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

In a Category A prison security review, the decision-maker must ask whether convincing evidence shows that the prisoner’s risk of reoffending if unlawfully at large has significantly reduced. The applicable policy must be followed unless there is a good reason not to do so. Procedural fairness may require an oral hearing where expert evidence and the local advisory panel support downgrade but the Director disagrees, particularly where the disagreement is unexplained, important risk issues remain, or the prisoner has spent a long period in Category A without a hearing. A hearing is not required merely because experts disagree: it must have a real prospect of materially influencing the outcome. The court decides fairness for itself. No test of exceptionality applies. Denial of the index offence complicates risk assessment but does not itself increase risk.

The claimant was a Category A prisoner serving a mandatory life sentence for murder. He denied the index offence but had completed several accredited programmes and other offence-related work. For the 2019 review, the local advisory panel and three psychologists recommended downgrade to Category B, although they differed about the need for the Identity Matters programme.

The Director retained the claimant in Category A, and the Category A Review Team refused his request for an oral hearing. The judicial review therefore concerned whether the refusal complied with PSI 08/2013 and the common law duty of procedural fairness.

The claim for judicial review was allowed. The Category A Review Team’s decision dated 15 October 2019, refusing an oral hearing, was unlawful.

1. Legal framework. The statutory framework, including sections 12 and 47 of the Prison Act 1952 and rule 7 of the Prison Rules (SI 1999/728), permits classification by reference to escape risk and related matters. Under PSI 08/2013, downgrade required convincing evidence that the prisoner’s risk of reoffending if unlawfully at large had significantly reduced. That could be shown by changed attitudes, developed skills, or cogent uncontested expert psychological evidence.
2. Policy and fairness. A decision-maker must follow its own policy unless there is good reason not to do so. The meaning of a policy is a question of law for the court, applying the principle in Mandalia v Secretary of State for the Home Department [2015] 1 WLR 4546. The court must determine for itself whether procedural fairness required an oral hearing, as explained in Osborn v Parole Board [2013] UKSC 61 and Mackay v Secretary of State for Justice (2011) EWCA civ 522.
3. Relevant factors. PSI 08/2013 identified important disputed facts, significant disputes in expert evidence, disagreement between the local advisory panel and the Director, prolonged detention in Category A, and the absence of any previous oral hearing as factors tending towards a hearing. CART hearings are comparatively rare, but no test of exceptionality applies. The hearing must have a real prospect of materially influencing the outcome.
4. Application. The Director and CART failed to explain why they rejected the unanimous recommendation of the psychologists and the local advisory panel, or why Identity Matters had to be completed before downgrade or while the claimant remained in Category A. The dispute about that programme was important and potentially outcome-determinative. The claimant had spent many years in Category A and had never had an oral hearing. His denial of the murder complicated risk assessment but did not outweigh the other factors. A paper-only adverse decision was therefore unfair. The principle was consistent with Hassett and Price v Secretary of State for Justice [2017] EWCA Civ 331, R (on the application of H) v Secretary of State for Justice [2008] EWHC 2590 (Admin) and R (Seaton) v Secretary of State for Justice [2020] EWHC 1161 (Admin).

The judgment records that an earlier challenge to the claimant’s 2016 categorisation decision was dismissed. The present proceedings were a fresh, first-instance judicial review of the 2019 Category A Review Team decision. No further appellate history is stated.