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

Factual and Procedural Background

The Appellant is a serving prisoner classified as Category A at a high security prison. He challenged the decision of the Deputy Director of Custody High Security ("the Director") made on 11 December 2018 not to hold an oral hearing before deciding to maintain his Category A classification. The Appellant was informed by letter dated 14 January 2019 of this decision. Permission for judicial review was granted on 21 June 2019, resolving a time limits issue in the Appellant's favour. The Appellant initially raised three grounds: misapplication of the legal test, procedural fairness requiring an oral hearing, and failure to follow published policy. The misapplication ground was later abandoned, focusing the dispute on the absence of an oral hearing.

The Appellant had been sentenced to life imprisonment with a tariff of 10 years for serious violent offences committed in 1998, with a history of earlier convictions involving violence and other offences. He was aged 34 at the time of the main offences and was 54 at the time of the decision. His tariff expired in 2009, and he had remained classified as Category A throughout. He has demonstrated good behaviour in custody, completed multiple offending behaviour programmes, and has no recent disciplinary issues.

Between 2009 and 2013, various expert psychological assessments indicated a reduced but still significant risk of reoffending, generally recommending downgrading to Category B. The Defendant's Category A Team maintained the Appellant's status in 2013 and 2014. The Appellant's case was considered by the Parole Board in 2014 and 2016, with some recognition of his positive behaviour but no re-categorisation.

In 2018, a prison psychologist conducted a Programme Needs Assessment and psychological evaluations, concluding the Appellant had no outstanding treatment needs and that his risk of reoffending had significantly reduced. The Local Advisory Panel (LAP) recommended downgrading to Category B, citing evidence of progress and psychological assessments. The Director, however, decided to maintain Category A status, citing concerns about the extreme nature of the offending and the Appellant's denial of guilt, which he considered left key issues unaddressed. The Appellant's request for an oral hearing was refused.

Legal Issues Presented

1. Whether the Director's decision to maintain the Appellant's Category A status without holding an oral hearing was lawful, particularly considering procedural fairness requirements.
2. Whether the Director failed to follow the Defendant's published policy (Prison Service Instruction 08/2013) regarding when oral hearings should be held for Category A classification reviews.

Arguments of the Parties

Appellant's Arguments

• The majority of factors set out in para 4.7 of PSI 08/2013 supported the need for an oral hearing, except for disputed facts directly affecting risk.
• The Director's refusal to hold an oral hearing ignored significant differences in expert assessments and the LAP's recommendation.
• An impasse existed because the Appellant had completed all available intervention work at Category A but could not demonstrate further risk reduction without downgrading, which was blocked.
• Denial of guilt should not preclude re-categorisation, especially where it creates an impasse preventing progression.
• Reliance was placed on analogous case law, notably R (Rose) v Secretary of State for Justice, where an oral hearing was required in similar circumstances.

Defendant's Arguments

• The Director's decision was rational and lawful, and the factors indicating the need for an oral hearing were not sufficiently present.
• The policy states the Director "may" hold an oral hearing when factors are present, not that he must.
• There was no real impasse as the Appellant could admit guilt or access a Psychological Informed Planned Environment (PIPE) unit, although the Director did not explicitly reference PIPE in his decision.
• The Director did not consider there was a significant dispute on the principal issue of risk reduction requiring an oral hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory and policy framework governing prisoner classification, particularly PSI 08/2013 which sets out the test and process for downgrading Category A prisoners. The Director must have convincing evidence of significant risk reduction before approving downgrading. The Court noted that the Appellant had been Category A for nearly 20 years, was post-tariff, and had never had an oral hearing, factors which require careful consideration under the policy.

The Court considered the Director's reasons for maintaining Category A status, which emphasized the extreme nature of the offences and the Appellant's denial of guilt, resulting in perceived unaddressed risk factors. However, the Court found that the Director's reasoning diverged substantially from the assessments by the prison psychologist and the LAP, both of whom concluded the Appellant had no outstanding treatment needs and had significantly reduced risk. The Director's decision also appeared to misunderstand or mischaracterize aspects of those assessments.

The Court identified a significant dispute on expert materials and a genuine impasse: the Appellant had completed all intervention work available at Category A, but further progress required downgrading to access programmes unavailable in Category A. The Director did not accept this impasse, but the Court found the situation analogous to impasses recognized in precedent, where denial of guilt complicates risk assessment and progression.

Given the substantial divergence in views and the impasse, the Court held that the Director should have considered holding an oral hearing under para 4.7(b) and (c) of PSI 08/2013. The Director's conclusion that an oral hearing was unnecessary was therefore a failure to properly apply the policy and procedural fairness requirements. The Court also emphasized that the common law requires an oral hearing in such circumstances to allow the prisoner to address the concerns and for the decision-maker to fully understand the case.

Holding and Implications

The Court ruled that the Director's decision not to hold an oral hearing was unlawful.

The judicial review application is allowed.

The decision directly affects the parties by requiring the Director to reconsider the classification decision with an oral hearing afforded to the Appellant. No broader precedent beyond the application of established principles of procedural fairness and policy compliance was established.