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

In reviewing Category A security classification, the decision whether fairness requires an oral hearing must be made by weighing the particular circumstances under PSI 08/2013. The factors are not counted mechanically, and the hearing decision must not depend on the prospects of downgrade. A real and significant dispute between the decision-maker and prison experts or the Local Advisory Panel may strongly favour a hearing, especially where the papers reveal misunderstanding or leave material concerns unexplained. A prolonged impasse may likewise require a hearing where available intervention work has been completed in Category A but further progress is said to require a lower-category placement. Long imprisonment, post-tariff status and absence of a previous hearing are insufficient alone but provide important context.

The claimant, a serving life prisoner at HMP Full Sutton, challenged the decision to maintain his Category A security classification without an oral hearing. He had spent almost 20 years in Category A conditions, was post-tariff, had behaved well in custody and had completed the intervention work available to him. A prison psychologist and the Local Advisory Panel considered that his risk had significantly reduced and recommended progression to a lower category. The Director maintained Category A status, relying on the seriousness of the offending, the claimant’s denial of guilt and the need for further risk-related work. Ground 1 was abandoned. The central issues were whether common-law fairness and PSI 08/2013 required an oral hearing.

1. Disposition. The judicial review application was allowed. The Director’s decision not to hold an oral hearing was unlawful, and the agreed draft order was approved.
2. Applicable framework. PSI 08/2013, paragraphs 4.6 and 4.7, reflected the common-law requirements of procedural fairness. The question whether an oral hearing was required was for the court. The assessment had to be fact-specific, balanced and open-minded. The factors were not to be treated as a mathematical checklist, the hearing decision could not depend on the prospects of downgrade, and a flexible hearing could address only appropriate issues. The guidance in R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522 and R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422 remained relevant. Following R (Hassett and Price) v Secretary of State for Justice [2017] 1 WLR 4750, the Parole Board guidance in R (Osborn and Booth) v Parole Board [2014] AC 1115 did not apply directly in the different Category A context.
3. Relevant factors. Long detention in Category A, post-tariff status and the absence of any previous oral hearing did not alone require a hearing, but demanded particularly careful consideration. A significant dispute on expert material meant a real and live dispute on points of real importance. It could arise between experts, or between the experts and Local Advisory Panel on one side and the Director on the other.
4. Application. There was a substantial divergence between the Director’s view and the conclusions of the prison psychologist and Local Advisory Panel on risk reduction. The Director also appeared to misunderstand material aspects of their assessments. An oral hearing would have enabled the claimant to identify and address the concerns troubling the Director and would have allowed the Director to explore those concerns with the claimant and the psychologist. The reasoning in R (Rose) v Secretary of State for Justice [2017] EWHC 1826 (Admin) was applicable. The factors identified in R (Morgan) v Secretary of State for Justice [2016] EWHC 106 (Admin) supplied important context.
5. Impasse and fairness. A genuine and continuing impasse existed. The claimant had completed all intervention work available in Category A, while the further therapeutic-community work relied on by the Director was available only after transfer to a lower category. Denial of guilt was relevant to risk assessment but could not itself preclude re-categorisation. The situation was analogous to the impasse discussed in R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522, and materially different from the situations in R (Bourke) v Secretary of State for Justice [2012] EWHC 4041 (Admin) and R (Steele) v Secretary of State for Justice [2018] EWHC 1072 (Admin). The Director therefore failed properly and fairly to apply PSI 08/2013, and common-law fairness independently required an oral hearing.

This was a first-instance judicial review. Permission was granted on 21 June 2019 on the papers, and the time-limits issue was resolved in the claimant’s favour. No appeal or lower-court judgment is stated.