Willoughby, R (on the application of) v Category A Review Team

An oral hearing is not generally required when CART reviews a Category A prisoner’s security categorisation. The question is whether fairness and the common law require one on the particular facts. Relevant considerations include the importance of what is at stake, whether an oral hearing would improve decision-making or resolve disputed issues, and the competing considerations of cost and efficiency. The existence of conflicting views, an alleged impasse, or a prisoner’s denial of guilt does not automatically require an oral hearing. Judicial review asks whether the refusal was wrong, rather than unreasonable or irrational. A future review may require an oral hearing where the length of continued Category A detention itself makes face-to-face consideration necessary for fairness.

The claimant, a Category A prisoner serving a life sentence, challenged CART’s refusal to convene an oral hearing as part of his 2009 security-category review. He denied the index offences and relied on treatment programmes, risk assessments and a forensic psychological report. CART concluded that the written representations and available reports were sufficient and that there were no compelling grounds for an oral hearing.

The central issue was whether, applying common-law procedural fairness, the circumstances required an oral hearing notwithstanding that such hearings are ordinarily conducted only rarely.

1. Application dismissed. The refusal to hold an oral hearing at the 2009 review was not wrong. The requirements of fairness and justice did not require a hearing on the material before CART.
2. The governing question was whether fairness required an oral hearing in the particular case. The issue was not whether CART’s refusal was unreasonable or irrational. R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422 and DM v Secretary of State for Justice [2011] EWCA Civ 522 established that oral hearings are fact-sensitive and rare. There is no requirement to demonstrate exceptionality, but neither is there a general entitlement to an oral hearing.
3. The court must weigh the importance of the interests at stake and the extent to which an oral hearing may improve decision-making, uncover facts, resolve issues or address matters troubling the decision-maker. Cost and efficiency may point in the opposite direction. An alleged impasse or inconsistency may increase the likelihood of a hearing being required, but does not by itself justify one.
4. CART was an expert body capable of assessing the claimant’s grievance-related conduct and the documentary material without oral representations. The psychological report identified uncertainty about risk and treatment needs, but the claimant’s proposed oral evidence was unlikely to resolve those uncertainties. The disagreement was principally with the expert conclusions, rather than with disputed facts. There was no relevant conflict of expert opinion before CART.
5. The claimant’s continuing denial of guilt did not itself require an oral hearing. Although denial may contribute to an unavoidable impasse, public protection justified requiring convincing evidence of risk reduction before re-categorisation. The court nevertheless observed that, on a future review, the length of continued Category A detention might itself become a compelling reason for a face-to-face hearing.