R (Williams) v Secretary of State for the Home Department

A discretionary life prisoner’s parole review and security categorisation serve different public-safety functions. The Discretionary Lifer Panel assesses the risk on supervised conditional release. A Category A review assesses the danger if the prisoner escapes. Neither body has legal priority over the other, and Article 5(4) does not require the categorisation decision-maker to adopt the Panel’s recommendation.

Procedural fairness may nevertheless require an exceptional categorisation review to include an oral hearing and disclosure of adverse material, subject to public-interest immunity. That is particularly so where a closed review, based on undisclosed evidence, may produce a major conflict with a favourable Panel decision and create a practical barrier to progress towards release.

The appellant was a post-tariff discretionary life prisoner who remained classified as a Category A, high-escape-risk prisoner. In March 2000 the Discretionary Lifer Panel recommended his transfer to lower-security closed conditions so that his risk could be tested and further offending-behaviour work undertaken.

In September 2000 the Category A review process rejected that recommendation. It retained the Category A classification, refused an oral hearing, and did not disclose the underlying reports beyond their gist. Mr Justice Harrison dismissed the appellant’s judicial-review challenge on 27 June 2001.

On appeal, the Court of Appeal considered whether the Panel’s view bound the categorisation decision-maker under Article 5(4) of the ECHR, and whether the circumstances required an oral hearing and fuller disclosure.

Disposition

1. The Court of Appeal allowed the appeal. It set aside the refusal of an oral hearing and full disclosure, and required reconsideration of the categorisation decision using up-to-date material, at an oral hearing, with disclosure subject to public-interest immunity.

2. The Discretionary Lifer Panel and the Category A review process address different questions. The Panel decides whether continued detention is required for public protection after a supervised and conditional release. The categorisation process assesses the danger to the public if the prisoner escapes while uncontrolled. The Panel’s recommendation was therefore relevant but was not binding, and Article 5(4) did not confer on it supervisory authority over categorisation. The Court followed the reasoning in R (Burgess) v Home Secretary (DC 3rd November 2000) on that issue.

3. The legal distinction did not make the procedures independent in practical effect. A Category A classification had a direct and marked effect on the Panel’s ability to assess a prisoner’s progress towards release. The review team had treated the theoretical possibility of release from Category A conditions as outweighing that practical link.

4. This was an exceptional case requiring greater procedural fairness. The Panel had reached favourable conclusions after an open hearing. The review team then reached seriously adverse conclusions in closed proceedings on reports unavailable both to the Panel and to the appellant. It should have recognised the obvious prospect of a major inconsistency and permitted the adverse material to be tested. The ensuing process would enable the review team to reach its own decision on a properly informed basis.

5. The notoriety of the appellant’s earlier escape did not itself justify an oral hearing. Such a rule would give an escapee a procedural advantage over a prisoner who had complied with detention conditions. A further reference to the Panel was to follow as soon as practicable after the fresh categorisation decision.

• Court of Appeal: Allowed the appeal in [2002] EWCA Civ 498 and directed reconsideration of the categorisation decision through an oral hearing and disclosure subject to public-interest immunity.
• Administrative Court (High Court): Mr Justice Harrison dismissed the application for judicial review on 27 June 2001.