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

A Category A prisoner must be placed in the lowest security category consistent with security and control. Continued classification must depend on whether the prisoner is highly dangerous at the date of review, not merely on the gravity of the historic offence. The decision-maker must examine the nature and circumstances of the offending, the prisoner’s actual involvement, the passage of time, changed circumstances and any relevant risk factors. A decision that simply treats the conviction as conclusive, without addressing material representations or explaining the continuing risk, is unlawful. The Secretary of State cannot rationally require progress through courses that are unavailable or irrelevant to the prisoner’s offending.

The claimant, serving in the United Kingdom a sentence imposed by the International Criminal Tribunal for the Former Yugoslavia, challenged the Secretary of State’s decision to retain him in Category A. He argued that the decision relied on the seriousness of his historic offending, failed to identify any current risk, and did not properly address the situational context of the offences, his age, health, conduct and lack of relevant offending-behaviour courses.

The central issue was whether the decision-maker had lawfully assessed whether the claimant remained highly dangerous at the date of review, consistently with the policy requiring placement in the lowest security category compatible with security and control.

1. The claim succeeded. The decision dated 20 October 2009 was quashed, and the question of re-categorisation was remitted to the defendant for reconsideration by 29 October 2010. The defendant was ordered to pay the claimant’s costs on the standard basis if not agreed.
2. Category A status depends on present dangerousness. The seriousness of the claimant’s offences was not itself determinative. The relevant question was whether he was highly dangerous to the public or police at the date of the decision, having regard to the policy that every prisoner must be placed in the lowest security category consistent with security and control.
3. The decision-maker had failed to conduct the necessary assessment. It did not identify the persons said to be at risk, explain why the claimant remained highly dangerous in October 2009, or properly analyse the judgments of the Tribunal’s Trial and Appeals Chambers. That analysis needed to take account of the claimant’s role as an aider and abettor, the mitigating features identified on appeal, the passage of time, the circumstances of the conflict and its subsequent cessation.
4. The court accepted that, in some cases, dangerousness may be inferred from the nature of persistent serious sexual or violent offending. That did not justify treating this case as self-evident. The situational nature of the offending required proper consideration rather than summary rejection.
5. The principles concerning denial of guilt and access to offending-behaviour work required qualification in the Category A context. The considerations governing parole are not identical to those governing escape-risk categorisation. However, the defendant could not rationally rely on the absence of progress through courses that were unavailable or irrelevant to the offences, and could not place beyond the claimant the means of demonstrating reduced dangerousness while demanding such progress.