Sheldon Pommell, R (on the application of) v Secretary of State for Justice

Judicial review proceedings should address the lawfulness of the decision actually challenged. They cannot be used to determine the legality of later, distinct decisions without permission being obtained for those decisions. A prison risk assessment based on security intelligence may lawfully withhold primary evidence where disclosure would threaten prison security or other overriding interests. Fairness ordinarily requires disclosure of the gist of the reasons, sufficient to enable a meaningful response.

The claimant sought judicial review of the decision made on 6 December 2019 to place him on E-list-Heightened prison supervision. The classification followed intelligence supplied by the Metropolitan Police that associates might assist him to escape while travelling to or from court. The claimant was told that information had been received and that he might attempt to escape from court with outside assistance.

By the substantive hearing, the claimant had been downgraded, reclassified for different reasons, and later downgraded again. He argued that the original decision continued to affect his treatment and that the reasons disclosed had been insufficient. The central issues were whether the challenge had become academic or was being used impermissibly to challenge later decisions, and whether the original decision complied with the duty to act fairly.

1. The claim was dismissed. The December 2019 decision had been overtaken by later events and distinct later decisions. Determining its legality would not provide a definitive answer to whether those later decisions were lawful. The present claim could not be used as a vehicle to challenge them without permission. Any challenge had to identify the particular later decision said to be unlawful and satisfy the ordinary permission requirement.
2. The court was reluctant to determine issues that had become academic or did not bear upon the current position. That conclusion applied even though the original decision might have influenced a later E-list-Heightened decision, because the later decisions involved different evidence and legally distinct complaints.
3. In applying Bourgass, the court accepted that a prisoner must normally receive the substance of the case sufficiently to respond meaningfully. Disclosure of the primary evidence is not ordinarily required where the authority is making an operational risk-management decision rather than determining what happened. Information may be withheld where disclosure would compromise an informant, prison security, or another overriding interest, provided the prisoner receives the gist of the reasons.
4. The claimant had been told that information from the Metropolitan Police concerned his attendance at Isleworth Crown Court, that he might attempt to escape from that court, and that outside associates might assist him. He had been able to respond by disputing the reliability and significance of the intelligence. The information disclosed was therefore legally sufficient. In any event, the decision was a legally sound intelligence-based risk assessment.

No appellate history is stated in the judgment. Permission to bring the judicial review was granted on 30 July 2020, followed by the substantive hearing before the Administrative Court.