Smith, R (on the application of) v Secretary of State for the Home Department

A public authority’s risk assessment is not irrational merely because it differs from earlier assessments or adopts a different view of disputed evidence. A decision-maker may reject an account as untrue where the surrounding records make honest mistake an untenable explanation. In assessing a serving prisoner’s need for protective accommodation, the Prison Service must consider police risk assessments, but the police do not determine the placement decision. Where the decision-maker reaches a permissible view of the evidence and applies it to the identified risk, the court will not substitute its own assessment. Reliance on articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms does not independently succeed where the claim depends on establishing that the underlying risk assessment was irrational.

The claimant, a life prisoner, had provided information to the police about an alleged confession by another prisoner. After an earlier judicial review, he was admitted to a Protective Witness Unit. A later Prison Service assessment concluded that the alleged incident could not have occurred because the relevant prisoners were not in the same prison at the same time. It assessed the risk as low to medium and recommended placement in a Vulnerable Prisoner Unit.

The claimant challenged the Secretary of State’s resulting decision, alleging that the assessment was irrational or perverse and relying on articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms. The central issue was whether the Prison Service’s assessment and consequential placement decision were legally flawed.

1. The claim was dismissed. The Prison Service’s assessment was not irrational or otherwise flawed.
2. The assessment differed materially from several police assessments, including one made three days earlier. That difference did not itself establish irrationality. The court was entitled to examine whether the Prison Service had reached a permissible view on the evidence.
3. The decision-maker was entitled to conclude that the claimant’s account of the alleged confession was untrue. The chronology and prison records made an explanation based on honest mistake untenable. The resulting conclusion that the alleged offender was unlikely to have an interest in the claimant, or to know that the claimant had provided information about him, was reasonably open to the decision-maker.
4. The Prison Service was responsible for the placement decision. It had to consider police risk assessments, but the police did not determine the decision: [2003] EWCA 686. The Prison Service was therefore entitled to adopt its own assessment of the relevant risk and the suitability of a Vulnerable Prisoner Unit.
5. The reliance on articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms added nothing once the alleged irrationality of the assessment failed. The disputed events concerning the claimant’s proposed move to an open wing and later material concerning prison records were given little or no weight and did not affect the result.
6. The anonymity order was lifted. Costs were ordered against the publicly funded claimant on the usual terms, with permission for the Secretary of State, upon assessment, to set off the costs against costs payable in the earlier proceedings.

The judgment describes an earlier judicial review concerning the claimant, decided by Jack J on 7 March 2003: [2003] EWHC 406 Admin. That earlier decision resulted in declarations concerning the criteria for admission to a Protective Witness Unit. The present judgment determined a subsequent application concerning events and decision-making after that judgment.