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

Whether procedural fairness requires an oral hearing in a prisoner categorisation review is fact-specific. The court must decide whether an oral hearing would materially improve the information available, resolve a significant dispute, or otherwise contribute to fair decision-making. Exceptional circumstances are not a universal precondition, but oral hearings remain rare. A mere disagreement about escape potential does not automatically require one. A request founded on expert evidence should ordinarily identify, at least in outline, what the expert would say and how it bears on the relevant issue. Issues concerning access to offending-behaviour courses do not necessarily bear on escape potential.

The claimant, a Category A prisoner serving a life sentence, challenged decisions refusing to re-categorise him as Category B and refusing an oral hearing. He relied principally on severe and progressive multiple sclerosis, wheelchair dependence, alleged mental impairment, and the possible evidence of a consultant neurologist.

The Category A Review Team considered that his condition had not sufficiently reduced the risk of re-offending or made escape impossible in lower security conditions. The claim raised whether the decision-makers had failed to consider mental impairment in relation to escape potential and whether fairness required an oral hearing.

1. The claim was dismissed. The decisions maintaining Category A status were not quashed, and an oral hearing was not required on the material before the court.
2. Following R (DM) v Secretary of State for Justice [2011] EWCA Civ 522, continued Category A classification directly affects liberty and may require a high degree of procedural fairness. Whether fairness requires an oral hearing is fact-specific. There is no general requirement to show exceptional circumstances, but oral hearings will be rare. Relevant considerations include improved decision-making, resolution of disputed issues, the participation of the prisoner and those who know him, cost and efficiency.
3. The claimant had relied on mental impairment in relation to the difficulty of completing offending-behaviour coursework, not as a factor affecting escape potential. The later solicitors’ letter did not clearly alter that position. The decision letters therefore could not be criticised for failing to address mental impairment as an escape-risk issue. The coursework point was considered in its proper context.
4. The evidence did not disclose a substantial dispute about the extent of the claimant’s physical disability. The real issue was what that disability meant for the possibility of escape, including possible assistance or collusion. The existence of a dispute about escape potential did not itself require an oral hearing.
5. The proposed consultant neurologist’s evidence was speculative. No current report or sufficient indication of the expert’s likely evidence had been produced. The court was entitled to decide the oral-hearing issue on the material before it. A future report dealing with symptoms, prognosis and the relationship between any impairment and planned or opportunistic escape might require fresh consideration by CART, which was required to keep an open mind.
6. A statement by a CART witness that oral hearings concerned only risk of re-offending, and not escape potential, would have been wrong if that was what it meant. Any such error did not affect the decision, which the court made independently on the evidence and established principles.