Hall pending return to HMP Shotts. This re-assessment has been undertaken in response to multiple and independent intelligence entries that provide that Brian Hands is involved in the introduction and distribution of illicit substances in HMP Greenock. This information also provides that Mr Hands has [had?] access to a mobile phone while at community work placement and attempted to arrange for an associate to collect carpet products from the placement without permission. This is a clear breach of licence conditions.” (The quote is as accurate as the legibility of the entry allows.)
As is noted in paragraph [32] of this opinion, the record of the RMT’s deliberations and decision on 10 October 2014 concludes with the note that the petitioner “will be subject to a review of his supervision level prior to transfer back to closed conditions”. Mr McGuckin’s remark narrates what was decided on 10 October on the issue of downgrading. It is not a decision on the proposed re-assignment of his supervision level.
[59] In section G, the prisoner is informed that he is entitled to make representations in relation to the proposal to increase his supervision level, access location or location. It is noted on the form that the prisoner is to be given a copy of sections A to F, together with section G. It is not contended that the officers concerned failed to comply with that instruction. The purpose of giving the prisoner these sections is so that, in making representations, he is fully informed about the allegations which have been made against him and the proposed disposal. In the box provided, Mr Hands has written that he was not filling in his “self rep due to the fact Kenny McGuckin (has) already agreed with the proposal”. Mr Hands bears to have signed section G on 14 October 2014. In section H which is headed “Re-assessment Outcomes” Mr McGuckin has written:
“Reasons for re-assessment outcome recorded at section F. Mr Hands refused to engage in process by not providing representations at section G. Unable to consider Brian’s representations at this time therefore reassessment conclusions without representations from Brian on 14.10.14. *Opportunity to reconsider offered 15\10\14.*”
Section H bears to have been signed by Mr McGuckin on 14 October 2014.
Breach of rule 21(4)
[60] From that review of the documentation I am of opinion that, as Ms Ross contends, the petitioner’s complaint is based on a misunderstanding of the sequence of events and of the terms of the PSS3. Mr McGuckin had not taken the decision to re-assign the petitioner before inviting his comments. Mr McGuckin countersigned page 2 on 13 October 2014 to indicate that further action was required. He signed page 5 to indicate the supervision level that he was “minded to assign”, which left it open to the petitioner to make representations before the decision was taken. The narrative box on page 6 bears expressly to give reasons for “the proposed reassessment”. (My emphasis) Again it is dated 13 October 2014 and it is clearly not a decision on the proposed re-assignment of the petitioner’s supervision level.
[61] The petitioner claims that “he declined any pretended opportunity said to have been afforded to him subsequently, because he was told by Mr McGuckin that his representations would amount to ‘mitigation’ only.” That claim makes no sense. As I have indicated, the decision to return the petitioner to closed conditions was made at the RMT meeting. The petitioner, who was present, was informed of precisely why the meeting had been convened and what the concerns of the authorities were. The decision whether or not to relocate him could not be “mitigated”, because he would either be relocated or not. Similarly, the decision to re-assign him to a different supervision level could not be mitigated. On the information on which the respondents proceeded, they would either reassign him or not. This part of the petitioner’s rule 21 challenge, therefore, fails.
Inadequate disclosure: rule 21(3)
[62] Rule 21(3) provides that, if asked to do so, the Governor must provide the prisoner concerned with a copy of any document to which the Governor has had regard in considering the assignment of a supervision level and a summary ”of any other information of which the Governor was aware and to which he or she has had regard in considering the matter”. What the petitioner argues ought to have been disclosed were the information that had been provided to the authorities by Spruce Carpets on 7 October 2014 and the transcript of the call of 28 September 2014, joint production 4 of process. In his pleadings, the petitioner avers that, at the RMT hearing on 10 October 2104, he “repeatedly sought disclosure of the substantive intelligence from various sources said to have been gathered by the respondents. He asked to be allowed to listen to the monitored telephone call.” For the reasons which I have given, rule 21(3) did not apply to the proceedings before the RMT on 10 October. These proceedings were not concerned with the re-assignment of his supervision level. The petitioner does not aver that, in the context of the re-assignment process, which took place on 13 and 14 October 2014, he made any request of a type referred to in rule 21(3). It appears that, since he believed, wrongly, that the re-assignment decision had already been made, he did not take any part in the process. The possible application of the terms of rule 27, therefore, is not relevant. The section 21(3) argument, accordingly fails also.
Failure properly to investigate
[63] I reject the petitioner’s contention that the respondents did not properly investigate the drugs allegation and that they ought, for example, to have searched the petitioner’s cell and to have deployed sniffer dogs. The respondents proceeded on the basis of the intelligence gathered from the telephone monitoring exercise, which is the reference by him in the telephone conversation, on 28 September 2014, to “100 Rangers tops”. In light of the information before them, the respondents were entitled to infer that the petitioner was referring to Valium tablets. To do so was not unfair to him. The allegation was put to the petitioner during the hearing on 10 October 2014, and he chose not to provide an alternative meaning, although he now claims that the respondents drew the wrong inference from the reference. The telephone conversation took place nearly two weeks before the RMT hearing. Had the respondents carried out a search of the petitioner or of his cell and found nothing, the absence of Valium tablets at that time would have established nothing in his favour, in the context of what the RMT was considering.
Unreasonableness
[64] The petitioner argues that plain and intelligible reasons should have been given for the respondents’ decisions. Having regard to the terms of the RMT proceedings and, separately, the re-assignment proceedings, I have no doubt that the petitioner was provided with “plain and intelligible reasons” both for his relocation and for his re-assignment.
Failure to obtain and consider prisoner representations
[65] It follows, from what I have said about the petitioner’s rule 21(4) challenge, that there was no failure to obtain his representations. Nothing prevented him from making representations. It was the petitioner’s choice not to do so.
The respondents’ vague case
[66] The petitioner claims that, because he was presented with “oral and written allegations in vague terms”, he had “an impossible task in defending himself”. That claim is without substance. There were three allegations against the petitioner: that he had discussed 100 Rangers tops during a telephone conversation; that he had access to a mobile phone while at Spruce Carpets; and that he had organised the collection of carpets from his placement. In his affidavit, joint production 8, the petitioner acknowledges that he made reference to “Rangers football tops” in his telephone conversation with his friend on 28 September 2014 and says that his cousin “had purchased 100 of these from an auction.” When that allegation was put to him, the petitioner must have known that he had made the Rangers tops remark and could have given an explanation for it then, as he does now. As he avers in his pleadings, the petitioner did arrange for the collection of carpets from his placement. Again he could have given an explanation for that at the time when the allegation was made in October 2014. Finally, the allegation that the petitioner had access to a mobile phone while at Spruce Carpets was either true or untrue. He said that it was untrue. That was his defence, and he presented it.
Lack of proper analysis of the evidence and reasons
[67] The petitioner’s analysis complaint is, in effect, a challenge to the substance of the respondents’ decisions. It is not open to him to make such a challenge in the context of an application for judicial review. On the evidence which was before them, the respondents were entitled to reach the conclusions which they did. The reasons which they gave and which are recorded earlier in this opinion leave the informed reader and the court in no real and substantial doubt what material considerations were taken into account and why they reached those decisions.
Rule 27
[68] For the reasons which I have given in paragraph [62] of this opinion, rule 21(3) was not engaged. Consequently, rule 27 was not engaged.
Conclusion
[69] For the reasons given, in my opinion the respondents met the procedural requirements that were incumbent on them in terms of the Rules. Looking at the procedure as whole, I am satisfied that it was not “actually unfair”, to borrow Lords Mustill’s words. Further, nothing in either the relocation or re-assignment process caused the petitioner any prejudice. Finally, I agree with counsel for the respondents that the petitioner’s averments about the events in 2013 and the consequences of them are not relevant to this application.
Competency and relevancy
[70] At the conclusion of the first hearing, and again at a by order hearing on 19 August 2015, I asked to be provided with written submissions on the competency and relevancy of the petitioner’s application, in light of certain matters which emerged during the course of the hearing on 4 June. It is clear from the respondents’ submissions that they wish to challenge neither the competency of the petition, nor the relevancy of the petitioner’s averments. Whilst it is open to the court to determine the competency of an action on its own initiative, that is not an exercise on which I could embark in this case because I have insufficient information about a number of factual matters. Consequently, I have proceeded on the basis that the application is competent.
Disposal
[71] I shall sustain the respondents’ first and third pleas-in-law, repel the petitioner’s pleas in law, and dismiss the petition. I shall reserve all questions of expenses.