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

In a Category A prisoner review, PSI 08/2013 does not create an automatic right to an oral hearing. The decision is fact-specific and must be balanced and open-minded. A significant dispute in expert materials can favour a hearing where it is real, live and concerns a point of real importance; the dispute may be between expert opinions rather than primary facts. A hearing may be short and targeted. Basic fairness requires sufficient reasons for refusing one, although the reviewing court makes its own assessment of necessity. Where later work and elapsed time may affect a central risk assessment, failure to investigate that possibility made refusal of a targeted hearing wrong and unlawful.

A serving Category A prisoner sought judicial review of the Director’s refusal to grant an oral hearing in an annual categorisation review. He did not challenge the decision to retain Category A status. The review papers contained conflicting recommendations: the psychologist and local advisory panel supported Category B, while the offender manager did not. The claimant also relied on further individualised work and additional time on the PIPE unit after the reports. The decision letter gave reasons for retaining Category A status but no reasons for refusing an oral hearing. The central issues were whether PSI 08/2013 required or supported a hearing on these materials, whether reasons were required, and whether fairness made a hearing necessary.

The application was allowed. The refusal to hold an oral hearing was wrong and unlawful. The categorisation decision itself was not directly challenged.

1. Applicable approach. PSI 08/2013 requires a fact-specific and balanced assessment. Its factors do not create a presumption or automatic entitlement to a hearing, and oral hearings remain rare. A significant dispute on expert materials may arise from differences in expert opinions, not only disputed primary facts. The Court of Appeal authorities, including Donald Mackay v Secretary of State for Justice [2011] EWCA Civ 522 and R (Patrick Hassett, Simon Price) v Secretary of State for Justice [2017] EWCA Civ 331, did not establish that a difference of opinion could never engage the policy.
2. Reasons and review. Although the PSI contains no express requirement to give reasons for refusing an oral hearing, basic fairness requires sufficient reasons to show that the issue was considered and addressed. The reasons need not be lengthy. Where fairness may require a hearing, the reviewing court makes its own assessment of whether the refusal was wrong, rather than asking only whether it was unreasonable or irrational.
3. Other grounds. There was no impasse because the claimant could continue consolidating learning on the PIPE unit. Maintaining innocence could not itself prevent progression. The Director was entitled to consider risk factors relating to the index offence and all matters bearing on risk reduction, consistently with R (Roberts) v Secretary of State for the Home Department [2004] EWHC 679 (Admin) and Hassett.
4. Application. The psychologist and local advisory panel supported recategorisation, whereas the offender manager did not. Further individualised work had been completed and five more months had elapsed before review, but the Director made no inquiry into whether those matters altered the risk assessments. This created a real and live dispute on the central issue of risk reduction. A short hearing targeted to that issue would have aided decision-making, even though the eventual categorisation outcome might have remained unchanged. The refusal was therefore unlawful.