Anthony Clarke, R (on the application of) v Secretary of State for Justice
[2024] EWCA Civ 861
Ahmad Shah, R (on the application of) v Secretary of State for Justice
22 March 2024
[2024] EWHC 682 (Admin)
High Court
A prisoner challenged the decision to keep him in the highest security level without a hearing. The judge said that while a long time in high security could matter, it wasn't enough on its own. Because there was a way for him to show he was less risky, there was no need for a hearing.
Key Facts
- •Claimant, a Category A prisoner serving a 29-year sentence, challenged the decision to remain classified as Category A without an oral hearing.
- •Claimant's grounds: (1) Non-compliance with policy regarding oral hearings; (2) Procedural unfairness due to lack of oral hearing.
- •Claimant denied involvement in the most serious aspects of his offending, limiting access to offence-focused rehabilitation programs.
- •Claimant completed recommended programs (M&E and MSR) but lacked further opportunities for risk reduction due to unavailability of suitable programs and language barrier.
- •Professional reports did not recommend downgrading, and the LAP unequivocally recommended remaining Category A.
- •Claimant's provisional release date is October 2027, but deportation to Pakistan is anticipated in January 2027.
Legal Principles
Common law principles of fairness in parole context (Osborn) do not apply with the same force to Category A review decisions.
R (Hassett & Price) v Secretary of State for Justice [2017] EWCA Civ 331
PSI 08/2013 guidance on oral hearings is lawful and provides factors favoring an oral hearing (e.g., disputed facts, expert disputes, significant time elapsed, impasse).
Prison Service Instruction 08/2013
An oral hearing is not required merely because a prisoner has been in Category A for a long time or is post-tariff; exceptional circumstances are not required but factors are weighed cumulatively.
R (Steele) v Secretary of State for Justice [2021] EWHC 1768 (Admin); R (Mackay) v Secretary of State for Justice [2011] EWCA Civ 522; R (Downs) v Secretary of State for Justice [2011] EWCA Civ 1422; R (Seton) v Secretary of State for Justice [2020] EWHC 1161 (Admin)
Impasse, if present, is a factor favoring an oral hearing, especially if potential solutions require exploration; however, an impasse must be genuine and not merely a difference of opinion.
R (Rose) v Secretary of State for Justice [2017] EWHC 1826 (Admin); R (Harrison) v Secretary of State for Justice [2019] EWHC 3214 (Admin); R (Wilson) v Secretary of State for Justice [2022] EWHC 170 (Admin); R (Baybasin) v Secretary of State for Justice [2022] EWHC 2781 (Admin)
Outcomes
Claim dismissed.
The court found no impasse, as a clear pathway for risk reduction was identified by the psychologist. The other factors cited (length of time in Category A and lack of prior oral hearing) were insufficient to outweigh the lack of an impasse and the absence of professional recommendations for downgrading.
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