No re-categorisation without a significant change in risk  

R (on the application of Paul Lowe) v Gov HMP Liverpool [2008] (HHJ Kay QC,
28/08/2008)

> judgment

The Claimant was de-categorised from B to C in July 2006. In November 2007 he was transferred to another prison and in December 2007 the Governor held a non-routine review and re-categorised him back to C. There had been no adverse changes of circumstances. He appealed by the internal prison procedure but meanwhile he was transferred to another HMP Liverpool whereupon his categorisation was further reviewed and it was decided that he should be Category B.

The Claimant challenged both decisions by way of judicial review asserting that the decisions were irrational and that the Governors had not followed the procedure set down in the policy; PSO 0900. Permission was given but the defendants conceded shortly before the full hearing. On 9 June 2008 the Governor of HMP Liverpool again conducted a non-routine review and again re-categorised to B.

JR proceedings were therefore launched against this third decision. The Governor had miscalculated the automatic release date by 4 years, asserted that the original decision in July 2006 had been reached following threat of jr, and that the continued resort to litigation was relevant to risk. The defendant argued that he was not bound by previous decisions and that all that was required was a rational decision on the evidence before him. The Court held that the policy did not envisage that changes in category would occur unless there was a significant change in risk and that a difference of professional judgment between Governors was not sufficient to justify back-staging. If it were otherwise there would be real difficulties for the administration of prisons. Furthermore the decision in this case was irrational, resort to litigation was unlikely to be a relevant factor, there was no evidence that the previous Governor had been improperly pressured, and the present decision-maker wrongly calculated the time the Claimant had left to serve. The categorisation decision was quashed and the defendant was refused permission to appeal.

Commentary

The facts of this case speak for themselves but the judgment is important because it indicates that previous categorisation decisions are the starting point for a review and there should not be a re-categorisation (either up or down) without a significant change in risk. A difference of professional judgment could not justify back-staging without substantial reason.

Pete Weatherby acted for the Claimant, instructed by Lyn Al-Anbari of Jackson and Canter Solicitors .

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Quick links

> PSO 0900

> 09/09/08 - Prisoner successfully challenges his security status (Lexis Nexis Butterworths News) only available to subscribers to this service.

> 02/10/08 Penology: Recategoriation of prisoners - Classification - Prison governs - Interpretation of policy (Law Society Gazette) - read case report online