Cain, R. (In the Application of) v Secretary of State for Justice

A decision to retain a prisoner in Category A requires a high degree of procedural fairness because it directly affects liberty and may delay release. The court must decide for itself whether fairness required an oral hearing; the question is whether refusal was wrong, not whether it was irrational. Oral hearings remain rare and the inquiry is fact-specific.

In grave offending cases, the decision-maker may require cogent evidence that the risk of re-offending if unlawfully at large has significantly diminished. Good behaviour, tariff expiry, favourable prison recommendations, or limited access to offending-behaviour work do not necessarily establish such a reduction. A difference between the Category A decision-maker and the Parole Board or local advisory panel does not itself create an impasse requiring an oral hearing.

The claimant was a life prisoner convicted of two murders, one committed in prison. He challenged the Secretary of State’s decision, made by the Director of High Security Prisons on 18 April 2011, to retain him in Category A.

He alleged that the local advisory panel’s recommendation for downgrading had not been disclosed in time and that the Director relied on a new issue concerning assessment for psychopathic traits or personality disorder. He also argued that fairness required an oral hearing because the Parole Board and local advisory panel supported, or appeared to support, re-categorisation and because further offending-behaviour work was more available in lower-security conditions.

The central issues were whether the decision-making process was procedurally unfair and whether fairness required an oral hearing.

1. Claim dismissed. The Director’s decision to retain the claimant in Category A and to refuse an oral hearing was lawful.
2. A Category A review attracts a high degree of procedural fairness because continued classification materially affects liberty and, after expiry of the penal tariff, may delay eventual release. The court must determine for itself whether fairness required an oral hearing. The applicable question is whether refusal was wrong, not whether it was unreasonable or irrational. There is no exceptionality requirement, but oral hearings remain rare and the assessment is fact-specific.
3. Under [2005] 2 AC 738 and [2011] EWCA Civ 1422, the Director could require cogent evidence that the risk of re-offending if unlawfully at large had significantly diminished. The claimant’s two murders, recent admission of responsibility for the second, continuing minimisation and limited offence-focused work meant that the evidence did not meet that threshold.
4. The local advisory panel’s recommendation was favourable and the Director knew that the claimant had been assessed as unsuitable for CALM and CSCP. No undisclosed material point of real substance was identified. The Director’s suggestion of further assessment, including possible assessment for psychopathic traits or personality disorder, was not a condition precedent to downgrading and did not form the basis of the decision. It was therefore not a new factor requiring further representations under the principles discussed in [2007] Env LR 9.
5. The Parole Board’s comments did not amount to the clear recommendation or assessment of acceptable escape risk found in [2002] EWCA Civ 498. The Board and the Director substantially agreed that further work was required. The limited availability of such work in Category A did not create the kind of genuine Catch-22 impasse capable of requiring an oral hearing. One-to-one work and further assessment remained possible.
6. Considering the factors cumulatively, there was no realistic prospect that an oral hearing would have altered the decision. The Director had considered the claimant’s good conduct, tariff expiry, progress, the local advisory panel’s recommendation, the Parole Board’s views and the available treatment options, but was entitled to conclude that there was no clear and convincing evidence of a significant reduction in risk.

First-instance judicial review decision. No earlier decision in the same proceedings is identified in the judgment.