Colling v Secretary of State for Justice

At the permission stage of judicial review, the court decides only whether the proposed grounds are arguable, not whether they will ultimately succeed. A prison decision requiring participation in a sex offender treatment programme may be arguable where the prisoner asserts a genuine inability to recall material aspects of the offence and relies on expert evidence supporting that assertion. It is also arguable that prison authorities should have considered relevant expert evidence that was available, or that its general substance was not disputed, when making decisions affecting treatment opportunities and privileges.

The claimant, serving a life sentence for murder, challenged prison decisions requiring him to undertake the Sex Offender Treatment Program and reducing his status under the Incentives and Earned Privilege Scheme. The decisions were linked to his alleged inability or unwillingness to admit the sexual element of the offence.

Permission had previously been refused on the papers by HHJ Grenfell. On renewal, the claimant relied on expert evidence suggesting that he could not recall sufficient features of the offence to make the required admissions. The central issue was whether that evidence gave rise to arguable grounds for judicial review.

1. Permission granted. The court was determining only whether the claim was arguable. It was not determining the substantive merits.
2. The court accepted that intervention in internal prison decisions of this nature would occur only in exceptional cases. That general restraint did not prevent permission being granted where an arguable issue was shown.
3. The claimant’s proposed case was that his inability to participate in the Sex Offender Treatment Program resulted from a genuine inability to recall enough about the offence to make the necessary admissions. That was an issue properly capable of consideration at a substantive hearing.
4. The expert report had not apparently been addressed by the decision-makers. Although the defendant criticised aspects of the report, its general message did not appear to be disputed. It was therefore arguable that the report should have been taken into account and that it might have affected the decisions concerning the treatment programme and enhanced prison status.
5. The substantive result was left open. The claim was to proceed to a full hearing before a High Court judge, subject to directions for detailed grounds, evidence and skeleton arguments.

1. High Court (Administrative Court): Permission to apply for judicial review had been refused on the papers by HHJ Grenfell on 21 September 2009. On renewal, Mr Justice Foskett granted permission on 22 January 2010.