In a landmark judicial review decision, the High Court has ordered the early release on compassionate grounds of Mr Roger Khan, a terminally ill prisoner who has spent the past year battling severe and complex medical conditions, including Chronic Obstructive Pulmonary Disease (COPD), emphysema, interstitial lung disease and chronic kidney disease.
Permanently confined to a wheelchair and reliant on oxygen tanks to breathe, Mr Khan has been given a life expectancy of less than three months.
Mr Khan had been in an open prison for 18 months and had been allowed temporary release on numerous occasions during this period. His ongoing care and treatment required lengthy journeys to specialist hospitals from the prison. The prison had asked the Secretary of State to grant him early release on compassionate grounds (ERCG) just over a year before the end of his prison sentence.
The High Court’s judgment followed three successive refusals by the Secretary of State to grant ERCG to Mr Khan since July 2024. These refusals were the subject of three separate judicial review claims pursued by SL5 Legal. The first two claims were withdrawn after the Secretary of State promised to make fresh decisions before the case could be heard by the High Court.
The High Court’s judgment, which has not yet been published, emphasised several key findings:
The Policy governing compassionate release can be interpreted broadly to reflect its humanitarian purpose. The proper focus is on relieving suffering and ensuring prisoners receive care that respects their dignity, particularly in cases of terminal illness.
The decisions made by the Secretary of State’s officials in Mr Khan’s case improperly prioritised the issue of the manageability of a prisoner’s medical conditions in prison over the clear evidence that Mr Khan’s care would be significantly improved in the community.
The risk assessment made by the Secretary of State’s officials was wholly irrational and failed to appropriately account for his impeccable prison record, his extensive periods of release on temporary licence, and the positive recommendations of every professional who had met or spoken with him.
The Court found that decisions made by the Secretary of State’s officials failed to consider clear and uncontradicted evidence that Mr Khan’s medical treatment would be better were he not incarcerated.
Mr Khan was represented by Andrew Sperling, Baxter Jephcott and Yasmin Karabasic of SL5 Legal. He was represented in the High Court by Jude Bunting KC.
Andrew Sperling said after the hearing:
“The High Court’s judgment in this case emphasises that the Secretary of State for Justice has an important power to grant compassionate release to prisoners who are very seriously ill and that this power should not be applied in an unnecessarily restrictive way.
The judgment is a welcome reminder that principles of fairness, humanity and compassion matter for people serving prison sentences.
Tiny numbers of compassionate release applications are allowed each year. Almost all of them are refused because the Secretary of State’s officials apply the policy so restrictively. We hope that policymakers and the civil servants who are tasked with assessing compassionate release applications will reflect carefully upon this case and will review the way in which decisions are made in the future.
Mr Khan’s release will enable him to spend his final weeks of life surrounded by his family. This marks the end of a deeply distressing chapter for Mr Khan and his loved ones, who have tirelessly advocated for his right to die with dignity.”
Mr Khan has consistently maintained that he was wrongly convicted. He has an application pending with the Criminal Cases Review Commission and hopes to survive long enough to find out if his appeal has been successful.
He was extremely emotional when he realised that the Court had directed his release.
Mr Khan said:
“I found it really difficult both physically and emotionally the way I was treated by the Ministry of Justice. My partner and I had our hopes built up just to have them crushed for no real reason. I got to the point where I really didn't think I would ever be released. I watched somebody die in prison in the rain on the concrete floor and could not do anything to help him. Another friend I had in prison took his own life. I was convinced that I would be next and that I would die in prison.
The people who make these decisions need to realise that people in prison are not robots but are the same as everyone else and have feelings and family who love them. When someone knows that they are dying and they haven’t got long left, every minute counts.
My family and I have suffered for a long time for a crime I never even committed. I left prison in a wheelchair and on oxygen 24/7 and the smallest amount of activity can leave me really struggling for breath.
I'm pleased I have got some kind of justice at long last and I'm very grateful to my legal team and the judge for giving me the time I need to be with my partner and family.”
Notes for Editors:
The operation of the policy for early release on compassionate grounds is governed by a Policy Framework published by the Ministry of Justice.
Compassionate release is granted very sparingly. Only 7 prisoners were released on compassionate grounds in the whole of England and Wales during 2023. Only 1 prisoner was released on compassionate grounds during 2022. Figures for 2024 are not yet publicly available.
The Justice Secretary has announced measures on early release and short sentences as well as funding to address lack of capacity and overcrowding in prisons.
The transcript of the High Court’s judgment in Mr Khan’s case is expected to be published shortly.
Contact:
Andrew Sperling, SL5 Legal
Tel: 020 7388 8333
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