Ahmad Shah, R (on the application of) v Secretary of State for Justice

In Category A prison reviews, procedural fairness does not ordinarily require an oral hearing. The decision-maker must assess each case on its facts, applying the published policy and common-law standards fairly. Relevant considerations may include disputed important facts, significant disputes about expert evidence, a prolonged period in Category A conditions, post-tariff status, absence of a previous oral hearing and any genuine impasse. These factors are not automatic requirements. An impasse exists only where there is no clear and realistic pathway by which the prisoner can demonstrate reduced risk. Even where an impasse exists, an oral hearing is required only if it would assist in exploring its causes or possible solutions. The greater weight ordinarily attaches to issues bearing directly on risk and capable of being clarified at a hearing.

The claimant, a Category A prisoner serving a determinate sentence, sought judicial review of the Secretary of State’s decision to retain his Category A classification and conclude his annual review without an oral hearing.

He had completed the Motivation and Engagement programme and My Strengths Record, but continued to deny or minimise aspects of his offending. The dossier contained positive evidence about his custodial behaviour, while the Local Advisory Panel recommended that he remain in Category A. The claimant argued that the lack of further offence-focused programmes created a prolonged impasse and that the length of his detention and absence of any earlier oral hearing made a hearing necessary.

The central issues were whether the decision complied with PSI 08/2013 and whether common-law procedural fairness required an oral hearing.

1. The claim for judicial review was dismissed. Neither PSI 08/2013 nor common-law fairness required an oral hearing on the facts.

2. The policy required an individual and balanced assessment. The listed factors were not a mathematical test, and the descriptions of hearings as rare or comparatively rare were not themselves legal tests. No exceptional circumstances had to be demonstrated.

3. The claimant had not established an impasse of the kind identified in Rose and Harrison. The psychologist had recommended that he continue demonstrating his learning from the completed programmes through interactions with others and by following identified goals. That provided a clear, time-limited pathway for progress to be considered at the next review. The recommendation did not show that the blockages were insurmountable or that the situation would continue indefinitely.

4. The claimant’s long period in Category A conditions and lack of a previous oral hearing were relevant but comparatively weak factors. In the absence of an impasse, they did not require a hearing. They carried still less weight because the claimant was serving a determinate sentence and was due for release on licence, with deportation anticipated before that date.

5. Even considering all relevant factors cumulatively and adopting the claimant’s most favourable case, the Category A team was entitled to decide the review fairly on the papers. The professionals had not positively recommended downgrading, and the Local Advisory Panel had unequivocally recommended continued Category A status.