Prison JR quashes re-categorisation and refusal of HDC decision  

R (on the application of Rowen) v The Governor, HMP Kirkham and the Secretary of State for Justice (Interested Party) (3 July 2009, Admin Ct Manchester, Nicol J) CO/5471/2009

> judgment will appear here when available

The Claimant is serving a determinate sentence of 34 months imprisonment. The Claimant was granted category D status in March 2009, and was moved from HMP Risley, a category C ‘closed’ prison, to HMP Kirkham, a category D ‘open’ prison.

During the Claimant’s time at HMP Kirkham, he attended and stayed in hospital on various occasions. However, on his return to the prison from his last stay in hospital, the Claimant was re-categorised on 20 May for the following reasons:

1. His medical condition required more intensive healthcare assistance than could be provided at HMP Kirkham: “this presents a risk to himself”.
2. His recent HDC refusal had “now increased his risk of abscond.”

Nicol J found that the Defendant had had regard to irrelevant considerations in making this decision, namely the Claimant’s medical needs and the risk that the Claimant faced from other prisoners - a new reason raised by the Defendant in his Counsel’s skeleton argument. The Defendant had acted contrary to the guidance in PSO 0900 , in that these considerations were relevant to a prisoner’s allocation to a prison, rather than his category status.

Nicol J also rejected attempts by the Defendant to justify his decision by relying on new reasons that had not been given to the Claimant at the time of the decision. These included references to security intelligence that had not been previously mentioned. In particular, Nicol J was critical of the attempts by the Defendant’s Counsel to seek to give evidence through his skeleton argument, as to the actual reasons for the decision. In any case, the Defendant in his (varying) new reasons had still relied on irrelevant considerations. Accordingly, Nicol J quashed the Governor’s decision, such that the Claimant became a Category D prisoner once more.

Nicol J also found that the Defendant had failed to give adequate reasons in respect of the decision to refuse release on HDC, which had been in the following terms:

“likely risk of re-offending and likelihood of failure to comply with HDC conditions.”

It was noted that these ‘reasons’ were in fact the headings that were set out in para 5.13.3 of PSO 6700 , under which the actual reasons for the refusal were meant to be given. His Lordship further noted that, notwithstanding the Claimant’s appeal against that decision, the Defendant had acted contrary to para 7.13 of PSO 6700, which required the Governor to expand on the reasons given. The Defendant had failed to do so in this case and had simply repeated the above (save for a brief reference to the view of the probation officer). Nicol J found that these reasons were inadequate and contrary to what was required by the PSO. The decisions to refuse HDC were quashed as a result.

Finally, Nicol J granted the Claimant permission to challenge the decision to handcuff him whilst he had been in hospital. The hearing will take place later this year.

Comment

It is not unusual for Defendants to seek to justify their decisions through reliance on new reasons that were not given at the time of the decision, and which are only provided further to the issue of judicial review proceedings. What was striking in this case was that the new reasons were provided in a skeleton argument, which had only been served the day before the hearing. Nicol J referred to the cases of R (on the application of Ermakov) v Westminster [1995] EWCA Civ 42, [1996] 2 All ER 302 and R V SSHD, ex parte Lillycrop (27/11/96) (unreported) in finding that the Defendant could not save his decisions by relying on these new reasons.

Mr Rowen was represented by Vijay Jagadesham of GCN and Clare Reynolds of Tuckers Solicitors .