Michael Steele, R (on the application of) v Secretary of State For Justice

In a Category A review, the decision whether to hold an oral hearing is governed by the applicable policy criteria and common-law procedural fairness. The decision-maker must consider the particular case in a balanced way, remain alert to any real advantage a hearing may bring, and avoid making a hearing depend on the prospects of re-categorisation. Relevant factors include important factual disputes, significant disputes in expert evidence, lengthy Category A detention or post-tariff status, and the absence of a recent oral hearing. They must be assessed cumulatively. A hearing is not required merely because facts are disputed or experts disagree; the dispute must be material and a hearing must assist in resolving it. The court reviews whether refusal was wrong.

The claimant, aged 78, had remained in Category A custody since 1996 after receiving life sentences for triple murder. His minimum term expired in May 2019, and he continued to deny the murders. On 28 July 2020, the Category A Team retained his categorisation, finding no convincing evidence of a significant reduction in his risk of similar reoffending if unlawfully at large. It also refused an oral hearing.

The judicial review challenge concerned the refusal of an oral hearing. The claimant relied on disputes about alleged aggression, disagreement between expert psychologists, and the length of his imprisonment and post-tariff status. The central issue was whether the Category A Team had been wrong, applying PSI 08/2013 and the relevant common-law principles, not to convene an oral hearing.

The claim for judicial review was dismissed.

1. Applicable framework. The substantive test for downgrading was whether convincing evidence showed a significant reduction in the risk of similar reoffending if unlawfully at large. The requirement for cogent evidence of diminished risk was proper. The oral-hearing decision had to be made under PSI 08/2013 and the applicable common-law principles. Each case required a balanced assessment of its particular facts, including whether a hearing would provide a real advantage in decision-making or recognising the prisoner’s concerns. The decision-maker could tailor the process, and could not make an oral hearing depend on the prospects of a downgrade. The court’s question was whether refusal was wrong, rather than whether it was unreasonable or irrational.
2. Factual disputes. The Category A Team had separated the disputed reports of aggression from its substantive analysis. The disputed matters did not go directly to risk, and no significant explanation depended on the claimant’s credibility or that of other witnesses. The important-facts factor was therefore not engaged.
3. Expert materials. Differences between professional opinions, or the existence of opposed expert views, did not by themselves require an oral hearing. The relevant question was whether there was a real and live dispute on a point of real importance on which a hearing would assist. The Category A Team considered Dr Beckley’s report alongside the other materials and was entitled to find that it did not provide convincing evidence of significant risk reduction.
4. Time and cumulative assessment. The claimant’s long period in Category A required careful consideration, but he had recently had an oral Category A hearing and several parole hearings. He had not been post-tariff for a prolonged period. The factors were considered cumulatively and in the round. Overall, the Category A Team had applied the required degree of procedural fairness and was not wrong to decide the review on the papers.

The claimant was ordered to pay the defendant’s reasonable costs on the standard basis, subject to legal-aid costs protection, with detailed assessment of his publicly funded costs.