Sunder v Secretary Of State For Home Department

Section 3 of the Human Rights Act 1998 did not apply retrospectively to a prison security-classification decision made before the Act came into force. Articles 5 and 6 of the European Convention on Human Rights therefore could not found a challenge to that decision.

On materially indistinguishable facts, procedural fairness did not require disclosure of more than a sufficient gist of sensitive security information: [1998] 1 WLR 790 was followed. A Category A classification was not irrational where serious firearms offences had a religious motive capable of being characterised as religious extremism, and the seriousness of the offences independently supported the decision.

The applicant, who was serving life imprisonment for murder and manslaughter committed at a religious meeting, had been returned to Category A status following information linking him with Sikh extremist groups and an assessed risk of further serious offending if unlawfully at large.

Stanley Burnton J refused permission to apply for judicial review of the Category A Review Committee's decision confirmed on 4 May 2000. The applicant made a renewed application for permission to appeal. He alleged breaches of Articles 5 and 6 of the European Convention on Human Rights, procedural unfairness because only the gist of security material had been disclosed, and irrationality.

1. The renewed application for permission to appeal was refused. The decision challenged was made before the Human Rights Act 1998 came into force. Applying R v Lambert, [2001] UKHL 37, Tuckey LJ held that section 3 had no retrospective effect. The applicant could not therefore invoke Articles 5 or 6 in relation to the May 2000 decision.

2. Tuckey LJ added that the judge's conclusions on the Convention arguments were compelling. Continued detention arose under the original life sentence, so Article 5 was not engaged. Administrative re-categorisation of a prisoner did not determine a civil right or a criminal charge, so Article 6 was not engaged. These observations were not necessary to the refusal because the Act was inapplicable.

3. The common-law procedural-fairness challenge failed. The applicant had received the gist of the undisclosed police information. The gist statement was modelled on, and was sufficient under, R v Secretary of State for the Home Department ex p McAvoy, [1998] 1 WLR 790. The cases were indistinguishable. The contention that that authority had been overtaken by the Human Rights Act did not assist in a challenge governed by the common law.

4. The irrationality challenge also failed. It was rational for the Committee to regard a killing motivated by anger at remarks about the Sikh religion as religious extremism. In any event, the offences were exceptionally serious and the reasons given disclosed no irrationality in retaining Category A status.

• Court of Appeal (Civil Division): Tuckey LJ refused the renewed application for permission to appeal.
• Queen's Bench Division (Admiralty Court): Stanley Burnton J refused permission to apply for judicial review of the Category A Review Committee's decision.