Colin Gunn v Secretary of State for Justice

Escape-risk classification is subject to ordinary public-law rationality review. There is no heightened standard of “super-irrationality”, although the court recognises the expertise of prison decision-makers and the predictive nature of risk assessment.

Procedural fairness is fact- and context-specific. A policy may establish a default position that no oral hearing will be held, but it must allow consideration of an oral hearing in an appropriate case and make that possibility accessible to prisoners. On the facts, detailed written representations, the nature of the risk assessment and the available evidence meant that an oral hearing was not required.

The claimant, a Category A prisoner serving a life sentence, challenged a decision maintaining his classification as a High Escape Risk prisoner. The decision relied on recent intelligence, his alleged position within an organised crime group, the use of a police firearms escort and the time remaining on his sentence.

He argued that the decision was irrational and that procedural fairness required an oral hearing. The defendant initially relied on PSI 08/2013 as making no provision for such a hearing, but later accepted that one could be considered outside the policy. The issues were whether the risk assessment was rational and whether fairness required an oral hearing either generally or on the facts of this case.

1. Ground 1 dismissed. The court rejected the submission that special restraint or “super-irrationality” applied to expert prison risk assessments. The ordinary rationality test applied. The court nevertheless recognised that the decision-maker was entitled to draw predictive inferences from experience once there was an evidential basis for concern.
2. The decision had to be assessed as a whole, by reference to the decision letter, the dossier and relevant evidence. The court was not required to isolate each intelligence entry. The gists were sufficient to enable the claimant to understand the substance of the concerns while protecting sources. The recent intelligence, including possible illicit telephony and misuse of the PIN telephone system, was rationally relevant when considered with the wider intelligence picture and the claimant’s history.
3. The defendant was entitled to assess whether the claimant was likely to hold a position within an organised crime group. That assessment was not governed by a balance-of-probabilities standard and was not determinative of the separate question whether the claimant was managed under the Serious Organised Crime Framework. The failure to manage him under that framework was considered and reasons were given for reaching a different view.
4. The firearms escort and the time remaining to serve were legitimate considerations. It was rational to infer from the unusual use of a firearms escort that the police had concerns about escape risk, and the remaining sentence length was relevant where another High Escape Risk factor was present.
5. Ground 2 dismissed. Procedural fairness depended on context. The policy could lawfully operate with a default rule against oral hearings, but fairness required that the possibility of an oral hearing in an appropriate case be recognised in the published policy. A prisoner should not learn of that possibility only through litigation. Cost was not a legitimate reason to refuse a hearing.
6. On the facts, no hearing was required. The claimant had received the material that could safely be disclosed and had made detailed written representations prepared by solicitors. An oral hearing would not have materially improved the predictive risk assessment or provided a useful means of testing the intelligence.
7. The claim was dismissed. The court considered, without deciding, that section 31 (3C) of the Senior Courts Act 1981 might also have applied because the decision was highly likely to have been the same.