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

Review of a prisoner’s security category remains governed by established public law principles. The court must not reweigh relevant matters or substitute its own assessment for that of the decision-maker. It may, however, determine that a matter was legally irrelevant. Under Prison Service Order 1010, the decision-maker must assess the risk of serious offending after escape and, where Category A remains appropriate in principle, consider whether exceptional circumstances make lower security sufficient to achieve the aim of making escape impossible. Illness and youth may require careful consideration through humanity, common sense and context, but they create no separate legal test or duty.

The claimant was detained during Her Majesty’s pleasure following his conviction for murder committed when he was 17. He challenged the Director of High Security’s decision to retain him in Category A rather than re-categorise him to Category B. He relied on progress in custody, psychological evidence, his age when offending, and serious cystic fibrosis which limited his physical capacity and life expectancy.

The claim concerned the proper standard of judicial review and the application of Prison Service Order 1010, particularly the exceptional-circumstances provision concerning lower security. The central questions were whether the decision-maker had failed to take account of relevant matters and whether the conclusion that Category A remained necessary was irrational or unlawful.

1. The claim was dismissed. Although a further review was approaching, the challenge was not academic because the judgment might affect that review.
2. The applicable approach was ordinary public law review. The court could identify a matter as irrelevant where it had no proper importance to the decision-making process, but it could not review the weight given to a relevant matter. Neither the claimant’s illness nor his youth required a different legal standard. Their importance could increase the court’s concern through humanity, common sense and context.
3. The assessment under Prison Service Order 1010 involved two stages. First, the decision-maker had to assess the risk of serious offending if the prisoner escaped. Secondly, if Category A remained appropriate in principle, the decision-maker had to consider whether exceptional circumstances meant that the aim of making escape impossible could be achieved in lower security.
4. The claimant’s grave index offence, further serious offending in custody, continuing resistance to authority, failure fully to accept responsibility, and the need to establish whether lessons from offending-related work had been learned provided a rational basis for concluding that the risk had not sufficiently diminished. The first part of the decision was unassailable.
5. The Director had clearly considered the claimant’s cystic fibrosis and its possible effect on escape and reoffending. Under paragraph 1.3, the existence of exceptional circumstances was for the Director to decide. The provision did not require physical impossibility of escape. The medical evidence did not compel the conclusion that the claimant could not escape or offend while unlawfully at large. The challenge based on illness therefore failed.
6. The claimant’s age had also been considered in the psychological report and in the decision. No additional legal requirement arose merely because he had grown from minority into adulthood in custody.

First-instance judicial review decision. No prior decision in the same proceedings is stated.