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

Procedural fairness in a Category A security-categorisation review is assessed objectively by the court as a question of correctness, not by Wednesbury standards. The issue is fact-specific, and no exceptional circumstances threshold or universal entitlement to an oral hearing applies. Relevant factors must be evaluated cumulatively, including prolonged detention, post-tariff status, a substantial period in a lower-security hospital, prior escorted community leave, conflicting risk assessments and the absence of an earlier oral hearing. A hearing may be short and focused. Published policy guidance is not exhaustive and cannot lower the common law standard. In the highly distinctive circumstances of this case, fairness required an oral hearing. The policy was also misapplied. However, statutory no-difference provisions required relief to be refused for other grounds where the same outcome was highly likely.

The claimant, a Category A prisoner, challenged the Secretary of State’s decision to maintain his Category A status after his return from psychiatric hospital and the refusal to hold an oral categorisation hearing. He had spent many years in prison and secure hospital settings, including a lengthy period in medium security, had undertaken escorted community leave, and had never received an oral categorisation hearing.

He advanced five grounds concerning the policy, common law fairness, relevant material, Wednesbury reasonableness, and articles 8 and 14 of the ECHR. The central issues were whether fairness required an oral hearing, whether the decision-maker had properly considered relevant evidence, and whether relief should nevertheless be refused under section 31(2A) of the Senior Courts Act 1981.

1. Grounds 1 and 2 succeeded. The refusal to hold an oral hearing was procedurally unfair at common law and constituted a misapplication of PSI 08/2013. The court itself had to determine whether the process was fair. That was a hard-edged, objective question distinct from Wednesbury review.
2. The decision was fact-specific. No exceptional circumstances threshold applied, and no single factor was decisive. Relevant considerations included more than 33 years’ detention, nearly 11 years post-tariff, almost a decade in medium-security hospital conditions, approximately 100 authorised escorted community visits, recommendations for lower security, the claimant’s changed presentation, and the absence of any previous oral categorisation hearing. Their cumulative effect made an oral hearing necessary.
3. The hearing need not be trial-like. It could be targeted to the significant issues in the risk assessment. The claimant’s objectively justified sense of injustice and the importance of the appearance and substance of fair process were relevant considerations, even though the ultimate categorisation decision remained administrative.
4. Hospital records were capable of being relevant material, but the evidence did not establish that the historic records in this case had to be obtained or considered. By contrast, the First-tier Tribunal decision and Dr Grimes’s psychiatric report were obviously relevant and should have been considered by the LAP and the defendant. Grounds 3 and 4 therefore succeeded in part or succeeded on the merits.
5. Under section 31(2A) of the Senior Courts Act 1981, however, the defendant established that it was highly likely that the categorisation outcome would not have been substantially different had the oral hearing, Dr Grimes’s report and the First-tier Tribunal decision been available. Relief on Grounds 3 and 4 was therefore refused. No exceptional public interest justified disregarding that statutory result under section 31(2B).
6. The article 8 and 14 challenges failed. Category A detention was proportionate to the legitimate aim of protecting the public and children from serious harm, and no sufficient disability-related discrimination was established.
7. A mandatory order was made requiring the decision to be retaken, including the holding of an oral hearing. The outcome of the renewed categorisation decision remained for the defendant.

The judgment was a first-instance judicial review decision. Permission was initially refused on the papers on 16 February 2024, but was granted on oral renewal by Sweeting J on 17 May 2024. The substantive claim was then heard in the High Court.