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

Common-law procedural fairness in a Category A security review is context-specific. The more demanding oral-hearing guidance for independent Parole Board decisions does not transfer directly to prison-management decisions by the Category A Review Team or the Director. An oral hearing will be required only comparatively rarely, although fairness may require one where a significant doubt on a critical matter could be resolved by hearing from the prisoner.

A real and live dispute on expert material must concern points of real importance to the decision. A policy which expresses that requirement is lawful. Expert disagreement alone does not require an oral hearing.

The appellants were long-term prisoners whose Category A status had been maintained following paper reviews by the Category A Review Team. Each contended that fairness required an oral hearing before the refusal to downgrade his security classification. They also challenged paragraph 4.7(b) of Prison Instruction PSI 08/2013.

The High Court dismissed their judicial review claims: [2015] EWHC 3723 (Admin). On appeal, the central issue was whether the common-law guidance on oral hearings for the Parole Board in R (Osborn) v Parole Board should govern Category A review decisions, and whether the policy and the individual refusals were lawful.

1. Appeals dismissed. The Court upheld the policy and both decisions refusing an oral hearing.

2. What fairness requires depends on the character of the decision-maker, the decision to be made and its legal framework. The Category A Review Team and the Director act as part of the Secretary of State's prison-management system. The Parole Board is an independent judicial body deciding whether a prisoner may safely be released. Its procedural standards, informed by Article 5(4) of the European Convention on Human Rights, are therefore materially different.

3. The guidance in R (Osborn) v Parole Board, [2013] UKSC 61, could not simply be transposed to Category A reviews. The latter concern the risk if a prisoner escapes and is at large without community management. A prisoner also has opportunities to contribute during the prison's information-gathering process. Oral hearings before the Category A Review Team or the Director remain comparatively rare, but fairness may require one where, after reading the reports, there is significant doubt on a critical matter which the prisoner's own attitude could resolve.

4. Paragraph 4.7(b) of Prison Instruction PSI 08/2013 lawfully identifies a significant dispute on expert material as a factor favouring an oral hearing. Its requirement for a real and live dispute on points of real importance does not set an unlawfully low standard. It appropriately adapts the common-law fairness requirement to the Category A context.

5. Neither case involved a current real and significant expert dispute on the relevant question: the risk to the public if the prisoner escaped. The independent reports did not show that either prisoner posed no such risk and, in material respects, supported the prison psychologists' concerns. Mr Hassett had already had a fair opportunity to explain himself. Mr Price's independent report was outdated and did not address later material. Further oral examination was not required merely because experts differed.

6. A prisoner's continued denial of responsibility for an offence of which he has been convicted may properly affect the risk assessment. Cogent evidence of a reduction in risk is required before public safety permits downgrading.

• Court of Appeal (Civil Division): dismissed the prisoners' appeals and upheld the lawfulness of paragraph 4.7(b) of Prison Instruction PSI 08/2013 and the refusals of oral hearings: [2017] EWCA Civ 331.
• High Court (Queen's Bench Division, Administrative Court): dismissed the judicial review claims challenging the Category A review decisions: [2015] EWHC 3723 (Admin).