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

Whether procedural fairness requires an oral hearing in a Category A security review is a question of objective correctness for the court. The decision-maker must consider the particular facts, the Prison Service Instruction’s factors, and the possible benefits of an oral hearing. A disagreement between experts does not by itself require a hearing. The dispute must be tenable and a hearing must be capable of materially assisting its resolution. The passage of time, the absence of a previous hearing, and a prisoner’s representations are important considerations, but none is determinative. A hearing may properly be refused where the evidence can be fairly and accurately assessed on the papers, the expert material has no tenable basis for the proposed downgrade, and the prisoner has had a meaningful opportunity to make representations.

The claimant, a Category A prisoner serving a lengthy sentence for serious international drug offending, sought judicial review of the refusal by the Category A Team to convene an oral hearing before deciding whether to downgrade him to Category B. The claim was confined to procedural fairness; permission had not been granted to challenge the substantive refusal to downgrade.

The claimant relied principally on a report from an independent psychologist, said to create a significant dispute on the expert evidence. He also relied on the length of his Category A detention and the fact that he had never previously received an oral hearing. The central issue was whether fairness and the applicable Prison Service Instruction required an oral hearing in the circumstances.

1. Applicable standard. The court applied the correctness standard identified in R (Osborn) v Parole Board [2014] AC 1115: the court determines for itself whether a fair procedure was followed. The issue was not whether the CAT’s decision was irrational or outside the range of reasonable responses.
2. Regulatory factors. PSI 08/2013 required a fact-sensitive and balanced assessment. Relevant considerations included important factual disputes, significant and tenable disputes in expert material, the length of time in Category A custody, and the absence or prolonged absence of a previous oral hearing. The factors had to be assessed individually and cumulatively.
3. Expert evidence. The claimant’s psychologist’s report did not create a tenable dispute. It insufficiently engaged with the structured risk-reduction work identified by the prison psychologist, relied too heavily on the absence of repeat offending in custody, and inadequately addressed the seriousness and nature of the proved offending. The CAT was entitled to reject the report’s conclusions. Even if the dispute had been tenable, an oral hearing would not have assisted because the competing assessments and their differences were clear from the papers.
4. Other factors. The claimant’s continuing denial of guilt was not dispositive of risk reduction, applying R (Oyston) v Parole Board [2000], but it remained an important factor. Eleven years since sentence and the absence of any previous oral hearing required careful scrutiny, but were outweighed by the particular evidence and the structured pathway for further risk reduction. The claimant had been given a meaningful opportunity to make representations, satisfying the right to be heard: R (Talpada) v SSHD [2018] EWCA Civ 841.
5. Disposition. Viewed globally and holistically, an oral hearing was unnecessary and disproportionate. The claim for judicial review was dismissed. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

First-instance judicial review claim. Permission was granted by Holman J on 4 April 2022, but only on the procedural issue concerning an oral hearing.