Administrative law – Category A prisoners – Fairness – Oral hearings

R (on the application of H) v Secretary of State for Justice: QBD (Admin) (Mr Justice Cranston): 9 September 2008.

The claimant (H) applied for judicial review of a decision of the defendant secretary of state that H should remain a category A prisoner.

H, who had been convicted of more than 100 offences, was sentenced to life imprisonment for offences including wounding with intent and armed robbery. He served his term in a protected witness unit as a category A, high-escape-risk prisoner. Following the expiry of his tariff, he applied to the local category A panel to be downgraded to a category B prisoner because his risk of escaping and re-offending was significantly reduced. The panel made that recommendation but the director for high security prisons refused to re-categorise him, having found that there was insufficient evidence of a reduction in H’s risk of re-offending and that this outweighed H’s need to be downgraded in order to increase his access to training and offending behaviour courses. H applied for his case to be reconsidered and requested an oral hearing in accordance with the decision in R (on the application of Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498, (2002) 1 WLR 2264. The director refused H’s request for an oral hearing, having found that the ‘exceptional circumstances’ present in Williams did not arise in H’s case, and again declined to downgrade him to category B. H contended that the director’s refusal to grant him an oral hearing amounted to procedural unfairness. The secretary of state submitted that the requirements of fairness in H’s case did not demand an oral hearing before the director because there were no exceptional circumstances. H further complained that, in reaching his decision, the director had erred in failing to take account of his need to undertake courses to address his offending behaviour before addressing his re-categorisation. H argued that this stance was contrary to the requirement to rehabilitate prisoners pursuant to rule 3 of the Prison Rules 1999.

Held: (1) Whether an oral hearing should be granted in determining a prisoner’s re-categorisation could only be decided as a matter of general principle. Procedural fairness often required that a person affected by a decision should be able to make representations on his own behalf. The common law standard of procedural fairness was liable to change and develop over time – it was flexible and depended on the circumstances of each case. While an oral hearing would not be required in all cases, the consequences of the categorisation decision in H’s case were sufficiently important to require a standard of procedural fairness whereby H was able to put his case orally. There were a number of significant factors:

(a) H was a category A prisoner;

(b) his tariff had expired and the question of his liberty was thereby engaged;

(c) the local prison panel had recommended that he be re-categorised;

(d) the difference in approach between the panel and the decision of the director indicated that the matter would benefit from the closer examination that an oral hearing would provide;

(e) the fact that H was in a protected witness unit affected his ability to undertake work that would reduce his risk. The cumulative effect of those factors tipped the balance in favour of an oral hearing. Whether or not they amounted to ‘exceptional circumstances’ an oral hearing was nevertheless demanded as a matter of general principle, Williams considered. The question had always to be what procedural fairness demanded. The director’s decision was, accordingly, quashed on that basis.

(2) In reaching his decision, the director had not failed to take account of H’s need for rehabilitation through undertaking offending behaviour work. He had instead held that that need was outweighed by the needs of security in the light of the risk that he had found H posed. The director had been entitled to conclude that the appropriate reduction of risk took precedence over H’s training needs and his decision was not flawed in that regard.

Application granted.

Hamish Arnott (solicitor advocate) (instructed by Bhatt Murphy) for the claimant; Parishil Patel (instructed by Treasury Solicitor) for the defendant.