Vary & Ors, R (on the application of) v Secretary Of State For Home Department

A public authority may revise and apply a lawful policy to persons previously dealt with under an earlier policy. Prisoners do not ordinarily have a legitimate expectation that an existing categorisation policy will continue to govern them, or that a favourable categorisation will be retained.

However, the revised policy must not determine the outcome inflexibly. The decision-maker must consider each prisoner’s individual circumstances on proper grounds, including relevant conduct and changes in circumstances. A failure to show that such matters were considered renders the decision unlawful.

The claimants were prisoners serving lengthy sentences who had been placed in category D, permitting detention in open conditions. Following an escape by another long-term prisoner, the Prison Service reviewed prisoners with more than five years left to serve and reclassified the claimants as category C prisoners in closed conditions.

They sought judicial review on grounds including irrationality, procedural unfairness and legitimate expectation. The central issues were whether the revised policy could lawfully be applied to them, and whether the reviews demonstrated proper consideration of their individual circumstances and conduct.

1. Outcome. The decisions reclassifying the claimants as category C prisoners were set aside. The defendant was directed to reconsider their grading with an open mind and on all material available at the date of the fresh decision. The claimants could remain in category C conditions pending that reconsideration.
2. The defendant was entitled to adopt a revised categorisation policy and apply it to prisoners previously categorised under an earlier policy. The claimants had no legitimate expectation that they would be excepted from a lawfully adopted policy, either absolutely or unless overriding public interest justified its application. Re Findlay and R v Secretary of State for the Home Department ex parte Hargreaves were significant obstacles to the claimants’ case.
3. The distinction between changes affecting future decisions and the reversal of a favourable past decision was not decisive. Although the factual expectation might be stronger in the latter case, the principles of certainty, reasonable predictability and fairness applied in both contexts.
4. The revised policy could be given enhanced weight to promote consistency, but it could not automatically determine the result. Individual consideration on proper grounds remained necessary. The court’s task was to decide whether applying the policy was a just exercise of power, within the applicable limits of judicial review.
5. The evidence did not show that the decision-makers had considered the claimants’ conduct generally, or particularly their conduct after they had been placed in category D. Acceptance of background facts did not establish that those facts had been taken into account in reaching the decisions. That failure was sufficient to make the reviews unlawful.
6. The court also observed that the consequences for individuals of being moved from category D to category C might require express consideration, but the decision was not based on that ground.

The judgment records that the defendant sought permission to appeal. The judge considered that the case raised interesting but unsuccessful legal arguments, while the successful ground depended on the interpretation of the documentary evidence and statements. No appellate decision is stated.