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

A Category A prisoner has no general right to comment on the Local Advisory Panel’s recommendation before the Category A Team decides the annual review. PSI 08/2013 requires prior disclosure of reports and an opportunity to make representations to the panel, but paragraph 4.26 merely permits consideration of any further representations received before the final decision.

Whether fairness requires an oral hearing is a context-sensitive evaluation. Relevant factors include important factual disputes, significant and live expert disagreement, time spent in Category A, an impasse and the absence of an earlier hearing. No factor is decisive. A hearing is not required merely because it might speculatively produce different evidence or an altered outcome.

The appellant was a life prisoner whose tariff would expire in 2032. The Category A Team decided in January 2021 that he should remain in Category A and maintained that decision after further representations. The Local Advisory Panel’s recommendation had been disclosed one day before the first decision.

On 13 October 2022, a Deputy High Court Judge dismissed the appellant’s judicial review challenge. The Court of Appeal considered whether PSI 08/2013 or common-law fairness required an opportunity to comment on the panel’s recommendation before the first decision, and whether the factual and expert disputes required an oral hearing.

1. Appeal dismissed. The Category A Team neither breached PSI 08/2013 nor acted unfairly by deciding the review without further pre-decision representations or an oral hearing.

2. The PSI deliberately distinguishes mandatory instructions from guidance. Italicised provisions using “must” prescribe mandatory action. Provisions in plain text guide the decision-maker and must be taken into account, but do not dictate a particular result. Paragraph 4.26 is permissive. It requires the Team to consider any post-panel representations received before its decision, but does not require it to provide a further opportunity for representations on the panel’s recommendation. The express disclosure and representation requirements in paragraph 4.20 reinforced that construction: paras 104–107.

3. Paragraphs 4.6 and 4.7 lawfully guide the oral-hearing decision. Paragraph 4.7 identifies factors tending towards a hearing but assigns them no prescribed or decisive weight. It requires evaluative judgments about the importance of facts, their relationship to risk, the reality and significance of expert disagreement, and whether a hearing would assist. Compliance with that policy depended on whether those assessments were open to the Team, rather than whether the reviewing court would make the same assessments: paras 108–110.

4. Common-law fairness remained a question for the court. In the Category A context, oral hearings are comparatively rare. The court must evaluate all relevant circumstances, including the prisoner’s opportunities to participate during the information-gathering process. No single factor is necessarily decisive. A speculative possibility that a hearing might reveal more evidence or produce another outcome is insufficient: R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522, R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422 and R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331 applied: paras 111–113.

5. The appellant had participated extensively, possessed the relevant reports and submitted written representations and expert evidence. The Team did not rely on the disputed bullying allegation. The differences between the psychologists were matters of professional judgment already fully expressed in writing, and a hearing was not likely to resolve them in a way material to the required evidence of significant risk reduction. There was no relevant impasse, and the appellant remained more than ten years from tariff expiry. The Deputy Judge’s evaluation was not wrong: paras 111–116.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2024] EWCA Civ 861. The court upheld the findings that the Category A Team had complied with PSI 08/2013 and had acted fairly.

2. High Court, King’s Bench Division: By an order dated 13 October 2022, a Deputy High Court Judge dismissed the application for judicial review of the two Category A decisions. No citation is stated in the judgment.