Longmire v Secretary of State for Justice

Common-law procedural fairness may require an oral hearing before a decision to retain a prisoner in Category A, even though no legislation or prison instruction confers such a right and exceptional circumstances are not required. Oral hearings remain rare and the question is fact-specific. They are particularly indicated where the decision turns on a disputed issue of fact, a significant inconsistency exists between the decision-maker and those who assessed or treated the prisoner, or serious criticisms of professional evidence require ventilation. A paper review is insufficient where the prisoner has a fair opportunity to answer matters central to the decision.

The claimant, a post-tariff life prisoner serving a Category A sentence, challenged the Director’s refusal to hold an oral hearing before maintaining his categorisation. The Director relied particularly on the claimant’s guilty plea to a further historic rape, which he considered undermined the claimant’s therapeutic progress and risk assessment. The claimant also renewed permission to challenge the substantive decision as irrational. The court considered the common-law fairness principles recently summarised by the Court of Appeal in Donald Mackay v Secretary of State for Justice, including whether the circumstances required oral representations.

1. Oral hearing required. The common-law duty of procedural fairness required the Director to hold an oral hearing. The issue was not whether the refusal was irrational, but whether fairness required an oral hearing, which was a matter for the court to determine.
2. The claimant’s post-tariff status, lengthy detention, and the earlier Parole Board recommendation did not, individually, require an oral hearing. Nor did the difference between the Local Advisory Panel’s recommendation and the Director’s view automatically establish that one was required. Oral hearings remain rare and the assessment is fact-specific.
3. The decisive features were that the further rape was central to the Director’s reasoning and created a disputed factual issue. The claimant said he had forgotten the offence, committed many years earlier when abusing alcohol and drugs. Although the Director might ultimately reject that explanation, fairness required that he have an opportunity to make oral representations.
4. The Director also relied on the possibility of further undisclosed offences and on serious criticisms that professional reports were biased or had been influenced by the claimant’s conduct. Those matters should have been ventilated at an oral hearing. A private conversation with the treating clinician was not an adequate substitute because the claimant was not involved and the matters put to the clinician were unclear.
5. The decision to retain Category A status was quashed. The renewed application for permission to challenge the substantive decision as irrational was refused so far as material, because the absence of a fair oral process meant that the Director had not yet reached the stage at which the evidence could properly be weighed.

The judgment states that the Court of Appeal had recently decided a similar issue in Donald Mackay v Secretary of State for Justice, [2011] EWCA Civ 522. The present claim was determined at first instance in the Administrative Court.