Ali, R (on the application of) v The Director High Security

Common law procedural fairness applies to decisions imposing or maintaining a high or exceptional escape-risk classification for a convicted Category A prisoner. The decision-maker need not ordinarily give the prisoner advance notice of the material or an opportunity to respond before acting, particularly where risk information may require prompt and confidential action. Fairness normally requires sufficiently detailed reasons, followed by a reasonable opportunity to make representations seeking reconsideration. Disclosure of underlying material is not automatically required; any exemption under Data Protection Act 1998 section 29(1) must be considered on the circumstances of the particular case, rather than through a blanket policy. Article 8 adds nothing to the common-law analysis. A failure to give reasons may justify declaratory relief without quashing the decision where the outcome would inevitably be the same.

The claimant was a convicted prisoner serving a life sentence at HMP Full Sutton. He was classified as a Category A prisoner with a high escape-risk classification. The Defendant maintained that classification after reviews based on police and prison information, but supplied neither the underlying material nor its gist and gave no reasons in the decision letters.

The claimant sought judicial review, alleging procedural unfairness, unreasonableness, disproportionality under Article 8 and inadequate reasons. The Defendant argued that escape-risk classification was an internal prison-management matter and that sensitive information was exempt from disclosure. The central issues were whether the common-law duty of fairness was engaged, what safeguards it required, and what remedy was appropriate.

1. Duty of fairness. The claim succeeded in establishing that the common-law duty of procedural fairness applied. An escape-risk classification materially affected the prisoner’s status, prison regime and, in practical terms, prospects of de-categorisation and parole. It was therefore not merely an internal prison-management decision.
2. Content of the duty. Fairness is context-dependent. In an urgent or sensitive risk assessment, advance disclosure and a prior opportunity to respond are not ordinarily required. The prisoner must, however, be told of the decision and given reasons sufficiently detailed to decide whether a worthwhile challenge can be made. He must also have an opportunity, reasonably soon afterwards, to make representations seeking modification of the decision.
3. Disclosure. The Data Protection Act 1998 does not justify blanket non-disclosure. Section 29(1) requires a case-specific assessment of whether disclosure would be likely to prejudice the statutory purposes. The court declined to decide whether fairness required a post-decision review of potentially disclosable material, because that issue did not arise on the facts.
4. Article 8. Article 8 added nothing to the common-law analysis. A decision lawful under the fairness principles attracted the protection of Article 8(2).
5. Remedy. The original decision was unlawful because no reasons had been given. Nevertheless, the later witness evidence supplied adequate reasons, the reasons were not challenged as flawed, and the Defendant would inevitably reach the same conclusion. The court therefore declined to quash the decision and granted a declaration reflecting the required procedural safeguards. Consequential matters were left for further submissions.

Not stated in the judgment.