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

A prisoner’s security categorisation is lawful where the decision-maker applies the relevant prison policy, considers the available reports and provides an adequate opportunity for representations. An oral hearing is not required merely because the case is unusual or the prisoner faces a difficult choice between rehabilitation arrangements and security placement.

Article 2 is engaged only where there is a real and immediate risk to life which the authorities knew or ought to have known about and failed reasonably to address. In assessing that issue, the court must review the Prison Service’s safety decision with appropriate intensity while recognising its operational expertise.

The claimant, a life prisoner serving a sentence for rape, challenged decisions maintaining his Category A status and transferring him to HMP Wakefield. He argued that the Secretary of State had acted unfairly, failed to consider relevant reports and an alleged assurance that he would never return to a dispersal prison, and misapplied R (Pate) v Home Secretary. He also alleged that the transfer exposed him to a risk contrary to Article 2 of the ECHR and breached a legitimate expectation.

The court had to determine whether the alleged assurance was proved, whether the categorisation process was procedurally lawful and rational, and whether the transfer engaged or breached Article 2.

1. Alleged assurance and legitimate expectation. The factual dispute about whether an assurance had been given could not properly be resolved without cross-examination. The claimant withdrew any application for cross-examination. The court therefore had no grounds to reject Mr Golds’ direct evidence that he had given no assurance that the claimant would never return to a dispersal prison. The claims based on that alleged assurance consequently failed.
2. Article 2. The applicable question was whether the authorities knew or ought to have known of a real and immediate risk to the life of an identified person and failed to take reasonable measures within their powers to avoid it, applying Osman v UK (1998) 29 EHRR 245. The nature of the threat, the protective measures available and the adequacy of those measures were relevant, applying R (Bloggs 61) v Home Secretary [2003] EWCA Civ 686. The court reviewed the decision with the intensity appropriate to an Article 2 case but did not substitute its own view for that of the Prison Service.
3. The evidence disclosed no actual or immediate threat to the claimant’s life. The Prison Service had undertaken a careful risk assessment, investigated the relevant intelligence and considered the precautions available at HMP Wakefield. The transfer therefore did not engage Article 2 and was lawful.
4. Category A decision-making. The claimant had received the gist of the reports, had made representations, and was later given full disclosure. The Category A Committee gave reasons, and the Deputy Director General lawfully adopted and confirmed those reasons. An oral hearing was not required because there were no exceptional circumstances and no impermissible catch-22.
5. The Committee and the Deputy Director General were entitled to consider the claimant’s serious offending, history of violence, prison reports and incomplete offending-behaviour work. The challenge based on failure to consider the reports could succeed only if the decision was irrational or perverse. It was not.
6. Applying R (Pate) v Home Secretary (2002) EWHC 1018 (Admin), the decision-makers were entitled to conclude that the claimant presented the relevant risk if he escaped and that escape must therefore be made impossible. The court rejected the submission that Pate had been confined to prisoners suffering chronic illness.
7. The application for judicial review was dismissed.

This was a first-instance judicial review. Interim relief led to the claimant’s transfer from HMP Wakefield to HMP Belmarsh, and permission to apply for judicial review was later granted. The court dismissed the substantive claim.