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

Procedural fairness in a prisoner’s security-categorisation review is context-sensitive. An oral hearing is not required in every case, but may be required where the interests at stake are substantial and oral evidence could materially improve the decision-making process. Relevant circumstances include the prisoner’s status as a post-tariff life prisoner, prolonged detention in Category A conditions, and a favourable recommendation following an oral hearing before the Parole Board. The decision-maker should be able to test evidence from people who deal with the prisoner regularly, particularly where that evidence bears directly on risk and progression. On the facts, fairness required an oral hearing before the Secretary of State.

The claimant was a post-tariff life prisoner who had remained in Category A since being sentenced for murder. The Parole Board heard oral evidence from the claimant and prison and probation personnel and recommended recategorisation, although security categorisation was outside its remit. The Secretary of State subsequently decided, on the papers, that the claimant should remain in Category A and refused a request for an oral hearing. The claimant sought judicial review on the permitted ground that the failure to hold an oral hearing was procedurally unfair. The central issue was whether fairness required an oral hearing on the particular facts.

1. Claim succeeded. The failure to hold an oral hearing constituted a procedural irregularity.
2. Procedural fairness must be assessed in context. The importance of the interests at stake and the extent to which an oral hearing may improve the quality of decision-making are material considerations. The court drew guidance from R (West) v Parole Board and R (Smith) v Parole Board, reported at [2005] 1 WLR 350, while recognising that the context differed.
3. The reasoning in R (Williams) v Secretary of State for the Home Department, reported at [2002] EWCA Civ 498 and [2002] 1 WLR 2264, was relevant. The court did not need to resolve the parties’ competing arguments about the precise scope of that decision. The present case was determined on its own facts.
4. The relevant combination of circumstances was not limited to the claimant’s having served more than 20 years in Category A and having passed his minimum term. The Parole Board had heard oral evidence from people who dealt with the claimant day in and day out and had recommended recategorisation. Fairness required the Secretary of State to obtain the benefit of that evidence through an oral hearing when conducting the security-category review.
5. The claim was therefore allowed on the limited ground for which permission had been granted. The defendant was ordered to pay the claimant’s costs, subject to assessment if not agreed, together with a Legal Services Commission assessment.

The judgment was a first-instance decision of the High Court (Administrative Court). Permission to appeal was refused, although the defendant was permitted to seek permission from the Court of Appeal.