Regan v Chief Constable of the West Midlands Police Force

A police force does not become amenable to judicial review merely because it provides information to a prison governor which contributes to a prisoner’s release decision. The governor remains the decision-maker. A police force’s disclosure of a continuing threat to the prisoner’s life may fulfil, rather than breach, its duty under Article 2. Where a public authority does engage in a decision-making process, procedural fairness requires the affected person to know enough about the case against them to respond effectively.

The claimant, a serving prisoner eligible for Home Detention Curfew, challenged the Chief Constable’s disclosure to the Prison Service of intelligence concerning a continuing threat to his life. He alleged breach of Article 2 and contended that the provision of information was unfair, irrational and unreasonable. The parties agreed that the permission and substantive applications should be determined at a rolled-up hearing. The central issue was whether the Chief Constable had made an amenable decision, or had merely supplied information to the Prison Governor, who decided whether release was appropriate.

1. Outcome. Permission to apply for judicial review was granted because the claim was arguable, but the substantive application was refused. The relief and declarations sought were not granted.
2. Article 2. The Chief Constable did not breach the claimant’s duty under Article 2. Informing the Prison Service of a continuing potential threat to the claimant’s life was capable of protecting him from that risk and, in the circumstances, fulfilled the duty rather than violated it.
3. Amenability to judicial review. The Chief Constable was not making the decision whether to release the claimant on Home Detention Curfew. He was providing information to the Prison Governor. The Governor was the relevant decision-maker, and the claimant was entitled to make representations to the Governor. The suggestion that the Chief Constable had made a reviewable decision was therefore untenable.
4. Fairness. Even if the Chief Constable’s conduct were treated as a decision-making process, it was fair. Applying the general principle discussed in R v Secretary of State For The Home Department, Governor HMP Whatton ex parte Allen, the claimant knew enough about the case against him to respond. The later rules requiring earlier disclosure of reports did not alter that general principle.
5. Costs. The claimant was ordered to pay the costs of the acknowledgment of service and no more.

Not stated in the judgment.