Goldsmith, R (on the application of) v Secretary of Justice

Decisions on the recategorisation of Category A prisoners must comply with the applicable published policy and the common law requirements of procedural fairness. Whether an oral hearing is required is fact-specific. Such hearings remain rare, but may be necessary where the policy factors indicate that oral examination would materially assist decision-making. The question is whether the procedure was fair, not whether refusal of a hearing was Wednesbury unreasonable. CART must apply the Category A test: whether there is convincing evidence that the prisoner’s risk of similar reoffending if unlawfully at large has significantly reduced. That test differs from the Parole Board’s assessment of risk on release or in open conditions. The court dismissed challenges to two decisions because the policy had been applied, the information had been considered, and the decisions were rationally open to CART.

The claimant, serving concurrent life sentences and held in Category A conditions, challenged CART decisions in 2017 and 2018 refusing to downgrade his security category and refusing, or deciding not to convene, an oral hearing. He relied on procedural unfairness, failure to apply PSI 08/2013, inadequate reasons, material errors, failure to consider relevant matters, and irrationality.

The proceedings initially included a challenge to the 2019 review, but the parties accepted that it could not realistically be determined without further submissions. The issues were therefore confined to the lawfulness of the 2017 and 2018 decisions and whether an oral hearing should have preceded either decision.

1. Application dismissed. The challenges to the 2017 and 2018 decisions were rejected.
2. There is a public law duty to act in accordance with an applicable published policy. PSI 08/2013 required CART to consider the factors bearing on whether an oral hearing would assist, including important factual disputes, significant disputes in expert material, the length of time in Category A or post-tariff status, the absence of a previous hearing, and any longstanding impasse. The process was evaluative rather than mathematical, and each case had to be considered on its facts.
3. Applying Mackay v Secretary of State for Justice and R (Downs) v Secretary of State for Justice, an oral hearing was not required merely because the prisoner had spent many years in Category A, was post-tariff, or relied on differing expert perspectives. The evidence did not disclose an important factual dispute or significant expert dispute requiring oral clarification. Nor was there an impasse within the policy.
4. The common law test was whether the procedure was fair, not whether the refusal of a hearing was Wednesbury unreasonable. The policy criteria were fair and had been applied in both years. The absence of express consideration in the 2017 decision letter did not establish that the issue had not been considered, particularly because detailed reasons were later provided in response to the protocol letter.
5. CART and the Parole Board perform materially different functions. The Parole Board considers risk on release or in open conditions; CART must decide whether there is convincing evidence of a significant reduction in the risk of similar reoffending if unlawfully at large. The Parole Board’s observations were relevant but not determinative.
6. The alleged dating errors were typographical and immaterial. CART had considered the relevant reports and representations. Its conclusion that the evidence did not establish the required significant reduction in risk was rationally open to it. The provisional observations concerning the 2019 decision were not determinations of its lawfulness.