H, R (on the application of) v Secretary of State for Justice

An appellate court should not determine an issue that has become academic because subsequent events have removed the factual controversy. This is particularly appropriate where whether an oral hearing is required depends materially on the precise facts. Deciding a point of principle in those circumstances may be disproportionate. A decision based on several specific factors should not be treated as establishing a wider general entitlement to an oral hearing.

H was a category A prisoner. A local review panel recommended re-categorisation to category B, but the Director of High Security Prisons declined to accept that recommendation. On judicial review, Mr Justice Cranston held that an oral hearing should have been held, relying on five factors, including the difference between the panel’s and the Director’s views and H’s membership of the Protected Witness Unit.

By the appeal, a third review had taken place. On 12 January 2009 the local panel, endorsed by the prisoner governor, recommended maintaining H’s category A status. The central issue was whether the appeal should nevertheless proceed to determine when an oral hearing is required.

Disposition. The Court of Appeal refused the application to proceed with the appeal and declared it academic.

1. The third review materially altered the factual position. The local panel had recommended maintaining category A status for at least six months. The matter would proceed to the category A review team and, if that team agreed with the panel, would not proceed to the Director. An important factual basis of the appeal, namely the difference between the local panel’s and the Director’s views, had therefore changed. The decision concerning the second review had become completely academic.
2. The court could not decide whether an oral hearing was required on the material relating to the third review. The respondent had been taken by surprise and did not commit himself on that question. It would be disproportionate to determine questions that had become academic in light of subsequent events.
3. The precise facts were important in deciding when an oral hearing should be required in a case of this kind. The court considered that the issue should be decided in a case where the facts materially mattered, rather than in a case where the factual position had moved on.
4. The court recorded that the decision below rested on five specific factors and should not be treated as a precedent for any wider concept of a right to an oral hearing than was ordered in the particular circumstances. The court did not determine the broader legal question.

Order: the appellant’s application to proceed with the appeal was refused.

1. Court of Appeal (Civil Division): refused the application to proceed with the appeal and declared the appeal academic.
2. Administrative Court, Queen’s Bench Division (Mr Justice Cranston): held that an oral hearing should have been held before the conclusion that H should remain a category A prisoner.