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

In a Category A prison review, the decision-maker must assess the risk to the public if the prisoner escapes and is unlawfully at large. Downgrading requires convincing evidence of a significant reduction in that risk.

Procedural fairness is fact-specific. The oral-hearing guidance requires a balanced assessment of whether a hearing would assist the decision or the prisoner’s participation, but its listed factors do not prescribe weight or make a hearing automatic. A disagreement about the evaluation of undisputed evidence is not, without more, a factual or expert dispute. Long custody, post-tariff status, or no previous oral hearing may support a hearing but do not alone require one.

The appellant, a life prisoner classified as Category A, challenged the Deputy Director of Custody’s decision to maintain that classification without an oral hearing, despite a Local Advisory Panel recommendation for downgrading to Category B.

Upper Tribunal Judge Ward, sitting as a High Court judge, dismissed the judicial review claim, rejecting both irrationality and procedural-fairness grounds in [2025] EWHC 1328 (Admin). On appeal, the appellant relied on the alleged mischaracterisation of factual and expert disputes, the significance of the disagreement between the Panel and the Deputy Director, and the absence of signed evidence concerning earlier psychology reports.

The central issue was whether fairness required an oral hearing before the Category A classification was maintained.

The Court of Appeal unanimously dismissed the appeal. Baker LJ gave the judgment, with Jackson LJ and Miles LJ agreeing.

1. Applicable risk. The statutory framework, including sections 1, 12 and 47 of the Prison Act 1952 and rule 7 of the Prison Rules 1999, was supplemented by PSI 08/2013. The relevant question was the risk to the public if the prisoner escaped and was unlawfully at large. Downgrading required convincing evidence that the risk of re-offending in that situation had significantly reduced.
2. Procedural fairness. The Court applied the distinctions between Category A decisions and Parole Board decisions recognised in Mackay [2011] EWCA Civ 522 and Hassett [2017] EWCA Civ 331. The guidance in Osborn [2013] UKSC 61 could not be transferred directly from the parole context. Under PSI 08/2013, the decision-maker had to consider the individual facts, adopt a balanced and open-minded approach, consider the possible value of an oral hearing, and recognise that a hearing could be limited to particular issues. The court’s task on judicial review was to decide whether refusal of a hearing was wrong, not whether it was irrational or unreasonable.
3. Application of the guidance. There was no important factual dispute and no significant dispute on the expert material. The disagreement between the Panel and the Deputy Director concerned the evaluative weight of common evidence, including the appellant’s recent conduct and removal from the PIPE unit. The Panel’s recommendation to downgrade did not itself create an expert dispute or require a hearing. The appellant’s long custody, post-tariff status and lack of a previous oral hearing were relevant but did not, without a substantive purpose for a hearing, make refusal unfair.
4. Earlier psychology reports. The judge was entitled to accept through counsel the respondent’s unchallenged instructions that the earlier reports had been before the decision-maker. If the position had been disputed, the best-evidence principle might have required a document or signed witness statement. That situation did not arise, and there was no non-disclosure capable of vitiating the decision.

1. Court of Appeal (Civil Division) Unanimously dismissed the appeal and upheld the refusal of judicial review.
2. High Court of Justice, King’s Bench Division, Administrative Court Upper Tribunal Judge Ward, sitting as a High Court judge, dismissed the judicial review claim in [2025] EWHC 1328 (Admin), rejecting the irrationality and procedural-fairness challenges.