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

In reviewing the categorisation of a Category A prisoner, the decision-maker must apply the governing test and assess whether the evidence of reduced risk is sufficiently convincing. An erroneous description of expert evidence does not necessarily invalidate the decision where the decision-maker understood the substance of that evidence, applied the correct question and reached a conclusion reasonably open on the material before him.

Fairness does not ordinarily require an oral hearing. The relevant question is whether the prisoner had a full and fair opportunity to present his case and whether a hearing would materially improve the decision-making process. Disagreement between experts, lengthy detention and an unresolved assessment process do not, without more, require an oral hearing.

The claimant, a Category A prisoner, sought permission to challenge the Secretary of State’s refusal to downgrade him and refusal to convene an oral hearing. He relied on an independent psychologist’s opinion that his risk was low and that the test for downgrading was met. The prison-based assessments and local advisory panel recommended that he remain in Category A.

Permission had been refused on the papers by His Honour Judge Saffman. The renewed application challenged the alleged mischaracterisation of the psychologist’s evidence and the refusal of an oral hearing. The central issues were whether the Director’s error rendered the categorisation decision unreasonable and whether fairness required an oral hearing.

1. Permission refused. Neither ground was arguable.
2. The Director wrongly stated that Dr Beckley considered a risk assessment impossible. Her report said that assessment was difficult, but nevertheless assessed the claimant’s risk and recommended downgrading. That was an error.
3. Read as a whole, however, the decision showed that the Director understood the substance of the report and had the correct question in mind: whether there was convincing evidence of a significant reduction in the claimant’s risk under para 4.2 of PSI 08/2013. He was entitled to conclude that the evidence, although favourable to the claimant, was insufficiently cogent. The error therefore did not make the decision unreasonable.
4. In any event, applying s 31(3D) of the Senior Courts Act 1981, it was highly likely that the outcome would have been the same without the misstatement.
5. Fairness did not require an oral hearing. Applying R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331, categorisation is principally a prison-management function and courts should avoid imposing unduly stringent procedures. The claimant had a full and fair opportunity to make written representations, and a hearing would not have materially improved the assessment of the inference to be drawn from largely undisputed facts.
6. The disagreement between experts, the claimant’s lengthy detention and the delay in completing a Programme Needs Assessment did not establish a case requiring an oral hearing. There was no relevant impasse. The renewed application was dismissed.

The judgment records that His Honour Judge Saffman refused permission on the papers on 6 August 2020. The High Court (Administrative Court) refused the renewed oral application for permission.