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

In a review of Category A security status, an oral hearing is required only where common-law procedural fairness demands it. The assessment is fact-sensitive. It must consider whether a hearing would improve the decision by uncovering facts or resolving material issues, while also taking account of the interests at stake and efficiency.

There is no test of exceptionality, although oral hearings will be rare. Where competing professional views have been fully presented, are unchanged, and can be evaluated on the papers, fairness does not require their oral repetition. In grave cases, the reviewing body may justifiably require cogent evidence that the risk posed on escape has significantly diminished.

The appellant, a life prisoner who had remained in Category A throughout his imprisonment, sought judicial review of two decisions of the Category A Review Team refusing an oral hearing during his 2010 annual categorisation review. He relied principally on an independent psychological report which differed from prison psychologists as to sexual motivation, the suitability of sex-offender treatment, and his current risk.

Burton J dismissed the claim on 23 November 2010. The appellant contended that the professional disagreement and his physical condition made an oral hearing necessary, and that the Review Team had applied an impermissible test of exceptional circumstances. The central issue was whether procedural fairness required an oral hearing before the Review Team decided to retain his Category A status.

1. The appeal was dismissed. Aikens LJ held, with Moore-Bick and Pill LJJ agreeing, that Burton J had been correct to dismiss the judicial-review claim.

2. The governing question was whether common-law procedural fairness required an oral hearing. The court reaffirmed that the inquiry is fact-sensitive. Hearings are rare but are not confined to exceptional cases. The reviewing body must consider whether an oral hearing would improve decision-making by uncovering facts, resolving issues, or addressing its concerns.

3. The disagreement between the independent psychologist and prison staff did not make an oral hearing necessary. Their opposing views about sexual motivation and the suitability of further treatment had been fully rehearsed in the written material and had not changed. Those matters could not be resolved with certainty by oral evidence. It was for the Review Team to decide which professional view it accepted, and it could do so fairly on the papers.

4. The appellant's physical condition did not require an oral hearing. Nor did the psychological report raise an issue which could not fairly be assessed without one. Given the gravity of the index offences, the Review Team was entitled to require cogent evidence that the risk to the public if the appellant escaped had significantly diminished. The report did not raise issues requiring oral resolution on that question.

5. The reference in the first decision letter to the absence of exceptional circumstances would, if isolated, have misstated the law. Read in the context of the letters as a whole, however, it did not undermine the decision. Procedural fairness did not require an oral hearing, and the refusals were not wrong.

• Court of Appeal (Civil Division): dismissed the appeal and affirmed the refusal of judicial review: [2011] EWCA Civ 1422.
• High Court, Queen's Bench Division, Administrative Court: Burton J dismissed the claim for judicial review on 23 November 2010.