A.S., R (on the application of) v Secretary of State for Justice

Under section 30 of the Crime (Sentences) Act 1997, the Secretary of State must lawfully exercise the compassionate-release discretion. A declared policy creates a procedural legitimate expectation that its requirements will be followed unless reasons are given for departure. The decision-maker must give adequate reasons and consider all material matters, including current medical evidence and the effect of illness on the prisoner’s ability to reoffend. The court reviews legality, rationality and procedural fairness; it does not determine the merits or substitute its own assessment. Detention of a seriously ill prisoner is not, without more, inhuman or degrading treatment under article 3 of the ECHR where appropriate medical care is available and detention has not materially worsened the condition.

The claimant, serving an imprisonment-for-public-protection sentence under section 225 of the Criminal Justice Act 2003, was seriously ill with incurable cancer. He applied for compassionate release under section 30 of the Crime (Sentences) Act 1997. The Secretary of State refused the application, relying principally on the claimant’s continuing risk of sexual reoffending and the proposed release address, but the decision did not address the medical evidence.

The claimant challenged the refusal and amended the claim to allege that continued detention breached article 3 of the ECHR. The issues were whether the decision was unlawful for failure to consider relevant medical matters, give adequate reasons and comply with the declared policy, and whether the detention reached the article 3 threshold.

1. Compassionate-release decision. Section 30 conferred a general discretion. The Secretary of State had adopted PSO 4700 as the policy governing its exercise. That policy gave rise to a procedural legitimate expectation that the prescribed process would be followed unless reasons for departure were stated. The Secretary of State also had to give reasons and take relevant, rather than irrelevant, considerations into account (para [44]).
2. The claimant’s life expectancy, physical condition, mobility and resulting capacity to reoffend were material matters. The Secretary of State was entitled to weigh those matters against the serious risk of sexual reoffending and the proposed address. Either outcome could have been rational on the evidence (paras [45]-[46]).
3. The decision of 8 May 2009 was nevertheless unlawful. The Secretary of State had no up-to-date medical report addressing the relevant medical questions, despite the policy requiring one, and the decision did not address the medical issues at all. It therefore failed to give adequate reasons, failed to consider material medical evidence and failed to meet the procedural legitimate expectation created by PSO 4700 (paras [47]-[50]).
4. The court would not determine the correct outcome on reconsideration. Judicial review required the decision to be quashed and remitted because the Secretary of State remained the primary decision-maker (para [51]). The Secretary of State could require minimal risk as a condition of exercising the power, but could not refuse to reconsider an application merely because the risk was not minimal (para [52]).
5. Article 3. Detention is not inherently contrary to article 3, including where a prisoner becomes seriously ill, provided proper medical attention, care and treatment are available. The claimant’s illness was not caused or worsened by detention, appropriate care was available, and his declining health-care-centre admission did not establish inhuman or degrading treatment. The claim was therefore unarguable on the evidence, although the judge left open whether the position might differ if illness rendered the claimant incapable of repeat offending (paras [54]-[56]).
6. Permission to amend was granted; the decision of 8 May 2009 was quashed; and the application for compassionate release was directed to be reconsidered by 5.00 pm on 8 June 2009. The court did not determine whether the earlier decision of 22 April 2009 should also be quashed (paras [50], [53], [57]).