JOHN WILSON (R on the application of) v SECRETARY OF STATE FOR JUSTICE

An oral hearing in a Category A security review is not required merely because the decision-maker disagrees with a local advisory panel or expert. The question is whether fairness and better decision-making, judged objectively for correctness, require a hearing in the particular case. Relevant factors include disputed facts, significant disputes in expert material, lengthy custody or post-tariff status, and the absence of a previous hearing. They must be considered cumulatively and flexibly. Clear, reasoned and logically coherent written assessments may resolve a divergence without oral evidence where primary facts and programme arrangements are clear. A hypothetical future question about course availability does not engage the downgrading test where it cannot affect the assessment of whether risk has significantly reduced.

The claimant, a Category A life prisoner, sought judicial review of the Director’s November 2020 refusal to downgrade him to Category B and refusal to convene an oral hearing. The challenge focused on the hearing decision. The claimant relied on favourable psychologist and local advisory panel recommendations, his age, lengthy custody, absence of any previous oral hearing, and alleged uncertainty about courses and bespoke work. The defendant relied on the written evidence, the claimant’s continued denial of the index offending, and the absence of convincing evidence of reduced risk. Permission had been granted on the papers. Later unfavourable review materials were placed before the court but were put aside. The central issue was whether fairness and better decision-making required an oral hearing on the material available when the decision was made.

Disposition. The claim for judicial review was dismissed. The Director had correctly concluded that an oral hearing was not required.

1. Material date. The court assessed the correctness of the refusal in the circumstances existing when it was made. The later LAP Report 2021 and CAT Decision 2021 were put aside. Later events might matter in another case, for example if a subsequent decision involved an oral hearing or downgrading, or resolved a disputed fact that had previously justified a hearing.
2. Applicable approach. The court adopted the legal framework summarised in R (Steele) v Secretary of State for Justice [2021] EWHC 1768 (Admin), including the requirement for convincing evidence of a significant reduction in risk. The guidance in R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331 [2017] 1 WLR 475, R (Osborn) v Parole Board [2013] UKSC 61, R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522 and R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422 required an objective assessment of fairness and the potential benefit of a hearing for decision-making. The four PSI factors were to be considered cumulatively and in the round, as stated in R (Nduka) v Secretary of State for Justice CO/617/2019 (25 October 2019).
3. Alleged programme impasse. There was no material uncertainty about the relevant courses or work. The ETS course had been completed; Resolve had been assessed as unsuitable because of the claimant’s denial of guilt; the TSP was inappropriate on the applicable criteria; and bespoke work was suitable and available in Category A custody. A hypothetical question about whether Resolve might become available after a future admission of guilt did not engage the downgrading test. The Director was not required to identify a future pathway or decide contingent programme availability.
4. Application. The favourable reports and recommendations were clear, reasoned and logically coherent. The psychologist’s assessment concerned the difference in risk between Category A and Category B custody, whereas the Director had to decide whether there was convincing evidence that the risk of reoffending if unlawfully at large had significantly reduced. Manageability in Category B custody was not the same as evidence of offence-related progress. There were no disputed primary facts, unresolved issues requiring oral clarification, or material uncertainty about the claimant’s position.
5. Cumulative factors and conclusion. The divergence between the reports and the Director’s conclusion was an inconsistency capable of supporting a hearing, but it did not do so here. The principle in R (H) v Secretary of State for Justice [2008] EWHC 2590 (Admin) was therefore distinguished. The claimant’s age, lengthy imprisonment and lack of any previous oral hearing were considered, but did not make a hearing necessary. He remained several years from tariff expiry, had available bespoke work, and lacked an alternative assessment indicating significant risk reduction. On an objective correctness review, the refusal was unimpeachable.

Permission for judicial review was granted on the papers on 5 July 2021 by HHJ Gosnell. The substantive claim was then heard and determined in the Administrative Court.