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

In category A re-categorisation cases, procedural fairness does not ordinarily require an oral hearing. The Court of Appeal’s approach requires exceptional circumstances or special circumstances, assessed according to the facts of the individual case. The expiry of a tariff, disagreement between the local advisory panel and the Director, and participation in an intensive treatment programme are insufficient without more.

The Director must assess the risk posed if the prisoner escapes, considering all relevant information. A decision to await completion of offence-focused work may be rational where it will provide a fuller basis for assessing risk. Reasons need to explain the decision sufficiently; a detailed analysis of every report or factor is unnecessary where the central reasoning is clear.

The claimant, a category A life prisoner, challenged the Director’s refusal to re-categorise him to category B and the refusal to convene an oral hearing. His tariff had expired, and the local advisory panel recommended downgrading after reports from the specialist treatment unit indicated significant progress and risk reduction.

The Director accepted that progress had been made but considered that the ongoing offence-focused programme should be completed before risk could be assessed reliably. The claimant alleged irrationality, inadequate reasons and procedural unfairness. Permission had initially been granted only on the oral-hearing ground, but the court permitted the other grounds to proceed at the substantive hearing.

1. The application was dismissed. The Director’s decisions were lawful. The claimant was ordered to pay the defendant’s costs, subject to enforcement only with the court’s permission, and detailed assessment of the claimant’s publicly funded costs was ordered.
2. Under rule 7(1) of the Prison Rules 1999, and the applicable categorisation arrangements, the Director had to consider all available information relevant to security category and escape risk. The relevant question was the danger posed to the public if the prisoner were unlawfully at large, not the different question addressed by a parole decision-maker. The court applied the distinction explained in Williams v SSHD [2002] EWCA Civ 498.
3. The refusal of an oral hearing was lawful. Following Williams v SSHD [2002] EWCA Civ 498, an oral hearing is required only in an exceptional case or where special circumstances justify it. The assessment is fact-sensitive. The relevant circumstances in H v SSJ [2008] EWHC 2590 (Admin) were confined to that case and did not establish a general entitlement to an oral hearing.
4. The claimant had access to the relevant material, could make representations, and faced no discrepancy between the material before the local advisory panel and that before the Director. Nor was there an impasse or Catch-22 situation concerning access to treatment. The expiry of the tariff, category A status, disagreement with the local recommendation and intensive treatment programme did not, alone or cumulatively, create exceptional circumstances.
5. The Director’s decision was rational. His statement that evidence of significant risk reduction was not yet available meant that the evidence was not sufficient, in his assessment, to justify downgrading. Waiting for completion of the offence-focused programme was within the range of reasonable responses.
6. The reasons were adequate. The Director acknowledged the progress made but explained that the serious index offending, previous history and outstanding treatment justified awaiting a fuller evidential picture. He was not required to analyse every report or factor in detail. The potential rehabilitative benefits of re-categorisation could not outweigh the central question of public risk.

• High Court (Administrative Court): Permission was initially granted on the oral-hearing ground and refused on the irrationality and reasons grounds. Those grounds were renewed and permission was granted at the substantive hearing. The judicial review claim was dismissed.