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

Procedural fairness may require an oral hearing before a Category A review team decides whether to downgrade a post-tariff life prisoner. The question is fact-specific and is for the court to determine on judicial review. The relevant issue is whether fairness required a hearing, rather than whether refusal of one was irrational.

The Parole Board and the Category A review team address different aspects of public safety. The Board’s view is not binding on the review team, but it must be considered. An oral hearing may be required where the Board has heard evidence and expressed a favourable view on re-categorisation, particularly where the prisoner faces an impasse in demonstrating reduced risk.

Two post-tariff life prisoners, Duncan McLuckie and Donald Mackay, challenged decisions by the Category A review team refusing to convene oral hearings on their proposed re-categorisation from Category A to Category B.

McLuckie also challenged the substantive decision to maintain his Category A status. He relied on conflicting psychological evidence and the absence of an oral hearing. Mackay had already received an oral hearing before the Parole Board, which considered that transfer to Category B might be constructive, but the review team declined to hold its own hearing. The central issues were whether fairness required an oral hearing and, in McLuckie’s case, whether the substantive decision was unlawful.

1. McLuckie’s substantive challenge failed. The Category A review team was entitled to prefer Ms Curry’s report to Dr Hill’s reports. Dr Hill had failed to engage with the trial judge’s findings and accepted an account of the offence which was inconsistent with the jury’s verdict and the trial evidence. The review team was also entitled to attach little weight to Dr Hill’s PCL-R assessment and conclusions.

2. McLuckie was not entitled to an oral hearing. Procedural fairness is fact-specific. Although an oral hearing may be required in an appropriate Category A review, Dr Hill’s evidence was seriously flawed and an oral hearing before the Parole Board was pending. It was undesirable to hold parallel oral hearings before the two bodies.

3. The roles of the two bodies differ. The Parole Board assesses risk following supervised conditional release, whereas the Category A review team assesses the risk posed by escape. Neither body has priority over the other, and the Board’s view is not determinative. However, its recommendations must be considered. Apparent inconsistencies of outcome may arise from the distinct statutory and practical functions of the two processes: R (Williams) v Secretary of State for the Home Department [2002] 1 WLR 2264.

4. Mackay was entitled to an oral hearing. He was a post-tariff life prisoner who had already participated in an oral Parole Board hearing. The Board had considered oral evidence and expert material and had indicated that transfer to Category B could be constructive. Those circumstances created a sufficient procedural requirement for CART to hear Mackay’s case for re-categorisation. The hearing need not be adversarial or quasi-judicial: R (H) v Secretary of State for Justice [2008] EWHC (Admin) 2590.

5. The common law duty of fairness does not require an oral hearing in every case, but the procedure must fairly reflect the importance of what is at stake and the facts of the particular case: R (Smith and West) v Parole Board [2005] 1 WLR 350. The use of the word exceptional indicates rarity, not a separate requirement of exceptional circumstances: R (Yusuf) v Secretary of State [2010] EWHC 1483 (Admin).

6. McLuckie’s substantive judicial review claim and his oral-hearing challenge were dismissed. Mackay’s claim for judicial review of the refusal to hold an oral hearing succeeded.

First-instance judicial review proceedings in the Administrative Court. No appellate history was stated in the judgment.