Robert Cusworth, R (on the application of) v Secretary of State for Justice

A published policy governing Category A reviews must be read fairly, reasonably and objectively as guidance, rather than as a statute. Where experts disagree, the decision-maker must identify any significant dispute relevant to risk, assess whether the dispute is material, and consider whether an oral hearing would add value by clarifying or resolving it. A disagreement with an expert recommendation does not itself require a hearing. Clear and intelligible reports may be evaluated on the papers. The policy factors are indications which tend towards a hearing, not mandatory conditions. Common-law fairness likewise requires consideration of whether a hearing would materially improve the decision-making process; exceptional circumstances need not be shown. The claim was dismissed because the evidence was sufficiently clear and the proposed hearing would add no material value.

The claimant, a Category A life prisoner, challenged the Secretary of State’s decision not to convene an oral hearing during an annual review of his security categorisation. The local area panel and prison psychologist recommended downgrading him to Category B, while his prison offender manager opposed the recommendation. The Director refused a downgrade and decided the matter on the documentary dossier.

The claimant alleged breach of Prison Service Instruction 08/2013 and common-law procedural unfairness. He relied on disputes concerning rival expert recommendations, self-harm and autism, relapse prevention, the length of his imprisonment, the absence of any previous oral hearing, the completion of treatment, and the proposed transfer to Broadmoor Hospital.

1. Ground 1 dismissed. The policy was to be read as a whole and in the context of its public-protection purpose and the substantive downgrading test: convincing evidence that the risk of reoffending if unlawfully at large had significantly reduced.
2. The example in factor 4.7(b), concerning a local area panel and independent psychologist recommending downgrade, remained relevant published policy. It strongly required consideration of an oral hearing, but did not make a hearing automatic.
3. The proper approach was to examine whether there was a significant dispute in the experts’ reasoning or analysis of risk, and whether there was a material dispute in their recommendations. If so, the decision-maker had to consider whether a hearing would add value and accuracy by resolving or clarifying the dispute.
4. A difference between the psychologist and prison offender manager engaged factor 4.7(b). Nevertheless, their reports were clear, coherent and sufficiently reasoned. The Director could evaluate the rival recommendations on the papers. The disputes about self-harm, autism and relapse prevention were also intelligible and did not require oral exploration. Autism was not itself the risk; the relevant chain was difficulty coping, medication non-compliance, possible psychosis and risk-laden behaviour if unlawfully at large.
5. The claimant’s period in custody and lack of a previous oral hearing were relevant factors, but neither materially increased the need for a hearing on these facts. The factors had to be considered globally and holistically.
6. Ground 2 dismissed. Common-law fairness did not require exceptional circumstances, but the alleged complexity, treatment milestone, Broadmoor misunderstanding and proposed oral evidence would not materially improve the decision. The detailed written representations gave the claimant a fair opportunity to present his case.
7. The challenge concerned procedure, not the substantive refusal to downgrade. The claim was dismissed.