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

Executive decisions concerning prisoner categorisation will be unlawful for irrationality only where the decision lacks sufficient evidential support and reaches the high threshold required for intervention. Any public law duty to provide rehabilitative courses is qualified by available resources. A decision may lawfully depart from an earlier categorisation where there has been a change in circumstances or another substantial reason, including a change in eligibility for a relevant intervention. Procedural fairness ordinarily requires disclosure of an important report relied upon in reaching the decision and an opportunity to comment. The appropriate remedy may be tailored where an imminent Parole Board hearing can provide an effective reconsideration.

The claimant, a life prisoner who had passed his tariff date, challenged a decision by senior officials within the Public Protection Casework Section that he should not return to open conditions. He relied on irrationality, inconsistency with an earlier decision that he was suitable for open conditions, and procedural unfairness arising from the prior non-disclosure of a psychological report.

The court rejected the first two grounds. It accepted that the decision-making process was procedurally unfair because the report was important and had materially influenced the decision. The issue was the appropriate form of relief in light of the claimant’s pending Parole Board review.

1. Irrationality. The decision was supported by ample material, including the claimant’s record, risk assessments, reports from forensic psychologists and the prison probation officer. The fact that the Cognitive Self Change Programme was not immediately available did not make the decision irrational. The decision in The Queen (on the application of Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522 showed that any duty to make rehabilitative provision available was qualified by available resources. Cases such as The Queen (on the application of Kehmal Mehmet) v The Secretary of State for Justice [2009] EWHC 1202 (Admin) concerned particular circumstances not established here.
2. Consistency. The principle stated in The Queen (on the application of Lowe) v Governor of HMP Liverpool [2008] EWHC 2167 (Admin) permits re-categorisation where there has been a change in circumstances or another substantial reason. The claimant’s newly established eligibility for the Cognitive Self Change Programme was a substantial change in circumstances, even though it did not arise from any change in his personal conduct. The later categorisation decision was therefore justified.
3. Procedural fairness. The psychological report was important and played a major part in the decision. Its non-disclosure deprived the claimant and his advisers of a fair opportunity to comment. The principles identified in The Queen (on the application of Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin) applied.
4. Remedy. The defendant was required to reconsider categorisation, but need not do so if, within two weeks, the Parole Board fixed a hearing for no later than 30 October 2009. That tailored remedy was proportionate and did not amount to impermissible queue-jumping of the kind discussed in The Queen (on the application of Betteridge) v The Parole Board [2009] EWHC 1638 (Admin).