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

Factual and Procedural Background

This opinion concerns a renewed application by the Plaintiff for permission to seek judicial review of a decision dated 18 March 2020 by the Director of the Long-Term and High Security Estate (the Director) on behalf of the Secretary of State for Justice (the Defendant). The decision refused to downgrade the Plaintiff from Category A prisoner status and declined to direct that an oral hearing take place regarding the categorisation. Permission had previously been refused by His Honour Judge Saffman on 6 August 2020.

The Plaintiff was convicted in 1986 of multiple murders committed in 1985. His conviction was upheld on appeal and he has consistently maintained his innocence, pursuing numerous legal challenges over the years. The Plaintiff remains a Category A prisoner, the highest security classification, indicating that his escape would be highly dangerous to the public.

The categorisation review process involves assessments by various prison officials and psychologists. The Plaintiff's dossier included reports expressing the view that there was insufficient evidence of significant risk reduction to justify downgrading. The Plaintiff commissioned an independent forensic psychologist, Dr Beckley, who opined that the Plaintiff posed a low risk of future violence and met the test for downgrading under the relevant Prison Service Instruction (PSI 08/2013).

The Director reviewed the dossier and representations, including Dr Beckley’s report, and concluded that there was no convincing evidence of significant reduction in risk, and that the Plaintiff should remain at Category A. The Plaintiff challenged this decision on grounds including alleged misrepresentation of expert opinion and procedural unfairness for refusal of an oral hearing.

Legal Issues Presented

1. Whether the Director’s decision was unreasonable due to a material misrepresentation of the independent psychologist’s opinion regarding risk assessment.
2. Whether fairness required an oral hearing in the Plaintiff’s case to resolve disputed opinions on risk and address procedural concerns.

Arguments of the Parties

Appellant's Arguments

• The Director’s decision was unreasonable because it misrepresented Dr Beckley’s opinion by stating that assessing risk was "impossible," whereas she described it as "difficult" but did provide a risk assessment concluding low future risk.
• Fairness required an oral hearing due to a dispute between Dr Beckley and prison report writers about the Plaintiff’s risk level, the Plaintiff’s long period of incarceration without an oral hearing, and an alleged impasse caused by denial of access to a Programme Needs Assessment (PNA).

Defendant's Arguments

• It was accepted that the Director mischaracterised the expert opinion as deeming risk assessment impossible, but this was a minor error that did not render the decision unreasonable.
• The Director’s overall conclusion that there was no convincing evidence of significant risk reduction was reasonably open on the evidence.
• An oral hearing was not necessary as the Plaintiff had ample opportunity to present his case in writing and through internal processes, and the dispute was a matter of inference rather than factual disagreement.
• There was no impasse as the PNA process was an administrative matter not resolved by an oral hearing, and skepticism about PNA effectiveness did not constitute an impasse under PSI 08/2013.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R(Hassett) v Secretary of State for Justice [2017] EWCA Civ 331	Standards for fairness and procedural requirements in prison categorisation decisions, including when oral hearings are necessary.	The court relied on Hassett to conclude that an oral hearing is not required merely because of expert disagreement or length of incarceration, emphasizing the administrative nature of categorisation decisions and the sufficiency of written submissions.
R v Secretary of State for the Home Department, ex p. Duggan [1994] 3 All ER 277	Impact of Category A classification on parole prospects and detention conditions.	Referenced to explain the significance of Category A status and its implications for the Plaintiff.
R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498	Procedural fairness in prison categorisation and parole considerations.	Used to support the proposition that categorisation decisions have significant individual and public interest consequences.
R v Parliamentary Commissioner ex p Balchin [1998] 1 PLR 1	Effect of errors of reasoning on the lawfulness of administrative decisions.	Considered but rejected as the Director’s misstatement did not render the decision illogical or unlawful.
R (Roberts) v Secretary of State for the Home Department [2004] EWHC 679	Assessment of risk reduction based on prisoner behaviour and maturity.	Applied to note that good behaviour and maturity alone rarely suffice to demonstrate sufficient risk reduction for recategorisation.

Court's Reasoning and Analysis

The court first acknowledged that the Director erred in describing Dr Beckley’s opinion as concluding that risk assessment was “impossible.” The expert had stated it was “difficult” but had conducted an assessment concluding a low risk of future violence. Despite this mischaracterisation, the court found that the Director understood the substance of the expert report and the evidence presented.

The Director’s decision was based on whether there was “convincing evidence” of significant reduction in risk, as required by paragraph 4.2 of PSI 08/2013. The court found the Director’s conclusion—that the evidence was not sufficiently convincing—was reasonably open on the facts, given that the Plaintiff had not demonstrated offence-related insight or progress, despite good compliance and lack of violent ideation.

The court rejected the argument that the misstatement about impossibility rendered the decision unreasonable or unlawful, describing it as a “lazy choice of words” rather than a fundamental error.

Regarding the refusal of an oral hearing, the court applied the principles in Hassett, emphasizing the administrative nature of prison categorisation decisions and the need to avoid over-judicialisation. The Plaintiff had multiple opportunities to present his case through written submissions and internal processes, including fresh assessments and representations. The dispute between experts was a matter of inference, not factual disagreement, and an oral hearing would not have materially aided the decision-making.

The court also found no arguable impasse justifying an oral hearing. The delay in completing the PNA was an administrative issue that an oral hearing would not resolve, and skepticism about the PNA’s utility did not constitute an impasse under the relevant PSI.

Holding and Implications

The court REFUSED PERMISSION for the Plaintiff to seek judicial review of the Director’s decision to maintain Category A status and to refuse an oral hearing.

The direct effect of this decision is that the Plaintiff remains classified as a Category A prisoner. The court’s refusal to grant permission confirms the reasonableness of the Director’s decision-making process and underscores the limited circumstances in which oral hearings are required in prison categorisation reviews. No new legal precedent was established beyond reaffirming existing principles regarding administrative discretion and procedural fairness in this context.