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

A public authority responsible for prisoner categorisation must not require progress towards rehabilitation while withholding the means by which the prisoner can demonstrate that progress. The duty is fact-sensitive. It is not breached where the necessary treatment or assessment was available, but the prisoner was unwilling to undertake it. A prisoner is not automatically entitled to an oral hearing on categorisation. Procedural fairness may require one where material factual or expert issues need exploration, but no hearing is required where it could not affect the decision.

The claimant sought judicial review of the decision of the Category A Review Team to maintain his Category A status. He argued that the Secretary of State had failed to provide a realistic means of demonstrating reduced risk because he had not received a DSPD assessment or suitable offence-focused treatment. He also argued that fairness required an oral hearing and complained of undisclosed allegations that he had threatened other prisoners.

The claim originally challenged an earlier review decision, but was amended to challenge the superseding decision of 12 December 2008. The central issues were whether the Secretary of State had disabled the claimant from demonstrating progress towards rehabilitation and whether the review procedure was unfair without an oral hearing.

1. The claim was dismissed. The public law principle recognised in James and Others v Secretary of State for Justice [2009] UKHL 22 was accepted: it would be unlawful to put beyond a prisoner the means of demonstrating rehabilitation while demanding such progress before re-categorisation. The principle did not assist the claimant on the facts.
2. The claimant had been offered the opportunity to undergo DSPD assessment at the Fens Unit. The evidence showed that he was reluctant and ultimately unwilling to attend. The failure of the assessment to occur was therefore not attributable to equivocation or inaction by the Secretary of State. The authorities were entitled to keep the DSPD option open because it was rationally considered to be in the claimant’s interests and potentially more suitable than the CSCP programme in light of his high PCL-R score.
3. The claimant’s satisfactory prison conduct and completed courses did not establish the required reduction in risk. The outstanding issue was offence-focused work addressing his violent offending and personality-related risk. The Review Team was entitled to require clear evidence of significant risk reduction before downgrading.
4. Procedural fairness did not require an oral hearing in December 2008. Although the importance of categorisation reviews and fairness principles discussed in R (Williams) v Secretary of State for the Home Department [2002] 1 WLR 2264 and R (on the application of Smith) v Secretary of State for the Home Department [2005] UKHL 1, [2005] 1 WLR 350 were relevant, there was no material expert disagreement and no demonstrated factual controversy that an oral hearing could have resolved.
5. The unspecified allegation that the claimant had threatened other prisoners played no part in the decision. The decisions instead relied on the claimant’s failure to address his pre-imprisonment offending behaviour. Future requests for an oral hearing had to be considered on their merits, particularly if a genuine dispute arose between the prisoner and the prison psychology service.

The judgment describes earlier permission proceedings and the amendment of the claim to challenge the superseding review decision of 12 December 2008. No appeal or appellate decision is stated.