WAHEED ZAMAN (R on the application of) v SECRETARY OF STATE FOR JUSTICE

In Category A prisoner reviews, procedural fairness may require an oral hearing even though such hearings are comparatively rare and exceptional circumstances are unnecessary. The court must assess the fairness of the process as a whole and consider whether a hearing could resolve or fairly illuminate material issues. Relevant factors include important disputed facts, significant disagreement in risk assessments, repeated disagreement between the Director and the Local Advisory Panel, prolonged Category A detention, absence of any previous oral hearing, and the prisoner’s proximity to tariff expiry. The decision-maker must apply PSI 08/2013 fairly and consider the particular combination and weight of the factors. Written representations will not always suffice where an oral hearing could better test disputed evidence or the prisoner’s attitude.

The claimant, a life prisoner convicted of conspiracy to murder, challenged the Secretary of State’s decision to retain him in Category A after the Local Advisory Panel twice recommended downgrade to Category B. The Director relied on concerns about offence-paralleling behaviour, treatment gain, insight and commitment to a PIPE unit, and refused an oral hearing. The claimant alleged breaches of common law procedural fairness and PSI 08/2013. The central issue was whether, on the particular evidence and circumstances, fairness required an oral hearing before the Category A decision.

1. The claim succeeded in principle. The refusal to hold an oral hearing was unlawful. The appropriate relief was to be determined after further submissions, with declaratory relief indicated as potentially appropriate.
2. The statements in [2017] EWCA Civ 331 that oral hearings are rare did not themselves state the legal test. Applying [2011] EWCA Civ 522, exceptional circumstances were unnecessary. The paramount question was whether the claimant had a fair opportunity to make his case, including consideration of what purpose an oral hearing might serve.
3. Several material factors pointed towards a hearing. There were disputed facts concerning alleged offence-paralleling behaviour and limited commitment to the PIPE unit. The written evidence was internally inconsistent, and an oral hearing could have enabled the Director to assess the relevant incidents and hear from the claimant and key witnesses.
4. The Director had disagreed with the Local Advisory Panel’s recommendation for the second time. That disagreement did not automatically require a hearing, but, combined with the other circumstances, supported one. The claimant’s prolonged Category A detention, lack of any previous oral hearing and approach to tariff expiry were additional factors.
5. The combined weight of those factors meant that an oral hearing was necessary for a fair procedure and for compliance with PSI 08/2013.