Brownhill, R (on the application of) v Secretary of State for the Ministry of Justice

A prisoner's security-category review is amenable to judicial review on irrationality grounds, but the court will not substitute its assessment of risk for that of the competent prison authority. Detailed consideration of the offence, offending history, risk-reduction work, outstanding treatment needs and conduct may rationally justify retaining category A status. The authority must not impose an impossible condition for recategorisation. However, the unavailability of a particular course does not create an unlawful or insuperable hurdle where alternative means of addressing the relevant risk factors remain available and the decision-maker has not treated completion of that course as an absolute requirement.

The claimant, a life prisoner detained in category A conditions, sought judicial review of the Secretary of State’s decision that he should remain in that category. His tariff had expired, and he relied on his completion of several offending-behaviour programmes, improved custodial conduct and willingness to undertake further work.

He argued that the decision was irrational because required programmes were unavailable or inaccessible, creating a circular obstacle to recategorisation. A later annual review also retained category A status and was considered when assessing the legality of the earlier decision and any discretionary relief. The central issue was whether the decisions were irrational in the light of the claimant’s progress, outstanding risk factors and access to further treatment.

1. The application was dismissed. Neither the February 2007 decision nor the later November 2007 review was irrational or unreasonable on its own terms. The reasons demonstrated consideration of the offence, previous convictions, progress on offending-behaviour programmes, custodial conduct, outstanding work and the continuing risk of serious reoffending if unlawfully at large.
2. The claimant’s argument was more refined than a bare perversity challenge. It was said that the Secretary of State had created a circular or impossible condition by requiring further offending-behaviour work before recategorisation while failing to provide reasonable access to the relevant courses. Such an insurmountable hurdle could, in principle, be unlawful.
3. That principle did not assist the claimant on the facts. The evidence showed that the CALM course was no longer available to vulnerable prisoners, and it was accepted that it would be unreasonable to require the claimant to transfer to normal location to undertake it. The CSCP was not then an immediate target. The evidence nevertheless indicated that the claimant could discuss alternative means with psychology staff of addressing the relevant risk factors. The Secretary of State had not erected an absolute or insuperable bar to recategorisation.
4. The decision-maker was entitled to regard good behaviour in the controlled environment of a maximum-security prison as insufficient, by itself, to establish a reduced risk of similar offending at liberty. The claimant’s progress had to be balanced against the highly serious offence, his previous offending history and unresolved issues concerning anger, violence and sexual offending. That assessment fell within the legal margins of the decision-maker’s power.
5. The court noted that category A status was important to the prisoner as well as the community. The court also considered the distinction between this case and Walker, which concerned timely access to courses for release consideration, and referred to Williams on the practical significance of category A status. Those authorities did not alter the conclusion on irrationality.

This was a first-instance judicial review. The judgment records that an earlier challenge to the claimant’s categorisation had been refused permission by Collins J after a hearing on notice on 10 April 2006. Permission for the present claim was granted by Forbes J on 18 December 2007.