Hirst v Secretary of State for the Home Department

A prisoner serving a discretionary life sentence who has completed the tariff period must, before a retrograde change from Category C to Category B, be given the proposed reasons and a reasonable opportunity to make representations. The duty arises because such a regression is likely materially to affect the prospects and timing of release on licence.

Fairness is context-sensitive, but administrative convenience does not displace it. Genuine operational or security needs may justify moving the prisoner to another establishment before recategorisation is decided. The decision must not be made through a blanket practice. This ruling is confined to post-tariff discretionary life prisoners.

The appellant was a discretionary life prisoner whose tariff had expired. After behaviour and disciplinary concerns at a Category C prison, the prison service decided to reclassify him as Category B and transferred him the next day. He received oral reasons but no prior opportunity to make representations. Written reasons followed after the transfer.

The Divisional Court, consisting of Laws LJ and Rafferty J, dismissed his judicial-review claim. It accepted that fairness applied but held that advance notice and representations were not required, although fuller reasons should have been supplied sooner.

The appeal concerned whether fairness required a post-tariff discretionary life prisoner to receive the reasons for a proposed retrograde recategorisation and an opportunity to respond before the decision was made.

Appeal allowed unanimously. Lord Woolf CJ gave the principal judgment, with which May and Dyson LJJ agreed.

1. A post-tariff discretionary life prisoner occupies a special position. A move from Category C to Category B will ordinarily have a significant practical effect on first release on licence. The Parole Board is assisted by evidence of the prisoner's conduct in less confined conditions. A retrograde classification therefore calls for substantial procedural safeguards.

2. The flexible, contextual approach to fairness described in R v Secretary of State, ex parte Doody [1990] AC 531 required advance participation here. Before deciding on retrograde recategorisation, the prison service had to disclose the grounds and allow a reasonable period for representations. A later opportunity to seek reversal was insufficient.

3. Operational considerations did not justify dispensing with that requirement. The need to move a prisoner for security, discipline or other operational reasons was distinct from the decision to recategorise. A prisoner could be moved to more secure conditions pending a properly informed recategorisation decision. The court did not decide whether an urgent move was necessary on these facts.

4. May LJ emphasised that the court should not prescribe detailed procedures. Dyson LJ added that transfer before recategorisation must depend on the individual case; a blanket practice would be wrong.

5. The court granted declarations requiring prior reasons and a reasonable opportunity to make representations for post-tariff discretionary life prisoners. The declarations did not affect recategorisations completed before the judgment.

• Court of Appeal (Civil Division): Allowed the appeal and granted prospective declaratory relief: [2001] EWCA Civ 378.
• High Court, Queen's Bench Division, Divisional Court: Laws LJ and Rafferty J refused judicial review, while holding that full reasons should have been supplied earlier. Citation not stated in the judgment.