Derek Murcott, R (on the application of) v The Secretary of State for Justice

In reviewing Category A prison status, the decision-maker must apply the policy requirement for convincing evidence that the risk of re-offending if unlawfully at large has significantly reduced. The assessment concerns that risk without prison-based controls and support. A difference between the decision-maker and professional advisers does not make the decision irrational where the reasons address the evidence and competing considerations.

Whether procedural fairness requires an oral hearing is an evaluative judgment in the circumstances of the individual case. Relevant factors include factual or expert disputes, the prisoner’s time in Category A or post-tariff, any previous oral hearing, and the practical benefit a hearing might provide. No factor is decisive, and long detention or post-tariff status alone does not require a hearing.

The claimant, a long-term Category A prisoner, challenged the Secretary of State’s decision not to downgrade him to Category B and not to hold an oral hearing as part of his review. The Director had considered reports from prison professionals, the Local Advisory Panel’s recommendation, the claimant’s offending history and his recent conduct, but concluded that a longer period of sustained good behaviour was needed to demonstrate significant risk reduction.

The claimant alleged irrationality and procedural unfairness. The central issues were whether the Director had applied the correct risk test and whether fairness required an oral hearing in light of the evidence, the claimant’s lengthy detention, his post-tariff period and his lack of any previous oral hearing.

1. The claim was dismissed. The Director applied the correct test under PSI 08/2013. The relevant question was whether there was convincing evidence that the claimant’s risk of re-offending if unlawfully at large had significantly reduced. That assessment differed from the position in custody, where structure, control mechanisms and assistance were available.
2. The Director was not required to follow the professional recommendations or the Local Advisory Panel’s advice. He was required to consider them. His decision recorded the claimant’s offending, interventions, recent positive behaviour, professional recommendations and adverse features, including previous removals from custodial environments. His conclusion that a longer period of sustained good behaviour was required was rational.
3. Whether an oral hearing was required depended on an evaluative assessment of the fairness of the procedure as a whole. Relevant factors included disputes about important facts or expert evidence, the length of time in Category A or post-tariff, whether the prisoner had previously received an oral hearing, and whether a hearing could materially assist decision-making. No factor was decisive.
4. There was no material dispute about the primary facts or professional evidence. The claimant had made representations through solicitors and had been able to comment on the psychologist’s report. The requirement for a further period of good behaviour did not create an impasse, because it identified how further progress could be demonstrated.
5. The psychologist’s reference to two earlier reports did not materially strengthen the case for an oral hearing. The reports were accepted to have been before the Director, had not been relied on as a distinct ground, and no relevant content was identified that could have affected the outcome. The claimant’s lengthy detention and post-tariff status therefore carried limited weight in the circumstances.
6. Considering all the factors in the round, the procedure satisfied the common law requirements of fairness. The failure to hold an oral hearing was lawful.