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

Whether procedural fairness requires an oral hearing in a prisoner’s categorisation review depends on the facts and the importance of what is at stake. Relevant considerations include disputed facts or mitigation, the need for an independent assessment of risk, the usefulness of questioning those who have dealt with the prisoner, meaningful participation, the length of detention and any doubt about the need for a hearing. The prospect of release cannot determine the question. The court must decide for itself whether fairness required an oral hearing. A decision-maker must assess whether there is convincing evidence that the prisoner’s risk of reoffending if unlawfully at large has significantly reduced. That assessment may require both consolidation and further development of skills. The application was dismissed.

The claimant was serving a life sentence for murder and was classified as a category A prisoner. He challenged the decision of the Deputy Director of Custody High Security to maintain that classification following the fourth review.

He argued that fairness required an oral hearing and that the decision-maker had failed to consider a relevant matter, namely whether he had successfully consolidated the progress already made rather than whether he had made further progress since the previous review. The court considered the fairness principles applicable to oral hearings and whether the reasons addressed the correct categorisation test.

1. Application dismissed. The common-law question was whether fairness required an oral hearing in the light of the facts and the importance of what was at stake. The court had to determine that question for itself, applying the principles stated by the Supreme Court in R. (Osborn) v Parole Board [2014] AC 1115.
2. The relevant considerations included whether important facts were disputed or significant mitigation required oral explanation; whether the decision-maker needed to assess the prisoner personally or hear expert evidence; whether questioning those who had dealt with the prisoner was necessary to test their views; the prisoner’s legitimate interest in participating; the length of time spent in custody; and whether the decision-maker was in doubt about granting a hearing. The likelihood of release was a separate question and could not determine whether a hearing was required.
3. The claimant’s explanation of a heated argument could arguably engage the factor concerning disputed facts or mitigation. However, the decision was also based on the absence of convincing evidence of significant risk reduction. There was no disputed psychological assessment, no identified need to hear expert evidence, and no specific area in which questioning the local advisory panel members was said to be necessary. A general desire to test their recommendations did not make an oral hearing obligatory.
4. The relevant policy required convincing evidence that the risk of reoffending if unlawfully at large had significantly reduced. The evidence showed that both consolidation and further development of skills remained relevant. The proposed PIPE placement was intended to serve both purposes. The Deputy Director was therefore entitled to conclude that further testing and progress were required.
5. The reasons were not confined to the period since the third review. They referred to the claimant’s earlier offending-behaviour work and the position at the third review, which provided the context for assessing whether there was then convincing evidence of significant risk reduction. The failure-to-consider-a-relevant-matter ground therefore failed.
6. The court did not determine whether a particularly intense level of review applied, because the Deputy Director’s decision was lawful on any view.

First-instance judicial review application. Permission to apply for judicial review was granted by Martin Chamberlain QC on 20 September 2016. The High Court dismissed the application.