Category A Reviews: Oral Hearings Are Not Triggered by Disagreement with a Downgrade Recommendation
1. Introduction
R (on the application of Derek Murcott) v The Secretary of State for Justice [2026] EWCA Civ 436
concerns the procedural fairness requirements applicable when the Deputy Director of Custody High Security (“DDC”) decides
whether to maintain a prisoner’s Category A security classification.
The appellant, Derek Murcott, is a life-sentence prisoner at HMP Frankland, approximately 20 years post-tariff,
whose Local Advisory Panel (“LAP”) recommended downgrading to Category B. The DDC nevertheless maintained Category A status
and refused to convene an oral hearing. Judicial review in the Administrative Court failed, and the appeal to the Court of Appeal
focused narrowly on whether procedural fairness at common law required an oral hearing before the DDC maintained Category A.
The central issues were: (i) what counts as a “dispute” (of fact or expert material) under PSI 08/2013 (especially paragraph 4.7),
(ii) whether the mere fact of a LAP downgrade recommendation creates a “dispute” requiring a hearing, and (iii) whether the High Court
could accept counsel’s instructions regarding omitted psychological reports without a supporting witness statement.
2. Summary of the Judgment
The Court of Appeal (Baker LJ, with Miles LJ and Peter Jackson LJ concurring) dismissed the appeal.
It held that the High Court was entitled to conclude that the DDC was not wrong to refuse an oral hearing.
-
There were no important factual disputes and no significant disputes on the expert material; the disagreement was essentially
a difference of evaluative judgment about whether the evidence amounted to “convincing evidence” of significant risk reduction.
-
The High Court’s reference to a “relevant primary fact” did not show misdirection; it was a way of describing the absence of any
factual disputes material to risk.
-
A LAP recommendation to downgrade does not, without more, create the type of “significant dispute on the expert material” contemplated
by PSI paragraph 4.7(b); otherwise, hearings would become near-automatic whenever the DDC disagreed with the LAP.
-
On the missing psychological reports, while a witness statement might have been preferable, it was permissible in the circumstances to proceed
on counsel’s instructions where the point arose late and there was no crystallised dispute requiring “best evidence”.
3. Analysis
3.1 Precedents Cited
Mackay provided the core analytic frame for Category A oral-hearing challenges. Gross LJ accepted that Category A classification
has serious consequences (including effects on liberty) and thus requires a high degree of procedural fairness, but emphasised:
(i) oral hearings are not routine and will be “few and far between”, and (ii) on judicial review the question is whether refusal
of an oral hearing was wrong, not merely unreasonable. This case reaffirmed that approach, repeatedly returning to the idea that
the hearing requirement is fact-specific and context-dependent.
R v (Williams) v Home Secretary [2002] EWCA Civ 498
Cited in Mackay and relied upon here as authority for distinguishing the functions of the Parole Board and the Category A decision-maker:
the Parole Board assesses public protection under supervised release conditions, while Category A review assesses the risk to the public in the event of escape.
This distinction underpinned the Court’s refusal to import Parole Board hearing norms wholesale into categorisation decisions.
Osborn is the leading authority on when oral hearings may be required for fair process, stressing the value of hearings where
(among other things) important facts are disputed, credibility is in issue, expert assessments are contested on tenable grounds,
or an independent assessment of risk cannot properly be made on paper.
In Murcott, the Court treated Osborn as influential but not determinative in the Category A context. It accepted that the PSI was revised
to reflect Osborn principles, but maintained that categorisation decisions remain materially different in nature and institutional setting.
Hassett is the key post-Osborn authority confirming that Osborn does not “apply directly” to Category A reviews and that
oral hearings will be required only in comparatively rare cases. Sales LJ also upheld the lawfulness of PSI guidance (including paragraph 4.7(b)),
concluding it was not apt to mislead officials into applying a lower standard than common law fairness requires.
Murcott relied on Hassett for (i) the institutional difference between an independent judicial body and prison management decision-makers,
(ii) the narrower, starker risk question (escape risk), and (iii) the proposition that a hearing may be needed where, after reading all reports,
the decision-maker is left in significant doubt on a matter where the prisoner’s attitude might be critical.
R(Clarke) v SSJ [2024] EWCA Civ 861
Clarke provided detailed guidance on how PSI paragraphs 4.6 and 4.7 operate: paragraph 4.6’s italicised “overarching points”
frame the lawful approach (case-specific assessment, open-mindedness, and non-mechanistic thinking), while paragraph 4.7 is
non-mandatory, indicative guidance requiring evaluative judgments rather than ticking boxes.
Murcott applied Clarke to reject mechanistic arguments—particularly the submission that a LAP downgrade recommendation
itself forces an oral hearing outcome. The Court treated the DDC as better placed to make the risk-relevant assessments contemplated
by PSI 4.7, subject to the court’s ultimate role in determining what fairness requires.
R(Police Superintendents' Association) v Police Remuneration Review Body and another [2023] EWHC 1838 (Admin)
This authority was invoked to argue for a “best evidence” approach: if factual matters are asserted (here, whether earlier psychological reports
were before the DDC), they should be evidenced by documents or witness statements. The Court accepted the general point but confined it:
where instructions are taken during proceedings and are not put in issue, courts may proceed without a signed statement; a “best evidence”
requirement bites when the point becomes a real dispute requiring formal proof.
3.2 Legal Reasoning
(a) The governing legal question: “wrong”, not “Wednesbury”
Consistent with Mackay, the Court confirmed that the judicial review question is whether refusal of a hearing was wrong
(i.e., inconsistent with what fairness required), not whether it was merely irrational. This matters because it centres the analysis on
the procedural value of a hearing in the particular case rather than deference to administrative judgment as an end in itself.
(b) The risk question is “if unlawfully at large”
Echoing the High Court and the earlier authorities, the Court stressed that Category A decisions focus on risk in an escape scenario,
not managed risk on parole. This narrows the relevance of many parole-style arguments about gradual progression and managed release
(though it does not eliminate the need for fairness).
(c) PSI 08/2013: paragraph 4.6 is the framework; paragraph 4.7 is indicative
The Court accepted that the DDC must apply the paragraph 4.6 “overarching points” (case-specific, open-minded, not cost-determined,
and non-all-or-nothing thinking). It then treated paragraph 4.7 as a structured but non-prescriptive set of factors.
Importantly, paragraph 4.7 does not convert “some factor is present” into “a hearing is required”; it demands evaluative judgment.
(d) No “important facts” or “significant expert disputes”
The Court held that the appellant’s identified “disputes” were not disputes of fact or expert material but disagreements about how to
weigh undisputed information. The DDC accepted the relevant history, accepted the LAP’s reasoning as understandable, and accepted
that progress had occurred, but concluded that a longer period of sustained good behaviour was needed to reach the PSI 4.2 threshold
of “convincing evidence” of significant risk reduction.
On that analysis, an oral hearing would not have been performing the core fairness functions described in the PSI and the case law:
resolving contested facts, testing credibility, or clarifying a genuine clash in expert evidence on a live point of importance.
(e) Disagreement between LAP and DDC is not, without more, a “dispute” requiring a hearing
The Court rejected the proposition that a LAP recommendation to downgrade, followed by a DDC refusal, is itself a “significant dispute”
within PSI 4.7(b). It interpreted 4.7(b) in context: the “dispute” contemplated is a real dispute within or about the expert material
on important points, not the mere fact that the DDC reaches a different ultimate evaluative conclusion on risk.
(f) Missing psychological reports and proof by witness statement
The Court treated the missing earlier reports as an issue that arose late and was surfaced by the High Court judge’s careful reading.
It considered that, had the issue been raised earlier or contested, a witness statement would likely have been required. But where
counsel’s instructions were not materially disputed at the time and the issue did not turn into a contested evidential question,
the High Court was entitled to proceed on that basis.
3.3 Impact
-
Reinforcement of “rarity”: The decision reinforces that oral hearings in Category A reviews remain exceptional, even post-Osborn,
and that the fairness analysis is tightly linked to the presence of genuine contested facts, credibility issues, or live expert disputes.
-
Clarification of PSI 4.7(b): A LAP downgrade recommendation does not automatically create a “significant dispute on the expert material”.
This reduces the risk of PSI 4.7(b) being operationalised as a near-automatic trigger whenever DDC and LAP disagree.
-
Separation of “judgment” from “dispute”: The Court draws a clear line between (i) disagreements about the evaluative sufficiency of evidence
(“is this convincing evidence of significant reduction?”) and (ii) disputes about facts or expert foundations. Future claimants will need to identify
the latter to make meaningful progress on a hearing challenge.
-
Practical litigation point on evidence: The treatment of the missing reports suggests a pragmatic approach—courts may accept counsel’s
instructions where the point is late-arising and not genuinely contested, but “best evidence” expectations will sharpen once a matter becomes disputed.
4. Complex Concepts Simplified
- Category A prisoner
-
A prisoner whose escape would be highly dangerous; the objective is to make escape impossible (PSI definition).
- LAP (Local Advisory Panel)
-
A prison-based panel conducting annual reviews and making recommendations (including possible downgrading), but the DDC retains sole authority to approve downgrading.
- DDC (Deputy Director of Custody High Security)
-
The official responsible for Category A categorisation decisions, including whether to accept a downgrade recommendation.
- “If unlawfully at large”
-
The risk assessment is hypothetical: what risk would the prisoner pose if they escaped (not what risk exists under managed parole conditions).
- Procedural fairness and oral hearings
-
Fairness sometimes requires a face-to-face hearing, usually where paper review cannot fairly resolve key disputed facts, credibility issues,
or significant expert disagreements on points central to risk.
- “Wrong” vs “unreasonable/irrational”
-
For the hearing question, the court does not ask whether refusal was within a reasonable range; it asks whether fairness required a hearing—so refusal was legally wrong.
- PSI 4.6 vs PSI 4.7
-
PSI 4.6 provides mandatory overarching principles; PSI 4.7 is non-mandatory guidance listing factors that may point towards a hearing, requiring judgment rather than box-ticking.
5. Conclusion
Murcott confirms that, in Category A security classification reviews, an oral hearing is not required simply because (i) the prisoner is post-tariff,
(ii) the prisoner has never had a hearing, or (iii) the LAP recommends downgrading and the DDC disagrees. The decisive question remains whether, on the
specific facts, fairness requires a hearing—typically because important facts or expert foundations are genuinely in dispute or cannot be fairly resolved on paper.
The judgment therefore consolidates a coherent line of authority—Mackay, Hassett, and Clarke—that keeps Category A reviews distinct from parole
adjudication, preserves the evaluative space afforded to the DDC within PSI 08/2013, and resists turning the oral hearing mechanism into a routine procedural step.