M, R (On the Application Of) v The Secretary of State for Justice

The common-law duty of procedural fairness may require an oral hearing in a prisoner security-category review. The question is whether fairness requires one in the particular case, having regard to the facts and the importance of what is at stake. The principles in Osborn v Parole Board apply to CART reviews with appropriate regard to their different institutional role, composition and statutory context. An oral hearing is not required merely because the prisoner disagrees with written reports, has not previously had a hearing, or might possibly provide information of assistance. A balanced assessment is required, including any factual dispute, disagreement in expert evidence, need for effective participation and the prisoner’s wider circumstances.

M, a category A prisoner held in a protected witness unit, challenged CART’s refusal to hold an oral hearing during his annual security-category review. CART maintained his category A status, relying on psychological reports, sentence-planning material and the local advisory panel’s recommendation. M argued that restrictions on access to mainstream offender-behaviour programmes, uncertainty about his risk reduction and the absence of any previous oral hearing made a hearing necessary. The central issues were whether Osborn v Parole Board applied to CART reviews and whether fairness required an oral hearing on the facts.

1. The claim was dismissed. The court held that the question whether an oral hearing is required is one for the court to determine for itself under common-law procedural fairness. It is not confined to ordinary public-law review. The relevant question is whether fairness requires a hearing in the light of the particular facts and the importance of the decision for the prisoner.
2. The principles in Osborn v Parole Board were relevant but could not simply be transferred without qualification. Parole Board decisions are made by an independent specialist tribunal and directly engage article 5(4) of the ECHR. CART performs an internal administrative function, lacks specialist professional members and does not directly determine release, although its decisions indirectly affect liberty and directly affect prison conditions.
3. The court therefore required a balanced assessment of the relevant circumstances. These included whether important facts or expert materials were disputed, whether an oral exchange could materially assist the decision-maker or enable effective participation, whether the prisoner had something useful to contribute, and the significance and timing of the review. Cost and efficiency could be relevant but were not conclusive.
4. On the facts, there was no important factual dispute and no significant disagreement in the expert evidence. The reports consistently indicated that M had made progress but required a further consolidation period, which could be undertaken in the protected witness unit. His expert report did not provide a risk assessment or identify any material disagreement with the prison psychologists.
5. M’s lack of a previous oral hearing, the restrictions associated with protected-witness status and the time remaining before tariff expiry did not, individually or cumulatively, establish a credible basis for requiring one. The possibility that questions might produce information helpful to M, or his disagreement with the written assessments, was insufficient.