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

The claimant, a terrorism-related prisoner who had been assessed as Category D and recommended for open conditions and early release by the Parole Board, sought judicial review of a series of recategorisation decisions and of a decision in July 2020 to order a fresh review. The claimant relied in particular on the Prison Service Instruction 40/2011 framework, alleged breaches of procedural fairness and the duty of candour, and duties under the Equality Act 2010 (sections 20 and 29B) to make reasonable adjustments for his autism.

The court held that permission to amend the claim to challenge the July 2020 decision should be granted. The judge concluded that Grounds 1 (unjustified departure from PSI 40/2011/consistent treatment) and Grounds 5(a) and 5(b) (bad faith/unpublished policy and conspicuous unfairness/abuse of power) were arguable and raised a realistic prospect of success. The court rejected the submission that the claim was academic and refused to stay or dismiss the proceedings, noting the utility of "rolling" judicial review and the urgency of resolving the issues given the claimants' entitlement to open conditions and the Parole Board recommendations.

This is a first-instance administrative law judgment concerning repeated prison security recategorisation reviews of Mr Abdul Aziz Jalil, a terrorism-related offender who had been convicted in 2004 and sentenced to an extended determinate sentence under section 226A of the Criminal Justice Act 2003. Mr Jalil had been diagnosed with autism and had been recommended by Parole Board panels for early release to open conditions. The proceedings began in February 2020 challenging December 2019 recategorisation decisions which resulted in transfer from open conditions; those December 2019 decisions were quashed by consent by Spencer J ([2020] EWHC 1151 (Admin)).

The claimant sought declaratory and mandatory relief to secure his return to open conditions and challenged subsequent recategorisation decisions (including a June 2020 decision and a July 2020 decision in which the defendant withdrew the June decision and ordered a fresh independent review). The consolidated grounds of challenge included alleged failure to follow PSI 40/2011, failure to have regard to intelligence gradings and ERG assessments, procedural unfairness and failure of enquiry, bad faith and operation of unpublished policy, conspicuous unfairness amounting to abuse of power, and breach of the reasonable adjustment duty under the Equality Act 2010 (sections 20 and 29B).

The court was invited to decide (i) whether to permit amendment to target the July 2020 decision, (ii) whether the claim was academic following withdrawal of the June 2020 decision and the institution of a fresh review, and (iii) case management questions including whether to stay or dismiss proceedings. The judge applied the established test for permission to amend in judicial review proceedings and considered precedents addressing so-called "rolling" or continued judicial review of awaited administrative decisions. The court concluded that amendment should be permitted because Grounds 1 and 5(a)/(b) remained arguable with a realistic prospect of success, whereas Grounds 2–4 could not impugn the July decision. The judge emphasised urgency, the duty of candour, and the appropriateness of allowing the claim to proceed so that, if the fresh review results in a adverse decision, the substantive legal issues (including entitlement to a mandatory order) could be ventilated at the full hearing listed for September 2020. The court refused to stay or dismiss the proceedings and gave directions for the case to continue.

The court granted permission to amend the consolidated grounds to challenge the July 2020 decision and granted permission to apply for judicial review on Grounds 1 and 5(a) and 5(b), concluding those grounds were arguable and carried a realistic prospect of success. The court dismissed the defendant's application to treat the proceedings as academic or to stay/dismiss them, explaining that rolling judicial review is appropriate and the matters are urgent, and that the issues and remedies should be ventilated at the expedited hearing fixed for September 2020.

Proceedings began in February 2020 challenging December 2019 recategorisation decisions. Spencer J quashed the December 2019 decisions by consent on 27 April 2020 ([2020] EWHC 1151 (Admin)) and directed expedited remedies. May J conducted an expedited remedies hearing and made procedural directions, granting permission to amend and for judicial review on earlier iterations; the present hearing (31 July 2020) is a further case management decision ahead of a full hearing listed for 2–4 September 2020.