Derek Murcott, R (on the application of ) v The Secretary of State for Justice

The responsibility for the management of prisons within England and Wales rests with the Secretary of State for Justice (“the respondent”), who is empowered to make rules and provide directions for the classification of those who are lawfully confined to prison into one of four categories, A, B, C and D, having regard to their age, temperament and record.

Those prisoners who pose the highest risk to the public, if unlawfully at large, are designated as Category A prisoners, and the responsibility for the categorisation and allocation of Category A prisoners rests with the Deputy Director of Custody High Security (“the DDC”), who will usually work in conjunction with the Category A Team (“CAT”), formerly known as the Category A Review Team (“CART”).

Category A prisoners are required to have their security classification reviewed on an annual basis by a Local Advisory Panel (“LAP”). In the event that the LAP recommends downgrading, the responsibility for approving the downgrading remains the sole responsibility of the DDC who may determine the matter on the basis of written reports or at an oral hearing.

Derek Murcott (“the appellant”) is a Category A prisoner, currently serving his sentence of Life Imprisonment at HMP Frankland, and this is an appeal from the decision of Upper Tribunal Judge Ward (“the judge”), sitting as a Judge of the High Court, dismissing an application by the appellant for judicial review of the respondent’s decision to maintain the appellant’s classification as a Category A prisoner.

Although the original grounds for judicial review encompassed both an irrationality challenge to the DDC’s decision not to downgrade the appellant, and a procedural challenge to the DDC’s decision not to hold an oral hearing, both of which failed before the judge, the grounds of appeal are focused upon seeking to overturn the judge’s decision that the DDC had not erred by refusing to grant an oral hearing before deciding to maintain the appellant’s Category A classification.

Section 1 of the Prison Act 1952, (“the 1952 Act”), vests responsibility for the management of prisons in the respondent, by providing that,

Section 12 of the 1952 Act, provides for the lawful confinement of those sentenced to imprisonment, in that,

Moreover, section 47 of the 1952 Act, enables the respondent to organise the management of prisons, including the classification of prisoners, by providing that,

The current Rules for the classification of prisoners, are the Prison Rules 1999, (“the 1999 Rules”) which, under rule 7, provide that,

The current directions for the classification of prisoners, are those contained in the Prison Service Instructions, PSI 08/2013, (“the PSI”) revised on 10 June 2016, the relevant parts of which, for present purposes, are as follows:

The issue, as to the circumstances in which procedural fairness at common law requires an oral hearing in the context of a decision to maintain a prisoner’s Category A classification, has been considered by this court on a number of occasions, both before and since the decision of the Supreme Court in R(Osborn) v Parole Board [2013] UKSC 61, (“Osborn”), which dealt with a similar issue in the context of decisions by the Parole Board concerning the release of prisoners from custody.

In R(Mackay) v SSJ [2011] EWCA Civ 522, (“Mackay”), this court was concerned with a decision by the CART not to convene an oral hearing before deciding to maintain a prisoner’s Category A classification, in circumstances where the Parole Board, following an oral hearing, had observed that downgrading “may be a constructive move”.

In his judgment, Gross LJ, at [25] accepted that as classification as a Category A prisoner has serious consequences for the prisoner, including a direct impact on his liberty, a high degree of procedural fairness was required.

However, at [26], Gross LJ stressed that,

Gross LJ went on to observe, at [28], that although,

In Osborn, the Supreme Court stressed the importance of the decision at stake for a prisoner, where the Parole Board is considering whether to recommend their release from custody, and at [2] of Lord Reed’s judgment, provided guidance as to the circumstances in which an oral hearing would be necessary, which would include,

Lord Reed went on to explain that,

It was following Osborn, that the directions for the classification of prisoners were revised, so as to reflect the likely relevance of the Supreme Court’s decision upon the issue as to whether procedural fairness would require an oral hearing of a decision by the DDC concerning the continuation of a prisoner’s Category A classification.

The revised directions first came to be considered by this court in R(Hassett) v SSJ [2017] EWCA Civ 331, (“Hassett”), which dealt with an appeal by two prisoners whose Category A classification had been maintained by the DDC without an oral hearing, where the principle submission was that the guidance provided in Osborn, as to when an oral hearing was necessitated, should also govern what happens when the DDC decides to maintain a prisoner’s Category A classification. It was submitted that the PSI guidance at 4.7(b) was unlawful as it did not sufficiently reflect what was required so as to provide for a procedurally fair decision.

At [51] of his judgment, Sales LJ (as he then was), pointed out that although both the DDC and the Parole Board make decisions which have significant effects upon prisoners and their prospects of release, “there are material distinctions between CART/director and the Parole Board in relation to each aspect of the inquiry regarding the requirements of fairness…”. These included that whereas the Parole Board had been established as an independent judicial body adjudicating on rights in respect of liberty, the CART/director are officials carrying out management functions within the prison aimed at ensuring their effective operation, and who are the end-point of an elaborate internal process of gathering information which will have included extensive discussions with the prisoner. Furthermore, whereas the Parole Board is concerned with a particularly fact sensitive decision as to whether a prisoner can safely be released into the community bearing in mind the availability of procedures designed to contain the risk he might otherwise pose, the CART/director is tasked with the far starker question of the risk to the public in the event that the prisoner should escape and be unlawfully at large.

In these circumstances, Sales LJ held that the guidance provided in Osborn could not be taken to apply directly in the context of security categorisation decisions made by the CART/director, and at [61] he explained that,

In response to the submission that the guidance in the PSI was unlawful, as it did not sufficiently reflect what was required so as to provide for a procedurally fair decision, Sales LJ concluded at [66] that,

Most recently, in R(Clarke) v SSJ [2024] EWCA Civ 861, (“Clarke”), this court had the opportunity of considering the requirement to hold an oral hearing where the CART had declined an oral hearing before deciding to maintain a prisoner’s Category A classification, in circumstances where the prisoner had not had an opportunity to comment on the LAP’s recommendation to maintain his Category A status.

Dismissing the appeal from the judge’s decision refusing judicial review of the CART’s decision, Elisabeth Laing LJ, at [108] – [109], made the following observations in relation to paragraphs 4.6 and 4.7 of the PSI,

With these matters in mind, it is necessary to turn to the particular circumstances giving rise to this appeal.

The appellant is 65 years of age, (DOB 1.11.60), and has an extensive history of serious offending.

Between 1973 – 1980, the appellant committed offences of theft, burglary and assault occasioning actual bodily harm, resulting in both custodial and non-custodial sentences being imposed upon him.

On his release from the last of those custodial sentences, he went to live with another recently released prisoner who was married and had a nine-year-old son. On 18 February 1982, the appellant indecently assaulted the boy, by placing his penis between the child’s buttocks, in respect of which the appellant was convicted and made the subject of a 24-month probation order in early September 1982.

A few days later, on 10 September 1982, the appellant offered to assist a female nurse who had been involved in an accident. When they arrived at her home, the appellant threatened her with a knife and proceeded to rape and bugger her, before stealing money from her. The appellant was convicted of these offences and sentenced to 8 years’ imprisonment.

On 26 August 1986, whilst serving his sentence of imprisonment, the appellant attacked his cellmate. He tied him by his feet and ankles with torn sheets, and attempted to strangle him with a twisted towel. He placed his foot on the victim’s neck to gain more pressure until the victim lost consciousness. The appellant was convicted of attempted murder and sentenced to 9 years’ imprisonment, which was ordered to be served consecutively to the earlier period of imprisonment.

In March 1994, approximately 9 months after being released from his sentence of imprisonment, the appellant attacked a 23-year-old female student in her flat. He bound her with belts and tape, gagged her with a tea-towel, and threatened her with a knife before repeatedly raping and buggering her. Following the attack upon her, the appellant taped tissue paper over her eyes, and tied her hands and feet with an electric cable, before escaping.

On the following day, the appellant indecently assaulted a 14-year-old female whilst travelling on a bus. The appellant passed a written note to the victim, in which he threatened to kill her if she moved, or did not do what he told her. The appellant proceed to indecently assault the girl, following which he told her that he knew which school she attended and would know how to find her.

On 12 June 1995, in the Crown Court at Manchester, the appellant, then aged 34, having been convicted following a trial of offences of rape, buggery, theft, indecent assault and making threats to kill, was sentenced to life imprisonment with a recommended tariff of 15 years, subsequently reduced on appeal to 10 years.

In November 2016, whilst serving his sentence, the appellant exposed his penis to a female occupational therapist, in respect of which, on 17 March 2017, he was convicted of indecent exposure and sentenced to a concurrent term of 6 weeks’ imprisonment.

Throughout the period during which the appellant has been serving his sentence of life imprisonment, he has been classified as a Category A prisoner.

In 2002, the appellant was transferred to High Security Rampton Hospital for a period of 11 months before being returned to prison. On 12 February 2008, the appellant was again transferred to Rampton Hospital and remained there until 14 July 2016, when he was transferred to Medium Security St Nicholas Hospital. It was whilst there that he exposed his penis to the female occupational therapist, and he was returned to HMP Frankland on 7 March 2017, where he has remained to date.

Initially, on his return to HMP Frankland, the appellant was located within the Westgate Unit. However, in October 2019 he was removed from there due to his lack of engagement. In September 2021, the appellant was moved to the Psychologically Informed Planned Environment (“PIPE”) unit, but was deselected in January 2023, after threatening another prisoner, and remains on wing location.

The appellant is currently, about 20 years’ post-tariff and remains a Category A prisoner.

In January 2024, the LAP carried out a review of the appellant’s Category A classification and, in a report dated 2 February 2024, recommended that the appellant be downgraded to Category B.

Prior to the review, the appellant’s solicitors had provided written submissions on his behalf dated 22 January 2024. It was submitted that,

It was submitted that the appellant,

The solicitors noted that there were four negative entries within the appellant’s dossier, but submitted that they were not,

It was submitted that if there was any doubt in reaching its decision as to whether the appellant should be downgraded, an oral hearing would be necessitated,

The LAP review included reference to the appellant’s previous history of offending, and his progress whilst he had been in prison.

In so far as Psychology was concerned, the report noted that the appellant had been subjected to significant abuse in his early years, and that his offences were a reflection of his inability to control his emotional response to that abuse. During the period which the appellant spent at Rampton Hospital, he completed a substantial amount of psychological therapy and was considered to have attained many coping strategies, which he used to assist in dealing with his emotions.

It was noted that the appellant’s period in the PIPE unit had proved difficult for him. However, he was reported to have made significant progress, and despite his deselection due to an outburst of anger, it was felt that he had completed and achieved all that the unit could offer.

Moreover, although the appellant had had negative entries relating to being argumentative throughout his sentence, it was noted that he had not been physically violent for approximately 25 years. Psychology considered that,

The Prison Offender Manager (“POM”) agreed with Psychology, and the Wing Representative (“Wing Rep”) noted that whilst the appellant does not like being told “No”, he does not cause staff or prisoner issues and is currently settled on wing location.

Taking these matters into account, the LAP concluded that,

In the light of the recommendation from the LAP to downgrade the appellant to Category B, the DDC carried out a review of the appellant’s classification on 22 March 2024, following which the decision to maintain his Category A classification was communicated to the appellant on 23 April 2024.

The review included a summary of the appellant’s previous convictions, including the circumstances giving rise to the offences which led to the imposition of the sentence of life imprisonment.

It was noted that during the course of his sentence, the appellant was moved from St Nicholas Hospital due to his misbehaviour and disengagement in 2017, and that an HCR-20 assessment by a multidisciplinary team had concluded that at that time, the appellant posed a high risk of future violence, as

Since then, although the appellant has shown no actual violence, in 2019 he had to be moved from the Westgate unit due to his lack of engagement, and in 2021 he was deselected from the PIPE unit due to having threatened another prisoner.

In so far as Psychology was concerned, the report noted that “The present psychology report reaffirms the 2022 assessment”. The appellant had completed a significant amount of therapy during his time at Rampton Hospital, during which it was considered that he had achieved insight into his personality traits, trauma and offending. The appellant had taken full responsibility for his recent misbehaviour, and described skills he had used to deal with difficult situations. Moreover, despite his removal from the PIPE unit in 2023, it was considered that he had made significant progress whilst at the unit, and Psychology had concluded that,

The report noted the recommendation from the LAP to downgrade the appellant to Category B, which included reference to the appellant having completed extensive therapy, he had maintained his enhanced status, and was currently settled and posed no staff problems.

In deciding to maintain the appellant’s Category A status, the DDC considered that the appellant’s offending shows that he would pose a high level of risk if unlawfully at large, and that before downgrading could be justified, there must be “convincing evidence of a significant reduction in the risk”.

It was stated that,

In declining to hold an oral hearing,

In these circumstances,

The appellant sought to challenge the decision of the DDC to maintain his Category A status by way of judicial review, on two grounds:

Permission for judicial review was initially refused, on the papers, by HHJ Saffman on 16 September 2024, but granted on renewal, following an oral hearing, by DHCJ Ridge on 2 December 2024.

The judicial review hearing took place on 5 March and 17 April 2025, and the judge’s decision to refuse judicial review was provided in a judgment dated 4 June 2025, [2025] EWHC 1328 (Admin).

Prior to the hearing of the application for judicial review, a further review of the appellant’s security classification had been carried out by the LAP, which had recommended the appellant’s downgrading to Category B, in a report dated 15 November 2024. Moreover, in a decision dated 22 January 2025, the DDC had again decided, without an oral hearing, to maintain the appellant’s Category A status.

The judge initially set out the statutory framework pertaining to the categorisation and allocation of Category A prisoners, and noted at [10],

The judge reviewed the history of the appellant’s offending, and his progress in prison as evidenced in the dossier available to the LAP and the DDC. The latter had included within it a recent written report from the registered forensic psychologist, Hayley Mitchinson, dated 28 October 2023, in which she recommended downgrading. She also expressed her opinion that the appellant was assessed as posing a moderate risk of future sexual violence. The author noted that she had provided two earlier reports, and that because her current views upon risk and downgrading had not altered since then, it was necessary for her most recent report, which focused upon the appellant’s recent progress in prison, to be read in conjunction with her earlier reports.

The dossier did not in fact contain either of the two earlier reports, and although this omission does not appear to have been noticed by anyone during the course of the proceedings, following the hearing the judge brought this to the attention of the parties in correspondence dated 14 April 2025.

Mr Cohen, on behalf of the respondent, provided a written note in which he stated that having taken instructions on the issue, Ms Mitchinson’s opinion and recommendation was before the decision-maker, as the respondent’s officials had confirmed that past reports had been received for previous reviews and that the accumulated information relating to past reports and review decision was before the decision-maker at the time of the review under challenge. In those circumstances, it was submitted that there was no requirement for the DDC to have held an oral hearing before making his decision to maintain the appellant’s Category A status.

In exchange, Mr Buckley on behalf of the appellant, provided written submissions in which he submitted that it was arguable that Ms Mitchinson’s reasoning had not been set out in her most recent report, such that the decision under review may not have taken it into account. Moreover, this omission strengthened the case for an oral hearing, as it would have provided the opportunity for Ms Mitchinson to provide her reasoning in the course of the hearing.

In relation to the first point raised on behalf of the appellant, the judge observed at [53] that,

Whilst, in relation to the second point, the judge at [55] stated that,

In so far as the first ground of challenge was concerned, the judge concluded that the DDC,

In reaching this conclusion, the judge accepted that what had to be considered by the DDC was not whether there had been some improvement in a prisoner’s behaviour, or whether Category B would be better for him, but required the DDC to be satisfied that there was convincing evidence that the offender’s risk of re-offending, if unlawfully at large, had significantly reduced.

In the present case the seriousness of the appellant’s offending was relevant to the question of risk, as was the fact that he had not been compliant throughout his time in prison. Moreover, whilst Psychology had recommended downgrading, a previous HCR-20 assessment by a multidisciplinary team had concluded that in 2017, the appellant posed a high risk of future violence, and Ms Mitchinson currently assessed the appellant as posing a moderate risk of future sexual violence.

In relation to the second ground of challenge, concerning the need for an oral hearing, the judge reviewed the relevant authorities, and had regard to the guidance in the PSI. Thereafter, the judge set out his reasons for rejecting the submission that the DDC’s decision was procedurally unfair, as it had been made without recourse to an oral hearing, at [47] and [56],

As has already been observed, the appellant does not seek to challenge the judge’s findings in respect of the first ground of judicial review, namely that the DDC’s decision to maintain the appellant’s Category A classification was neither unreasonable nor irrational.

Instead, the appellant focuses upon the judge’s decision that the DDC was not wrong to refuse to grant an oral hearing before deciding to maintain his Category A classification. In doing so, he invites this court to allow the appeal in reliance on three grounds:

In the course of his oral submissions in support of these grounds, Mr Carl Buckley pointed out that the phrase “relevant primary fact” does not appear in the PSI at 4.7, and submitted that it was an unwarranted gloss on the wording in the directions. He submitted that this may have led the judge to have underestimated the significance of what was in dispute between the parties; firstly, in the light of the LAP’s view that the appellant had achieved all he needed to do, what if anything the appellant was required to do before he was suitable for downgrading, and secondly, the potential significance of the appellant’s transfer from the PIPE unit, in that whilst Psychology considered that the appellant had done all that could be achieved within the unit, the DDC considered that it was of relevance that he had been removed from the unit.

In support of the second ground, Mr Buckley pointed out that the LAP’s recommendation took into account the psychological report which considered that the appellant’s risk had already been reduced and that there was no further work which required to be completed. He submitted that under the PSI at 4.7, a relevant dispute arose from the fact that, despite the recommendation of the LAP to downgrade, the DDC had decided to maintain the appellant’s Category A status.

Mr Buckley submitted that these matters evinced an error of approach by the judge when he considered whether the DDC had been wrong not to hold an oral hearing, and that procedural fairness required such a hearing to take place.

In regard to his third ground, Mr Buckley accepted he had only advanced the issue, as to the need to have a signed witness statement from the respondent rather than the respondent’s position being communicated through counsel, following receipt of the judgment, as a further ground of appeal. He submitted that notwithstanding this, and in reliance upon R(Police Superintendents’ Association) v Police Remuneration Review Body and another [2023] EWHC 1838 (Admin), the judge was wrong to have adopted the respondent’s position, without there being tangible evidence to support it.

On behalf of the respondent, Mr Robert Cohen submitted that the judge’s approach to the issue, as to whether procedural fairness required an oral hearing to take place, was correct. He pointed out that the judge had expressly referred to the relevant parts of the PSI and the authorities relating to the correct approach to the issue, which stressed that it was for the DDC to make a series of judgments based on the particular circumstances of the case, as to what if any important facts relevant to risk were in dispute, and if so, whether they would be more appropriately resolved at an oral hearing.

Mr Cohen submitted that in the present case there were no such facts in dispute, and that the two matters which the appellant had sought to identify, were matters of judgment, rather than factual disputes. He submitted that it was in this context that the judge had used the term, “relevant primary fact”, which did not reveal any error of approach by the judge.

Mr Cohen pointed out that if the appellant’s second ground is correct, then an oral hearing would be necessary in every case in which the DDC declined to accept the LAP’s recommendation to downgrade a Category A prisoner. He submitted that this mechanistic approach to the PSI was not in accordance with 4.7 itself or the authorities relating to the issue, which required a broad evaluation of the particular circumstances relating to the prisoner’s risk if he was unlawfully at large.

Mr Cohen submitted that this is precisely the way in which both the DDC and the judge had approached the issue, and that the judge had not erred in his determination that the DDC had not been wrong in refusing to hold an oral hearing.

In relation to the third ground, Mr Cohen accepted that it would have been preferable for the respondent’s position to have been set out in a signed witness statement. However, he pointed out that the omission of the two earlier psychology reports from the dossier had not been raised in the course of the proceedings, and only arose following the hearing before the judge. In the event that the matter had been raised prior to the hearing, then no doubt such a statement would have been obtained. Moreover, if it had been raised in the course of the hearing, and the appellant had taken issue with the respondent's position as relayed to the court by counsel, such a statement would have been obtained. However, in the event that the respondent’s position had not been disputed, Mr Cohen submitted that the judge would have been entitled to have accepted the position, which was in effect what the judge had done in the present case, such that there was no procedural defect capable of vitiating the judge’s decision.

When considering the merits of the grounds of appeal in this case, it is necessary to have in mind a number of matters which arise from the text of the PSI themselves, together with observations made by this court concerning decisions by the DDC as to whether to maintain or downgrade a Category A prisoner’s classification:

In the light of these matters, it is clear that the question as to whether the DDC’s decision not to hold an oral hearing was wrong, must be considered in the context of the particular facts which arise in this case.

These of course include the circumstances leading to the imposition of the sentence of life imprisonment upon the appellant in 1995. In this regard, not only were the facts of the index offences of particular concern, including the knife-point rape and buggery of a young student, but these offences were committed against the background of previous convictions for similar offending against a nurse in her own home, which resulted in a significant determinate sentence being imposed upon the appellant, who thereafter made a determined effort to kill his cellmate.

Against this background, it is entirely understandable that the appellant was classified as a Category A prisoner from the outset of his sentence of life imprisonment, and indeed remained so in the period leading up to the LAP’s assessment in February 2024 when, as we were informed in the course of the hearing, a downgrading recommendation was made for the first time in the course of his sentence.

By that point in time, there was no dispute that the appellant had engaged in appropriate treatment during his period of transfer to Rampton Hospital, and had undertaken appropriate courses during the period of time which he spent on the PIPE unit at HMP Frankland. Nor was there any dispute that it was considered that the appellant had attained many coping strategies which he used to assist in dealing with his emotions.

Equally, however, there was no dispute that following his transfer to St Nicholas Hospital in 2016, the appellant had committed an offence of indecent exposure towards a female occupational therapist, and that he had to be removed both from the Westgate unit in 2019, and the PIPE unit in 2023. The former was due to his lack of engagement, whilst the appellant was deselected from the PIPE unit after he had threatened another prisoner.

Moreover, not only had the appellant been assessed by a multidisciplinary team as posing a high risk of future violence in 2017, but currently Psychology considered that he posed a moderate risk of future sexual violence.

It was in these circumstances, that the LAP made its recommendation for downgrading the appellant’s Category A status, noting that the appellant had undertaken a substantial amount of treatment and that there was no outstanding risk-reduction work for him to complete. Moreover, although it would appear that there had been four negative entries within the appellant’s dossier, the appellant had maintained his IEP (Incentives and Earned Privileges) enhanced status, which the LAP believed to be “….clear evidence of Mr Murcott demonstrating consolidation and understanding of his learning to date”.

Likewise, it was in the same evidential context that the DDC decided that, whilst the appellant had achieved a period of stability and improved self-management, “…a longer period of sustained good behaviour and application of skill is needed to show convincingly he has achieved significant risk reduction if at large”.

As I have already set out, although the original grounds for judicial review of the DDC’s decision to maintain the appellant’s Category A status included a irrationality challenge, this has not been pursued on appeal, as it is accepted that the judge was entitled to find that the DDC had addressed the correct test, and, on the basis of the evidence before him, had reached a rational decision.

Instead, the appellant pursues a procedural challenge to the DDC’s decision not to hold an oral hearing before deciding to maintain the appellant’s Category A status, the resolution of which also requires to be considered in the evidential context in which the decision was made.

In that regard, it is apparent that, apart from a difference of opinion as to whether, since the appellant’s deselection from the PIPE unit after he had threatened another prisoner, the recent period of good behaviour by the appellant amounted to “convincing evidence” that his risk of re-offending if unlawfully at large had significantly reduced, there were in reality no important factual disputes in this case, nor any significant disputes on the expert evidence.

It was in this context that the judge, at [47] of his judgment, after pointing out that there was no dispute about the appellant’s previous convictions, his disciplinary record whilst in prison, and the rehabilitative work which he had undertaken, observed that he was unaware of “any other potentially relevant primary fact”. In the context in which the judge used this phrase, not only am I unpersuaded that the use of the word “primary”, rather than “important” connotes any misunderstanding of the type of factual disputes which the DDC was obliged to consider under the PSI at 4.7(a), but I am also unpersuaded that it revealed any misunderstanding of the type of disputes which the DDC was obliged to consider under 4.7(b).

Indeed, as Mr Buckley was inclined to accept in the course of the hearing, the two issues which he had previously identified as disputes falling within either 4.7(a) and/or 4.7(b), were in reality matters of judgment, rather than disputes of fact or disputes on the expert material. The appellant’s removal from the PIPE unit was clearly of relevance, and the DDC was entitled to consider that a further period was required before the appellant’s recent good behaviour amounted to “convincing evidence” of a significant reduction in his risk of re-offending if unlawfully at large.

Furthermore, the assessment as to whether the available evidence as to appellant’s risk reduction was sufficiently strong so as to amount to “convincing evidence” was entirely a matter for the DDC to determine, and none of the factual or expert evidence which he was obliged to take into account in making this assessment was in dispute.

In these circumstances I am wholly unpersuaded that the judge’s reference to “relevant primary fact”, may have led him to underestimate the significance of the factual or expert evidence, or to have led him to underestimate the possible value of conducting an oral hearing in this case.

In relation to the second ground of appeal, whilst I can understand why it is that Mr Buckley submits that the LAP’s downgrading recommendation was in itself a matter which would tend in favour of an oral hearing under 4.7(b), if this was correct then, as Mr Cohen pointed out, this might give rise to the need to hold an oral hearing in almost every case where the DDC disagreed with a LAP’s recommendation to downgrade a Category A prisoner. In my judgment, the words in 4.7(b) ought not to be read so literally, but should be understood in the context of the paragraph as a whole, which concerns the existence of significant disputes about the expert evidence.

As I have already pointed out, there were no such disputes in this case, and, as the judge explained, at [56], “While the Director might not have followed the professionals’ reports in relation to the decision he alone was tasked with undertaking, there is no indication that the impact of the reports, whether in the light of the previous paragraph, Ms Mitchinson’s, or anyone else’s, was susceptible of acquiring materially added weight as a result of an oral hearing…”.

I consider that the judge was justified in reaching this conclusion. Not only had the appellant been able to make contributions throughout the course of the assessment process, including his solicitors having made written representations about the various reports, but the extent of their submissions in favour of an oral hearing was to “build upon” the arguments which they had already expressed and to fully explore “the narrative” which had already been provided within those reports.

However, there was no dispute about the events which formed the basis for the experts’ views, and, as the judge noted, the DDC had accepted that the LAP’s “…reasoning for downgrading are readily understandable”. There is nothing in the reports which have been provided to us, or in the submissions made in the course of the hearing, which would tend towards a different conclusion than that expressed by the judge, that the impact of those matters would have been, “…susceptible of acquiring materially added weight as a result of an oral hearing”. Nor, in my view, is there anything which would have undermined the DDC’s decision that the appellant’s recent period of good behaviour did not amount to “convincing evidence” of a significant in his risk of re-offending if unlawfully at large.

The third ground is limited to the judge’s decision to accept the respondent’s position that Ms Mitchinson’s earlier reports were before the DDC when he made the decision to maintain the appellant’s Category A status, rather than to seek a signed witness statement to that effect from the respondent.

I agree that had this issue been identified at an earlier stage of the proceedings or indeed during the hearing before the judge, then in the event of any dispute about the issue, it would have been necessary for the matter to be clarified by way of a signed witness statement from the respondent. However, not only is there no indication that the respondent was aware of the omission of these two reports from the dossier, such that this was not a case where any failure of disclosure arose, but the dossier itself had been viewed by the appellant and his solicitors who had provided written submissions to the LAP prior to the review taking place, without having identified the omission for themselves.

Indeed, the omission may never have surfaced had it not been for the care with which the judge had approached his consideration of the evidence, and very properly brought it to the attention of the parties and invited their submissions. Although Mr Buckley submitted that the omission itself raised the possibility that Ms Mitchinson’s reasoning may not have been fully appreciated, and that it strengthened the need for the DDC to have conducted an oral hearing, no submissions were made as to the form in which any clarification of the respondent’s position should be provided, either before or after receipt of Mr Cohen’s written note.

It is not infrequently the case in proceedings for judicial review that where a matter arises during the course of a hearing, instructions may be taken by one party and, in the event that they are not in dispute, those instructions are relied upon without the need for a signed witness statement. In the event that those instructions were to be disputed then no doubt the “best evidence” principle identified by Fordham J. in R(Police Superintendent’s Association) v Police Remuneration Review Body and another, at [15] would apply, and may require a document to be produced or a signed witness statement provided. However, this was clearly not the situation which arose in the present case, nor was it a case of non-disclosure

In these circumstances, I consider that the judge was entitled for the reasons he provided at [55] to accept the respondent’s position as explained in Mr Cohen’s note, rather than to require a signed witness statement from the respondent.

Therefore, for the reasons I have set out above, I reject the grounds of appeal, as I consider that the judge was entitled to conclude that the DDC was not wrong to refuse to grant an oral hearing before deciding to maintain the appellant’s Category A classification, and, if my Lords agree, I would dismiss this appeal.

I agree.

I also agree.