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

Procedural fairness in a category A prisoner review requires disclosure of the gist of material facts and opinions relied on, so that the prisoner can make meaningful representations. It does not generally require disclosure of internal advice obtained by the decision-maker when evaluating material already disclosed. The principle applies equally to advice from a prison psychologist and advice from another departmental psychologist. A later review may cure an earlier procedural defect where it independently considers the complaint, discloses the previously undisclosed material, and permits full representations. In that event, the earlier challenge may be academic.

The claimant, a category A prisoner serving a life sentence for murder, sought judicial review of his 2009 categorisation decision and permission to challenge a similar decision made in 2010. He argued that the 2009 review was procedurally unfair because the Secretary of State relied on a post-conviction report by the trial judge and internal advice from a prison psychologist without disclosing them in advance.

After permission was granted, the 2010 review disclosed the material, considered the claimant’s procedural objections, and independently assessed the evidence. The central issues were whether the 2009 procedure was unfair, whether the 2010 decision was unlawfully influenced by the earlier decision, and whether any defect in the 2009 review had been cured.

1. Outcome. The claim concerning the 2009 decision was dismissed, and permission to challenge the 2010 decision was refused.
2. Disclosure and procedural fairness. The authorities establish that a prisoner must receive the gist of reports and other material facts or opinions relied on in a category A review. That disclosure enables meaningful representations and the preparation of adequate reasons. The claimant had been given extensive information about the offence, risk and the relevant professional opinions. The trial judge’s post-conviction report added little to material already known from the criminal proceedings and earlier reviews.
3. Internal advice. The advice obtained from the prison psychologist was an evaluation of the claimant’s expert report, not new factual material. It formed part of the internal decision-making process. Consistently with Burgess (2006 1 Prison Law Rep 257), Bushell, and S [1995] ELR 71, fairness did not require its disclosure. There was no material distinction between advice from a prison-based psychologist and advice from another departmental psychologist.
4. The decision-maker was entitled to obtain professional assistance in forming an informed view of the claimant’s representations. Disclosure of a provisional view or the internal workings of the decision-maker was unnecessary. The gist of the relevant material had been disclosed, satisfying the applicable fairness requirement.
5. The 2010 review. The 2010 decision-maker was entitled to decide what weight to give the 2009 decision, provided it conducted its own evaluation. It did so, considered the procedural complaint, disclosed the previously undisclosed material, and allowed representations. Any arguable defect in the 2009 review was therefore cured. The challenge to the 2009 decision was consequently academic, and the 2010 decision was lawful.

This was a first-instance judicial review. The judgment records that permission to challenge the 2009 decision was granted on 9 November 2009. It does not state any earlier judicial decision determining the merits.