Administrative Court quashes refusal to re-categorise a prisoner convicted of crimes against humanity - R (Krstic) v SSJ  

R (on the application of Radislav Krstic) v Secretary of State for Justice [2010] EWHC 2125 (Admin) (HHJ Pelling QC sitting as a judge of the High Court)

> judgment

Radislav Krstic was convicted in 2001 of crimes against humanity by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and after an appeal was sentenced to 35 years’ imprisonment. In 1995, Mr Krstic was a Major General in the Army of the Serb Republic of Bosnia-Herzegovina. ICTY found that Mr Krstic played a supporting role in the Srebrenica massacre of Bosnian Muslims in July of that year.

Mr Krstic was transferred to the UK in December 2004 to serve the remainder of his sentence pursuant to an Agreement between the UK Government and the United Nations on the enforcement of sentences of the Tribunal. In accordance with the agreement, he will become eligible for release on 1st June 2016.

Mr Krstic has been on prison Category A since arrival in the UK, despite exemplary behaviour. In a decision dated 9 October 2009, the Category A Review Team refused to re-categorise him for the following reasons:

• There was no evidence of a change in circumstances, mainly due to a lack of availability of ‘offending behaviour work’
• He denied that he was guilty as per the terms of his conviction
• Due to the severity of the offence, the high level of dangerousness was self-evident

In a response to a pre-action protocol letter, the Defendant added that Mr Krstic posed a “certain risk to sections of the public should he be unlawfully at large.”

It was submitted on behalf of Mr Krstic that while the index offence was a terrible crime, the Defendant was required to take into account a prisoner’s risk on the date of assessment, not at the time of the offence. It was unreasonable to refuse re-categorisation on the basis of a lack of offending behaviour work as none was available for this type of offence, and his denial of his guilt was irrelevant to the assessment of risk he might pose if unlawfully at large. According to the guidance, “Every prisoner must be placed in the lowest security Category consistent with the needs of security and control.” The refusal to re-categorise Mr Krstic was irrational.

HHJ Pelling accepted that the Defendant’s decision was irrational and quashed it. Judge Pelling addressed the issues as follows:

“13. It is the Claimant’s case that lack of participation in offence related work does not itself bar downgrading. This is or should be common ground. It is equally common ground that it would be unlawful to refuse to downgrade simply on the basis of a denial of guilt...

14. In relation to the provision of treatment programs, it is common ground that it will be a breach of the Secretary of State's public law duty to put beyond a prisoner the means of demonstrating a reduction in dangerousness while at the same time demanding such progress from the prisoner before granting him re-categorisation -- see, most recently, R (Falconer) v. SSJ [2009] EWHC2341 (admin) per Pitchford J at paragraph 31.

16. ... it is to be borne in mind that the Claimant was not sentenced on the basis that he posed a future risk. He was sentenced...to a very substantial term of imprisonment in order to punish him for his role in the commission of the offences concerned and no doubt to deter others... The issue for the Defendant is not and never was the seriousness of the offences for which the Claimant was convicted but whether he was so highly dangerous to either the police or the public...as at the date of the decision concerned...as to justify his continued categorisation as a Category A prisoner having regard to the Defendant’s declared policy that every prisoner must be placed in the lowest security category consistent with the needs of security and control.

20. (The decision) amounts to little more than an assertion that because the Claimant had been convicted of the offences in question, it therefore followed that he remained highly dangerous. Aside from that it does not specifically identify the section of the public the Defendant had in mind when reaching the conclusion identified. Even assuming that it had been intended to identify those who were at risk as being either the Muslim population in the UK or the Bosnian Muslim population there is nothing in the letter that explains why the Claimant was to be regarded as highly dangerous to those sections of the public in the circumstances as they were in October 2009.”

It is incumbent upon the Defendant to identify a risk to the public or at least a section thereof if the prisoner became unlawfully at large. Judge Pelling states:

“20. Clearly there will be cases where it can be inferred from the nature of the offences committed that the prisoner concerned continues to be highly dangerous either to the public or to a sub set of the public at large. This will be so particularly where the offender concerned has been convicted of persistent serious sexual offences or offences of violence. However the Defendant recognises that not all such offences will justify the imposition of Category A status. This much is apparent from Paragraphs 3.1 and 3.2 of PSO 1010. Paragraph 3.1 actively requires the assembly of information about the nature of the offending of the prisoner concerned in order that a rational conclusion can be reached. There is no evidence however that any attempt has been made to carry out an exercise of this sort in relation to the Claimant at any rate when considering whether the Claimant remained highly dangerous on 20th October 2009 when the relevant decision was taken.”

In summary, the Defendant’s refusal to re-categorise was irrational for the following reason:
“25...In my judgment the reality is that the Defendant failed to look beyond the gravity of the offence and ask himself the right question – which was whether the Claimant was highly dangerous at the date of the relevant decision – or answer it by a proper consideration of all the material facts and matters relevant to the determination of that issue bearing in mind the policy that every prisoner is to be placed in the lowest security Category consistent with the needs of security and control.”

Mr Krstic was represented by Pete Weatherby of Garden Court North Chambers and Peter Mahy and Sarfraz Ahmed from Howells Solicitors .

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