Morgan v Secretary of State for Justice

A prisoner’s denial of the index offence is not automatically a bar to recategorisation. The decision-maker must conduct a genuine balancing exercise, considering all relevant evidence of current risk. Good prison behaviour may carry little weight where the original offending occurred during apparently normal behaviour and there is no evidence of offence-related insight or engagement with relevant work.

Fairness governs whether an oral hearing is required in a Category A review. The principles concerning Parole Board hearings apply with allowance for the different institutional context and function of CART. The duty to provide rehabilitative opportunities is one to provide an opportunity reasonable in all the circumstances, not to devise a bespoke programme where existing opportunities have been declined.

The claimant was a Category A prisoner serving a life sentence for murder. He challenged decisions by the Secretary of State’s Category A Review Team and Deputy Director Custody High Security refusing to recategorise him to Category B and refusing an oral hearing. He also alleged that he had not been given a proper opportunity to undertake offending behaviour work.

The challenges concerned reviews conducted in January 2014 and January 2015. The latter was made after the revision of PSI 08/2013 following R (Osborn) v Parole Board [2014] AC 1115. The central issues were whether denial of the offence had been treated as decisive, whether fairness required an oral hearing, and whether the Secretary of State had failed to provide a reasonable opportunity for rehabilitation.

1. The claim was dismissed. Neither categorisation decision unlawfully treated the claimant’s denial of the murder as an absolute bar to recategorisation. The decision-makers considered his good conduct but were entitled to conclude that, given the nature and circumstances of the offending, it provided little indication that the risk of similar offending had reduced.
2. The relevant issue was the absence of evidence that the claimant had engaged with, or gained insight into, the risk factors associated with his offending. Denial of guilt was closely related to that absence but was not itself the determining factor. The decisions involved the balancing exercise recognised in R (Quaddy) v Governor of HMP Long Lartin [2013] EWHC 2029 (Admin).
3. Fairness required CART or the DDC to consider whether an oral hearing was necessary, but there could be no automatic read-across from the principles governing the Parole Board. CART was an internal administrative body, considered only whether there had been a significant reduction in risk, and relied on assessments made by others. The general principle in R (Osborn) v Parole Board [2014] AC 1115 nevertheless meant that requests for oral hearings required greater consideration.
4. The refusal of an oral hearing in 2014 was lawful because the claimant had had opportunities to explain his position and there was no genuine issue of credibility or disputed fact which an oral hearing could resolve. The 2015 refusal was also lawful. The evidence was clear, there was no real factual or expert dispute, and the impasse could not usefully be explored orally. The revised PSI required consideration of the particular facts, not the grant of a hearing in every long-term or post-tariff case.
5. The Secretary of State’s duty, as explained in R (Kaiyam) v Secretary of State for Justice [2015] AC 1344, was to provide an opportunity reasonable in all the circumstances for rehabilitation and demonstration of reduced danger. That duty did not require the provision of a bespoke programme still under development. The argument based on Rangelov v Germany (22 March 2012) ECtHR (unreported) did not extend the duty.