Roger Khan, R (on the application of) v Secretary of State for Justice

For compassionate release under section 248 of the Criminal Justice Act 2003, the Secretary of State must consider all exceptional circumstances and must not treat any non-statutory policy criterion as determinative. The policy is construed purposively and broadly, rather than as a statute or contract. A decision must be rationally justified by the evidence, with anxious scrutiny where detention and liberty are engaged. A fresh decision made during continuing litigation should be examined with circumspection, although prior involvement by members of a specialist team does not itself establish unlawfulness. Failure to address undisputed medical evidence, or reliance on an irrelevant comparison between prison and community healthcare, may amount to fettering, irrationality and disproportionate interference with article 8 rights.

The claimant, serving a 30-year sentence for attempted murder, challenged the defendant’s third refusal to release him early on compassionate grounds. He was terminally ill, with a life expectancy of less than three months, and was detained in an open prison while receiving temporary release into the community.

Two earlier refusals had been withdrawn or challenged during expedited judicial review proceedings. The issues included the construction of section 248, the proper interpretation of the early-release policy, fettering of discretion, rationality, article 8 proportionality, public risk and the relevance of prison healthcare.

1. Disposition. Permission and judicial review were granted. The third refusal decision was quashed and relief was granted in the terms of the approved draft order.
2. Statutory power and policy. Section 248 requires consideration of exceptional circumstances relevant to compassionate release. The expressions exceptional circumstances and compassionate grounds have broad meanings. The policy does not alter their legal meaning. It must be interpreted from its own language and purpose, broadly and purposively, rather than as if it were a statute or contract.
3. Policy construction. The small number of releases under the policy did not justify a narrow interpretation. Nor did respect for the sentencing function make the release threshold higher than the policy itself required. The policy did not make a comparison between medical care in prison and in the community a necessary or determinative factor.
4. Fettering and irrelevant consideration. By treating the adequacy of prison medical care, and the comparison with community care, as determinative, the defendant misstated and fettered the policy and took account of an irrelevant consideration.
5. Rationality and procedural context. The modern rationality inquiry asks whether the conclusion can safely be justified by the evidence, including whether there is an unexplained evidential gap or leap in reasoning. In detention and liberty cases, anxious scrutiny is required. A fresh decision made while an earlier legal challenge remains ongoing should be approached with circumspection, although that starting point may be rebutted by persuasive evidence of a thorough, proper and independent decision. Prior involvement by a specialist team does not, without more, make the later decision unlawful.
6. Application. The defendant failed to explain the reversal of an earlier concession that release posed no public risk. The reasons also failed to engage with undisputed medical evidence concerning deficiencies in prison healthcare. Those evidential gaps rendered the decision irrational.
7. Article 8. The interference with the claimant’s article 8 rights was disproportionate when assessed by the structured and rigorous proportionality test.