Khatib, R (On the Application Of) v Secretary of State for Justice

Security categorisation and escape-risk classification address different risks: the former concerns the consequences of escape, while the latter concerns the likelihood of escape. Serious offending may be relevant to escape risk only through identified features such as terrorist links, access to resources or associates, or willingness to exploit an opportunity. Generic reliance on the nature of offending must not obscure the distinction or double count a factor.

A briefing need not include every marginal fact, but it must fairly present salient material potentially favouring the prisoner. The decision-maker controls the scope of further inquiry, subject to Wednesbury principles, and need not resolve every disputed intelligence report. Reasons must explain the principal issues. A later filter review may justify declaratory rather than quashing relief where fuller reconsideration could not affect the outcome.

A life prisoner at HMP Full Sutton sought judicial review of decisions maintaining his high escape risk classification. He argued that the Secretary of State had conflated security classification with escape risk, failed to put favourable material before the Deputy Director of Custody or investigate disputed intelligence, and gave inadequate reasons. A 30 May 2014 decision was followed by an 11 August 2014 rule 3.28 decision that a full reconsideration was unnecessary. The issues were whether the briefing, inquiry and reasons were lawful, and what relief should follow from any defect.

Disposition. Elias LJ, with whom Simon J agreed, upheld the judicial review claim to a limited extent. The court granted a declaration that the original briefing was defective, but did not quash the classification decision.

1. Separate risks. Security categorisation concerns the consequences of escape; escape-risk categorisation concerns the likelihood of escape. The same facts may bear on both, but the decision-maker must identify how they establish escape risk. Abdullah v Secretary of State [2011] EWHC 3212 (Admin) supported inferences from terrorist links, access to associates and continuing ideological commitment. The 11 August decision was a rule 3.28 filter decision, not a fresh decision by the DDC. Read fairly and in context with the 30 May decision, it did not demonstrate a misdirection. The generic factor of the nature of offending should not be used to double count more specific factors.
2. Briefing obligations. Under rules 3.13 and 3.15 of PSI 08/2013, the submission had to contain relevant information and exclude irrelevant material. The court adopted principles from Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154, Findlay v Secretary of State for the Home Department [1984] 3 All ER 801, CREEDNZ Inc. v. Governor General [1981] 1 N.Z.L.R. 172 and R (Khatun) v Newham London Borough Council [2005] QB 27. The briefing need not contain every marginal fact, but it must fairly and saliently present material potentially favouring a prisoner whose rights and liberties are adversely affected. The duty rests with the briefing team and is not discharged by relying on the prisoner to correct omissions.
3. Application to the evidence. The original submission unfairly omitted evidence of the claimant’s courses, psychological assessment and other positive changes. That omission tainted the 30 May decision. Rule 3.14 left the need for a police report to the submission author, and its absence was not unlawful because existing prison intelligence provided cogent evidence of continuing links. The omission of the 5-times-5 reliability coding was desirable to avoid, but immaterial on the facts.
4. Further inquiry and reasons. Subject to Wednesbury principles, the decision-maker determines the scope and intensity of inquiry into disputed intelligence. It need not resolve every disputed report. Further investigation may be required where evidence of change is strong and adverse intelligence is limited and controversial, but undisputed material here was sufficient. The reasons were adequate under South Bucks District Council v Porter (no. 2) [2004] UKHL 33; they explained the principal concerns about terrorist links and ideological commitment without addressing every item of intelligence.
5. Relief. The Category A team was entitled under rule 3.28 to conclude that the omitted material could not have altered the outcome, so a remittal would have been pointless. In this exceptional case the proper remedy was a declaration recording the defective briefing, without quashing the continuing classification.