Nicholas Bidar, R (on the application of) v Secretary of State for Justice [2025] EWHC 3122 (Admin)

[2025] EWHC 3122 (Admin)

Case No AC-2024-BHM-000224

IN THE HIGH COURT OF JUSTICE AT BIRMINGHAM

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

33 Bull Street

Venue Birmingham

Date 28 October 2025

B4 6DS

Before

HIS HONOUR JUDGE TINDAL

(Sitting as a Judge of the High Court)

Between

THE KINGClaimant

(on the application of: NICHOLAS BIDAR)Claimant

SECRETARY OF STATE FOR JUSTICEDefendant

MISS TUTKU BEKTAS (instructed by Reece Thomas Watson) for Claimant

MR ROBERT COHEN (instructed by Government Legal Department) for Defendant

APPROVED JUDGMENT

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HHJ TINDAL:

[1]This is a judicial review of the Defendant Secretary of State for Justice’s decision of 10 June 2024 in relation to the Claimant, a serving prisoner. The 10 June Decision (as I shall call it) was that the Claimant should remain classified as a high escape risk.

[2]As I shall explain in more detail, the relevant policy of the Defendant in assessing escape risk, Policy 08/2013 (re-issued in 2016) (which I shall call ‘the Policy’), covers two related but distinct questions. The first is the categorisation of that prisoner within the prison estate, namely whether they are Category A (the most high security categorisation), Category B, Category C, or Category D (the lowest security and often an open prison). As explained at para 2.2. of the Policy, ‘categorisation’ is concerned with the dangerousness of a prisoner if they escaped. For example a ‘Category A’ is defined within the Policy at para.2.1 as:

"A Category A prisoner is a prisoner whose escape would be highly dangerous to the public or the police or the security of the State, and for whom the aim must be to make escape impossible."

[3]However, the Policy differentiates between the question of ‘categorisation’ (whether a prisoner should be in Category A or a lower category) where the issue is their risk on escape; and their ‘escape risk classification’ or risk of escape, if they are in Category A. (The Defendant has a separate policy addressing prisoners’ escape risk classification if in a lower security categorisation, commonly called the E-List Policy). However, for a Category A prisoner like the Claimant, the three escape risk classifications are in summary:

‘standard escape risk’, ‘high escape risk’ and ‘exceptional escape risk’

. Para.2.8 of the Policy states:

"Prior to approving a Category A prisoner's downgrading from high or exceptional escape risk classification the DDC [Deputy Director of Custody] High Security (or delegated authority) must be satisfied that information suggesting an enhanced escape potential is no longer valid."

[4]The process for assessing a Category A prisoner’s ‘escape risk classification’ (which I shall abbreviate to ‘ERC’) is set out in the Policy at paras.3.11 – 3.33. For the moment, it suffices to note that the process entails an annual review, where essentially a dossier or ‘gist’ of relevant information is compiled by a caseworker at the Defendant’s Category A Team, provided to the prisoner for their representations within four weeks, then sent to the relevant decision maker with recommendations by the Category A Team and others.

[5]In this case, the Claimant challenges the 10 June decision by the Defendant to refuse to reduce his escape risk from ‘high’ to ‘standard’ within Category A. However, as I shall explain, it overlaps to some extent with a separate Judicial Review claim currently awaiting judgment by a different judge about the Defendant’s decision in October 2024 to refuse to re-categorise the Claimant from Category A to Category B (‘the categorisation JR’).

Background

[6]I draw this background from the extremely helpful skeleton arguments provided by Miss Bektas for the Claimant and Mr Cohen for the Defendant, supplemented by the witness evidence of both the Claimant himself, his solicitor; and on behalf of the Defendant the evidence of Mr Stuart Freed, Head of the Category A Team’s Directorate of Security (who has given evidence in previous cases in this field). I will not set out every detail of the documents, but rather summarise and quote from what seem to me to be the key events and allegations against the Claimant in his custodial history, but keeping well in mind that some of them are disputed by him. Indeed, that is central to this claim.

[7]The Claimant (who is now 37) when aged 21 in 2009 was convicted of using a firearm to resist arrest and two offences of robbery. He robbed a security guard, then shot a gun at police officers who were pursuing him. He received a sentence of imprisonment for public protection, commonly known as an IPP, with an eight-year custodial term or ‘tariff’.

[8]One of the controversies about IPP sentences was that even after the ‘tariff’ expires, an IPP prisoner must still persuade the Parole Board to order their release. There is no automatic release or end-point, so it is analogous to a sentence of Life Imprisonment. The IPP has since been discontinued by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but the Claimant is one of many prisoners who are still held in custody under an IPP.

[9]The Claimant was originally categorised as a Category A and standard escape risk, but after sentencing he was downgraded to Category B despite being an IPP prisoner. However, he was upgraded to Category A and high escape risk in 2012 after he escaped from Cambridge Crown Court, having jumped out of the witness box and run out of the Courtroom, through the Judges' chambers and attempted to steal a vehicle from a member of the public, but was apprehended shortly afterwards. Furthermore, in 2013, whilst being transferred from HMP Long Lartin to HMP Belmarsh, the Claimant attempted to slip his handcuffs and made repeated attempts to break the escape hatch by kicking it. As I understand it, those matters (classed as an escape and an attempted escape respectively) are not disputed.

[10]What is disputed is an incident in 2019 (by which time the Claimant was Category but ‘standard escape risk’) which led to him being upgraded to ‘high escape risk’ again. During another transfer, the Defendant considered the Claimant had slipped his handcuffs again and tried to escape. But in a Parole Board hearing in 2021, the Board said they were unable to find it was an escape attempt and indeed recommended the Claimant be re-categorised as Category B. That recommendation was not followed by the Defendant and the Claimant has remained on Category A since, which is challenged in the categorisation JR. Whatever happened in 2019, the Defendant considered it showed the Claimant posed an escape risk and raised him to a high escape risk, that is where he has remained ever since. In his statement, he describes the resultant significant limitations on his daily prison life by comparison to Category A prisoners on ‘standard escape risk’ (e.g. chaperoned visits).

[11]In 2021 there is some suggestion in the Defendant’s escape risk classification gist document (which I shall call the ‘ERC Gist’) in February 2024 the Claimant was moved to segregation after an incident in prison. The ERC Gist contains various entries from the prison intelligence record, some accompanied by italicised comments, which are the responses of the Claimant and his solicitors. The segregation issue is not the subject of response, even though entries before and afterwards do have comments, suggesting that it was not contested at the time. There are also some minor matters which are contested in 2022, which I need not dwell on, primarily in relation to the Claimant blocking his cell observation panel.

[12]But in reconsidering the Claimant’s categorisation not ERC review in March 2023, the Defendant’s caseworker’s report recorded no intelligence reports, but those various reports in 2022 of the Claimant blocking his observation panel, including this in February 2023:

"He covered his observation panel and was unresponsive when asked to uncover the panel. When the door was opened, he tried to pull open the cell door, became very abusive and aggressive towards staff saying he was ready for us and to bring a dog. He already had a blade. He managed to push a pillow into the doorway so the door could not be closed."

That is the first of what I will refer to as ‘the four disputed incidents’ which were central to 10 June Decision. The way it was described in the ERC Gist prepared by the Defendant's caseworker in February 2024 was similar but more summarised:

"It is reported that Mr Bidar had obstructed his observation panel and acted to wedge his cell door open so that staff could not close it. During this, he was abusive, aggressive and threatened to use a blade against staff."

[13]The second of the four disputed incidents came after that categorisation document was prepared in March 2023 and a later description of it states that:

"Information suggests that pornographic material was viewable on the television belonging to Mr Bidar while he was asleep in his cell. This would indicate that he was in possession of an illicit storage device which contained adult material. He may have been watching it and unintentionally fallen asleep before switching it off."

[14]The third - and to my mind perhaps the most important - of the four disputed incidents, is referred to in this way in the ERC Gist in February 2024, which is dated to July 2023:

"Two drones were sighted and reported to have carried two packages. The packages were dropped outside Perry Red [I interpose to say a building at HMP Long Lartin where the Claimant then was] and there was an effort by Mr Bidar to line a package into his cell. It is reported one package was successfully lined into the cell, while the second package was intercepted by staff. Mr Bidar's cell was searched without success, and the package intercepted contained a number of mobile phones and illicit substances."

[15]The last of the key incidents I refer to in the ERC Gist was from September 2023:

"On checking a DVD player in reception belonging to Mr Bidar, it was discovered the DVD player element was completely non-functional and had been tampered to accommodate a USB wi-fi adapter connected to circuitry which is believed to be from an android TV box. This was in turn connected to a phone complete with sim card, which would enable internet access."

[16]In February 2024, as part of the process of annual ERC review, the Defendant's caseworker prepared that ERC Gist. It detailed the original sentence, the circumstances of the offences, the background information and custodial history from 2009 to September 2023, including the disputed alleged escape in March 2019 and the four disputed incidents. It stated there was no further information after that. In accordance with the Policy, that was sent to the Claimant who was invited to make representations about it within four weeks. He did not do so. His solicitors did not make representations until May 2024, three months later.

[17]But in the meantime and in parallel, the Defendant was considering the Claimant's security categorisation, as well as his escape classification with which I am concerned. However, the document from 6 March 2024 prepared for the security categorisation did not mention the four disputed incidents. Not mentioning the first in February 2023 might have been explained by the fact it was an annual document. But that does not explain the other three, which were not mentioned in the categorisation report either. Instead, it referred to other matters like the Claimant making inappropriate sexual remarks to a prison officer, threats and abusiveness and being drunk. I say no more as it is relevant to the categorisation JR.

[18]Similarly, in a yet further parallel process, a security report for the Parole Board was prepared by (presumably) a different caseworker of the Defendant on 15 March 2024. So it was only a week or so after the categorisation report but about a month after the ERC Gist in February 2024. Once again, this parole security report did not refer to any of the four disputed incidents between February and September 2023. In fact, it said that there had only been one report submitted in 2023 and none since the last parole report from July 2022. It did focus on intelligence from February and March 2024, but not the intelligence on the four disputed incidents from February to September 2023. Therefore, the Parole Board were not told, for example, of the intelligence suggesting the Claimant was involved in drone packages being dropped and lining one package into his cell. So, the four disputed incidents were neither before the Parole Board, nor the Defendant’s categorisation decision-makers.

[19]That curious differentiation in the information prepared is clearly a source of frustration for Mr Freed, who struggles in his statement to explain why his own department would have prepared three different documents for three different processes containing three different sets of information, none of which appeared to align with each other. I am not convinced myself that there was any logical reason for it. It seemed to me this is a classic case of the right hand not knowing what the left hand is doing in that department. Doubtless, Mr Freed has already looked into it with a view to discouraging it from happening again.

[20]Be that is it may, as I have said, the Claimant did not respond in time to the ERC Gist which did refer to the four disputed incidents. Even the representations made on his behalf by solicitors which came late on 23 May 2024 (and so do not appear to have been taken into account in the 10 June Decision) did not specifically contest the four disputed incidents either. Whilst Miss Bektas ingeniously sought to re-write those representations as challenging the four disputed incidents, all that was really said about them was this:

"There was an absence of proven adjudications. The intelligence within the dossiers dropped off over the years. For this reporting period there are five pieces of intelligence. We note the intelligence is not always credible and reliable. One might wonder why he has not been adjudicated for any other matters. If they occurred, then officers would have adjudicated them. They did not, so one must question how reliable the intelligence entries are."

A prisoner simply saying that an allegation has not been the subject of a prison adjudication and that intelligence is not always reliable does not strictly amount to denial of the allegation. Nevertheless, from context, they were denied, but it was certainly no more than a bare denial which did not attempt to answer the four disputed incidents in any detail. So, for example, it did not give the Claimant's side of the story of the cell or pornography incidents which plainly involved dealings with him by prison staff, nor did it elaborate any real defence beyond a bare denial of his involvement in the drone, or DVD incidents. (For example, he subsequently said the DVD player was not his: but did not say so at the time).

[21]Instead, the main focus of the solicitors’ representations was reliance on the Parole Board decision of 28 March 2024 following an oral hearing on 18 March 2024. As I have said, in its parole security document of 15 March, the Defendant did not mention to the Parole Board the four disputed incidents. Despite being unaware of those allegations, the Parole Board decided the Claimant should neither be released, nor moved to open conditions (given his admitted escape attempts in 2012), but nevertheless encouraged (outside its formal remit) for the Defendant to reconsider the Claimant's categorisation. The Board said:

"In the Panel's view, it is essential to provide detailed observations and recommendations to the Secretary of State and its officials about Mr Bidar's case. Not to do so would be to create a risk of Mr Bidar moving backwards and his level of risk increasing. Mr Bidar is now approaching seven years post-tariff [namely the custodial period which expired in 2017]. He remains a Category A prisoner, and that categorisation is now interfering with his potential to bring about and sustain a change in the longer term. If he is to have any real hope of a life outside prison, immediate action must be taken."

The Board made some specific recommendations in terms of courses and other practical measures, ‘with the hope of his re-categorisation’: supportive of re-categorisation, if not a recommendation as such (which it was formally unable to do save to open conditions).

[22]Whilst the Claimant’s request for reconsideration of the Parole Board decision was rejected on 8 May 2024, his solicitors relied on the original recommendation of re-categorisation in their submissions on escape classification on 23 May. As I said, they were late and should have been within four weeks of the ERC Gist in February but were three months later, presumably because the solicitors wanted to wait for the Parole Board decision to see if it was supportive (as it was, though silent on ERC). Having referred to that, the solicitors said:

"Mr Bidar has now been high escape risk for five years. He is entitled to a thoroughly fair review. We ask the Secretary of State for Justice to thoroughly scrutinise his ongoing placement as high escape risk. Remaining high escape risk impacts on his annual Category A review and also impacts on his ability to argue his release to the Parole Board. It is a long-held principle that the release of Category A prisoners is very rare. This is even more so for those assessed as high escape risk. Mr Bidar is unable to evidence the depth and permanence of his change outside the controlled environment which has long been recognised by the professionals who know him and have assessed him, such as his prison offender manager, and community offender manager."

[23]However, since the Claimant’s solicitors’ submissions were so late, as Mr Freed explains, an initial decision on escape classification had already been taken on 16 May. But the decision-making panel not only had the ERC Gist the Claimant had seen, but also recommendations from both Mr Freed’s Category A Team and the Long Term and High Security Prisons Group. In their recommendation in early May 2024, the Category A Team noted that at that stage the Claimant had not made representations and observed:

"It can be seen that Mr Bidar has made comprehensive representations at previous reviews, and it is noteworthy that he appears to accept that he did retrieve a package from a drone, has been aggressive to staff and has possessed both an illicit storage device and a mobile phone during his reporting period. All of this, despite the consistent messaging from the Category A Team that Mr Bidar's pathway off high escape risk and out of Category A starts with a consistent period of law abiding, pro-social behaviour. His apparent desire to communicate with unknown associates without being monitored by the prison is causing significant concern, in particular with what is known about the significant role illicit mobile phone access has played in recent attempts to escape from lawful custody. [I interpose to say I understand that relates to high-profile escapes, not the Claimant specifically]. Therefore, it is recommended that Mr Bidar is correctly classified at this time."

The Long Term and High Security Prisons Group recommendation concurred:

"Mr Bidar has a demonstrable intent and capability to escape from custody, (see previous reporting). Over this period, he has demonstrated continued links to illicit items, including storage devices, drone packages and a wi-fi adapter. This demonstrates a determined and coordinated effort to subvert prison security processes as well as access to items which would compromise the security of any external escort. High escape risk remains appropriate in this case."

[24]The decision-making panel (delegated from the Defendant’s Deputy Director of Custody) adopted those recommendations and declined to reduce the Claimant’s escape risk at their meeting on 16 May, as I said, before the Claimant’s solicitors’ late submissions arrived, so did not take them into account. But they were still not taken into account in the actual decision letter, that Mr Freed explains that owing to delays was not produced until 10 June:

"The Category A panel reviewed your escape classification on 16 May 2024. The decision is that you are to remain Category A, high escape risk. The panel were concerned it appears you attempted to retrieve a package from a drone, have been aggressive to staff, and have possessed both an illicit storage device and a mobile phone during this reporting period. The panel found it disappointing despite the consistent messaging from the Category A Team that your pathway off high escape risk and out of Category A starts with a consistent period of law abiding pro-social behaviour, you continue to generate concerning behaviour. Your apparent desire to communicate with unknown associates without being monitored by the prison is causing significant concern, in particular what is known about the significant role illicit mobile phone access has played in recent attempts to escape from lawful custody. It was concluded that your continued effort to subvert prison security processes, as well as access to items which would compromise the security of external escorts, means high escape risk remains appropriate."

Therefore, the 10 June Decision is based largely on what I am calling the four disputed incidents and includes paraphrases or quotes from both the recommendations.

Procedural History

[25]It is convenient now to consider not only the procedural history of this claim, but also how the start of it overlapped with the categorisation decision-making process challenged in the categorisation JR. As I understand it, that claim has already been heard by HHJ Simon, who has reserved judgment, which he has not yet been handed down.

[26]On the subject of that categorisation decision, as I said, on 6 March 2024, the Defendant’s Category A Team’s brief did not mention the four disputed incidents, but rather focussed on matters such as inappropriate sexual comments to officers. Perhaps unsurprisingly, on 2 August 2024, the Local Advisory Panel in the Claimant’s prison, including the Prison Offender Manager and prison psychologist, recommended downgrading to Category B.

[27]However, on 24 October 2024, the Defendant’s Category A decision-makers (known as ‘CART’) refused to re-categorise the Claimant from Category A. I have considered the CART decision, but as it is the subject of the categorisation JR before HHJ Simon who has reserved judgment, the less I say about it, the better. Suffice it to say the Claimant’s level of escape risk was not a particularly important consideration in the CART decision.

[28]Moving back to August 2024, the Claimant’s solicitors sent the pre-action protocol letter to the Defendant challenging the escape decision on 10 June 2024. The response, rejecting the criticisms in it, was sent on 10 September 2024. By that time, this claim had been issued on 9 September 2024, understandably, just within the three-month deadline. The Statement of Facts and Grounds, drafted by Miss Bektas, raised two grounds.

[29]Ground 1 alleged the 10 June Decision on escape risk classification was irrational on various grounds. These included firstly that what I am calling the four disputed incidents were not previously considered by the Parole Board nor had they been mentioned to CART (who had not then yet given their decision). Secondly, Miss Bektas argued that the ERC Gist had gisted insufficient information to the Claimant about the four disputed incidents, inhibiting him from addressing them. Thirdly, she argued the 10 June Decision was inconsistent with expert views supportive of reduction in the Claimant's risk, including the Parole Board and Local Advisory Panel. Fourthly, she argued there was an irrational link made in the decision under challenge between illicit telephony and escape attempts. Fifthly, the decision took into account the alleged escape attempt in 2019, which was contested.

[30]Ground 2 alleged procedural unfairness, specifically that an oral hearing was required. In Miss Bektas' grounds she referred Gunnv SSJ

[2024] EWHC 686 (Admin)

to which I come later; and argued several factors took the case outside the default position of no oral hearing for ERC decisions established in Gunn. The critical points - and there is overlap here with Ground 1 - were there were important facts in dispute on escape risk (the four disputed incidents which had not been previously put forward to the Parole Board or the categorisation decision makers); disputed risk assessment (the Parole Board and Local Advisory Board recommended downgrading); the fact that the Claimant was significantly past tariff as an IPP prisoner, had reached an impasse and had never had an oral hearing on escape risk; and the 10 June decision did not have the benefit of representations from him.

[31]The Defendant’s Summary Grounds of Resistance, drafted by Mr Cohen, were filed and served on 4 October 2024 and disputed those two grounds. They argued the 10 June Decision was not irrational despite the different views of the Parole Board and others based on different information; the ERC Gist had provided sufficient information to the Claimant; and there was no need for an oral hearing. On 15 October, the Claimant filed a Reply drafted again by Ms Bektas seeking to raise three new grounds, which I can briefly state as they are not pursued. They all related to ‘evaluation codes’ whereby the Defendant ‘grades’ the reliability of intelligence about a prisoner depending on its source (e.g. staff, other prisoners or third parties etc) and apparent cogency. The draft Ground 3 was that it was not lawful to classify intelligence evaluation codes as non-personal data under the Data Protection Act 2018. The draft Ground 4 was that the Defendant's reliance on its Intelligence Policy Framework to withhold the intelligence evaluation codes was unlawful and unreasonable. The draft Ground 5 was that a lack of intelligence evaluation codes adversely impacted the Claimant's ability to put his case and contributed towards the need for an oral hearing.

[32]On 19 November 2024, Judge Wall refused permission on the original grounds and refused to allow the Claimant to amend to include the three new proposed grounds in the Reply. Whilst the amendment was not pursued, the two original grounds were and HHJ Williams at the oral renewal hearing was persuaded that Grounds 1 and 2 were arguable. Therefore, as Mr Cohen reminded me, the only live grounds for me to consider are Ground 1 - irrationality of the 10 June decision on escape risk; and Ground 2 – its procedural fairness, in particular the absence of an oral hearing. The three additional grounds in the Reply are simply not before me and therefore I cannot adjudicate them.

[33]In fairness to Miss Bektas, the three additional grounds raise interesting questions that might need to be debated in a different case, but not only are they not before me, I am not convinced they were particularly relevant to this case anyway. Neither the crucial ERC Gist nor the two central recommendations from the Category A Team and Long Term and High Security Prisons Group appear to rely on any evaluation codes, nor does the 10 June Decision. In any event, it seems fairly clear that at least two incidents (the cell and pornography ones) are evidently based on prison staff witnessing the Claimant’s actions in and outside of his cell, so intelligence evaluation codes are effectively irrelevant. But be that as it may, the challenges relating to the evaluation codes specifically are not before me.

[34]Mr Cohen also reminded me of the need for procedural rigour emphasised by Singh LJ in Talpada v SSHD

[2018] EWCA Civ 841

at [67-69]. It is why I have said there is no permission for and so I will not be considering Miss Bektas' interesting challenges relating to the evaluation codes. But, in fairness to her, there has been no impermissible evolution of Grounds 1 and 2 in this case. It is true the way she put Ground 2 on oral hearings in the original Statement of Facts and Grounds is a little different from the way she put it in her Skeleton Argument and it slightly shifted again in oral argument, but that is no more than a focusing of the arguments, which is completely normal in Judicial Review.

[35]In Miss Bektas' Skeleton Argument, rather than starting with Ground 1 on irrationality, she started with Ground 2 on procedural unfairness – with five arguments for an oral hearing: i) Firstly, the four disputed incidents had not been considered by the Parole Board or CART decision-makers in the parole or categorisation decisions; ii) Secondly, there was significant expert support for the Claimant’s reduction in risk as considered by the Parole Board and Local Advisory Panel. iii) Thirdly, there were important facts in dispute in relation to those four disputed incidents and indeed concerning the contested ‘escape’ in 2019 which the Parole Board in 2021 was unable to conclude amounted to an escape attempt. iv) Fourthly, the Claimant did not have a proper opportunity to make representations as the ERC Gist did not provide sufficient detail about the four disputed incidents. v) Finally, that ERC decisions have a significant impact in practice on Category A future management in prison and future categorisation reviews.

[36]Ground 1 – the irrationality ground - overlaps significantly. Its four strands are now: i) Firstly, the inclusion of the four disputed incidents in the ERC Gist despite not provided to the Parole Board or the categorisation decision-makers, which Miss Bektas effectively re-labelled as taking into account irrelevant considerations. ii) Secondly, there was a failure, as Miss Bektas re-labelled it, to take into account relevant considerations: namely, the positive aspects of the Claimant's behaviour. iii) Thirdly, the alleged irrational connection made in the 10 June Decision between illicit telephony and escape risk. iv) Fourthly, the irrational reliance on the 2019 incident as relevant to escape risk when the Parole Board had concluded the opposite. However, before considering the two extant grounds of challenge, I will first consider in a little detail the relevant legal framework.

Legal Framework

[37]I can take the legal framework largely from Miss Bektas' Skeleton Argument, which in this respect is similar to Mr Cohen's. The underpinning legal framework is based on the Prison Act 1952 and the Prison Rules 1999 which empower the Defendant Secretary of State for Justice to promulgate policies in relation to the management of prisoners. As I have said, the relevant policy in this case is Prison Service Instruction 08/2013 (re-issued in 2016), which I am calling ‘the Policy’ (although I briefly refer to another policy below).

[38]On security categorisation, para.2.1 of the Policy defines a Category A prisoner as:

"... a prisoner whose escape would be highly dangerous to the public, or the police or the security of the State, and for whom the aim must be to make escape impossible."

Then para.2.2 says this (my italics) "In deciding whether Category A is necessary, consideration may also need to be given to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security, and that prisoner categorised accordingly. This will arise in a limited number of cases since escape potential will not normally affect the consideration of the appropriateness of Category A, because the definition is concerned with the prisoner's dangerousness if he did escape, not how likely he is to escape, and in any event it is not possible to foresee all the circumstances in which an escape may occur." This explains why security ‘categorisation’ is a separate decision from ‘escape risk classification’ (‘ERC’) within Category A. The former is concerned with the risk on escape (i.e. to the public), the latter is concerned only with the risk of escape (in the first place).

[39]Paragraph 2.6 then gives the three escape risk classifications which I summarised above:

"• Standard Escape Risk: A prisoner who will be highly dangerous if at large. No specific information or intelligence to suggest that there is a threat of escape. • High Escape Risk: [I interpose to observe, the Claimant's classification] As Standard Escape Risk, however, one or more of a number of factors are present which suggest that the prisoner may pose a raised escape risk. The factors include: ͦ access to finances, resources and/or associates that could assist an escape attempt ͦ Position in an organised crime group ͦ Nature of current/previous offending ͦ Links to terrorist network ͦ Previous escape(s) from custody ͦ At least one of the above factors plus predictable escorts to be undertaken (e.g. court production, hospital treatment). ͦ Length of time to serve (where any of the other factors above are also present). • Exceptional Escape Risk: As High Escape Risk, however, credible information or intelligence received either internally or from external agencies would suggest that an escape attempt is being planned and the threat is such that the individual requires conditions of heightened security in order to mitigate this risk."

Then on the process of ERC review, paras 2.7 and 2.8 of the Policy state:

"2.7 DDC [Deputy Director of Custody] High Security is responsible for deciding a Category A prisoner's escape risk classification, but may delegate …2.8. Prior to approving a Category A prisoner's downgrading from high or exceptional escape risk classification the DDC High Security (or delegated authority) must be satisfied that information suggesting an enhanced escape potential is no longer valid."

[40]The ERC procedure for a Category A prisoner with a high escape risk like the Claimant is under para 3.11 of the Policy review every 12 months as a minimum. Paras 3.12-20 state:

"3.12 Where new information comes to light that suggests a prisoner's escape risk classification is either too low or too high a review will be completed regardless of the review cycle noted above…. 3.15 The caseworker will prepare a submission to be put to the DDC for decision. When reports are received the caseworker will assess the content as to what information is relevant to the prisoner's escape risk. Any information that is not relevant will not be included in the submission. 3.16 A copy of the submission intended to be put before the DDC (or delegated authority) must be disclosed to the prisoner at least six weeks prior to the review to allow representations to be submitted. 3.17 Any and all representations must be received by the Category A team within four weeks of disclosure of the submission. 3.18 Following these preparations and two weeks prior to the review the caseworker will pass the submission and all representations to the CART. 3.19 Based on the submission and representations the CART will assess the case and make a recommendation on whether a prisoner's current escape risk classification should be retained or downgraded. The submission, representations and the CART recommendation will then be forwarded to the Head of High Security Prisons Group. 3.20 The Head of High Security Prisons Group will review the documents noted above and the recommendation of the CART and make a decision as to whether a prisoner's escape risk is to remain at the current level or to refer the case to the DDC High Security ...."

[41]Putting that back in the context of the present case, as I have said, what happened in this case was the 10 June Decision was made by a panel delegated from the DDC High Security, following recommendations of the Long Term and High Security Prisons Group and Category A Team. But the panel met on 16 May, before the representations of the Claimant's solicitors arrived on 23 May, well outside the four weeks under the Policy from the ERC Gist sent to the Claimant in February. So, there were effectively no representations from him before the panel, which effectively adopted in the 10 June Decision the recommendation of the Category A Team and the High Security Prisons Group.

[42]The 10 June Decision itself did not specifically address the question of whether there should be an oral hearing, but clearly there was not one. That decision was made in May 2024, a couple of months after the decision of Saini J in the case of Gunn handed-down on 25 March 2024 where, as I explain in a moment, he held fairness may require oral hearings in some ERC cases, but the default position was no oral hearing. However, the late representations on 23 May from the Claimant’s solicitors did not refer to or request an oral hearing as such. As an aside on the issue of ERC gists disclosed to prisoners generally in ERC reviews, as Miss Bektas summarises in her Skeleton Argument, the Defendant’s separate Intelligence Collection Analysis and Dissemination Policy sets out its approach to disclosure of security information generally. It states that non-disclosure of intelligence may be appropriate where disclosure would pose a risk to the source. However, that Intelligence Policy affirms that

Art.8 ECHR

may be engaged and if so any interference with a prisoner’s private life (even in prison, including his ERC decision, which as I say affects daily prison life significantly) must be necessary and proportionate. In addition, the Defendant’s unpublished internal guidance to staff directs disclosure of intelligence information should be managed on a case-by-case basis and acknowledges the possibility of disclosure of it – and of evaluation codes to weigh the cogency but protected the source - to a prisoner or their lawyers.

[43]Returning to the legal framework in the main Policy, paras.4.6 and 4.7 relate to oral hearings in the context of not ERC but security categorisation decisions. Para.4.6 states:

"The Courts have consistently recognised the CART context is significantly different to the Parole Board context. In practical terms, those differences have led to the position in which oral hearings in the CART context have only very rarely been held. The differences remain; and continue to be important. However, this policy recognises the Osborn principles are likely to be relevant in many cases in the CART context. The result will be that there will be more decisions to hold oral hearings than has been the position in the past. In these circumstances, this policy is intended to give guidance to those who have to take oral hearing decisions in the CART context."

Three overarching points are also made in para.4.7:

"• First, each case must be considered on its own particular facts - all of which should be weighed in making the oral hearing decision. • Secondly, it is important that the oral hearing decision is approached in a balanced and appropriate way. [Reference is made to Osborn.] • Thirdly, the oral hearing decision is not necessarily an all or nothing decision. In particular, there is scope for a flexible approach as to the issues on which an oral hearing might be appropriate."

These obviously reflect the guidance in Osborn v Parole Board

[2014] AC 1115

(SC). So do the four examples where the Policy recommends an oral hearing in a categorisation decision (it is silent about oral hearings in ERC decisions). Firstly, where important facts are in dispute; secondly, where there is a significant dispute on the expert materials; thirdly, where the lengths of time involved in the case are significant and/or the prisoner is post-tariff, and, fourthly, where a prisoner has never, or not for a long time, had an oral hearing.

[44]Before turning to Osborn, procedural fairness and oral hearings, it is convenient to start with the leading case on rationality challenges to ERC decisions, which came shortly after Osborn but does not appear to have cited it (because it related to irrationality not oral hearings): R(Khatib) v SSJ

[2015] EWHC 606 (Admin)

. The Divisional Court in Khatib, in a judgment given by Elias LJ, gave partial declaratory relief on a ERC decision relating to a terrorist. Whilst the facts are very different from the present case, it is relevant to note Elias LJ’s summary of the effect of the ERC policy then, which remains similar now:

"6. All Category A prisoners are subject to a separate assessment which seeks to identify the risk that they may escape. Unlike the security classification, this is not concerned with the consequences if they do escape; it focuses on the risk that they might do so. 8. The definition of high escape risk identifies certain factors from which a high risk can be inferred, but they are not exhaustive. It is a relatively low threshold. It is sufficient for a prisoner to be placed in the higher risk category that he may pose a risk of escape; a cautious, risk averse, approach is adopted. 9. The higher the category in which a prisoner is placed, the more detailed and intrusive the measures to prevent escape will be. Those on high escape risk will be subject to more frequent cell searches and cell moves than would otherwise be the case, and domestic visits will be held in the presence of a member of staff. As the Divisional Court noted in Abdullah v Secretary of State [2011] ... the impact of high risk classification is a matter of real significance affecting the daily life of the prisoner. Moreover it will in practice be likely to affect the chance of the prisoner being considered for parole: Ali v Director of High Security Prisons [2009] EWHC 1732 ..."

[45]Later in his judgment in Khatib, Elias LJ emphasised there was a difference between the decision on categorisation, whether of Category A or a lower category on one hand, and the escape classification - ‘ERC’ - on the other. In Khatib, the prisoner argued there was no intrinsic link between them which the decision under challenge had confused. Ironically, that is almost the opposite of Miss Bektas' submission before me, which is that the two questions of categorisation and escape classification are inextricably linked. Elias LJ addressed this issue in detail in Khatib. He criticised the inclusion in the Policy’s definition of ‘high escape risk’ the factor of ‘current/previous offending’, since while he acknowledged that offending may be relevant to escape risk, he warned this may confuse the ERC test with the categorisation test, which were two different tests, as he said at [45]:

"If the nature of the offending reveals some other factor relevant to the risk of escape, such as propensity to escape if the opportunity arises, that factor may well justify or help to justify a high escape risk assessment, but it should then be specifically identified and not subsumed under the generic heading of the nature of the offending. When so expressed it understandably raises the concern that the risk of escape has been confused with the risk of further dangerous offending if there is an escape."

Elias LJ drew an analytical distinction between risk of escape (‘ERC’) and risk on escape (categorisation), but explained they could be practically inter-related (e.g. by offending).

[46]In Khatib Elias LJ also analysed the principles of rationality in detail at [49]-[53] on irrationality: particularly having regard to material considerations but not to irrelevant ones. The whole passage bears reading, but in summary Elias LJ made these points. Firstly, where a decision-maker relies upon a briefing prepared by others, the decision-maker need not be told everything which has potential relevance, however marginal. However, they must be given the salient facts: those of such importance that, if not considered, it cannot be said the matter has been rationally considered. Secondly, the decision will be invalidated for failing to take into account a relevant consideration only if it is one which the decision-maker was rationally obliged to consider (and so which also had to be drawn to his attention in any briefing). Thirdly, unless the relevant rules indicate to the contrary, it is for the decision-maker to decide, subject to Wednesbury principles, what information is relevant and what is not. Fourthly, it is again for the decision-maker, again subject to Wednesbury criteria, to decide how extensive any enquiry into disputed facts should be. Finally, in determining what is potentially relevant or the extent of any enquiry, the decision-maker (or those briefing him) must have regard to the nature of the decision. Where it adversely impinges on the rights and liberties of an individual (as escape risk classification plainly does) he must ensure that matters favouring the individual as well as those against him are addressed.

[47]Linking that last point and the specific issue of gisting in ERC decisions, in Khatib at [56] and [59], Elias LJ observed it was wrong for an ERC gist to omit information which would be relevant positively to mitigate a prisoner's escape risk – that could not simply be left to the prisoner’s own representations. Elias LJ referred to the Divisional Court’s decision in R(Hindawi) v SSJ

[2011] EWHC 830 (QB)

, where Thomas LJ (as he was) said at [73]:

"... [F]airness required that [the Secretary of State's] officials put the issues to him in a balanced way so he could arrive at a decision that had a rational basis… He could not rely, if he was to follow what a fair procedure dictated, upon a document which set out only the case for rejection of the panel's decision."

[48]On the subject of a fair procedure, I turn from rationality to procedural fairness. The general principles of fairness were set out in Osborn, albeit in the context of the Parole Board which exercises a judicial function, unlike the Secretary of State. In Osborn at [65]-[72], Lord Reed described three general principles that apply in any procedure not just to oral hearings: i) Firstly, as Lord Reed said at [65], procedural fairness is a matter for the Court's own objective judgment, not the decision-maker’s judgment (unlike Wednesbury irrationality). That is why, as Saini J said in Gunn at [65], the fact the Defendant's Policy makes no provision for oral hearings in escape risk classification cases does not mean that fairness does not objectively require oral hearings in some cases. ii) Secondly, in Osborn at [66]-[71], Lord Reed explained that procedural fairness was not simply to improve decision-making, but also to ensure a sense of fairness and participation by prisoners. Likewise, in R(Bourgass) v SSJ

[2015] 3 WLR 457

(SC), a case about authority and fairness in making prison segregation decisions, Lord Reed explained the importance of fairness in ‘gisting’ for prisoners at [100]: “A prisoner's right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond. He must therefore normally be informed of the substance of the matters on [which the decision is to be made]… That will not normally require the disclosure of the primary evidence on which the governor's concerns are based: the Secretary of State is not determining what may or may not have happened, but is taking an operational decision concerning the management of risk. It is however important to understand that what is required is genuine and meaningful disclosure of the reasons why authorisation is sought." That can be applied by analogy to the present context of escape risk classification and again, was applied by Saini J in Gunn, who said at [53] procedures for gisting and representations in the Policy reflected the requirements of procedural fairness. iii) The third of Lord Reed’s general principles in Osborn at [72] was that the cost of fair procedure (i.e. an oral hearing) did not justify not following fair procedure. As will be seen, again Saini J picked up on this point in passing in Gunn as well.

[49]Before I leave Osborn, I will just summarise the well-known four non-exhaustive examples that Lord Reed gave at [2(ii)] where fairness might require an oral hearing in the (different) context of the Parole Board:(a) where important facts are in dispute;

(b) where an oral hearing is required for the Parole Board to make an assessment of risk in a complex case;

(c) where it is maintained on tenable grounds that an oral hearing is required by fairness to enable the questioning of those who dealt with the prisoner; and

(d) where, in the light of the representations made, it would be unfair for a previously provisional paper hearing decision to become final. That last point obviously does not apply in the ERC context where there is no ‘provisional’ decision. However, Miss Bektas does rely on the first three.

[50]However, in Hassett v SSJ

[2017] 1 WLR 4750

(CA), Sales LJ (as he then was) observed at [59] the reasoning in Osborn about oral hearings in Parole Board cases did not apply directly to categorisation decisions made by CART (indeed the Policy makes a similar point at para.4.6). Sales LJ said this was because the Parole Board is a Court to which

Art.5(4) ECHR

applies, whereas the Secretary of State is not; and the nature of their decisions are different, as is the prisoner’s legitimate interest in participation and likelihood of useful contribution. As Sales LJ put it in Hassett at [61]:

"Some of the factors highlighted by Lord Reed [in Osborn] will have some application in the context of [categorisation] decision-making by the CART/Director, but will usually have considerably less force in that context. However, it deserves emphasis that fairness will sometimes require an oral hearing by the CART/Director, if only in comparatively rare cases. In particular, if in asking the question whether upon escape the prisoner would represent a risk to the public the CART/Director, having read all the reports, were left in significant doubt on a matter on which the prisoner's own attitude might make a critical difference, the impact upon him of a decision to maintain him in Category A would be so marked that fairness would be likely to require an oral hearing."

[51]In Gunn, Saini J considered both Osborn and Hassett and, as I have already said, he determined there could be no blanket rule against an oral hearing in escape risk classification (‘ERC’) cases. However, he did emphasise at [55]-[56] that:

"55….Mr Freed explains that, unlike in the context of categorisation, the assessment of [escape risk] does not depend on resolving disputes of fact or expert opinion, but on whether there are factors which he says 'may' 'suggest' to the decision maker that the prisoner 'may' pose a raised escape risk. In addition, he explains that due to the gisting of intelligence in ERC decisions, there would be few benefits, and little in terms of a constructive dialogue, in an ERC hearing. He says because of the nature of gisted intelligence a prison official or witness would be unable to elaborate further on the nature of the intelligence which formed the assessment. 56. In general, I accept that these are valid points which justify not having an oral hearing in the normal run of cases, particularly where the prisoner will have had disclosure and an opportunity to make written representations.However, I consider that (as in the case of categorisation decisions) the policy itself should identify that consideration will be given to an oral hearing in an appropriate case. The context of [escape] decisions justifies a default rule that there will be no oral hearing but the possibility of such a hearing being necessary should be recognised on the face of the policy. ... What fairness requires is fact specific and a blanket rule, even if simple and administratively convenient, risks common law unfairness if it is not capable of responding with flexibility to the circumstances. I do not accept cost can be legitimate reason for refusing a hearing."

Having said that, Saini J went on to say in Gunn at [59] and [63]:

"59…[M]y conclusion is first that oral hearings in [ERC] decisions cannot be excluded in all cases, and secondly, that considerations of good practice and procedural fairness require that a prisoner be able to discover he may be able to at least ask for an oral hearing…. 63. I reject the submission…that an oral hearing may be necessary because 'dignity' related considerations demand a prisoner have a right of oral participation. That would suggest all [ERC] decisions require an oral hearing. Public law fairness is not based on such considerations in the present context but rather on the twin aims of ensuring an individual can make his position on the disputed issues known to a decision maker (which a prisoner can do in written representations) and production of a better-informed decision by the Deputy Director. One must not lose sight of the fact that [escape risk classification] is ultimately a matter of prison management and of the risks of judicialisation in this context. ERC decisions are very far removed from the situation in cases such as Osborn. "

[52]Saini J at [58] suggested the Defendant should amend the Policy to include examples of situations where an oral hearing might be required by fairness in an ERC case. That has not so far been acted upon by the Defendant. Nevertheless, it is relevant to the argument in this case to consider some examples or ERC oral hearings by analogy to Parole Board and categorisation oral hearings and Mr Cohen and Miss Bektas helpfully discussed examples.

[53]I agree with Mr Cohen there is a continuum of fairness with oral hearings with, at one end of the spectrum, Parole Board decisions, with security categorisation decisions in the middle and at the other end of the spectrum, escape risk classification (‘ERC’) decisions. Just as there is a difference between a Parole Board’s decision and categorisation decision made by the Secretary of State as Sales LJ discussed in Hassett, there is a (lesser) difference between Secretary of State security categorisation decisions and ERC decisions. This is both because of the nature of ERC decisions which Saini J discussed in Gunn; and the difference between the tests for ERC and security categorisation Elias LJ noted in Khatib. As he said, the test for categorisation at Category A is based upon the prisoner's risk (to the public) on escape, the latter based only on his risk of escape: see paras.2.1 and 2.2 Policy.

[54]For the Parole Board with indeterminate or extended sentence prisoners, the decision is whether the prisoner’s dangerousness to the public on release: a judicial decision as Lord Reed said in Osborn, also one with extremely wide ambit of risk. (Whether to recommend to open conditions is another Parole Board decision but is of narrower ambit, so less likely to require an oral hearing on its own, but is often considered alongside a release decision). Security categorisation is similarly the prisoner's dangerousness to the public on escape, but it is not a judicial decision, as Sales LJ explained in Hassett. But it is still wider with many more imponderables than an ERC decision limited to the risk of escape only. ‘Categorisation’ risk to the public on escape may be more based on offending history than prison intelligence, whereas ‘ERC’ risk of escape may well be more based on intelligence. So, as a narrower, more intelligence-based decision than categorisation, it is less likely fairness will require an oral hearing in ERC cases: Saini J said there is a default rule of no oral hearings in ERC decisions in Gunn while Sales LJ did not go so far with categorisation decisions in Hassett. However, as discussed, whilst the risk of escape is analytically distinct from the risk on escape, as Elias LJ said in Khatib, they can be practically linked.

[55]So, what sort of situations might nevertheless prompt fairness to require departure from that default rule of no oral hearings in ERC cases ? Due to the possible practical linkage between escape risk and categorisation, one example is where a reduction in ERC is (and particularly if it has already been identified by the Parole Board or CART as) an essential first step in future prospects of downgrading from Category A and eventually potentially to release. This is most obvious with a post-tariff indeterminate prisoner. In that case, fairness may require an oral hearing of the ERC decision itself, rather than simply leaving it to later categorisation or Parole Board decisions to decide whether there should be an oral hearing.

[56]Secondly - and potentially overlapping with the first - fairness may be more likely to require an oral hearing of an ERC decision where an allegation is crucial to escape risk (e.g. an ‘escape attempt’) is disputed, has not been the subject of adjudication and is appropriate for a freestanding decision (rather than being a marginal issue in a categorisation or Parole Board decision). But for fairness to require oral hearing, it may need more than bare denial.

[57]The third example is analogous to the example by Sales LJ in Hassett at [61] for categorisation oral hearings: where the decision-maker is in significant doubt about an ERC decision and would be assisted by seeing the prisoner in an oral hearing. But for the reasons discussed, that will be less often with ERC than categorisation decisions (e.g. one example may be a high escape risk classification on is severely impacting a vulnerable prisoner). Those are just examples and in no way exhaustive of when fairness requires oral hearings.

Conclusions

[58]I start with my conclusions on Ground 2: did fairness require an oral hearing ? It is convenient to repeat the five points Miss Bektas made for the Claimant on this issue: i) Firstly, the four disputed incidents had not been considered by the Parole Board or CART decision-makers in the parole or categorisation decisions. ii) Secondly, there was significant expert support for the Claimant’s reduction in risk as considered by the Parole Board and Local Advisory Panel. iii) Thirdly, there were important facts in dispute in relation to those four disputed incidents and indeed concerning the contested ‘escape’ in 2019 which the Parole Board in 2021 was unable to conclude amounted to an escape attempt. iv) Fourthly, the Claimant did not have a proper opportunity to make representations as the ERC Gist did not provide sufficient detail about the four disputed incidents. v) Finally, that ERC decisions have a significant impact in practice on Category A future management in prison and future categorisation reviews. I will deal with those effectively but not entirely in reverse order.

[59]On Miss Bektas’s last point, I agree with her in principle that ERC decisions can sometimes make a significant practical impact on categorisation decisions. For example, as I have said, a Parole Board may suggest that a reduction in escape risk classification of a post-tariff indeterminate Category A prisoner is an essential first step to his re-categorisation and later open conditions as a precursor to potential release, where fairness may well require an oral hearing of the ERC decision. However, I agree with Mr Cohen that the Claimant’s ERC decision was unlikely to have any real impact on his upcoming categorisation decision. That is for the simple reason that the Parole Board at an oral hearing had already given a strong steer towards re-categorisation of the Claimant. I say no more as the Defendant’s CART decision-makers rejected that steer and that is the subject of the categorisation JR. However, the point here is that the ERC decision under challenge before me was marginal or even irrelevant to the categorisation process, which as the Claimant says, was proceeding on different factual information. With the benefit of a strong steer on re-categorisation from a recent Parole Board oral hearing, fairness did not require a second oral hearing in short succession on the much narrower ERC issue to contribute to the categorisation process.

[60]I turn next to Miss Bektas’ fourth point on Ground 2, which is that the Claimant did not have a worthwhile opportunity to make meaningful representations and the ERC Gist gave insufficient detail of the four disputed incidents, which if he was to effectively challenge, the Claimant would have to do at an oral hearing. However, the difficulty with this is that as Saini J said in Gunn at [55]-[56], the Defendant’s caution around intelligence and gisting is one reason why an oral hearing in ERC cases is rarer. If the ERC gist document is insufficient, the answer is not to seek an oral hearing, but for the prisoner to say (in good time, not two months late) that in representations and seek more detailed ‘gisting’ and if it is not forthcoming, challenge for procedural unfairness by reference to Hindawi and Khatib.

[61]However, in any event, there is nothing in the complaint of insufficient gisting. The relevant matters were the four disputed incidents: the February 2023 blocking of the observation panel then aggressive behaviour; the April 2023 viewing of pornography; the July 2023 drone issue, and the September 2023 converted DVD/wi-fi. There was more than enough information in the ERC Gist about those for the Claimant to make a meaningful response – the ERC Gist was a ‘genuine and meaningful disclosure’, as Lord Reed put it in Bourgass, especially as he added a ‘gist’ would not normally include the primary evidence. For example, with the drone incident, the Claimant was given a date, location and basic allegation - that he had lined in a package from a drone whilst another was intercepted by staff (which makes it obvious information had come at least in part from prison staff and not only from a disgruntled fellow prisoner for instance). It was certainly not a case where the Claimant was only provided with the bare minimum such as ‘you took a package from a drone’, with no date or details at all, which would have been unfair on the Bourgass test. The Claimant had more than enough information to respond properly to the drone allegation – and even more still about the other three disputed incidents. However, all he gave was a bare denial – but that was down to him and his solicitors, not the detail of the ERC Gist.

[62]Of course, had the Claimant given more detail than bare denials to this or any of the other incidents, it is possible that it would have become apparent to the Defendant that there were truly disputed facts highly relevant to escape risk which may justify an oral hearing. However, in the absence of that, there was no need for an oral hearing on that basis. I agree with Miss Bektas that the Category A Team was technically incorrect in early May to say the Claimant appeared to accept the four disputed incidents when it would have been better simply to say that he had at that stage not challenged them. However, that does not really matter in this case because the 10 June Decision itself simply said:

"The Panel were concerned that it appears that you attempted to retrieve a package from a drone, being aggressive to staff, possession of an illicit storage device, mobile phone use in the reported period."

So, in other words, that decision did not assume the Claimant had positively accepted those allegations simply because he had not responded at the time of the decision was made. So, I consider the Claimant did have a meaningful opportunity to make representations and that fairness did not require an oral hearing for him to elaborate on his account, especially when he had not given any account in time when the matters were originally gisted to him.

[63]I turn to Miss Bektas’ third argument there were important facts in dispute on the four disputed incidents and the 2019 disputed ‘escape’ The short answer is there were not as at the decision on 16 May as the Claimant had not yet disputed the incidents as I said. Whilst he later did through his solicitors, his bare denials did not justify an oral hearing. Certainly, there was nothing close to anything requiring a freestanding evidential determination of an important and disputed escape allegation, which I gave earlier as a possible example where fairness may require an oral hearing in an ERC case. Whilst the Claimant’s 2019 ‘escape attempt’ was disputed, it had been found not proven by the Parole Board in 2021. Whilst the ERC Gist could have been clearer about that, there is no evidence it was relevant to the 10 June decision given admitted escapes before it and the four disputed incidents since.

[64]Turning next to Miss Bektas’ first point that the four disputed matters had not been considered by the Parole Board; and would not be considered in the October categorisation decision, I cannot see how the latter is relevant. Fairness does not require an oral hearing in May/June because of something that happens or does not happen in the following October. Indeed, the absence of the four disputed incidents from the materials before the Parole Board in March 2024 and CART in October 2024 was advantageous to the Claimant. This may well be a case where the right hand did not know what the left hand was doing in the Category A team, but that does not mean that fairness required an oral hearing in the context of the properly-gisted four disputed matters in the ERC process. Nor indeed in relation to the 2019 disputed escape, for the reasons just given. In any event, the 2019 incident was not apparently referenced in either ERC recommendation or in the 10 June Decision itself.

[65]Last on Ground 2, I turn to Miss Bektas’ second point – the suggested significant support for reduction in risk from experts who knew the Claimant, including the experts and professionals before the Parole Board in March 2024. In argument, Miss Bektas refocused that into the wider point that there was no information provided in the ERC Gist which gave any sort of positive light on the Claimant, such as that he was on an enhanced status or indeed the character reference given by one of his managing officers. I am conscious that Elias LJ in Khatib, by reference to Hindawi, emphasised that a gist document should be fair and give a balanced picture and not simply rely on a prisoner’s representations. However, that support was a matter of written record. He case was not so unusual as to point to an oral hearing as in the third example I gave. I come back to the ‘one-sided picture’ point in a moment, but it did not mean fairness required an oral hearing, especially in an ERC case where that had not been requested by solicitors. Indeed, standing back in the round, I dismiss Ground 2 as a whole: on my objective view, fairness did not require an oral hearing in this ERC case, even if it may well require one in other cases of the kinds discussed.

[66]Of course, that does not mean the ERC decision itself was rational. Nevertheless, I can deal with Ground 1 much more swiftly, although the last point about the absence of positive matters in the ERC Gist is rather stronger on irrationality than on the oral hearing issue. Whilst Elias LJ in Khatib at [56] and [59] and in citing Hindawi at [73] referred to procedural fairness, Elias LJ at [49]-[55] had also discussed what material was relevant and not relevant in a ERC gist document in relation to rationality: i.e. taking into account relevant considerations in favour of a prisoner. It is regrettable, in my judgement, that the ERC Gist in this case did not seek to balance the negative indications suggesting a risk of escape with more positive matters such as the Claimant's enhanced status. But irrationality is a high threshold, as Mr Cohen rightly reminded me, and unlike with procedural fairness as explained in Osborn, it is a matter for the judgment of the decision-maker(s) for the Secretary of State subject to rationality. Ultimately, the decision that was being taken was the risk of an escape posed by the Claimant. Of course, it would have been better for a more balanced ERC Gist to reflect on the one hand that he was suspected of behaving in a way which raised concerns, but on the other was an enhanced prisoner. A one-sided gist may well have proved to be a serious flaw in a security categorisation process. However, the only question in an ERC decision is the risk of escape. So, really what mattered was the Claimant’s undisputed escape history (leaving aside whatever happened in 2019) and the four disputed matters insofar as they were relevant to escape. That is principally the drone incident, but also the wi-fi and cell incidents, because illicit telephony is clearly relevant to risk of escape for the reasons Mr Freed gave – since illicit phones can also be used to plan escapes, despite Miss Bektas’ submissions. Moreover, the Policy itself says at para.2.8 that before downgrading ERC the decision maker ‘must be satisfied information suggesting an enhanced escape potential is no longer valid’. In my view, it was unfortunate but not irrational for the Defendant to consider positive material about the Claimant’s enhanced status etc was not really relevant to his escape, so need not be included in the ERC Gist.

[67]Nor was the 10 June decision irrational or unfair in any other way suggested. It was not irrational for that decision to be based upon the four disputed incidents insofar as they were relevant to escape risk (I doubt the pornography was, although it was totally immaterial to the decision anyway). That is not changed by the fact they, for whatever reason, had not been put before the Parole Board or before the categorisation review decision. Moreover, the views of the expert professionals had to be read in the light of the Parole Board's view, which had rejected the recommendation of the Community Offender Manager that the Claimant should move to open conditions. As I say, the link between the illicit telephony (e.g. in the drone and DVD incidents) and escape, at least for a prisoner with an escape history like the Claimant, is an indisputably rational and legitimate link which supports not undermines the decision. Finally, the 10 June Decision simply was not based upon whether or not the Claimant attempted to escape in 2019 (although, for what it is worth, it seems to me the Defendant is entitled to take a different view than the Parole Board in that respect). More importantly, the Claimant had unquestionably actually escaped in 2012 and attempted to escape in 2013, and unfortunately, his pattern of behaviour had not fundamentally changed, as evidenced by the effectively unchallenged or at least only barely denied intelligence, e.g. about the drones.

[68]For those reasons, I cannot say the 10 June Decision under challenge was either unfair or irrational. The more interesting challenges that Miss Bektas floated in the Reply are not formally before me and must await a different case. But let me be very clear finally. Whilst I have found the 10 June ERC Decision was fair and lawful, it does not follow from that the October categorisation decision was fair and lawful, or indeed not fair and lawful. That is a matter entirely for Judge Simon deciding that case and when it comes, his judgment will stand completely independently from the present judgment and vice versa. For those reasons, I dismiss this claim for judicial review. Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com