Law Report: Prisoner is entitled only to gist of review material

A prisoner whose security categorisation was due for review was entitled only to be informed of the gist of the material to be put before the review body, and not to be given the material in its entirety.

R v Secretary of State for the Home Department, ex parte McAvoy; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Hobhouse and Lord Justice Mantell) 3 December 1997

The Court of Appeal dismissed the appellant's appeal against the dismissal his application for judicial review of the decision of the Home Secretary not to make available to a prisoner all the material which was to go before a review body considering his security classification.

The appellant had been convicted of a very serious armed robbery in 1984, and had been classified as a category A prisoner. He had remained in that category ever since.

Edward Fitzgerald QC and Philippa Kaufmann (Prisoners' Advice Service) for the appellant; Kenneth Parker QC and Dinah Rose (Treasury Solicitor) for the Home Secretary.

Lord Woolf MR said that the classification of category A prisoners was reviewed annually, and was normally conducted by a review team, who referred to a review committee only those cases in which there was an overall recommendation to downgrade classification, or cases which had not been before the committee for five years.

The review of the appellant's classification in 1995 had not come within the normal criteria for recommendation to the committee, but had been referred as an exceptional case because of representations made on his behalf with the assistance of the Prisoners' Advice Service. Prior to the review he had been give the gist of the material which had been prepared for it by the reporting officers at the prison.

It was the appellant's contention that a prisoner should be supplied with all the material put before the review body prior to his making representations, or at least with the names of those who had provided the information to the review body. It had been submitted on his behalf that in the light of the authorities there was no justification for the Home Secretary not to adopt a more open stance. It was the current practice when considering applications for parole to make the material on which the Parole Board acted available to the prisoner. If that could be done with regard to parole applications it could equally be done with regard to the categorisation process.

The court accepted that it was desirable, when deciding a matter which had the impact on a prisoner of being placed in category A, that the approach should be to ensure as far as was practicable that fairness should be achieved. However, the decision whether in any particular situation the procedure adopted was fair or unfair had to be made not only in the light of the prisoner's situation, but also in the light of the practical considerations which must apply in the proper running of a prison.

There was a distinction in the nature of the process of the Parole Board and the security categorisation review body. The result of a favourable decision by the Parole Board was that the prisoner was released, but a change in security categorisation did not have that effect. The body which reviewed categorisation and the Parole Board were different: one was a purely internal administrative body, and the other was independent.

In the end the court had to decide whether the process adopted on review of categorisation was fair with regard to the nature of the exercise carried out. In R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 the House of Lords had endorsed the provision of the gist of the material relied on, rather the actual material, where a prisoner serving a mandatory life sentence was to make representations about the period to be served for retribution and deterrence. The procedure being followed under the present policy with regard to categorisation reviews was perfectly satisfactory, particularly because the Home Secretary was prepared to consider in the circumstances of any particular case whether additional information should be made available. The appeal would be dismissed.