Carr, R (on the application of) v Secretary of State for Justice

For a Restricted Status prisoner, the central question on a proposed downgrade is whether there is convincing evidence that the risk of re-offending if unlawfully at large has significantly reduced. The Category A Review Team may generally determine that question on the papers. Oral hearings will rarely be required for security-status decisions, although the decision-maker must consider the individual circumstances, including important factual disputes, significant disputes in expert evidence, prolonged detention or the absence of a previous hearing. Those factors are relevant but not automatically decisive. The absence of representations or a request for an oral hearing may also support a paper decision. A prisoner’s inability to access a particular treatment programme does not establish an impasse where other risk-reduction work remains available.

This was a renewed application for permission to seek judicial review of the Defendant’s decision not to downgrade Sharon Carr from Restricted Status without holding an oral hearing. The Category A Team had relied on continuing concerns about volatile relationships, violent thoughts, mental-health difficulties and the absence of convincing evidence of significantly reduced risk. Permission had previously been refused on the papers by His Honour Judge Pearce on 26 November 2019.

The Claimant argued that an oral hearing was required, that the decision-maker had failed fairly to assess the alleged impasse concerning access to a PIPE unit, and that positive custodial behaviour had not been given sufficient weight. The central issue was whether the challenge was arguable.

The renewed application for permission was refused. The claim was not arguable.

1. The governing question under PSI 08/2013 was whether there was convincing evidence that the Claimant’s risk of re-offending if unlawfully at large had significantly reduced. The CART, as an expert administrative body, was able to assess that essentially factual question.
2. Oral hearings would rarely be required in relation to a prisoner’s security status. The distinction identified in R (Hassett) v Secretary of State for Justice [2017] 1 WLR 4749 was material: Parole Board decisions are judicial determinations of rights, whereas CART decisions are administrative decisions concerned with the proper and effective administration of prisons in the public interest.
3. The factors in PSI 08/2013 which may favour an oral hearing, including prolonged or post-tariff detention and the absence of an earlier hearing, were relevant but not dispositive. There was no important factual dispute, no divergence of expert opinion and no psychological evidence supporting a downgrade. The Claimant had not requested a hearing or made representations, which weighed in favour of deciding the matter on the papers.
4. The asserted impasse was not established. Although a progression PIPE had not been available at HMP Low Newton because of the Claimant’s Restricted Status, PIPE outreach and individual intervention remained available. CART was not responsible for sentence-planning decisions.
5. The single judge had not improperly relied on the October 2019 minutes. He had recited the Defendant’s submissions, and the relevant point about alternative risk-reduction work was already contained in the original decision. The absence of convincing evidence of significantly reduced risk was sufficient to justify maintaining the classification without an oral hearing.

1. High Court (Administrative Court): His Honour Judge Pearce refused permission on the papers on 26 November 2019.
2. High Court (Administrative Court): On the renewed application, Mr Justice Julian Knowles refused permission.