Omar Khyam, R (on the application of) v Secretary of State for Justice

Whether fairness requires an oral hearing in a Category A categorisation review is a question of law for the court, assessed on the particular facts. The decision-maker must consider whether a hearing is necessary for a fair disposal of the case, including any important factual dispute or significant dispute in expert evidence. The factors in the governing policy are not a checklist to be counted. Their strength and interaction must be assessed. The Category A risk inquiry concerns the danger posed by an unmanageable prisoner unlawfully at large, which differs materially from the Parole Board’s inquiry into managed progression or release. A favourable parole assessment or recommendation for a lower category does not necessarily establish a significant reduction in escape-related risk. Adequate reasons must address the principal controversial issues, but an error in one reason will not justify relief where it would not substantially affect the outcome.

The claimant, a life prisoner detained in Category A conditions, challenged the Category A Team’s decision of 7 January 2022 refusing to downgrade him to Category B. Permission was refused on a challenge based on factual errors and irrelevant considerations. The remaining grounds alleged that an oral hearing was required and that the reasons were inadequate.

The claimant relied on positive rehabilitation evidence, including reports prepared for a prospective Parole Board review. The Category A Team relied on continuing uncertainty about his account of the offending, the strength and direction of his skills, and the limited opportunity to assess progress during COVID-19 restrictions. The central issues were whether fairness or PSI 08/2013 required an oral hearing and whether the reasons lawfully explained the refusal to downgrade.

Claim dismissed. The refusal to downgrade the claimant from Category A and the refusal to hold an oral hearing were upheld.

1. The question whether an oral hearing was required was one of law. The issue was whether, on the particular facts, a hearing was necessary for a fair disposal of the case, not whether the decision was irrational: [2011] EWCA Civ 522; [2011] EWHC 3113 (Admin).
2. The approach in [2017] EWCA Civ 331 remained applicable. Category A categorisation is an administrative prison-management function concerned with the risk posed if a prisoner escapes and is unlawfully at large. It differs from the Parole Board’s independent judicial assessment of safe release or managed progression. The principles in [2014] AC 1115 therefore did not apply with equal force.
3. The factors in paragraph 4.7 of PSI 08/2013 had to be assessed cumulatively and factually, rather than counted mechanically. Important factual disputes, significant expert disagreement, lengthy Category A detention, the absence of a previous oral hearing and proximity to tariff expiry could support a hearing, but none was automatically determinative: [2019] EWHC 3214 (Admin); [2022] EWHC 188 (Admin).
4. The reports did not disclose a critical dispute relevant to the Category A question. The Parole Board material concerned managed conditions and progression, not the risk posed during an unmanaged escape. A recommendation for Category B or open conditions therefore did not itself provide clear and convincing evidence of a significant reduction in risk. The reasoning in [2021] EWHC 1898 (Admin) supported that distinction.
5. The reasons were adequate when read as a whole and in context. Although the decision letter inaccurately referred to the possibility of simulated progress without acknowledging the favourable conclusion in the Stewart report, that error would not have materially affected the outcome. In any event, relief was refused under section 31(2A) of the Senior Courts Act 1981.