Rose, R (On the Application Of) v The Secretary of State for Justice

Factual and Procedural Background

The Appellant is a serving prisoner detained in the highest security category, Category A, for 27 years. His escape risk classification was downgraded to "standard" in 2006 and remained unchanged. On 14 June 2016, the Deputy Director of Custody High Security ("the Director") reviewed the Appellant's security category and decided there were no grounds for an oral hearing and that the Appellant should remain in Category A. The Appellant challenged the Director's refusal to hold an oral hearing and was granted permission for judicial review.

The Appellant was convicted in 1990 of kidnapping, firearm offences, and blackmail, with concurrent sentences totaling 15 years. Subsequently, in 1991, he was convicted of a murder committed in 1981 and sentenced to life imprisonment with a 25-year tariff. The murder involved a planned kidnap and extreme violence. In 1995, the Appellant escaped from prison but was recaptured and sentenced to an additional three years. The Appellant denies the murder conviction but admits the other offences and has served his determinate sentences and tariff period. He is currently 68 years old.

A Local Advisory Panel (LAP), consisting of prison officials, psychologists, and other staff, recommended downgrading the Appellant from Category A to Category B, citing significant reduction in risk and progress in treatment programs. Psychological reports, including those from a prison psychologist and an independent forensic psychologist, assessed the Appellant's risk and progress, noting improvements in insight and risk management related to the kidnapping offence but highlighting the Appellant's continued denial of the murder offence as a barrier to full risk reduction.

The Director, after considering the evidence and reports, concluded that the Appellant had not shown significant progress regarding the most serious offending and that his risk of serious offending if unlawfully at large had not significantly reduced. Accordingly, the Director decided that no oral hearing was necessary and that the Appellant should remain in Category A.

The Appellant sought to admit post-decision evidence, including a Parole Board letter and a probation officer’s report, but the court held that such evidence, not before the Director at the time of decision, was not relevant to assessing the lawfulness of the Director's decision.

Legal Issues Presented

1. Whether the Director’s decision not to hold an oral hearing in the Appellant’s Category A security review was lawful and procedurally fair.
2. Whether the Director properly applied the policy set out in Prison Service Instruction 08/2013 concerning the factors that warrant an oral hearing in Category A reviews.
3. The extent to which the Appellant’s denial of the murder offence affects risk assessment and the necessity of an oral hearing.

Arguments of the Parties

Appellant's Arguments

• The Director failed to properly apply the policy in PSI 08/2013 regarding when an oral hearing should be granted.
• Several factors identified in the policy that favor an oral hearing were present, including the Appellant never having had an oral hearing, being post-tariff, the long duration in Category A, and an impasse due to denial of the murder offence.
• There was a significant dispute on expert materials about the Appellant's insight and risk, supporting the need for an oral hearing.

Defendant's Arguments

• The Appellant was not entitled to depart from his original grounds by relying on PSI 08/2013 in this way.
• There was no real and live dispute between expert reports that would necessitate an oral hearing.
• Even if such a dispute existed, it would often be unnecessary to hold an oral hearing, as per the Court of Appeal guidance.
• The Director’s decision was rational and fairly applied the policy.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the policy framework governing Category A prisoner reviews, particularly PSI 08/2013, which sets out when oral hearings should be granted. The court acknowledged the significant impact of Category A classification on the Appellant’s liberty and parole prospects, referencing established case law.

The court noted that although oral hearings in this context are rare, the policy identifies factors that tend to favour granting one. In this case, most such factors were present: the Appellant had never had an oral hearing; he was post-tariff; the length of time in Category A was significant; and there was an impasse due to his denial of the murder offence.

The court analyzed the expert reports and LAP recommendation, finding a significant dispute on the expert materials regarding the Appellant’s insight and risk reduction. The LAP and prison psychologist recommended downgrading, while the Director relied on the independent psychologist’s report but gave it less weight due to its focus on risk in custody rather than risk if unlawfully at large.

The court held that the Director did not properly or fairly apply the policy because he failed to provide the Appellant an opportunity to address the issues troubling the decision-maker at an oral hearing. The court emphasized that fairness required an oral hearing to explore the points of contention, especially given the impasse and the serious consequences of continuing Category A classification.

The court also addressed the parties' submissions on post-decision evidence and held it was not relevant to the lawfulness of the Director’s original decision.

Holding and Implications

The court’s final decision was to allow the Appellant's claim for judicial review. The key holding was that the Director’s decision not to hold an oral hearing was unlawful because the Director failed to properly apply the relevant policy and procedural fairness requirements.

As a result:

• The decision refusing an oral hearing was quashed.
• The Director was ordered to hold an oral hearing of the Appellant’s Category A review at the earliest available date, using the most up-to-date reports.
• The Defendant was ordered to pay the Appellant’s costs of the judicial review.

The decision does not set new precedent beyond reinforcing the application of existing policy and case law but confirms the necessity of oral hearings in Category A reviews when significant factors favor it, particularly where there is an impasse and serious liberty interests at stake.