Anthony Clarke, R (on the application of) v The Secretary of State for Justice

In a Category A prisoner’s annual review, procedural fairness does not ordinarily require an oral hearing merely because the prisoner disputes reports or experts disagree. The question is whether there is a real and material dispute which an oral hearing could probably help resolve in relation to the risk-based categorisation decision.

The published policy must be applied according to its wording. It did not require a further opportunity to make representations on the LAP’s recommendation before the CART decided the review. A prisoner’s extensive participation in the evidence-gathering and written representations may provide a fair opportunity to present the case, particularly where the decision is administrative and managerial rather than judicial.

The claimant, a life prisoner held in Category A conditions, challenged decisions maintaining his categorisation. He alleged that the Secretary of State had failed to comply with PSI 08/2013 and with common law procedural fairness.

The principal complaints were that he had not been given an opportunity to make representations on the LAP’s recommendation before the CART decision, and that no oral hearing had been convened despite disputed factual matters, conflicting psychological evidence, the claimant’s lengthy detention and an alleged impasse over treatment pathways.

The court also considered whether undisclosed references in the LAP material created unfairness, particularly where those matters were not relied upon by the CART.

1. Application dismissed. The claimant established no unlawful failure to apply PSI 08/2013 and no breach of common law procedural fairness.
2. Paragraph 4.26 of PSI 08/2013 was permissive. It required the CART to consider or forward representations received after LAP consideration, but did not create an entitlement to make representations on the LAP recommendation before the CART decision. The mandatory disclosure and representation requirements were principally directed to representations before the LAP.
3. The CART was entitled to conclude that the policy did not require an oral hearing. Mere disagreement with prison reports, recommendations or expert opinions was insufficient. The relevant question was whether there was a real and live dispute on points of real importance to the decision and whether a hearing would assist in resolving it.
4. The disputes concerning impression management, offence-paralleling behaviour and the appropriate treatment programme were substantially matters of clinical or professional judgment. The reports made the competing positions clear, and there was a reasonable basis for concluding that an oral hearing would not materially resolve the key question whether the claimant’s risk of reoffending if unlawfully at large had significantly reduced.
5. The claimant’s length of detention, lack of a previous oral hearing and alleged impasse did not require a hearing. He remained some years from tariff expiry and had available means of demonstrating further risk reduction.
6. Common law fairness was assessed in the round. The categorisation decision was administrative and managerial. The claimant had received the principal reports, engaged with the professionals, supplied independent psychological evidence and made extensive written representations. He therefore had a fair opportunity to know and answer the case.
7. The LAP’s undisclosed references to alleged bullying and violence created potential unfairness if relied upon. However, the CART did not treat those matters as established facts or rely on them materially. An oral hearing was consequently unnecessary.