Thomas Green, R (on the application of) v Secretary of State for Justice

Whether procedural fairness requires an oral hearing in a prison security-categorisation review depends on the legal and administrative context and all the circumstances. The guidance in PSI 08/2013 does not mandate an oral hearing merely because a prisoner is post-tariff, has spent a long period in Category A conditions, has never had a hearing, faces an apparent impasse, or relies on differing expert evidence. Those matters are relevant, but none is determinative. The court is the ultimate arbiter of fairness. In the CART context, an oral hearing is required only where it is necessary to enable a fair assessment of whether the prisoner’s risk if unlawfully at large has significantly reduced.

The claimant, a Category A prisoner serving a life sentence for murder, challenged the Secretary of State’s decision to maintain his Category A status following the 2021 annual review. He relied on breach of PSI 08/2013 and common-law procedural unfairness because no oral hearing had been held. Permission was granted only for those two grounds; permission concerning a later decision refusing reconsideration was not granted.

The claimant was post-tariff, had spent more than 21 years in Category A conditions, had never had an oral hearing, and relied on an expert report said to differ from the prison psychologist’s assessment. The central issue was whether fairness required an oral hearing before the categorisation decision was made.

1. The claim was refused. Neither breach of PSI 08/2013 nor common-law procedural unfairness was established.
2. Rule 7 of the Prison Rules 1999 provides the framework for categorisation. PSI 08/2013 gives guidance on when an oral hearing may assist the decision-maker. It does not require a hearing generally or whenever specified indicators are present. The decision-maker was entitled to conclude that the claimant’s expert report did not provide a significant alternative assessment warranting a hearing, and had considered his lengthy custody, post-tariff status, absence of any previous hearing and alleged impasse.
3. The common-law duty of fairness is context-sensitive. The CART process is materially different from the Parole Board process: CART decisions are administrative management decisions, form part of an extensive internal information-gathering process, and concern the risk posed by escape without community management. Consequently, the oral-hearing principles in Osborn apply with different force, and hearings in the CART context will be comparatively rare. Nevertheless, fairness may require one where the decision-maker remains in significant doubt on a matter on which the prisoner’s attitude could make a critical difference.
4. The court, rather than the decision-maker, is the ultimate arbiter of fairness, while giving substantial weight to the decision-maker’s own assessment. The question was whether an oral hearing was necessary for a fair determination of whether there was convincing evidence that the claimant’s risk of reoffending if unlawfully at large had significantly reduced.
5. The claimant’s circumstances did not make a hearing necessary. There was no genuine impasse, because a pathway for further progress had been identified. The expert evidence did not disclose a significant dispute: the differing descriptions of risk were broadly comparable and arose partly from the different contexts of parole and categorisation. Age and health did not create a material dispute requiring oral clarification. The relevant factors, individually and cumulatively, did not render the paper process unfair.

This was a first-instance judicial review. Permission was initially refused on the papers, but renewed permission was granted for the challenges to the First Decision based on PSI 08/2013 and common-law procedural fairness.