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

Fairness does not require an oral hearing whenever expert evidence conflicts in a prisoner’s categorisation review. The question is whether, in the circumstances, an oral hearing is necessary to provide a fair opportunity to establish the case for re-categorisation. An expert report must be assessed fairly and taken at its highest for the prisoner. It may nevertheless fail to raise a serious case if it accepts risks which remain inconsistent with the statutory or policy threshold for downgrading. A decision-maker may therefore refuse an oral hearing where the material, even if accepted, could not realistically justify the requested change. The court must balance all relevant factors, including the significance of the dispute, the prisoner’s circumstances, the time since tariff expiry, previous opportunities for an oral hearing, and the risks arising from release or escape.

The claimant was a life prisoner serving six life sentences. His 20-year minimum term had expired, but the Category A Review Team twice refused to downgrade his security category and refused requests for an oral hearing.

The claimant relied principally on a forensic psychologist’s report, which supported re-categorisation and suitability for open conditions. The defendant relied on the report’s acceptance of continuing risks, including the possibility of serious violence if the claimant’s post-traumatic stress disorder became unmanageable. The first decision was challenged substantively. Permission was also sought to challenge the later decision of 16 September 2015.

The central issue was whether fairness required an oral hearing before the CART made either decision.

1. Permission and outcome. Permission was granted to challenge the decision of 16 September 2015 because it raised essentially the same arguable issue as the earlier challenge. Both substantive applications were dismissed.
2. Applicable approach. The question whether fairness requires an oral hearing is for the court. It is not determined by whether the prisoner’s application has a particular prospect of success. The reasoning in Osborn v Parole Board did not displace the principles stated in Mackay v Secretary of State for Justice and confirmed in R (Michael Downs) v Secretary of State for Justice.
3. Expert disagreement. A disagreement between experts does not, without more, make an oral hearing mandatory. The relevant question is whether there is a real and important dispute which an oral hearing could materially assist in resolving. An expert report should not be rejected by a summary judgment approach, but fairness may permit refusal where the report, taken at its highest for the prisoner, does not establish a serious case for the requested outcome.
4. Application. The policy required convincing evidence of a significant reduction in the risk of re-offending before a Category A prisoner could be downgraded. Although the claimant was a post-tariff prisoner who had not previously had an oral hearing, and although there was some scope for disagreement about the risk assessments, the expert report accepted that unmanageable PTSD could trigger almost desperate aggressive behaviour and create a serious risk to women. It therefore could not realistically provide a foundation for re-categorisation, even on its most favourable reading.
5. The cases were not among the relatively rare circumstances in which fairness demanded an oral hearing. The decisions refusing oral hearings were not quashed.

The judgment records no prior appellate decision in the same litigation. Permission for the later challenge was granted at this hearing.