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

When deciding whether to consent to escorted community leave for a restricted patient, the Secretary of State must address the risk arising in the specific circumstances of the proposed leave. That requires consideration of the leave plan, supervision and monitoring arrangements, the nature and scale of any risk, and the therapeutic benefits of leave. The seriousness of the index offence and the perspective of victims’ families do not, without an intelligible connection to the proposed leave, rationally determine that issue. The court reviews the actual reasons for the decision and will not normally reconstruct a different decision from later explanations. Ordinary Wednesbury principles were sufficient; proportionality did not arise.

The claimant was detained in hospital under the Mental Health Act 1983 following transfer from prison and was subject to special restrictions. His responsible clinician applied for limited escorted community leave under section 17, which required the Secretary of State’s consent. The application included a detailed leave, supervision and monitoring plan and stated that the risks were probably low.

The Secretary of State refused consent, referring to the disturbing nature of the claimant’s crimes and the perspective of the victims’ family. The claimant sought judicial review, arguing that the decision failed to address the relevant question of risk and was irrational.

1. The claim succeeded. The decision of 3 February 2009 was quashed and remitted to the Secretary of State for reconsideration. The claimant’s costs were ordered to be paid by the defendant, subject to detailed assessment.
2. The statutory question was risk in the specific context of the proposed escorted community leave. The Secretary of State had to consider the defined geographical arrangements, the proposed supervision, and the monitoring and reporting plan. The issue was whether any reasonably foreseeable risk under that plan was sufficiently serious to justify refusing consent.
3. The Secretary of State did not engage with the nature or scale of the relevant risk, identify whom it threatened, or explain why the proposed safeguards were inadequate. The seriousness of the index offences and the perspective of the victims’ family were not, without an intelligible connection to the proposed leave, material answers to the statutory question.
4. The therapeutic and rehabilitative benefits of the proposed leave were accepted or at least recognised, but were not weighed against considerations directed to protection of others in the particular circumstances of the application.
5. The court rejected reliance on the summary grounds of defence as a retrospective justification. Those matters might have supported a lawful decision if considered by the Secretary of State, but the court had to review the decision actually made and could not speculate about a different decision.
6. The decision disclosed a failure to take relevant considerations into account and reliance on irrelevant considerations. It was irrational under ordinary Wednesbury principles. It was unnecessary to decide the case by reference to proportionality.

First-instance judicial review. The decision of the Secretary of State dated 3 February 2009 was quashed and the matter remitted for proper reconsideration.