DM v Secretary of State for Justice

Factual and Procedural Background

This opinion concerns an appeal by the Secretary of State for Justice ("the SSJ") against a judgment allowing the Respondent's claim for Judicial Review. The claim challenged the refusal by the Category A Review Team ("CART") to convene an oral hearing before the SSJ's decision on 26th November 2009 to refuse the Respondent's re-categorisation from Category A security status. The Respondent is a post-tariff life prisoner convicted of murder and other offences, serving a life sentence with a minimum tariff of 20 years.

The Respondent's categorisation had been reviewed by the Parole Board in July 2009 following an oral hearing, where the Board considered psychiatric and psychological reports and oral evidence. The Parole Board decided he should remain in closed conditions but noted that moving him to a Category B training prison "may be a constructive move." Subsequently, the local prison Category A Advisory Panel recommended the Respondent remain in Category A, citing ongoing risk factors and need for further intervention.

On 26th November 2009, CART, acting for the SSJ, refused to re-categorise the Respondent, concluding that no special circumstances warranted an oral hearing and that the Respondent posed a significant risk if unlawfully at large. The Respondent's solicitors challenged this decision by way of Judicial Review, which was allowed by Bean J, who held that procedural fairness required an oral hearing before the re-categorisation decision.

Following Bean J's decision, CART conducted a further review in March 2011, again deciding not to re-categorise the Respondent and again without an oral hearing. This raised concerns about compliance with the court's order and led to the present appeal by the SSJ.

Legal Issues Presented

1. Whether the Parole Board's expression of view that moving the Respondent to a Category B training prison "may be a constructive move" was sufficient to require CART to convene an oral hearing before deciding on re-categorisation.
2. Whether Bean J erred in fact by misquoting the Parole Board's expression of view as a definitive statement rather than a tentative one.
3. Whether procedural fairness under the common law duty required CART to hold an oral hearing before refusing the Respondent's re-categorisation from Category A status.
4. The legal distinction between the roles and decision-making processes of the Parole Board and CART in relation to prisoner categorisation and risk assessment.
5. How to address an "impasse" situation where the prisoner denies guilt for offences for which he has been convicted, affecting risk assessment and access to rehabilitative programs.

Arguments of the Parties

Appellant's Arguments

• Procedural fairness may require an oral hearing in some cases with a material dispute of fact affecting risk assessment, but such hearings are rare.
• The Judge erred by focusing on a single tentative expression of view by the Parole Board rather than the report as a whole.
• There was no material dispute of fact between the Parole Board and CART justifying an oral hearing.
• CART was not bound by the Parole Board's views and had properly considered all relevant material.
• The presence of an impasse was denied by the 26th November decision and was not established in fact.
• The Judge's error of fact in misquoting the Parole Board may have contributed to the error of law but was not decisive alone.

Respondent's Arguments

• The Judge correctly held that the inconsistency between the Parole Board's view and the SSJ's decision justified an oral hearing.
• A high standard of procedural fairness applied given the liberty interests at stake for a post-tariff life prisoner.
• The oral hearing before the Parole Board demonstrated the value of such hearings for informed decision-making.
• The Parole Board was constrained by its terms of reference but still expressed a view supporting downgrading, which was significant.
• The existence of an impasse due to the Respondent's denial of guilt justified an oral hearing to resolve disputed issues and improve decision quality.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Secretary of State for the Home Department, ex parte Duggan [1994] 3 All ER 277	Significance of Category A classification on liberty and need for procedural fairness	Confirmed that Category A status severely restricts release prospects, necessitating high procedural fairness standards in re-categorisation decisions.
R (Williams) v Home Secretary [2002] EWCA Civ 498; [2002] 1 WLR 2264	Distinction between Parole Board and CART roles; oral hearing required when there is a major inconsistency between their decisions	Used to explain that inconsistencies between Parole Board and CART may justify oral hearings to ensure fairness and better decision-making.
R (Roberts) v Secretary of State for the Home Department [2004] EWHC 679 (Admin)	Handling of impasse where prisoner denies guilt affecting risk assessment and participation in rehabilitative programs	Discussed the difficulties of impasse situations and the need to balance fairness with public safety concerns.
R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350	Common law duty of procedural fairness may require oral hearings depending on context and importance of the interests at stake	Emphasized that procedural fairness is flexible and context-dependent; oral hearings are not always required but can improve decision quality.
R (H) v Secretary of State for Justice [2008] EWHC 2590 (Admin)	Oral hearing required where there is inconsistency between local prison review panel and CART decisions	Supported the principle that oral hearings may be necessary to resolve conflicting views affecting categorisation decisions.

Court's Reasoning and Analysis

The Court began by acknowledging the high degree of procedural fairness required in decisions affecting the liberty of Category A prisoners, given the severe restrictions such classification entails. It emphasized the distinct roles of the Parole Board, which assesses risk for supervised release, and CART, which assesses risk of escape; decisions by the Parole Board are influential but not determinative for CART.

The Court carefully examined the Parole Board's 23rd July 2009 decision, noting that while the Board expressed a tentative view that downgrading "may be a constructive move," it ultimately concluded that the Respondent should remain in closed conditions due to no significant reduction in risk. The local Advisory Panel and CART both recommended maintaining Category A status, citing ongoing risk factors and the need for further intervention.

The Court found that the Judge below had placed undue emphasis on the isolated tentative statement by the Parole Board, effectively misquoting it as a definitive recommendation. When considering the Parole Board's decision as a whole, the Court found no significant inconsistency with CART's decision or any sufficient foundation to require an oral hearing.

The Court also addressed the alleged "impasse" caused by the Respondent's denial of guilt, concluding that the 26th November decision expressly found no such impasse existed. Even if an impasse were present, it did not automatically require an oral hearing, as such situations are sometimes unavoidable given the public interest in risk reduction.

The Court further noted that all relevant reports had been disclosed to the Respondent and that there was no issue of undisclosed material warranting an oral hearing. The conduct of CART in conducting a subsequent review without an oral hearing was criticized but was not sufficient to justify ordering an oral hearing for the original decision.

In sum, the Court concluded that procedural fairness did not require an oral hearing in this case, as the tentative and isolated nature of the Parole Board's comment did not justify departing from the considered risk assessments of CART and the Advisory Panel.

Holding and Implications

The Court ALLOWED the appeal by the Secretary of State for Justice.

The Court held that the Judge below erred in law by concluding that procedural fairness required CART to convene an oral hearing before the 26th November 2009 decision refusing the Respondent's re-categorisation. The tentative expression by the Parole Board that downgrading "may be a constructive move" was insufficient to mandate such a hearing. There was no significant inconsistency or impasse justifying an oral hearing in this case.

The direct effect of this decision is to uphold the SSJ's refusal to convene an oral hearing before refusing re-categorisation. No new precedent was established beyond reaffirming that oral hearings are exceptional and fact-specific, required only where procedural fairness demands them. The Court expressed concern about CART's subsequent conduct but declined to base its decision on that ground.