England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Tuesday, 9th September 2008

1. MR JUSTICE CRANSTON: Procedural fairness sometimes demands an oral hearing. There can be greater confidence with an oral hearing that the relevant standards have been properly applied and that the facts on which the decision is based are accurate. The oral hearing also gives the person affected by the decision the opportunity to tailor the arguments to the concerns of the decision-maker. The interests at stake are such as to trump other factors in the balance such as cost and perhaps efficiency. It is clear that procedural fairness does not impose the straightjacket of a quasi-judicial process and more informal procedures than what one expects before the courts or even tribunals may be acceptable. An oral hearing does not necessarily imply the adversarial process.
2. That is the legal context of this case where the claimant challenges a decision by the defendant, now the Secretary of State for Justice, that he should remain a Category A prisoner. He is serving a sentence of life imprisonment, his minimum term has expired and he is currently detained in a Protected Witness Unit. These factors, he contends, mean that the Secretary of State erred by failing to hold an oral hearing when determining his categorisation. My conclusion is that there should have been an oral hearing in the particular circumstances of the claimant's case. In addition, he contends that the Director of High Security Prisons (acting on behalf of the defendant) erred by failing to take account of his need to undertake offending behaviour courses when considering his categorisation. That I do not accept.

Background

3. The claimant has a long history of offending. He has 17 previous convictions for over a hundred offences. In 1995 he received three concurrent sentences of some three and a half years for offences of armed and attempted robbery. Whilst he served those sentences he was detained in a Protected Witness Unit ("PWU") as a consequence of turning Queen's evidence against his co-defendants. Then in January 1999 he was sentenced again, this time to six sentences of life imprisonment for offences of wounding with intent, robbery and attempted robbery and for related firearms offences. He also received a concurrent four year sentence for burglary and a concurrent ten year sentence for aggravated burglary. The offences related to events in April and June of 1998. The April 1998 events involved two domestic burglaries. During the course of the second burglary, a sawn-off shotgun was used to shoot the householder in the lower back as he ran off. The June events involved two armed robberies of a building society and during the course of the second robbery the claimant held a sawn-off shotgun to the stomach of a police officer. The claimant's tariff was initially set at eight years but on appeal the Court of Appeal substituted a tariff of seven years and six months, which expired in early July 2006.
4. That same month, July 2006, the claimant's solicitors asked the Local Category A Advisory Panel to recommend to the Director of High Security Prisons that the claimant should be "downgraded to Category B" as he was "able to show significant reduction in risk since his initial classification". Various documents were available for consideration of his categorisation. There were three reports by a forensic psychologist. In the first, the psychologist said that the claimant's risk factors remained the same. However, his motivation to address those factors had changed to some extent. To a degree there had been a reduction in risk. That report was dated November 2004. In the second report of February 2006, the claimant's location in the Protected Witness Unit was said by the psychologist to limit the interventions he was able to access. In other words, his allocation to that unit prevented him from undertaking the full range of offending behaviour work. The third report of March 2006, again by a psychologist, was lengthy. In one part the claimant's total PCL-R score (that is Psychopathy Check List: Revised) "indicates mainstream offending behaviour programmes are unlikely to be suitable for his needs". At paragraph 4.7 of that report the writer said:

"I do not believe mainstream offending behaviour programmes would meet his needs, however if resources were available he may benefit from some structured one-to-one interventions focussing on developing his insight into his risk factors and developing a realistic relapse prevention plan.

[The claimant's] location in the WPU [I think what is meant is the PWU] also limits the interventions he is able to access."

Moreover, the claimant himself wrote in June 2006 saying that he was unable to participate in offending behaviour work, despite applying.

5. In July 2006 the claimant's solicitors made representations. In putting the argument that the claimant should be recategorised, they contended that he had experienced problems accessing relevant offending behaviour work because of his location in the PWU. They said that his status as a protected witness meant that he was highly unlikely to seek to escape, and they advanced the need for an oral hearing regarding his categorisation both before the Local Category A Advisory Panel and also before the Director of High Security. Reference was made to the case of R (on the application Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498, [2002] 1 WLR 2264.
6. In August 2006 the Local Category A Advisory Panel at the prison where at the time the claimant was detained recommended that he should be recategorised. It said that some progress had been noted in the test scores assessing risk, although it said that he still remained a high risk in terms of likely re-offending. Overriding that fact, however, was that as a Protected Witness Unit prisoner his likelihood of escaping was very low, as he would lose the protection afforded to him by the police and put himself at substantial risk while at large. Additionally, his PWU status had reduced the possibility of having external contacts that could provide assistance prior to or following any escape. The Panel concluded that the risks that did remain could be adequately managed in Category B conditions. His recent custodial behaviour presented no contra-indication to downgrading, and as a lifer it was felt that downgrading to Category B would allow further opportunities to test out and to address further the risk issues that he presented.
7. In November 2006 the Director of High Security Prisons announced his decision on the claimant's case. The Director decided that the claimant's status as a Category A prisoner should remain. It is necessary to set out the reasons in some detail. The Director said that the claimant's overall behaviour had been satisfactory and that he had been compliant and posed no serious problems. But his compliant behaviour within the presently highly secure conditions could not on its own provide clear evidence of a reduction in the risks of re-offending. The Director recognised that he had taken part in some initial work and assessments to address his offending behaviour. He was willing to take part in further work but he still had some way to go to provide evidence of progress on the core issues relating to his violent offending. The Director noted that he had currently shown poor levels of insight into his offending and displayed little awareness of alternative ways of thinking and behaving. The progress on offending behaviour work completed to date could not, in the Director's view, provide sufficient evidence by itself of a reduction in his risk of re-offending. The Director took into account the Local Category A Advisory Panel's recommendation, but he also noted that the recommendation had been made solely on the basis of the Panel's consideration that his protected witness status reduced his risk of escaping and that he still posed a high risk of re-offending in a similar way as in the past. The Director was satisfied that the claimant's current location could not provide automatic grounds for his downgrading, since the claimant had been located within a Protected Witness Unit during his previous sentence but had re-offended in a serious manner on release. The Director said that downgrading "could not be justified to provide the opportunity for him to take part in offending behaviour work that might be available in less secure conditions". He considered that "an appropriate reduction in [the claimant's] risk must take precedence over a downgrading of his security category". The Director considered that downgrading could not be justified unless there was convincing evidence of a significant reduction of his risk of reoffending in a similar way and no such evidence was available. There was evidence of a high level of potential dangerousness and he had a long history of violent offending and had not been deterred from re-offending in a serious way by his previous custodial sentences.
8. In December 2006 the Director of High Security Prisons reconsidered the claimant's case. What had happened was that he had made his decision in November, not having taken into account the written representations of the claimant's solicitors. In January 2007 he reconsidered and maintained his earlier decision that the claimant not be recategorised. He said that the representations made by the claimant's solicitors provided no convincing reasons for recategorising the claimant. In relation to the request for an oral hearing, the Director said:

"The Director noted the reference to the Williams judgment, but did not accept that [the claimant's] status as a tariff-expired life sentenced prisoner automatically entitled him to an oral hearing of his review. He also noted [the claimant's] circumstances were not the same as those of the prisoner referred to in that judgment."

9. In February 2007 the Parole Board considered the claimant's case. It refused to direct the claimant's release or the move to open conditions. It said that at present there was no obvious way forward. It set out the problems in terms of the claimant's violence, emotional control and impulsivity but said that at that stage it was not in a position to comment on the means by which any reduction in risk could be achieved. There was a difference of opinion, it said, between the psychologists in the Prison Service and "the question of resources, neither of which are matters which the Panel can resolve, or on which they can properly make comment, save to express the hope that it will be possible for you to make progress in the near future".
10. The present judicial review was begun in March 2007. The claimant sought a quashing order of the decision of the Director of High Security Prisons to maintain his Category A status. Three grounds were advanced: the lack of an oral hearing, that the Director had erred by failing to take account of the claimant's need to undertake behaviour courses when considering his categorisation, and thirdly, a ground which is no longer live, that the Director had failed to disclose to the claimant all the material considered. In June 2007 Bennett J granted permission for this judicial review.
11. Subsequent to the initiation of the judicial review proceedings there has been a further psychological report on the claimant. That was in July of last year. In that summary report the writer said that it was difficult to assess accurately any reduction in risk in relation to the area of violence in the absence of structured intervention work. The writer noted that there was no empirical evidence to support one-to-one work as a means of reducing the risk of re-offending. The writer noted the fact that the claimant had not manifested offence paralleling behaviour on the unit. That was encouraging, although wing staff had commented that he tended to react strongly if things did not go his way, indicating some ongoing attitudinal concerns and the issue of emotional control. The report concluded by saying that at that stage robust evidence of reduction in risk to a level that clearly warranted recategorisation was not present.
12. There has also been a blunt assessment by an external probation officer. The probation officer wrote that there was no change in accredited programmes as the prison was unable to deliver, but the claimant was able to undertake some one-to-one work. The probation officer wrote:

"My view is that whilst he is a Category A prisoner he is being set up to fail by the Prison Service."

13. In December of last year the claimant's categorisation was considered again by the Local Category A Advisory Panel at the prison where he was then serving his sentences. The Panel recommended, as did the previous Local Advisory Panel, that he be downgraded to Category B. It noted that mainstream accredited behaviour courses were not available to him because of his location in the PWU.
14. In February this year the claimant's categorisation was once more reviewed by the Director of High Security Prisons, who decided that he should remain categorised as a Category A prisoner. After reviewing the representations and history, the Director noted that the claimant was on an enhanced level of the Prison Service Incentives and Earned Privileges ("IEP") scheme and had been fully compliant with prison regimes. It was noted that he had good relationships with staff and other prisoners. He had received no adjudications and there was no evidence of alcohol or substance misuse during the reporting period. The Director considered, however, that the claimant's good custodial behaviour could not by itself provide sufficient evidence of a reduction in his risk of re-offending in a similar way. The Director of High Security Prisons considered that other assessments of his risk had to be taken into account. The Director noted that he had expressed remorse about his offending behaviour, that he had shown motivation towards addressing the risk factors associated with it and that he had completed a number of courses. However, he had not yet been able to engage in specific accredited intervention work in order to address his violent offending, due to the fact that such work was not available to him. The Director noted that the claimant had also engaged in structured individual intervention work during August and November 2007. He had made some progress in addressing areas of risk and any further work could be undertaken as a lower category prisoner. The Director noted that if he had not been a protected witness it was the facilitator's view that he could be tested in a less secure environment. The Director of High Security Prisons considered that a more thorough risk assessment by a chartered psychologist was needed to establish the level of progress on the unaccredited one-to-one work. In relation to an oral hearing, the Director noted that in some cases "an oral hearing may be the fairest way to decide a prisoner's security category review". However, the Director considered that just because he did not agree with the recommendation to downgrade the claimant, this in itself did not provide sufficient reason to hold an oral hearing. The Director considered that there were no exceptional circumstances in the claimant's case that justified the need for an oral hearing.

The Law

15. Section 47 of the Prisons Act 1952 enables the Secretary of State to make rules for the regulation and management of prisons. Pursuant to that, the Prison Rules of 1999 were promulgated. There have been various amendments since then but none are relevant to this case. Rule 7(1) of those rules provides that prisoners shall be classified having regard to various factors with a view to maintaining good order and facilitating training, and for furthering the purposes of their training and treatment. The purpose of the training and treatment of convicted prisoners is said by rule 3 to be to encourage and assist them to lead a good and useful life.
16. Prison Service policy regarding categorisation is set out in Prison Service Order 1010 ("PSO 1010"). That PSO defines a Category A prisoner as a prisoner whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible. Paragraph 1.3 of the PSO says that consideration may also need to be given to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security. However, paragraph 1.3 goes on to say that this will only arise in exceptional circumstances since escape potential will not normally affect categorisation as it is rarely possible to foresee all the circumstances in which escape may occur. Paragraph 2.9 of the Prison Service Order provides that Category A prisoners must have their security category reviewed at least annually. A clear recommendation must be made by either the Governor or Deputy Governor of the prison as to whether a downgrading of the security category should be considered. Any representations from the prisoner must be addressed by the Local Category A Advisory Panel before the recommendation is sent to the central Category A Review Team ("CART"). The local panel sees the report and the prisoner's representations. It addresses any factual errors in the reports identified by the prisoner and takes any representations into account in developing the prison recommendation. The Governor is aware of all non-disclosable information in making the recommendation. The final decision is based on the CART's consideration of the case in the light of the reports and the recommendation from the establishment, and the prisoner's representations. The CART put their recommendation setting out the reasons to the appropriate person to decide the case. Under the Rules, if it supports an establishment recommendation for retention in Category A, the decision will be made by the head of the CART. If it supports a recommendation for downgrading the prisoner the case goes to the Director of High Security Prisons for approval. However, if it does not agree with the establishment recommendation the case will be referred to the Director of High Security Prisons.
17. The position of Category A prisoners was considered by the Divisional Court in the important case of R v Secretary of State for the Home Department ex parte Duggan [1994] 3 All ER 277. In that case Rose LJ commented that it was common ground that a prisoner in Category A endured a more restrictive regime and higher conditions of security than those in other categories. He mentioned, for example, that movement within prison and communications with the outside world were more closely monitored, that strip searches were routine, and that visiting was likely to be more difficult since there were comparatively few high security prisons so family and friends generally had to travel further. He also noted that educational and employment opportunities were limited. Perhaps most importantly, in relation to the key value of liberty, Rose LJ said that since a Category A prisoner was regarded as highly dangerous if at large, he could not properly be regarded by the Parole Board as suitable for release on licence. The Divisional Court, on the basis of its analysis, concluded that the consequences of a Category A decision for the prisoner were sufficiently serious that he was entitled to the gist of reports submitted on review of his Category A status.
18. In R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498, [2002] 1 WLR 2264, the Court of Appeal considered the inter-relationship between the recommendations of the Parole Board and the Prison Service's categorisation decisions. It concluded that the recommendations of the former were relevant to categorisation decisions by the Director of High Security Prisons. It held that the Prison Service had erred in that case by failing to hold an oral hearing to consider the recategorisation of a prisoner detained in Category A conditions after the Parole Board had recommended recategorisation. It acknowledged that the Category A Review Team concentrated on the risk to the public posed by an escape, but it held that in that case an oral hearing was demanded because the CART had failed to recognise the special circumstances of the case. The court said that in that case the appellant was a post-tariff life sentence prisoner. An open hearing before the Parole Board had resulted in conclusions favourable to him and that was followed by a closed hearing before the CART. On the basis of reports which had not been available to the Parole Board or had not been available to the appellant or his legal advisors, the CART had reached conclusions adverse to him which were seriously damaging to his prospects of release. For the court Judge LJ said:

"An oral hearing would have enabled the reasons for the contradictory views to be examined on behalf of the appellant and for the contents of any adverse reports to be directly addressed. In the final analysis the review team would, of course, have reached its own decision, but an oral hearing, and proper disclosure, would have ensured that the decision was the result of a better informed process, and the conclusions, and the reasons for them, would then have been received with correspondingly greater confidence"(Paragraph 32).

In the court's reasoning it was the exceptional circumstances of the case which led to its finding that there should have been an oral hearing before the Category A Review Team. Those exceptional circumstances were that there were contradictory views expressed by the Parole Board and the Category A Review Team with the obvious prospects of a major inconsistency between their respective conclusions. Moreover, adverse reports had not been disclosed to the claimant or his advisors.

Failure to hold an oral hearing

19. For the Secretary of State, Mr Patel's submissions were concise and to the point. He contended that the requirements of fairness did not demand, in the circumstances of this claimant's case, an oral hearing before the Director of High Security Prisons. He acknowledged that the precise standards that fairness require depend on the circumstances of the case, but that the Court of Appeal made clear in Williams that the requirements of fairness demand an oral hearing only in exceptional circumstances. In this case, he said, the Director was correct to say, as he did in his decision of early January 2007, that a tariff-expired lifer was not automatically entitled to an oral hearing for his categorisation review. In this case, said Mr Patel, the claimant could not adduce exceptional circumstances. In his submission, the Williams case made clear that the Court of Appeal were of the view that an oral hearing was required in that case to address new material before the Category A Review Team (on which adverse conclusions were drawn against the claimant) which had not been before the Parole Board hearing (which had resulted in conclusions favourable to the claimant). There were no such circumstances in this case. There was no new material and the Director was examining the same material as that before the Local Category A Advisory Panel. It is correct that there was a difference in opinion on the same material between the Panel and the Director but, submitted Mr Patel, that did not require an oral hearing.
20. In my judgment, the matter of whether an oral hearing should have occurred must be decided as a matter of general principle. The starting point is Lord Mustill's judgment in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531. There Lord Mustill said that where an Act of Parliament confers an administrative power, there is a presumption that it will be exercised in a manner which is fair in all the circumstances. Lord Must ill said that the standards of fairness are not immutable and may change with the passage of time. They are not to be applied by rote in every situation, because what fairness demands is dependant on the context of the decision, and this has to be taken into account in all its aspects. Clearly, the statutory background is an important context, but fairness will very often require that a person who may be adversely affected by the decision has the opportunity to make representations on his own behalf either before the decision is taken or, subsequently, to procure modifications (at 560).
21. More recently, in R (on the application of Smith) v Secretary of State for the Home Department [2005] UKHL 1; [2005] 1 WLR 350, the House of Lords considered the requirements of procedural fairness relating to an oral hearing. It was a case where determinate sentence prisoners had been recalled to prison for breach of license conditions. The judgment is thus concerned with a context different from that of the present case. There the recall decision impacted directly upon the fundamental value of liberty. Consideration of the risk posed was the only matter in the decision of the Parole Board whether to re-release. In the present case the categorisation decision does not impact directly on the claimant's liberty and risk is not the only matter which needs to be considered. Notwithstanding these differences, in my view the judgment in Smith is crucial because of the masterly statement of principle by Lord Bingham:

"The common law duty of procedural fairness does not, in my opinion, require the [Parole] Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society." (Paragraph 35).

Lord Bingham's statement of principle makes clear that common law standards of procedural fairness affecting an oral hearing are flexible, may change over time, and in general terms depend on the circumstances of the case. Clearly oral hearings are not required in all or even most cases, but importantly the context in which procedural fairness is being considered is determinative. There is no test of exceptionality. One considers the interests at stake and also the extent to which an oral hearing will guarantee better decision-making in terms of the uncovering of facts, the resolution of issues, and the concerns of the decision-maker. Cost and efficiency must also be considered, often on the other side of the balance.

22. In the context of this case, the consequences of the categorisation decision are, in my judgment, sufficiently important that they require a standard of procedural fairness whereby the claimant is able to put his case at an oral hearing. That context involves five particular factors. First, he is a Category A prisoner. Secondly, his tariff has expired. Both are significant because their combination means that delay in moving from Category A conditions is highly likely to delay his eventual release. Liberty is obviously affected. Since the consequences of an adverse Category A decision are so serious, these two factors point in the direction of a particularly high standard of procedural fairness.
23. Next, on two occasions the local prison has recommended that the claimant should be recategorised. As a consequence, there is an inconsistency between, on the one hand, the approach of the local prison and, on the other hand, that of the Director of High Security Prisons. I do not accept the claimant's submission that this results in an impasse. The matter is also different from that considered in the Williams decision, since the recommendation of a local prison on categorisation is not the same as a decision of the Parole Board. Nonetheless, this inconsistency supports the case for an oral hearing to explore it in greater depth. At the end of the day there may be no inconsistency but simply a difference of opinion, and for very good reasons, but it is as well that the matter be explored at an oral hearing.
24. A closely related point is that the approach of the Category A Review Team may well benefit from the closer examination which an oral hearing could provide. After all, the local prison has responsibility for the care of the claimant and its views on risk and its management are matters which might be better tested by way of an oral hearing. Finally, the claimant is in a Protected Witness Unit. That bears on various factors such as risk and his ability to undertake work which could have an impact on a reduction in that risk. An oral hearing may better explore the special factors appertaining to the claimant's location in the unit.
25. In my judgment, therefore, the cumulative effect of these five factors tip the balance in favour of an oral hearing. If it were necessary to do so in terms of Williams I would categorise these as exceptional circumstances. In any event, my conclusion is that as a matter of principle an oral hearing is demanded. The principle of procedural fairness requires a focus on the context of the case, taking into account the nature of the decision and its consequences and the interests at stake. In this case my view is that the combination of the five factors point firmly in favour of an oral hearing.

Failure to take account of claimant's need for courses

26. Rule 3 of the Prison Rules provides that the purpose of training and treatment of convicted prisoners should be to encourage and assist them to lead a good and useful life. In R (on the application of Walker) v Secretary of State [2008] EWCA Civ 30, the Court of Appeal concluded that the Secretary of State had acted unlawfully by failing to provide the resources necessary to enable prisoners to progress towards release while serving indeterminate sentences for public protection. The essence of the decision is set out at paragraph 65 of the judgment where the Court of Appeal said that if the Parole Board was not placed in a position in which it could decide whether a prisoner was a danger to the public, it would not be able to determine whether detention was still necessary, and thus whether it was still lawful, under Article 5(1) of the European Convention on Human Rights. In such circumstances, said the court, a prisoner will have been deprived of the opportunity of satisfying the statutory pre-condition of release and will have been prevented from making a meaningful challenge to the lawfulness of his detention.
27. Mr Southey submitted that the combined effect of rules 3 and 7 on the categorisation of prisoners was clear. He submitted that a categorisation decision would be ultra vires if it did not seek to rehabilitate prisoners. In other words, the Prison Rules require consideration of the needs of training when decisions are made regarding categorisation, including of Category A prisoners. He said that it should not be surprising that the Prison Rules do that since risk is not a matter which can be objectively assessed. It needs subjective evaluation to determine whether risk is at an acceptable or unacceptable level. In determining what is acceptable, there is no reason why account should not be taken of training needs. If training could be arranged for Category B prisoners but was unavailable for Category A, that suggested that a higher level of risk would be acceptable in moving to Category B than would be acceptable if training was available for Category A prisoners.
28. In Mr Southey's submission, the claimant was a prisoner serving an indeterminate sentence. There was a good reason why rehabilitation should be taken into account when considering recategorisation in his case. If rehabilitation was ignored, there was a risk that the claimant would be unlawfully denied the opportunity to demonstrate to the Parole Board the fact that he had made progress. The Parole Board decision to which I referred, in its characterisation that there seemed no obvious way forward, suggested that there was a need for the claimant to be given an opportunity to progress. However, in Mr Southey's submission the claimant had not been given that opportunity. The most recent categorisation review proposes that there should be further risk assessments conducted, but it was not suggested in that decision of earlier this year that he should be given facilities to reduce risk. In Mr Southey's submission there was a real risk that Articles 5(1) and 5(4) would be violated.
29. A final matter, in his submission, which highlighted the need for rehabilitation to be brought into the equation when considering categorisation was because of the domestic legal obligations of the Secretary of State. Consequently, in the light of these factors, Mr Southey submitted that the Director of High Security Prisons erred when he directed himself that downgrading could not be justified to provide the opportunity for the claimant to take part in offending behaviour work that might be available in less secure conditions. In his submission, the Director appeared to take no account of training needs. If account were to be taken of those needs, there would be occasions when it could be determinative in a categorisation decision.
30. Perhaps the language of the Director in his decisions could have been clearer. On my reading of the decision, however, the Director did not direct himself that no account could be taken of the training needs of the claimant. Instead, the Director concluded that those needs were outweighed by the concerns about security, as evidenced by the claimant's high risk. The Director's decision to maintain the claimant's Category A status was because the claimant had not adduced convincing evidence of a reduction in risk. In my judgment, the Director was entitled to conclude that an appropriate reduction in the claimant's risk had to take precedence over a downgrading of his security category. Moreover, from what I have said earlier, the evidence is that there is some work which the claimant could undertake to reduce risk. One of the reports by the psychologist indicated that this is not a case in which there was an impasse. It is not a Catch-22 situation where the claimant is unable to access opportunities to demonstrate reduced risk but is unlikely to be recategorised unless such a reduction in risk is achieved through undertaking those opportunities. Indeed, one of the psychology reports indicates that the claimant is unlikely to be suitable for some mainstream offending behaviour programmes. So while I accept Mr Southey's submission that a higher degree of risk may be acceptable if a prisoner needs training and there is a higher risk associated with steps facilitating such training, the decision of the Director in this regard cannot be flawed on this basis in public law terms for ignoring a relevant consideration.

Conclusion

31. In the light of these considerations, the decision of the Secretary of State should be quashed. In the context of this case procedural fairness demanded that there be an oral hearing. As I said earlier, the Secretary of State subsequently made another decision after these judicial review proceedings were instituted. In my view that does not make the matter academic because there is nothing in the subsequent decision to indicate that the Director is properly considering the matter of an oral hearing. As with the previous decision, there is no suggestion that he has sufficiently taken into account the demands of procedural fairness in this claimant's case.
32. MR ARNOTT: My Lord, I think I noticed one matter in relation to your reference to the probation report. I think it is the report of Malcolm Ayres you quoted. The quote was from the report of the second review, actually, which I think is at page 153. I think it was the report that first was used at page 32. I am not sure that much turns on it.
33. MR JUSTICE CRANSTON: Thank you. I think the two were together and I merged them. I will make a note of that.
34. MR ARNOTT: Could I ask, my Lord, if you would clarify that the anonymity order continues.
35. MR JUSTICE CRANSTON: Yes, that continues.
36. MR ARNOTT: In terms of relief, the claimant has asked that both decisions of the Director be formally quashed.
37. MR JUSTICE CRANSTON: Let us hear Mr Patel on that.
38. MR PATEL: My Lord, they are both not effective.
39. MR JUSTICE CRANSTON: You are not happy, but you are content with that.
40. MR PATEL: I am. My Lord, could I make an application for permission to appeal? I will do it fairly quickly. I appreciate the standard of fairness changed, but your Lordship's judgment gives five general factors which not only apply in this case but also potentially apply in many cases. Your Lordship's judgment is that those factors and the cumulative effect of those factors tipped the balance such that today, 2008 procedural fairness requires an oral hearing. Of course, oral hearings are one facet of procedural fairness, albeit an important facet. Certainly I think it is our view that your Lordship's approach certainly advances the law in this area. We would benefit from an appeal to the Court of Appeal.
41. MR JUSTICE CRANSTON: Let us hear Mr Arnott.
42. MR ARNOTT: My Lord, I am not sure that is consistent with your decision. We needed to make a case on exceptional circumstances, as the test in Williams. I am not sure you are advancing the law. Also in terms of how many people this judgment may effect, I do not think we have any evidence of that.
43. MR JUSTICE CRANSTON: Unfortunately, we do not have any evidence of that, even though I asked yesterday.
44. MR ARNOTT: I think it is common ground that there are not a lot of people in Protected Witness Units and probably not that many Category A --
45. MR JUSTICE CRANSTON: I do not think I can take that into account because I do not have evidence. I think, Mr Patel, you will have to go elsewhere, in the sense that in my judgment the number of special factors in this case were such that it is not inconsistent, in my view, with existing authority. Anything else?
46. MR ARNOTT: My Lord, I would only ask for the claimant's costs and also a detailed assessment of publicly funded costs.
47. MR JUSTICE CRANSTON: Yes. Anything further?
48. MR PATEL: No, thank you.
49. MR JUSTICE CRANSTON: Thank you very much.