Hassett & Anor, R (On the Application Of) v The Secretary of State for Justice

Common law procedural fairness depends on the decision-maker’s character, the decision being made and its governing framework. The requirements governing Parole Board hearings cannot be transferred directly to Category A security reviews. Categorisation concerns the danger posed by escape without community management measures. It is an administrative prison management function, and oral hearings will be required comparatively rarely. A significant expert disagreement favours a hearing where it concerns real and live points of importance to that decision. Fairness is likely to require a hearing where significant doubt remains on a matter on which the prisoner’s attitude could make a critical difference. Administrative guidance need not reproduce judicial formulations precisely, provided its wording does not mislead officials into applying a lower standard of procedural protection.

Patrick Hassett and Simon Price were long-term prisoners maintained in Category A without oral categorisation hearings. Mr Hassett was serving a life sentence for murder, denied responsibility for that offence and had passed his tariff expiry date. Mr Price was serving a lengthy determinate sentence for his involvement in cocaine importation and continued to minimise his responsibility. Both prisoners relied on independent psychological reports when requesting oral hearings.

The Secretary of State’s Category A Review Team refused their requests in September and October 2014 respectively. The prisoners challenged those decisions and paragraph 4.7(b) of Prison Instruction PSI 08/2013, which addressed expert disagreement as a factor favouring an oral hearing. McGowan J dismissed their judicial review claims in [2015] EWHC 3723 (Admin).

They appealed, arguing that the procedural guidance for the Parole Board in R (Osborn) v Parole Board [2013] UKSC 61 should govern Category A reviews. Mr Hassett also sought to introduce evidence concerning a later categorisation decision. The central question was whether common law fairness required oral hearings in the distinct context of security categorisation.

1. The appeals were unanimously dismissed. The refusals of oral hearings were lawful, and paragraph 4.7(b) of PSI 08/2013 provided lawful general guidance. Mr Hassett’s application to admit fresh evidence was also refused.

2. Procedural fairness depended on the character of the decision-maker, the kind of decision and the governing framework. The Category A Review Team and Director were officials performing administrative prison management functions. The Parole Board was an independent judicial body directly adjudicating on liberty. Article 5(4) of the European Convention on Human Rights informed the Board’s procedural obligations but did not apply to categorisation decisions (paras [50]–[51]).

3. Categorisation assessed the danger posed by an escaped prisoner at large without community management or support. Parole assessed whether release could safely occur with such measures. Downgrading required a significant reduction in risk sufficient to take the prisoner outside the Category A definition. Fairness in categorisation also took account of opportunities to participate during the preceding information-gathering process (paras [20]; [51]).

4. The guidance in R (Osborn) v Parole Board could not be transferred directly to categorisation reviews. The guidance in MacKay v Secretary of State for Justice and R (Downs) v Secretary of State for Justice remained applicable: oral hearings would be required comparatively rarely. Officials’ wider management responsibilities were relevant when determining procedural requirements, although time, trouble or expense could not justify refusing a hearing which fairness required. A hearing would probably be required where significant doubt remained on a matter on which the prisoner’s attitude could make a critical difference (paras [55]–[62]).

5. A real and live expert dispute on points of genuine importance to categorisation favoured an oral hearing. The challenged guidance fairly expressed that principle and would not mislead officials into providing less protection than the law required. Even significant expert disagreement might not require a hearing where oral discussion offered only a speculative prospect of resolving it sufficiently to affect the decision (paras [63]–[66]; [69]).

6. Mr Hassett’s reports disclosed no significant disagreement about the relevant escape risk, and he had already had a fair opportunity to explain himself to the psychologists. His denial of responsibility could properly affect risk assessment; cogent evidence of diminished risk was legitimately required. Mr Price’s independent report predated further interviews and a new prison psychology report, leaving no current significant expert dispute requiring a hearing (paras [67]–[72]).

7. The proposed fresh evidence concerned a later decision and did not materially advance the appeal concerning the earlier decision. Refusing it maintained the appeal’s proper focus and served the overriding objective in CPR Part 1 (para [11]).

• Court of Appeal (Civil Division): In [2017] EWCA Civ 331 , unanimously dismissed the appeals against the dismissal of the judicial review claims. Refused Mr Hassett’s application to admit fresh evidence.
• High Court (Queen’s Bench Division, Administrative Court): McGowan J dismissed the prisoners’ judicial review claims in [2015] EWHC 3723 (Admin) . The claims challenged the 2014 refusals of oral categorisation hearings and the relevant guidance in PSI 08/2013.