Thirdly, the oral hearing decision is not necessarily an all or nothing decision. In particular, there is scope for a flexible approach as to the issues on which an oral hearing might be appropriate.
4.7 With those three introductory points, the following are factors that would tend in favour of an oral hearing being appropriate:
Where important facts are in dispute. Facts are likely to be important if they go directly to the issue of risk. Even if important, it will be necessary to consider whether the dispute would be more appropriately resolved at a hearing. For example, where a significant explanation or mitigation is advanced which depends upon the credibility of the prisoner, it may assist to have a hearing at which the prisoner (and/or others) can give his (or their) version of events.
Where there is a significant dispute on the expert materials. These will need to be considered with care in order to ascertain whether there is a real and live dispute on particular points of real importance to the decision. If so, a hearing might well be of assistance to deal with them. Examples of situations in which this factor will be squarely in play are where the LAP, in combination with an independent psychologist, takes the view that downgrade is justified; or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds. More broadly, where the Parole Board, particularly following an oral hearing of its own, has expressed strongly-worded and positive views about a prisoner’s risk levels, it may be appropriate to explore at a hearing what impact that should or might have on categorisation.
It is emphasised again that oral hearings are not all or nothing – it may be appropriate to have a short hearing targeted at the really significant points in issue.
Where the lengths of time involved in a case are significant and/or the prisoner is post- tariff. It does not follow that just because a prisoner has been Category A for a significant time or is post tariff that an oral hearing would be appropriate. However, the longer the period as Category A, the more carefully the case will need to be looked at to see if the categorisation continues to remain justified. It may also be that much more difficult to make a judgement about the extent to which they have developed over the period since their conviction based on an examination of the papers alone.
The same applies where the prisoner is post-tariff, with the result that continued detention is justified on grounds of risk; and all the more so if he has spent a long time in prison post-tariff. There may be real advantage in such cases in seeing the prisoner face-to-face.
Where there is an impasse which has existed for some time, for whatever reason, it may be helpful to have a hearing in order to explore the case and seek to understand the reasons for, and the potential solutions to, the impasse.
Where the prisoner has never had an oral hearing before; or has not had one for a prolonged period.
Timing of Annual Reviews
Categorisation is reviewed within set timescales.
4.8 The first annual review will normally take place two years after the prisoner’s first formal review; this is to enable prison staff to fully assess any progress made by the prisoner. Establishments must ensure that prisoners are informed of this as soon as possible after confirmation of categorisation. The exceptions to this will be where:
the DDC High Security (or delegated authority) ordered at the first formal review that the prisoner’s first annual review should take place earlier;
the Governor of the holding prison decides the prisoner’s first annual review should take place earlier on the basis of exceptional risk reduction.
4.9 Each subsequent annual review will normally be completed 12 months after the last review.
4.10 The completion of the first annual review should coincide as closely as possible with the same month of the year as the previous review. The preparation for each annual review must therefore take into account time needed for completion of reports, disclosure to the prisoner, the dates of the prison’s LAPs and the Category A Team’s consideration. 4.11 Each prison must still complete and panel the reports for a prisoner’s review if the prisoner transfers to another prison after the review has started. Staff should therefore keep copies of necessary documents and reports after the prisoner has transferred to enable the review to be completed.
A review of categorisation is completed outside the normal review timetable when there is a significant change in circumstances or behaviour which impacts on the level of security required.
4.12 Deferrals of annual reviews are valid in exceptional circumstances. These may include the need to obtain further information, for example offending behaviour programme reports, or for prison staff to link the review with the timing of other forms of assessment, such as parole reviews.
4.13 Prison staff or the Category A Team may also at their discretion grant a prisoner’s request for a deferral of an annual review. A deferred annual review must not affect the timing of future reviews, which should return to the previous schedule. Annual Review Procedures 4.14 Prison staff must prepare the reports for the prisoner’s annual review at the relevant time. A copy of the annual review report forms is enclosed at Annex B. 4.15 The completed reports must be disclosed to the prisoner at least four weeks prior to the prison’s LAP to allow representations to be submitted. Taking both the reports and any representations into account, the LAP must in turn make a recommendation to the Category A Team on the prisoner’s continued suitability for Category A / Restricted Status. 4.16 At Headquarters, either the Category A Team or the DDC High Security (or delegated authority) will complete the review (see paragraph 3.25 – 3.27) taking into account the reports, any representations and the LAP’s recommendation.
Preparing the Reports 4.17 Staff must prepare the reports using the guidance provided in the reports. The reports should produce a comprehensive summary of the prisoner’s behaviour and progress to date, that will enable an assessment of any reduction in the prisoner’s level of risk. Where applicable the reports should record and assess any exceptional circumstances that suggest the prisoner may not require the highest level of security.
4.18 Individual report-writers are not required to make a recommendation on the prisoner’s suitability for Category A / Restricted Status.
4.19 Any further relevant documents may be included or referred to in the reports. These may include offending behaviour programme reports, Sentence Planning Review Board assessments, OASys assessments (e-asset for young people), psychological and psychiatric assessments or parole reports.
Disclosure 4.20 The review of a prisoner’s category A status is an open one and the prisoner must be able to understand why he / she has been placed in a particular category. The reports must be disclosed to allow the prisoner to submit informed representations to the prison’s LAP. The prisoner must be allowed four weeks to submit representations, although an extension may be granted at the prison’s discretion if requested. Records must be kept when the prisoner is given his / her reports and when he /she is informed of the date of the LAP.
All reports are normally disclosed to the prisoner. Any security information staff believe is relevant to the review can be included in section 5 of the reports. Sensitive or confidential information may be withheld from the prisoner in certain circumstances:
in the interests of national security;
for the prevention of crime or disorder, including information relevant to prison security;
if, on medical or psychiatric grounds, it is felt necessary to withhold information where the mental or physical health of the prisoner could be impaired;
where the source of the information is a victim, and disclosure without their consent would breach any duty of confidence owed to that victim, or would generally prejudice the future supply of such information.
If sensitive information is being withheld, consideration must be given to disclosing a summary of the information, or an edited form that protects the anonymity of the informant, which can be summarised in section 5. Any information that is relevant to the review that it is too sensitive for disclosure must be included in section 7 of the reports. This will be disclosed only to the LAP, and the Category A Team or DDC High Security (or delegated authority) completing the review, but the prisoner must be informed of its inclusion at the time of report disclosure with a brief description of the type of information (i.e. IR) as far as is compatible with maintaining security/protecting other persons.
The principles set out above concerning disclosure apply to Security Information Reports (SIRs) in the same way as other reports, and nothing in this PSI departs from that. Security Information Reports will often contain sensitive or confidential information which may be withheld on the grounds described above and disclosure of information from such reports will be made taking this into account.
Under the Data Protection Act 1998, prisoners are entitled to request a copy of all their personal data. The Prison Service has a statutory duty to disclose such data subject to a number of exemptions. PSO 9020 Data Protection gives further information.
Local Advisory Panel (LAP) Consideration 4.22 The LAP must consider the prisoner’s reports and any representations after the period of disclosure. The LAP must include attendance by the prison’s Governor or Deputy Governor and a range of appropriate report-writing staff, including wing, specialist and security staff. 4.23 It is unnecessary for individual report-writers to attend. It is also unnecessary for prisoners or their representatives to attend, as they have the appropriate opportunity to submit written representations to the LAP.
4.24 The LAP must recommend whether the prisoner should remain Category A / Restricted Status and record this recommendation on section 6 of the reports using the guidance provided. The recommendation should also record and comment on any representations, or any factual inaccuracies in the reports that have been taken into account or resolved.
4.25The reports, representations and the LAP’s recommendation must then be sent to the Category A Team as soon as possible for the final decision to be made. At this point the prison will forward the LAP report to the prisoner. The Category A Team review will be completed within 4 weeks of receipt of the LAP report.
Initial Category A Team Consideration 4.26 On receipt from the prison, the Category A Team will consider the prisoner’s reports, any representations submitted by the prisoner to the LAP, and the LAP’s recommendation, and either complete the review or forward the case to the DDC High Security (or delegated authority) for the final decision (see below). It will also take into account or forward to the DDC High Security (or delegated authority) any representations received following the prison LAP’s consideration.
Annual Review Decisions by the Category A Team 4.27 In cases where the Category A Team supports a recommendation from the LAP that the prisoner should remain Category A / Restricted Status it will normally complete the review without reference to the DDC High Security (but see exceptions below) and within four weeks of receipt of the reports send the prisoner a notification of the decision confirming that the prisoner should remain Category A / Restricted Status.
4.28 The notification of the decision will provide detailed reasons for the decision, taking into account any progress the prisoner has made in the reduction of risk, and addressing any relevant points made in the prisoner’s representations.
Referral of Annual Reviews to the DDC High Security 4.29 The Category A Team may alternatively refer a case to the DDC High Security (or delegated authority) and the next available monthly Category A panel if:
the LAP or Category A Team recommends the prisoner should be downgraded;
the DDC High Security (or delegated authority) has made a special request at the previous review that the case should be referred to the DDC High Security (or delegated authority) and the DDC’s panel;
the prisoner has recently moved from Restricted Status within a YOI to Category A status within a high security prison;
the DDC High Security (or delegated authority) has not reviewed the prisoner’s case for five years. This will ensure that the DDC High Security (or delegated authority) considers all Category A / Restricted Status prisoners for downgrading at least every five years.
Communication of Decisions from the DDC High Security 4.30 The DDC High Security (or delegated authority) will review a prisoner’s security category assisted by a similar advisory panel present at first formal reviews; meetings normally occur once a month. A review of a Category A prisoner’s escape risk classification may be conducted at the same time.
4.31 The Category A Team will inform prison staff of the results of the review immediately after it has taken place. It will also immediately put into effect any decision to downgrade a prisoner from Category A / Restricted Status or to amend a Category A prisoner’s escape risk classification.
4.32 The Category A Team will send the prisoner a notification of the decision four weeks after the date of the panel. The notification of the decision will include a summary of the information taken into account and detailed reasons for the decision.
Downgrade from Category A / Restricted Status 4.33 As soon as the DDC High Security (or delegated authority) has made the decision to downgrade a prisoner from Category A / Restricted Status the responsibility for deciding the prisoner's further allocation and categorisation passes to the Governor and staff at the holding prison.
4.34 The DDC High Security (or delegated authority) may however recommend that a prisoner who is downgraded from Category A to Category B should remain in high security conditions. In these cases the notification of the decision will include the recommendation that the prisoner should remain in high security conditions for a set period of time, unless approved by the prison’s Governor for a progressive move before this period is completed.
4.35Decisions regarding the review of Category A prisoners will be copied to the Governor i/c the establishment where the prisoner is located.
Post-Decision Process 4.36 The Category A Team will consider and respond to representations against a decision to keep a prisoner Category A / Restricted Status. The DDC High Security (or delegated authority) may retake the decision where s/he considers the representations highlight information not previously considered that could materially affect the decision.