H, R (on the application of) v Secretary of State for Justice

We have today before us an appeal for which permission has been granted on the question of whether a category A prisoner was entitled to have an oral hearing. A local review panel has recommended a re-categorisation to category B, but the Director of High Security Prisons has declined to accept that recommendation so that the prisoner remains a category A prisoner. Should an oral hearing have been held before that conclusion was reached?

That obviously raises difficult and troublesome considerations. The learned judge, Cranston J, held that there should have been, and he identified five separate factors which in his view made this case exceptional, which I included not merely the change of view between the local review panel and the Director of High Security Prisons but also the fact that this particular prisoner is a member of the Protected Witness Unit, which makes this case at any rate unusual.

When Mr Patel for the Secretary of State opened the appeal we asked what the position would be about the next review, the first review having taken place in January 2006 and the second in February 2008. It seemed to us that there must be another review shortly to come into existence in January 2009. To our surprise we were told that in fact there had been a third review by the local review panel, which had been endorsed by the prisoner governor on 12 January 2009. We were further surprised to hear that the respondent had not been informed of the result of that review. It seemed to us that the court ought to be informed, as indeed the respondent ought to be informed, as to the result of that review and Mr Patel agreed. That recommendation of the local review panel is in fact that the respondent’s Category A status should be maintained, and reasons are given for that. That seems to us to cut away the whole ground on which the appeal was to have proceeded because it was an important element in the appeal that a difference of view had been taken between the local review panel and the Director of High Security Prisons.

Now that on this third review the Category A status is to be maintained, at any rate for six months because it will be reviewed in six months’ time, the procedure will be that the matter will go to the Category A review team and, if they agree with the recommendation of the local review panel, the matter will not proceed to the Director at all. Mr Southey who appears for the respondent has been taken rather by surprise by this development and does not wish to commit himself at this stage to the proposition that an oral hearing should not now be required, but what is perfectly clear is that this court cannot possibly decide whether an oral hearing would now be required on the material that we have in relation to this third review and that the judge’s decision in relation to the second review has become completely academic since things have moved on in the way I have described.

Mr Patel urges us to hear the appeal nevertheless because he maintains there is a point of principle at stake. Nevertheless, the precise facts are always going to be very important in a case of this kind and the important question of when an oral hearing should be required in a case like this should in our view be decided in a case where the facts really matter, not in a case where the facts have moved on, and we accept Mr Southey’s submission that it would be in those circumstances disproportionate for this court to decide questions which have now become academic in the light of subsequent events. We will therefore make an order declining to hear this appeal on the basis that it is academic, and we also record Mr Southey’s acceptance on instructions that it would be difficult to say that the case is one of any general application because of the five specific factors on which Mr Justice Cranston relied, and the decision should certainly not be taken as a precedent for any wider concept of any oral hearing than the judge ordered in the particular circumstances of this case. So in those circumstances, as I say, we will declare that the appeal is academic and we will not proceed further on it.