Hassett & Anor, R (On the Application Of) v The Secretary of State for Justice

Factual and Procedural Background

This case concerns the procedural fairness standards applicable to decisions made by the Secretary of State's Category A Review Team ("the CART") and the Deputy Director of Custody High Security ("the Director") and his advisory panel regarding the maintenance of prisoners' security classification as Category A. Category A prisoners are those whose escape would pose a highly dangerous risk to the public or state security, and for whom escape must be made impossible. The Director is responsible for categorisation and allocation of Category A prisoners but may delegate decision-making to the CART.

The CART and Director's decisions affect prison conditions and indirectly influence parole prospects, as parole release from Category A is rare without prior testing in lower security categories. The CART typically reviews Category A status annually. The CART and Director operate as internal bodies of the Prison Service, exercising management functions distinct from the independent judicial Parole Board, which assesses suitability for release on licence. The procedural fairness standards for the Parole Board were recently clarified by the Supreme Court in R (Osborn) v Parole Board [2013] UKSC 61.

The appellants, two long-term prisoners referred to as Plaintiff 1 and Plaintiff 2, challenged decisions by the CART in 2014 to maintain their Category A status without oral hearings, arguing that fairness required oral hearings in light of the Osborn guidance. They also challenged the lawfulness of the Secretary of State’s guidance in Prison Instruction PSI 08/2013 concerning when oral hearings should be held. The case proceeded despite subsequent Category A reviews for Plaintiff 1 and Plaintiff 2, as the legal principles would affect future reviews.

The court refused Plaintiff 1’s application to admit fresh evidence concerning a 2017 review decision, finding it irrelevant to the 2014 decision under judicial review and likely to distract from the key legal issues.

The Category A review process involves compiling a dossier of reports from prison staff, including psychology services, which is shared with the prisoner for written representations. The Local Advisory Panel (LAP) makes a reasoned recommendation, and the CART usually completes the review unless downgrading is recommended, in which case the Director and an advisory panel review the case. The CART and Director have discretion over procedural matters but must act fairly.

Prison Instruction PSI 08/2013 provides detailed guidance on when oral hearings should be granted, listing factors such as disputed important facts, significant disputes on expert materials, length of time in Category A or post-tariff status, and whether the prisoner has previously had an oral hearing.

Both Plaintiffs have extensive criminal histories and have been maintained in Category A for many years without oral hearings. They submitted independent psychological reports challenging aspects of the prison reports. The CART considered these reports but found no significant disputes requiring oral hearings. Both Plaintiffs’ requests for oral hearings were refused in 2014 decisions under challenge.

Legal Issues Presented

1. What standard of procedural fairness is required of the CART and the Director when deciding to maintain a prisoner’s Category A classification?
2. Whether the guidance in paragraph 4.7(b) of Prison Instruction PSI 08/2013 concerning oral hearings is lawful.
3. Whether the decisions by the CART in September and October 2014 refusing oral hearings to the appellants were unlawful.

Arguments of the Parties

Appellants' Arguments

• The appellants argued that the procedural fairness standards established by the Supreme Court in R (Osborn) v Parole Board should apply equally to Category A review decisions by the CART and Director.
• They contended that paragraph 4.7(b) of PSI 08/2013 unlawfully downplays the significance of disputes over expert psychological assessments, contrary to Osborn.
• Both appellants asserted that fairness required oral hearings before decisions were made to maintain their Category A status, particularly given their long-term detention and the serious implications of such classification.

Respondent's Arguments

• The Secretary of State’s representatives argued that the procedural fairness requirements for the CART and Director differ materially from those applicable to the independent Parole Board.
• They maintained that the guidance in PSI 08/2013 is lawful and appropriate to the prison management context.
• They submitted that the appellants had no real or significant disputes requiring oral hearings and that the CART’s decisions were lawful.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing that procedural fairness requirements depend on the nature of the decision-making body and the context of the decision. It distinguished the administrative, internal prison management function of the CART and Director from the independent judicial role of the Parole Board. The Parole Board’s decisions engage Article 5(4) ECHR and involve adjudicating on liberty rights, requiring more stringent procedural protections including more frequent oral hearings.

By contrast, the CART and Director make administrative decisions focused on prison security and management, without the same statutory or human rights framework. The court noted that the CART/Director benefit from extensive prior information-gathering and prisoner engagement and thus the procedural fairness standards can be less elaborate. The court affirmed that oral hearings before the CART/Director remain rare but may be required in exceptional cases.

The court analyzed the guidance in paragraph 4.7(b) of PSI 08/2013 concerning oral hearings and found it lawful and appropriate, reflecting a balanced approach to when oral hearings should be granted. It rejected the appellants’ argument that the guidance unlawfully downplays the significance of disputes over expert psychological assessments, explaining that the guidance properly requires a real and live dispute of importance before an oral hearing is necessary.

Regarding the specific decisions under challenge, the court found no significant or genuine dispute on matters relevant to security categorisation that would necessitate an oral hearing. Psychological reports in both appellants’ cases did not contradict the prison reports in a manner material to the risk assessment. The court noted that even if expert disagreement exists, fairness does not require an oral hearing if it is unlikely to resolve the issue or affect the outcome.

The court also considered the impact of the appellants’ denial of responsibility for their index offences, confirming that such denial is a legitimate factor in assessing risk and does not render the refusal of an oral hearing unfair.

In sum, the court concluded that the procedural fairness standards established in Osborn for the Parole Board do not directly apply to the CART/Director context, and the decisions refusing oral hearings were lawful and fair.

Holding and Implications

The court DISMISSED the appeals challenging the refusal to grant oral hearings before the CART and Director in the maintenance of the appellants’ Category A status.

The direct effect is that the existing procedural framework and guidance in PSI 08/2013 remain valid and applicable, confirming that oral hearings before the CART/Director will continue to be rare and only required in exceptional cases involving significant disputes on material issues. No new precedent altering the procedural fairness standards for Category A reviews was established. The decision reinforces the distinction between the administrative nature of security categorisation decisions and the judicial nature of Parole Board decisions.