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

In a prisoner security-categorisation review, the decision-maker must apply the published criteria and fairly consider the prisoner’s material evidence and representations. The relevant risk is the danger posed if the prisoner escapes and is uncontrolled, rather than the risk on a supervised release on licence. A reviewing court must assess the reasons actually given for the decision. It cannot uphold the decision on reasons the decision-maker did not give. Failure to engage with material expert evidence bearing directly on the risk assessment renders the decision flawed. The proper remedy is ordinarily to quash and remit the matter, without substituting the court’s assessment of the merits.

The appellant was serving a discretionary life sentence and remained a Category A prisoner. He sought downgrading to Category B so that he could undertake courses relevant to his eventual release. His case relied substantially on expert psychiatric evidence that age, infirmity and an orchidectomy following cancer treatment had materially reduced his risk of further serious sexual offending.

The Director of High Security Prisons refused downgrading in October 2007 and again in May 2008. Plender J dismissed the appellant’s judicial-review challenge on 19 December 2008. The appeal concerned whether the Director had lawfully considered the expert evidence and whether the judge could uphold the decisions on reasons not given by the Director.

1. Appeal allowed unanimously. Arden LJ, with whom Smith LJ and Richards J agreed, quashed the Director’s decisions of 11 October 2007 and 14 May 2008 and remitted the matter for further consideration.

2. The published categorisation framework required an assessment of the risk posed if the prisoner escaped. That inquiry concerned an uncontrolled and unsupervised prisoner, and was distinct from a parole decision concerning conditional release under supervision. The appellant was entitled to have the published policy and procedures applied, including fair consideration of his evidence and representations.

3. The court did not need to determine whether Article 5(4) of the European Convention on Human Rights required anxious scrutiny rather than conventional judicial review. The Director’s decisions were flawed on any applicable standard.

4. The judge erred by upholding the decisions by reference to matters on which the Director had not relied. Judicial review had to assess whether the Director’s stated reasons could rationally support the decisions.

5. The orchidectomy evidence was central to the appellant’s case. The first decision barely addressed it. In the second, the Director required evidence that the risk had been eliminated and failed to engage with the expert evidence concerning the physical effects of surgical castration and their bearing on reoffending risk. His reliance on an unanalysed example involving anti-libidinal medication did not address that evidence. This was a significant failure to engage with the case advanced by the appellant.

6. The court did not decide that the appellant must be re-categorised. Parliament had entrusted the merits to the Secretary of State. The Director must reconsider the matter while properly taking account of the relevant evidence and representations.

• Court of Appeal (Civil Division): Allowed the appeal, quashed the Director’s two refusal decisions and remitted the re-categorisation issue.
• High Court, Queen’s Bench Division, Administrative Court (Plender J): Dismissed the appellant’s judicial-review challenge on 19 December 2008.