Flinders, R (on the application of) v The Director of High Security & Ors

Procedural fairness may require an oral hearing before a Category A prisoner’s security categorisation is maintained. The question is fact-specific and is for the court to determine on judicial review. Oral hearings remain rare, but may be required where the prisoner has served beyond tariff, has made significant progress, faces disputed or ambiguous evidence, and there is an apparent impasse concerning rehabilitation opportunities. The decision-maker must apply the relevant categorisation test and assess whether there is convincing evidence that the risk of re-offending if unlawfully at large has significantly reduced. A parole dossier need not contain reports prepared immediately before the hearing if the material remains a proper and reasonable appraisal of the prisoner’s position. Delay in convening an oral hearing may breach Article 5(4), but damages require proof of causation and sufficiently intense distress.

The claimant, a life prisoner serving a sentence for manslaughter, challenged decisions maintaining him in Category A conditions and decisions concerning the conduct of his parole review. He argued that the categorisation decisions were procedurally unfair and irrational, that rehabilitation material had not been provided, and that the Parole Board had delayed convening an oral hearing in breach of Article 5(4) of the European Convention on Human Rights.

The claim also raised issues concerning the currency of parole reports, the Board’s case-management powers, an alleged public law duty to provide means of demonstrating rehabilitation, disability discrimination, and damages for delay.

1. Categorisation decision of 21 January 2011. The decision maintaining Category A status was quashed. The common law duty of procedural fairness is fact-specific. It may require an oral hearing even though the governing policy refers to exceptional circumstances. The court must decide whether refusal of an oral hearing was wrong, rather than merely unreasonable or irrational.
2. The cumulative circumstances made an oral hearing necessary. They included the claimant’s long period in Category A, expiry of his tariff, exemplary prison conduct, controlled mental illness, ambiguity about his eligibility for offending behaviour courses, evidence suggesting some reduction in risk, and recommendations by the local advisory panel and supervising officer for downgrading. The decision-maker expressly recognised that clarification was needed, making an oral hearing particularly appropriate. There was a reasonable prospect that oral evidence might have affected the decision.
3. The substantive categorisation test required convincing evidence that the claimant’s risk of re-offending if unlawfully at large had significantly reduced. Assuming an oral hearing was unnecessary, the decision-maker had rationally assessed the competing material and was entitled to determine the weight given to relevant factors. The decision did not treat the conviction as murder rather than manslaughter.
4. The alleged public law duty to provide means of demonstrating rehabilitation had not yet been breached. The claimant had not been left without all possible pathways for risk reduction, although the history of delay and failure to provide therapeutic work was unsatisfactory.
5. The 2009 categorisation decision was treated as academic and permission to challenge it was refused. The delay in the 2009 categorisation review was permissible under the applicable policy because it was linked to obtaining relevant reports and coordinating other reviews.
6. The reports supplied for the parole hearing were sufficiently current. The word current did not require reports to have been prepared immediately before the hearing; the question was whether they still provided a proper and reasonable appraisal of risk, risk reduction, prison performance and behaviour. The claim concerning inadequate reports therefore failed.
7. The Parole Board’s unexplained delay in convening the oral hearing breached Article 5(4). No declaration or damages were required. The claimant could not show that an earlier hearing would probably have led to release, and there was insufficient evidence of distress of the necessary intensity. The Board was capable of constituting a court for Article 5(4) despite lacking sanctions for breach of case-management directions.
8. All other claims for relief were dismissed. The court recorded the Board’s acknowledgment of the Article 5(4) breach and declined to award damages under section 8 of the Human Rights Act 1998.

First-instance judicial review proceedings. The judgment records the earlier judicial review before Blair J, but does not state its neutral citation.