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

A prisoner’s category D classification does not automatically entitle him to transfer to open conditions. Allocation depends on security needs and other relevant matters, including offence-related work, therapeutic needs, vulnerability and resettlement. The Secretary of State may retain a prisoner in closed conditions where cogent evidence shows that unresolved risk issues, media exposure or destabilising psychological work justify that course. The court must apply intense scrutiny but must not substitute its view for that of the decision-maker or resolve debatable issues of professional practice. Delay is regrettable and may justify future relief, but it does not itself make the decision irrational. The application was dismissed.

The claimant had pleaded guilty to three murders in 1973 and remained detained after expiry of his tariff. Although classified as category D and previously transferred to open conditions, he was held in a closed prison because of media interest, safety concerns and further psychological work relating to the motivation for his offences.

He sought judicial review, alleging that the Secretary of State had acted in a Wednesbury unreasonable manner by failing to transfer him back to open conditions. The central issue was whether the reasons relied on were legally sufficient to justify continued detention in closed conditions.

1. Application dismissed. The claimant’s category D classification did not automatically require transfer to open conditions. Category D concerned whether a prisoner could reasonably be trusted not to escape; it did not determine where he should be accommodated or treated.
2. The Prison Service Order required prisoners to be placed in the lowest security category consistent with security and control. Allocation nevertheless required consideration of suitability for accommodation, medical or psychiatric needs, offence-related programmes, educational and training needs, and resettlement. Any allocation to a higher-security prison had to be justified and recorded.
3. The Secretary of State was entitled to consider the exceptionally serious and unexplained nature of the offences, the unresolved possibility of a sexual motivation, the need to assess continuing risk, and the potentially destabilising effect of further psychological work. The substantial risk of renewed media exposure in open conditions was also a legitimate consideration.
4. The court recognised that open conditions were generally important in assessing release prospects and that delay in implementing the Parole Board’s recommendations was regrettable. Nevertheless, the evidence provided a rational and cogent basis for retaining the claimant in closed conditions. The court’s task was to assess legality, not to choose between competing professional opinions.
5. Even in a case requiring intense scrutiny, the court could not condemn a professionally supported decision as unlawful where it had cogent reasoned justification. The Secretary of State and the Parole Board were expected to progress the required work speedily; failure to do so might create difficulties in resisting a later application.