G v Secretary of State for the Home Department

When deciding whether a highly dangerous prisoner should remain in category A, the decision-maker must consider whether exceptional circumstances mean that the aim of making escape impossible can be achieved in lower security. Exceptional circumstances are not confined to physical inability to escape. A strong disincentive to escape may be relevant. Once the issue is raised, the decision-maker must address both its relevance and weight. Failure to do so makes the decision unlawful. On judicial review, the court should not substitute its own categorisation or refuse relief merely because the same outcome may be likely.

G, a serving prisoner serving a discretionary life sentence for serious violent offences, was retained in category A after review. He relied on his protected-witness status and the loss of protection that escape would cause as a strong disincentive to escape. The Administrative Court, before Jackson J, dismissed his judicial-review application on all grounds on 20 September 2005. The appeal concerned whether the director had to address that disincentive when considering lower security conditions, and whether the court could treat the outcome as inevitable.

Appeal allowed. The decision retaining G in category A was quashed. The next review was to be conducted on the proper legal basis. The court expressed no view on the category that should ultimately be assigned.

1. The Prison Rules 1999, made under section 47(1) of the Prisons Act 1952, operated with PSO0900 and PSO1010. The amended policy recognised that, in exceptional circumstances, the aim of making escape impossible might be achieved in lower security conditions.
2. Pill LJ held that the relevant inquiry was not confined to physical inability to escape. The possibility and motivation for escape were relevant when deciding whether category A or category B conditions were necessary. The court applied the reasoning in William Pate v Secretary of State for the Home Department [2002] EWHC 1018 (Admin). Dyson LJ agreed and said that exceptional circumstances were not necessarily limited to physical disability. He regarded Dennis Roberts v the Secretary of State for the Home Department [2004] EWHC 679 (Admin) as accurately expressing the duty to consider whether lower security could achieve the policy aim.
3. Once the prisoner raised the issue as an exceptional circumstance, the director had to address the relevance of the asserted lack of motivation to escape and the weight to be given to it. The absence of any reference to the protected-witness argument in the detailed decision letter justified the inference that it had not been considered. It was a principal controversial issue.
4. The court rejected the submission that relief should be refused because the same decision was inevitable. To decide the categorisation itself would trespass on the director’s role. Hallett LJ agreed, observing that the result might still be category A, but that the lawful decision had to be made by the director.

• Court of Appeal (Civil Division): Allowed the appeal and quashed the categorisation decision: [2006] EWCA Civ 919.
• Administrative Court, Queen’s Bench Division: Jackson J dismissed G’s application for judicial review on 20 September 2005. No citation is stated in the judgment.