Ates, R (on the application of) v Governor of HMP Verne

Prison recategorisation must reflect the prisoner’s current risk to the public and risk of escape or absconding. A low static risk of reoffending does not prevent a governor from relying on other evidence indicating a higher current risk. Relevant evidence may include the seriousness of the index offence, the prisoner’s failure to accept responsibility, and the credibility of his account. There is no unlawful impasse where the prisoner can still demonstrate reduced risk by addressing those matters. The court declined to decide the wider question whether recategorisation is unlawful where every available means of reducing risk is beyond the prisoner’s control.

The claimant, a Turkish national serving a 16-year sentence for serious firearms offences, sought judicial review of the defendant governor’s refusal to recategorise him from Category C to Category D. His custodial behaviour was good, his static risk of reoffending was low, and no suitable further offending-behaviour programme was available. However, professional assessments treated his risk of serious harm as high and his overall reoffending risk as medium, partly because he minimised his role and gave an unconvincing account of the offences.

The central issue was whether reliance on those current risk assessments was irrational because the claimant had no further practical means of demonstrating reduced risk.

1. Application refused. The decision-maker had not treated the static risk score as determinative. The decision expressly considered the claimant’s risk of harm, risk of reoffending, absconding risk, custodial behaviour, completed courses and proposed release arrangements.
2. The seriousness of the offences and the claimant’s continuing minimisation of his role were legitimate matters in assessing risk. The latter could properly form part of a risk assessment, as recognised in R (Roberts) v SSHD [2004] EWHC 679 (Admin). The court regarded the professional assessment as rationally capable of distinguishing between a prisoner who accepted that possessing a firearm for protection was inconsistent with an intention never to use it and one who continued to maintain that position.
3. There was therefore no factual impasse created by the defendant. The means of demonstrating a reduction in risk had not been put beyond the claimant, because the assessment identified matters capable of being addressed beyond participation in offending-behaviour programmes.
4. The court declined to express a final view on the competing interpretations of paragraph 31 of R (Falconer) v SSJ [2009] EWHC (Admin) and paragraph 24 of R (Krstic) v SSJ [2010] EWHC 2125. It recorded an inclination towards the defendant’s narrower submission that the public law constraint concerned an unachievable condition precedent, rather than every situation in which recategorisation could not yet be achieved.
5. The application was refused. The claimant was ordered to pay an amount towards the defendant’s costs, to be determined by a District Judge, and the claimant’s publicly funded costs were subject to detailed assessment.