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

Procedural fairness may require an oral hearing when the Category A Review Team considers whether to maintain a prisoner’s security categorisation. The decision is fact-sensitive and must take account of the relevant guidance, the significance of continued Category A detention, and whether an oral hearing could improve decision-making or permit important matters to be explored.

Relevant factors include a significant and tenable dispute in the expert evidence, strongly positive views from the Parole Board, a long post-tariff period in Category A, the absence of any previous oral hearing, and a longstanding impasse. A prisoner’s continued denial of guilt does not, by itself, remove the need for a hearing, particularly where the prisoner has completed the available risk-reduction work and there is no evidence that admission would alter the risk assessment.

The claimant was serving a life sentence for murder and had remained in Category A for 22 years after conviction and beyond expiry of his minimum term. Following an oral hearing, the Parole Board recommended transfer to open conditions and recorded a significant reduction in risk. The local advisory panel opposed downgrading.

The Category A Review Team retained Category A status and refused an oral hearing. The claimant sought judicial review, alleging breach of common-law procedural fairness and failure properly to apply PSI 08/2013. The central issue was whether fairness required an oral hearing before the team rejected the favourable expert and Parole Board assessments.

1. The claim succeeded. The decision refusing an oral hearing was unlawful. The Category A Review Team had failed properly or fairly to apply PSI 08/2013 and had breached its common-law duty of procedural fairness.
2. The guidance was not mathematical. Each case required an assessment of its particular facts, with relevant factors weighed in the balance. An oral hearing was not required in every case, but fairness could require one without any separate exceptionality threshold. This reflected the principles discussed in Mackay v Secretary of State for Justice [2011] EWCA Civ 522 and R (Hassett and another) v The Secretary of State for Justice [2017] EWCA Civ 331.
3. Several factors in the guidance were present: the claimant was post-tariff, had remained in Category A for a prolonged period, and had never previously had an oral hearing. There was also a significant dispute on the expert materials. Two psychologists and the Parole Board had found a significant reduction in risk, whereas the review team reached a different conclusion without giving adequate reasons.
4. The Parole Board’s recommendation was not determinative of categorisation, but it had to be considered. The reasoning in R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498 supported the conclusion that the difference between the Parole Board’s view and the review team’s view could provide a proper foundation for an oral hearing.
5. The claimant was in an unresolved impasse. Unlike the position described in R (Roberts) v Secretary of State for Justice [2004] EWHC 679, he had completed the courses available to him and there was no evidence that admitting guilt would change his risk assessment or provide access to further necessary treatment. His denial therefore could not fairly be treated as the sole practical route to recategorisation.
6. Maintaining Category A status had serious consequences for detention conditions and prospects of release. In those circumstances, the safer and fairer course was to hear from the relevant experts and the claimant, particularly if the team had genuine doubts about the reliability or significance of the risk assessments. The claim for judicial review accordingly succeeded.

First-instance judicial review. Permission was granted on 13 March 2019 by His Honour Judge Saffman, sitting as a Deputy High Court Judge. The Administrative Court allowed the claim and held the refusal of an oral hearing unlawful.