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

Factual and Procedural Background

The Appellant, referred to as the Plaintiff, is serving a life sentence imposed following a 2008 murder conviction. He is classified as a Category A prisoner. On 19 January 2021, the Category A Team ('the CART') decided not to change his category (decision 1), and reaffirmed this decision on 25 March 2021 (decision 2) after further representations from the Plaintiff. The Plaintiff applied for judicial review of decision 1, which was heard by Judge Sheldon KC, who also granted permission to challenge decision 2. The judicial review was dismissed by order dated 13 October 2022. The Plaintiff now appeals with permission granted by Phillips LJ.

The Plaintiff was represented by Attorney Rule KC and Attorney Henderson, while the Secretary of State for Justice ('the Secretary of State') was represented by Attorney Irwin. The appeal concerns two main issues: whether the Plaintiff should have been given an opportunity to make representations on a Local Advisory Panel ('LAP') recommendation and report received only one day before decision 1, and whether the CART should have held an oral hearing before making decisions 1 and 2. The court ultimately found no breach of the relevant Prison Service Instruction (PSI) and no unfairness in the process.

Legal Issues Presented

1. Whether the Plaintiff should have been given the opportunity to consider and make representations on the LAP's recommendation and report before decision 1 was made, in accordance with the PSI.
2. Whether the CART was required to hold an oral hearing before making decisions 1 and 2.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued it was unfair and a breach of the PSI not to have the chance to comment on the LAP recommendation before decision 1.
• He contended that several factual disputes existed, including his true attitudes, involvement in bullying, appropriateness of interactions with professionals, and risk at other Category A prisons, which warranted an oral hearing.
• He highlighted disagreements between expert psychologists and an alleged impasse regarding the appropriate treatment programme, advocating for an oral hearing to resolve these issues.
• The Plaintiff submitted that the Judge underestimated the importance of the decision and the high standard of fairness required.
• He argued that the value of an oral hearing does not depend on whether it would have influenced the outcome.
• The Plaintiff relied on other first instance decisions as support for his entitlement to an oral hearing.
• He proposed tests for when an oral hearing is necessary, focusing on whether a hearing could possibly lead to a different outcome or whether procedural fairness requires it regardless of the outcome.

Respondent's Arguments

• The Secretary of State accepted some positive factors in the Plaintiff's case but maintained that the high threshold for downgrading from Category A was not met.
• It was submitted that the Plaintiff had opportunities to make representations before the LAP made its recommendation and that the CART was not obliged to wait for further representations on the LAP recommendation before making decision 1.
• The Secretary of State argued that the PSI distinguishes between mandatory instructions and guidelines, and that paragraph 4.26 of the PSI was permissive rather than mandatory regarding representations on the LAP recommendation.
• It was contended that the CART correctly applied the PSI and that the presence of expert disagreements did not automatically require an oral hearing, especially where such a hearing would not likely resolve the dispute or affect the decision.
• The Secretary of State maintained that the Judge correctly interpreted the PSI and common law fairness requirements, and that the Plaintiff's grounds for appeal were inconsistent with established authority.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Osborn) v Parole Board [2013] UKSC 61	Guidance on when oral hearings are required in parole decisions, balancing procedural fairness and practical considerations.	The court acknowledged the relevance of Osborn principles to CART decisions but noted important contextual differences limiting their direct application.
Mackay v Secretary of State for Justice [2011] EWCA Civ 522	Oral hearings in prisoner categorisation are rare but may be necessary in exceptional cases.	The court applied Mackay to confirm that the refusal of an oral hearing was not wrong in the present case, given the facts and procedural history.
R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422	Disputes between expert opinions do not automatically require oral hearings if they would not resolve the dispute with certainty.	The court found the CART was correct to decide without an oral hearing despite expert disagreements, as the hearing would not have clarified matters.
R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331	Procedural fairness standards for CART differ from Parole Board; oral hearings remain rare and depend on context and factual disputes.	The court upheld the lawfulness of PSI paragraph 4.7 and confirmed that oral hearings are not mandated by expert disagreement alone.
R (Zaman) v Secretary of State for Justice [2022] EWHC 188 (Admin)	This first instance decision was cited regarding fairness and oral hearings in categorisation reviews.	The court noted that differing first instance decisions do not establish binding precedent and that each case depends on its facts.
R (Seton) v Secretary of State for Justice [2020] EWHC 1161 (Admin)	Similar to Zaman, concerning oral hearings and fairness in prisoner categorisation.	The court emphasized that the present case was factually distinct and did not require the same outcome.

Court's Reasoning and Analysis

The court first examined the relevant provisions of the PSI to determine whether the Secretary of State breached the policy. It distinguished between mandatory instructions (italicised text including 'must') and guidelines (plain text), concluding that paragraph 4.26 of the PSI, which concerns taking into account representations following the LAP's recommendation, is permissive rather than mandatory. The court found that, given the Plaintiff had prior opportunities to make representations to the LAP, fairness did not require an additional opportunity to comment on the LAP recommendation before the CART's decision.

Regarding the requirement for an oral hearing, the court analysed paragraphs 4.6 and 4.7 of the PSI, which provide guidance on factors tending to favour oral hearings but do not mandate them. The court held that the CART was entitled to make evaluative judgments on the presence and weight of such factors. It found a reasonable basis for the CART's conclusion that no oral hearing was necessary, as the factual disputes were largely clinical judgments and the expert disagreements would not likely be resolved or clarified by a hearing.

The court rejected the Plaintiff's submissions that the Judge erred by focusing on the likelihood of an oral hearing affecting the outcome, affirming that speculative possibilities do not justify oral hearings. It also found that the Judge properly understood the significance of the categorisation decision to the Plaintiff and the applicable standards of procedural fairness.

The court noted that the CART did not rely on certain disputed allegations (e.g., bullying) in their decision, further negating the need for an oral hearing to resolve those issues. It emphasized that the Plaintiff had extensive involvement in the assessment process and opportunities to make written representations, which sufficed for procedural fairness.

Finally, the court acknowledged that differing first instance decisions on similar issues do not establish binding precedent and that each case must be decided on its own facts.

Holding and Implications

The court's final decision is DISMISSED. The appeal was dismissed, affirming the decisions of the CART and the reasoning of the Judge below.

The effect of this decision is that the CART did not breach the relevant PSI nor act unfairly in refusing to hold an oral hearing or in not providing the Plaintiff with an opportunity to comment on the LAP recommendation prior to decision 1. No new legal precedent was established; the decision reinforces the application of existing principles concerning procedural fairness and the interpretation of the PSI in prisoner categorisation decisions.