DM v Secretary of State for Justice

The common law duty of procedural fairness may require an oral hearing before a decision on the security categorisation of a Category A prisoner. The question is fact-specific and is for the court to decide on judicial review. There is no separate test of exceptional circumstances, although oral hearings will be rare.

A Parole Board view on categorisation must be considered but does not determine the decision of the Category A Review Team. A tentative observation that downgrading may be constructive, made within a decision finding no significant reduction in risk, does not itself create a material inconsistency or require an oral hearing.

DM was a life prisoner classified as Category A. The Category A Review Team refused to downgrade his categorisation without an oral hearing. The Parole Board had previously considered his case at an oral hearing, concluded that he should remain in closed conditions and stated that a move to a Category B training prison might be constructive.

Bean J allowed DM’s judicial review claim, quashed the refusal and held that procedural fairness required an oral hearing: [2010] EWHC 2013 (Admin). The Secretary of State appealed. The central issue was whether the Parole Board’s decision, viewed with the other material, made an oral hearing necessary before the categorisation decision.

1. The appeal was allowed unanimously. Gross LJ gave the reasons, with which Sullivan LJ and the President of the Queen’s Bench Division agreed. Bean J had erred in holding that procedural fairness required an oral hearing before the refusal to downgrade DM from Category A.
2. The common law duty of procedural fairness can require the Category A Review Team to hold an oral hearing. The requirement is fact-specific; it is for the court, rather than the decision-maker applying an irrationality standard, to determine what fairness requires. There is no separate requirement to establish exceptional circumstances, but such hearings will be few and far between. The importance of liberty, the prospect that an oral hearing will improve fact-finding or risk assessment, and cost and efficiency are all relevant considerations. The court applied the approach in R (West) v Parole Board [2005] UKHL 1 and R (H) v Sec of State for Justice [2008] EWHC 2590 (Admin).
3. The Parole Board and the Category A Review Team perform distinct functions. The former addresses risk on supervised release or transfer to open conditions; the latter assesses risk if the prisoner escapes. A Parole Board view must be considered but is not determinative: R (Williams) v Home Secretary [2002] EWCA Civ 498.
4. Read as a whole, the Parole Board’s decision found no significant reduction in DM’s risk. Its observation that a Category B move may be constructive was an isolated and tentative rider, not a clear recommendation for downgrading. There was no undisclosed material and no conflict between the local Advisory Panel and the Category A Review Team. Any difference between the Parole Board and the review team reflected their distinct functions rather than a material inconsistency requiring a hearing.
5. DM’s continued denial of guilt did not itself bar re-categorisation. It could, however, limit his practical ability to demonstrate reduced risk. The court found no actual impasse on the material before it and held that even an unavoidable impasse would not of itself require an oral hearing. The Secretary of State’s later categorisation decision without a hearing was deprecated, but could not justify an oral hearing as a rebuke or alter the merits of the earlier decision.

• Court of Appeal (Civil Division) — Allowed the Secretary of State’s appeal and reversed the requirement for an oral hearing: [2011] EWCA Civ 522.
• High Court, Queen’s Bench Division, Administrative Court (Bean J) — Allowed DM’s judicial review claim, quashed the refusal to re-categorise him, and required an oral hearing: [2010] EWHC 2013 (Admin).