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

Compassionate release under section 30 of the Crime (Sentences) Act 1997 requires the Secretary of State to decide whether exceptional circumstances justify release, balancing compassionate factors against risk. The decision is administrative and evaluative, not a decision for the Parole Board.

Procedural fairness is context-dependent. A prisoner must ordinarily know and be able to answer the substance of the risk case, but an oral hearing or updated assessment is not invariably required. The Parole Board is consulted only after the Secretary of State has decided in principle to release. A procedural breach requires no relief where it is highly likely that the outcome would have been substantially the same.

The claimant, serving an indeterminate sentence for public protection, sought judicial review of the Secretary of State’s refusal to release him on compassionate grounds so that he could care for his severely ill mother. He relied on section 30 of the Crime (Sentences) Act 1997, the Royal Prerogative of Mercy, and alleged procedural unfairness, inadequate inquiry, an unlawful policy, failure to hold an oral hearing, failure to consult the Parole Board, and application of an incorrect risk threshold.

The Secretary of State relied on the claimant’s assessed risk, the seriousness of his offending, and alternative care arrangements. The central issues were the proper statutory allocation of responsibility, the procedural safeguards required, and whether the decision disclosed legal error.

1. Statutory structure. Section 30 of the Crime (Sentences) Act 1997 gives the Secretary of State responsibility for deciding whether exceptional circumstances justify compassionate release. The Parole Board must be consulted only before release is implemented, where the Secretary of State has already decided in principle to release. R (Spinks) v Secretary of State for the Home Department [2005] EWCA Civ 275; [2006] 1 Prison LR 166 was binding on that construction.
2. Fairness. The requirements of fairness depend on the character of the decision-maker, the decision, and the statutory framework, applying Lloyd v McMahon [1987] 1 AC 625 and R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531. A section 30 decision engages procedural fairness, but it is an evaluative administrative judgment. The prisoner must ordinarily know and be able to respond to the substance of the risk case, including relevant OASys assessments and early-release reports.
3. The failure to disclose the early-release reports was a breach of fairness, but its impact was minimal. The claimant knew the essential risk case and had addressed it. Under section 31(2A) of the Senior Courts Act 1981, relief had to be refused because it was highly likely that disclosure would not have produced a substantially different outcome.
4. The Secretary of State had made sufficient inquiry. The duty identified in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 was satisfied by considering the sentencing remarks, risk material and professional opinions. An allegation of inadequate inquiry is ordinarily a rationality challenge, not a substitute procedural challenge: R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (QB).
5. An oral hearing was not required. The compassionate circumstances were not materially disputed, and the claimant and his solicitors had already had a fair opportunity to address risk. Nor was Parole Board consultation required where the Secretary of State had decided not to release. The contrary submission would frustrate the statutory allocation of responsibility confirmed in Spinks.
6. The policy in PSO 4700 was not applied and could not restrict the statutory discretion. The statutory expressions exceptional circumstances and compassionate grounds were sufficiently certain without a comprehensive policy, in accordance with R v McLoughlin [2014] EWCA Crim 188; [2014] 1 WLR 3964, whose approach had been endorsed in Hutchinson v United Kingdom (2015) 61 EHRR 13.
7. The Royal Prerogative of Mercy issue was academic. The claimant advanced no basis for release under the prerogative beyond his mother’s illness, and the lawful rejection of the section 30 application meant that the prerogative application was bound to fail.
8. The references to a risk threshold in the decision and review letters did not alter the statutory test. Read in context, the letters applied the exceptional-circumstances test by balancing the compassionate factors against the risk on release. The claim for judicial review was dismissed.