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

Category A security reviews must be conducted rationally and in accordance with the governing prison policy. The decision-maker must consider material evidence of reduced dangerousness, including relevant offence-related work and the continuing relevance of matters identified in earlier reviews. Good prison behaviour is relevant but cannot alone establish reduced risk. A prisoner’s denial or minimisation of culpability is also relevant, but is not necessarily decisive.

The Secretary of State is generally not legally obliged to provide a particular course or treatment. However, the practical consequences of limited provision must be considered when deciding whether the prisoner has had a fair and rational opportunity to demonstrate reduced risk. A review decision was quashed because it failed properly to consider material work undertaken by the prisoner.

The claimant, a category A prisoner serving a life sentence, challenged decisions of the Category A Review Team in 2007 and 2008 refusing to reduce his security classification to category B. He argued that the decisions failed to take account of material evidence, including offence-related work, prison reports and an independent psychological report. He also argued that the lack of suitable courses or one-to-one psychology work placed him in an irrational catch-22 position.

The court considered the statutory and policy framework governing categorisation, the relevance of risk-reduction evidence, the effect of resource constraints, and whether the 2008 decision had properly addressed the material before the decision-maker.

1. The 2008 decision was materially flawed. The Director or Category A Review Team had failed properly or at all to consider the claimant’s substantial work during 2007, undertaken with the Lifer Governor and offender supervisor to identify the causes of his offending, use of weapons and attitudes supporting violence. That work was particularly material because offence-related work had repeatedly been identified as the means by which cogent evidence of reduced risk might be demonstrated. The decision letter’s references to compliance with sentence planning and motivation did not show that the work itself had been evaluated.
2. Where earlier reviews repeatedly identify a particular form of work or evidence as relevant to future risk assessment, its continuing relevance may itself be a material consideration on a later periodic review. This does not make the earlier reasoning binding, since changed circumstances or improved methods of assessment may alter the position.
3. For category A reviews, the decision-maker must assume the conviction and assess the risk posed by the prisoner if unlawfully at large. Given the gravity of category A offending, the decision-maker may require cogent evidence of a significant reduction in the risk of similar reoffending. Good custodial behaviour is relevant but is not conclusive. Minimisation of culpability may also be relevant, but, applying the reasoning in R (Roberts) v Secretary of State for the Home Department [2004] EWHC 679 (Admin), it is one factor among all the relevant factors and is not automatically decisive.
4. The absence of a particular course does not ordinarily create a legal entitlement to that course. No statutory duty or legitimate expectation requiring the provision of the suggested treatment had been established. Resource allocation remained primarily an executive judgment. Nevertheless, the consequences of resource limitations had to be taken into account by the reviewing decision-maker if the resulting decision was to satisfy the Wednesbury standard of rationality.
5. The 2007 decision did not warrant substantive relief on the court’s provisional view, because the later decision letter had identified some alternative means of demonstrating reduced risk. The court provisionally considered that relief should include a quashing order in respect of the decision dated 11 March 2008 and invited further submissions on the final form of relief.

This was a first-instance judicial review. Permission was granted in respect of the 2007 decision, and the claim was stayed pending the 2008 review. The court granted permission, if required, to challenge the 2008 decision and provisionally indicated that the 2008 decision should be quashed, while declining on a provisional basis to grant substantive relief concerning the 2007 decision.