Mackay, 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 a post-tariff life prisoner should be re-categorised. The question is fact-specific and is for the court to determine on judicial review.

An oral hearing is not required in every case. The rarity of such hearings does not create a requirement for exceptional circumstances. The Parole Board and the Category A review team address distinct public-safety questions, so neither body’s decision binds the other. However, a Parole Board recommendation is material and may make an oral hearing necessary where refusing one would produce an unfair decision-making process.

Two post-tariff life prisoners, both held in Category A, challenged decisions by the Secretary of State’s Category A review team. Mr McLuckie challenged the refusal to convene an oral hearing and the substantive decision to retain his Category A status. Mr Mackay challenged the refusal to convene an oral hearing after the Parole Board had heard evidence and considered that transfer to a Category B training prison might be constructive.

The central issues were whether procedural fairness required an oral hearing in either case and whether the review team had lawfully assessed the competing evidence and the relationship between its function and that of the Parole Board.

1. Mr McLuckie’s substantive challenge. The review team was entitled to prefer Ms Curry’s assessment to Dr Hill’s reports. Dr Hill had failed to engage with the trial judge’s findings and had assessed the case substantially on the claimant’s account, which had been rejected by the jury. The review team was also entitled to attach little weight to Dr Hill’s PCL-R assessment. The substantive judicial review claim therefore failed.
2. Applicable procedural principle. The common law duty of procedural fairness may require an oral hearing, but not in every case. The issue is fact-specific. On judicial review, the question is whether refusal of an oral hearing was procedurally wrong, rather than whether it was irrational or unreasonable.
3. The Parole Board and CART address different questions. The Board considers risk following supervised release, whereas CART considers the risk arising from escape while the prisoner remains uncontrolled. Neither decision-maker has priority over the other, and the Board’s view is not determinative. It must nevertheless be considered.
4. The reference in R (Williams) v Secretary of State for the Home Department to exceptional cases indicates that oral hearings will be rare, not that a claimant must prove exceptional circumstances. Relevant considerations include inconsistency between decision-making bodies, the importance of the interests at stake, the opportunity to address adverse material, and the need for a better-informed process.
5. Mr McLuckie did not require an oral hearing at that stage. His expert evidence was seriously flawed, and an oral hearing before the Parole Board was pending. Parallel oral hearings were undesirable. The position might have been different if the Board later reached conclusions favourable to him which CART rejected without hearing him.
6. Mr Mackay’s case was materially different. He had already received an oral hearing before the Parole Board, which had considered oral evidence and expressed the view that movement to Category B might be constructive. Those circumstances created an impasse making an oral hearing before CART necessary. CART was not bound to downgrade his category, but it had to hear his case. His claim succeeded.