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

The Director of High Security’s power to ratify a Close Supervision Centres Committee decision includes an implied power to refuse ratification and require reconsideration. That power may properly be exercised where further investigation of serious alleged violence is needed before a final decision is made.

A prisoner may be placed in a Close Supervision Centre where the decision-maker rationally concludes that the policy criteria are met. In an appropriate case, the Committee may depart from the policy’s strict wording if the decision fulfils the fundamental purpose of protecting others from a seriously dangerous prisoner. A decision need not expressly label its reasoning as a policy departure where the result is clear and rational.

The claimant, a category A prisoner, challenged his selection for a Close Supervision Centre under Prison Rule 46. The selection followed an incident in which he seriously assaulted another prisoner with a triceps bar.

A Committee initially decided not to select him, but the Director declined to ratify that decision pending police, prosecutorial and internal investigations. After the internal investigation concluded that the claimant had carried out a serious and apparently unprovoked attack, the Committee reconsidered and selected him for the Close Supervision Centre system.

The claimant argued that the Director lacked power to refuse ratification and that the Committee’s later decision was irrational and inconsistent with the applicable guidance.

1. The claim was dismissed. The Director was entitled to refuse to ratify the Committee’s initial decision and to require reconsideration.
2. The operating standards stated that the Director would ratify Committee decisions. That express power necessarily carried an implied power not to ratify a decision. The Director was therefore not a mere rubber stamp. His refusal was rational because the alleged assault was potentially murderous, posed a grave risk to another prisoner and required further investigation before a final decision was made.
3. The applicable guidance required a history of disruptive and aggressive behaviour and satisfaction of at least one specified criterion, including violence towards prisoners. The internal investigation provided a rational basis for concluding that the claimant had seriously assaulted another prisoner and that the selection criteria were fulfilled.
4. Even if the Committee’s later decision rested only on the assault, it was entitled to treat the case as an exception to the strict policy criteria. That approach remained consistent with the fundamental purpose of Close Supervision Centres: removing the most seriously disruptive prisoners from ordinary prison locations and containing them in highly supervised units.
5. It was unnecessary for the Committee expressly to state that it had departed from the policy. The decision was clear and understandable, and the claimant’s demand for a more elaborate explanation was an over-refinement.
6. The court also criticised the late provision of evidence explaining the decision-making process. Where a judicial review plausibly alleges departure from a policy, evidence or an explanation from the relevant decision-maker is ordinarily the minimum needed to analyse the reasoning process.