High Court Upholds Secretary of State's Decision on Discretionary Removal in Dragoi Case

Citation: [2024] EWHC 60 (Admin)
Judgment on


In the case of “Vasile Dragoi, R (on the application of) v Secretary of State for Justice,” the High Court of Justice considered an application for judicial review of the decision not to exercise discretion to remove the claimant, Mr. Vasile Dragoi, to Romania under the early release scheme (ERS) of the Criminal Justice Act 2003 (CJA). This article provides an analysis of the key topics and legal principles applied in the case.

Key Facts

Mr. Vasile Dragoi, the claimant, is a Romanian national convicted of modern slavery offenses. His request for early removal to Romania under the ERS was refused on the grounds that it would undermine public safety and confidence in the criminal justice system. Dragoi sought judicial review challenging the decision based on failure to consider relevant factors, irrationality, and allegations of unlawful detention.

Judicial Review and Relevant Considerations

The court considered the classic principles of judicial review, specifically whether a decision-maker failed to take into account factors that they ought, in law, to have considered. Following the guidelines in Khatun v Newham London Borough Council and principles from In Re Findlay and CREEDNZ Inc v Governor General, the court emphasized the high threshold required to establish that a failure to consider particular factors amounted to a legal error.

Discretionary Decisions and Rationality

The judge analyzed whether the Secretary of State’s refusal to remove the claimant under ERS was irrational based on the factors presented. The decision-making process is allowed a high degree of discretion that should not be easily interfered with, except in instances where the decision is so unreasonable that no reasonable authority would have made it, as outlined in Associated Provincial Picture Houses v Wednesbury Corporation.

Lawful Detention and Public Law Errors

The judgment delved into the concept of lawful detention, particularly in the context of public law errors in decision-making. It relied on judgments from R (James) v Secretary of State for Justice and R (Khan) v Secretary of State for Justice, affirming that an inmate remains lawfully detained by statute until directed otherwise, and that public law duty breaches do not entitle individuals to damages for unlawful detention. Furthermore, the principles of Article 5 of the European Convention on Human Rights, related to protection from arbitrary detention, were discussed.


The High Court dismissed the claim for judicial review on all grounds. Firstly, it established that the Secretary of State had considered the relevant factors and that the claimant’s health issues were not so material to the decision to refuse ERS that their omission rendered the decision irrational. The judge held that the discretion under s.260 CJA was used lawfully and that any inconsistencies in the treatment of the claimant compared to his sons were justified by differences in the awareness of the police at the relevant times.

Moreover, the court found no basis to suggest that the claimant’s detention was unlawful or in breach of Article 5 ECHR. The distinction between a breach of public law duties and common law rights to be released was significant, suggesting that not every public law error affecting release dates entails unlawful detention.


The High Court’s decision in this case reaffirms the high degree of respect afforded to discretionary decision-making within the scope of the criminal justice system, particularly in complex areas such as public safety and confidence in the legal process. The court clearly outlined the principles governing judicial reviews of discretionary decisions, the rationality test for administrative decisions, and the concept of lawful detention in light of statutory and ECHR provisions. This judgment is indicative of the cautious approach courts take when adjudicating on the lawfulness of detention and the exercise of discretion under criminal justice policy.

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