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

In a Category A security review, an oral hearing may be required where the policy’s factors favouring a hearing are materially present. Relevant factors include significant expert evidence, a long period in Category A detention, post-tariff status, the absence of a previous hearing and a longstanding impasse affecting risk assessment. The exercise is evaluative rather than mathematical. A decision-maker must properly and fairly apply the policy. Where the evidence and a local advisory panel’s recommendation support downgrading, and the decision-maker’s concerns cannot fairly be addressed from the papers alone, fairness requires an oral hearing. The decision-maker may still reach a different categorisation after a lawful hearing.

The claimant, a life prisoner held in Category A conditions since 1990, challenged the Deputy Director of Custody High Security’s decision dated 14 June 2016 to retain him in Category A and refuse an oral hearing. A local advisory panel had recommended downgrading him to Category B. The evidence included supportive psychological and offender-supervision reports, although the claimant continued to deny the murder conviction and the Director considered that this limited assessment of his risk.

The central issue was whether the Director had properly and fairly applied the oral-hearing guidance in PSI 08/2013, in the context of the Court of Appeal’s guidance in R (Hassett and Price) v Secretary of State for Justice [2017] EWCA Civ 331.

1. Claim allowed. The refusal to hold an oral hearing was unlawful. The decision of 14 June 2016 was quashed, and the defendant was ordered to hold an oral hearing of the claimant’s Category A review using the most up-to-date available reports.
2. A decision-maker must follow its own policy unless there is a good reason to depart from it. The meaning of the policy is a question of law for the court. The factors in PSI 08/2013 had to be identified and weighed on the particular facts. The exercise was not mathematical, but the presence of several important factors made a hearing more likely to be required. The approach was consistent with Mandalia v Secretary of State for the Home Department [2015] 1 WLR 4546 and the guidance in R (Hassett and Price) v Secretary of State for Justice [2017] EWCA Civ 331.
3. The claimant had never previously had a categorisation hearing, was post-tariff, had spent approximately 27 years in Category A and faced a longstanding impasse arising from his denial of the murder conviction. The policy treated an impasse as important because a hearing might explore potential solutions even where its cause was understood.
4. The most important factor was the significant, real and live dispute concerning the expert materials. The local advisory panel unequivocally recommended downgrading. That recommendation was consistent with the thrust of the prison psychologist’s report, the independent psychologist’s report and the offender supervisor’s report. The Director inaccurately treated the psychological evidence as stating that no murder-related risk reduction had been demonstrated. The report recognised indirect development of insight and said only that the claimant had not fully demonstrated such a reduction.
5. The Director was entitled to give relatively little weight to the independent psychologist’s report because it focused principally on custodial risk rather than risk if unlawfully at large. That did not resolve the wider difficulty. As explained in R (West) v Parole Board [2005] 1 WLR 350, an oral hearing was particularly important where the claimant could not know from the papers what concerns troubled the decision-maker and therefore could not address them effectively.
6. The practical importance of Category A detention had to be borne in mind, although the Director’s failure expressly to state that he had considered it did not itself make the decision unlawful where he was plainly aware of its consequences. The court also admitted later evidence at first instance but held that documents not before the Director were irrelevant to the lawfulness of his decision.
7. The court did not decide that the claimant should be downgraded. The Director could still reach a rational conclusion on categorisation, but could not lawfully maintain Category A without first giving the claimant an opportunity to address his concerns at an oral hearing. The defendant was ordered to pay the claimant’s costs.