Nicholas Bidar, R (on the application of) v Secretary of State for Justice

In an escape-risk classification review, the Secretary of State must address information materially relevant to the risk of escape and provide a genuine and meaningful gist so that the prisoner can make informed representations. Fairness is fact-sensitive. The normal position is that no oral hearing is required, but an oral hearing may be necessary where a crucial escape allegation is genuinely disputed, reduction of escape risk is an essential step in a post-tariff prisoner’s prospects of re-categorisation, or the decision-maker would be assisted by hearing the prisoner.

Procedural fairness is assessed objectively, whereas irrationality remains subject to the high rationality threshold. A decision may lawfully rely on relevant intelligence, including links between illicit telephony and escape risk.

The claimant, a serving prisoner subject to an indeterminate sentence, challenged the Secretary of State’s decision of 10 June 2024 to retain him as a Category A prisoner at high escape risk. He alleged that the decision was irrational because it relied on four disputed incidents, omitted favourable matters and made an irrational connection between illicit telephony and escape. He also alleged procedural unfairness because he had not been offered an oral hearing and had not received sufficient detail of the allegations.

The claim overlapped factually with a separate judicial review concerning the claimant’s security categorisation, but that claim was before another judge and was not determined in these proceedings. The issues were whether the escape-risk decision was irrational and whether fairness required an oral hearing.

1. Claim dismissed. The decision to retain the claimant at high escape risk was neither irrational nor procedurally unfair.
2. The Policy distinguished between security categorisation, which concerns the danger posed if a prisoner escapes, and escape-risk classification, which concerns the risk that the prisoner will escape. The latter is a narrower, intelligence-based assessment. Before downgrading a prisoner, the decision-maker had to be satisfied that information suggesting enhanced escape potential was no longer valid.
3. The principles in Khatib applied. The decision-maker need not receive every potentially relevant matter, but must be given salient facts and must address matters materially favouring the prisoner as well as matters against him. The rationality threshold remained high.
4. The gist disclosed the dates, locations and substance of the four incidents. It therefore amounted to genuine and meaningful disclosure. The claimant had an adequate opportunity to respond, but provided only bare and late denials. The absence of detailed representations did not itself require an oral hearing.
5. Following Gunn, there was a default position of no oral hearing in escape-risk cases, but no blanket exclusion. Fairness could require a hearing in an appropriate case, including where a crucial escape allegation was genuinely disputed, where reduction of escape risk was an essential step in a post-tariff prisoner’s re-categorisation prospects, or where the decision-maker was in significant doubt and would be assisted by seeing the prisoner. Those examples were non-exhaustive.
6. On the facts, the recent allegations had not been properly disputed when the panel decided the case. The Parole Board’s support for possible re-categorisation did not make a second hearing necessary on the narrower escape-risk issue. The decision was rationally based principally on the drone, illicit-device and cell incidents, together with the claimant’s established escape history. The pornography incident was of doubtful relevance but immaterial. The decision was not based on the disputed 2019 incident.

The separate categorisation challenge remained for determination by the other judge and was unaffected by this judgment.

First-instance judicial review in the Administrative Court. The judgment records that a separate judicial review concerning the claimant’s categorisation had been heard by another judge, with judgment reserved, but that proceeding was not determined here.