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

Whether a Category A prisoner should receive an oral hearing on review of security categorisation depends on the particular facts and the lawful application of the Secretary of State’s policy. Relevant factors include important factual disputes, significant disputes in expert material, lengthy detention, post-tariff status, an impasse in progression, and the absence of a previous hearing. These factors are not automatic triggers. The decision-maker must assess whether an oral hearing would assist fair and effective decision-making. Continued denial of guilt cannot, by itself, justify refusing recategorisation, but failure to engage with available offending-behaviour work may leave the prisoner unable to demonstrate the required significant reduction in risk. An oral hearing is not required where the relevant issues are clear on the papers and would not materially assist their resolution.

Mr Steele, a serving Category A prisoner, challenged the Director’s decision to retain him in Category A and, in particular, the refusal to hold an oral hearing. He had been imprisoned for approximately 22 years, was post-tariff, had never had an oral hearing, and had received a Local Advisory Panel recommendation for downgrading to Category B.

The Director considered that Mr Steele had not demonstrated a significant reduction in the risk of similar offending if unlawfully at large. He had not completed offending-behaviour programmes and had declined offered one-to-one work. The central issue was whether the Director had properly and fairly applied the relevant policy guidance when refusing an oral hearing.

The claim was dismissed. The Director had not acted unlawfully in deciding the review on the papers.

1. The court accepted that the Director was required to follow the policy unless there was good reason to depart from it. The meaning of the policy was a question of law, and the importance of the decision to the prisoner had to be recognised.

2. The alleged factual dispute about Mr Steele’s willingness and ability to engage with offending-behaviour work did not materially engage the policy. The issue was principally one of assessment, rather than an important factual dispute directly concerning risk. The relevant material was clear, and an oral hearing was unlikely to alter the position.

3. The dispute between the Local Advisory Panel and the Director engaged the policy’s reference to significant disagreement in expert material. It did not follow, however, that an oral hearing was required. The Director had accepted the factual basis of the Panel’s report, and there was no unresolved disagreement between competing experts requiring oral ventilation.

4. The Director had expressed the matters of lengthy detention and post-tariff status imperfectly by referring to the need for other compelling reasons. The policy did not impose that requirement. Nevertheless, read as a whole, the policy did not make those factors sufficient by themselves. Given the clear absence of evidence of the required reduction in risk, an oral hearing would not materially have assisted.

5. There was an impasse. Mr Steele’s denial of guilt contributed to his inability to undertake relevant programmes, but the impasse also resulted from his refusal of available one-to-one work intended to develop motivation and insight. Unlike the prisoner in R (On the application of Rose) v Secretary of State for Justice, Mr Steele had not pursued every available avenue to demonstrate reduced risk. The Director therefore had sufficient material to understand the reasons for, and potential solution to, the impasse without a hearing.

6. The court concluded that, bearing in mind the Director’s discretion and the policy’s flexible approach, the refusal to hold an oral hearing was not wrong in law. The claim was dismissed.

This was a first-instance judicial review in the Administrative Court. Permission was granted on the papers by Morris J on 17 January 2018. The judgment records no earlier determination of the present claim.