Last month the Secretary of State for Justice accepted in judicial proceedings brought by a Category A prisoner that when undertaking a Category A review, he is under a duty to attempt to resolve disputed factual allegations which are material to the decision, i.e. disputed factual allegations going to the issue of risk. The sealed Consent Order from Lang J can be found here.
The Claimant had challenged the Defendant’s refusal to downgrade him from Category A. One of his grounds was that the decision-maker had made no effort to resolve a number of disputed factual issues that underpinned the refusal. In defending the claim, the Defendant argued that the decision-maker is not required to resolve factual disputes in the context of re-categorisation decision-making.
The Claimant challenged that submission, arguing – relying on R (De Silva) v Secretary of State for Justice [2025] EWHC 128 (Admin) – that where there is a factual dispute in respect of a material issue, i.e. one which is relevant or potentially relevant to the test the Defendant must apply, the Defendant is required to direct its mind to the disputed facts and to at least attempt to determine whether the relevant facts are established and make any decision based on that determination.
Shortly before the hearing of the claim, the Defendant accepted that he was under such a duty. This provides an important extension of the principles in De Silva and R (Pearce) v Parole Board [2023] AC 807 (SC) to the Category A context.
Jesse Nicholls, Rosalind Comyn and Catherine Arnold acted for the Claimant, instructed by Daniel Guedalla at Birnberg Peirce.