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

In reviewing the categorisation of a Category A prisoner, procedural fairness is fact-specific. The decision-maker must ask whether fairness requires an oral hearing; an exceptionality threshold is impermissible. Oral hearings remain rare, but may be required where disputed or new material creates a critical flaw in the paper process, particularly where the decision has a serious effect on liberty and the hearing could improve the reliability of the risk assessment. The court may determine the fairness issue itself. If refusal of an oral hearing was wrong, the decision should be quashed and the matter reconsidered with an oral hearing.

The claimant, a discretionary life prisoner whose tariff had expired, sought judicial review of the September 2011 decision retaining him in Category A and refusing an oral hearing. He argued that the defendant had applied an exceptionality test and had failed to engage with psychological evidence, including a December 2010 PCL-R assessment relevant to risk and suitability for specialist treatment.

The central issues were whether the refusal of an oral hearing was legally flawed and whether, applying the correct fairness standard to the material before the decision-maker, procedural fairness required an oral hearing.

1. Exceptionality test. The Category A Team had applied an exceptionality test when deciding whether an oral hearing was required. That was the wrong approach. The question was whether fairness required an oral hearing in the particular case, not whether exceptional circumstances existed. ([2012] EWHC 2411 (Admin), paras 16–19.)
2. Applicable approach. The court had to decide for itself whether refusal of an oral hearing was wrong, applying the fact-specific common-law requirements of procedural fairness. Reduction in risk remained central to recategorisation, but participation in offender behaviour programmes was not essential to risk reduction. The approach in R (Mackay) v Secretary of State for Justice was adopted, including that oral hearings should be rare and that no general exceptionality rule applied. ([2011] EWCA Civ 522; [2012] EWHC 2411 (Admin), paras 19–21, 28.)
3. Critical flaw in the paper process. The December 2010 PCL-R assessment had not been addressed. It potentially undermined the assessment that psychopathy heightened risk and the conclusion that there had been no material risk reduction. The earlier rejection of the psychologist’s July 2010 report did not answer this distinct, authenticated assessment. The defendant’s reliance on a specialist referral was also arguably inappropriate because the claimant’s evidence indicated that he might no longer satisfy the relevant severe-personality-disorder criteria. These matters undermined confidence in the paper process.
4. Disposition. Procedural fairness required an oral hearing. The September 2011 decision was quashed, and an oral hearing was ordered. A forthcoming paper review did not make the claim academic, since a further paper decision risked further delay, challenge and costs. The court also adopted obiter observations in R (Willoughby) v Category A Review Team. ([2011] EWHC (Admin) 3483, paras 29–30.)

First-instance judicial review in the Administrative Court. Permission to apply was granted on renewal before Foskett J on 23 April 2012. The September 2011 decision was quashed and an oral hearing ordered.