H, R (On the Application Of) v Secretary of State for Justice

Procedural fairness is context-sensitive and does not impose a general test of exceptionality for an oral hearing. The court must weigh the importance and consequences of the decision, the interests at stake, and the extent to which oral examination may improve fact-finding, resolve issues and expose the decision-maker’s concerns, against cost and efficiency. In a review of a tariff-expired Category A prisoner, the combined seriousness of continued high-security detention, local recommendations for recategorisation and the prisoner’s Protected Witness Unit status made an oral hearing necessary. Training and treatment needs are relevant under the Prison Rules 1999, but need not outweigh security concerns where they have been considered and the evidence does not establish an impasse in accessing risk-reduction work.

The claimant, a tariff-expired life prisoner held in a Protected Witness Unit, challenged the Secretary of State’s decisions retaining him in Category A. The local Category A Advisory Panel twice recommended Category B, but the Director of High Security Prisons maintained Category A. The judicial review alleged failure to provide an oral hearing and failure to consider the claimant’s need for offending-behaviour courses; a disclosure ground was no longer live. Permission was granted by Bennett J. The central issues were whether fairness required an oral hearing and whether the categorisation decisions unlawfully ignored rehabilitation and training needs.

1. Outcome. Cranston J quashed the decisions retaining the claimant in Category A. The challenge based on failure to consider offending-behaviour courses was rejected. The claimant was awarded costs, with detailed assessment of publicly funded costs, and the anonymity order continued.
2. Procedural fairness. The statutory and policy framework included section 47 of the Prisons Act 1952, the Prison Rules 1999 and Prison Service Order 1010. Applying the flexible approach in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 and R (on the application of Smith) v Secretary of State for the Home Department [2005] UKHL 1, fairness depends on context. There is no general exceptionality test. Oral hearings are not invariably required, need not be quasi-judicial or adversarial, and may be informal. The relevant balance includes the importance of the decision, the interests at stake, the value of oral examination to fact-finding and decision-making, and cost and efficiency.
3. Application. Five cumulative factors required an oral hearing: Category A conditions; expiry of the tariff; two local recommendations for recategorisation; the value of testing the local prison’s views on risk and its management; and the claimant’s Protected Witness Unit location, which affected both escape risk and access to offending-behaviour work. R v Secretary of State for the Home Department ex parte Duggan [1994] 3 All ER 277 supported the seriousness of Category A consequences. The circumstances differed from R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498, but were sufficient in their own right.
4. Training and treatment. Rules 3 and 7 made training needs relevant, but did not make them determinative. Security concerns could take precedence where the decision-maker had considered those needs. The reasoning in R (on the application of Walker) v Secretary of State [2008] EWCA Civ 30 did not establish a Catch-22 here: some risk-reduction work was available and the evidence did not show that the claimant was unable to progress except through recategorisation.
5. The later categorisation decision did not make the claim academic because it also gave no indication that the need for an oral hearing had been properly considered.

not stated in the judgment.