Michael Absalom (ap) For Judicial Review Of A Decision Of The Governor Of Hm Prison Kilmarnock Dated 27january 2010
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2010] CSOH 109 |
| Date | 10 August 2010 |
| Docket Number | P558/10 |
| Court | Court of Session |
| Published date | 10 August 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 109 | |
| P558/10 | OPINION OF LORD TYRE in the petition MICHAEL ABSALOM (A.P). Petitioner; for Judicial Review of a decision of the Governor of HM Prison Kilmarnock dated 27 January 2010. ________________ |
Petitioner: Bovey QC, Caskie; Drummond Miller LLP
First Respondent (Governor of HM Prison Kilmarnock): Lindsay; DLA Piper
Second Respondent (Scottish Ministers): Barne; Scottish Government Legal Directorate
10 August 2010
Introduction
[1] The petitioner is a citizen of South Africa. He arrived in the United Kingdom in about 1995 with leave to enter as a visitor. While in the United Kingdom he married a British citizen and was granted indefinite leave to remain in the United Kingdom. On 19 February 2008 he pled guilty in the High Court to two charges of armed robbery and on 25 March 2008 he was sentenced to eight and a half years' imprisonment. He is currently serving that sentence in HM Prison Kilmarnock. He is a "foreign national prisoner" for the purposes of immigration law.
[2] A prisoner may be transferred to the Open Prison Estate within two years before his parole qualifying date. The petitioner's parole qualifying date is 2 December 2011. An essential requirement for transfer is a recommendation by the Governor of the prison at which the prisoner is held that transfer is appropriate. The petitioner applied for progression to the Open Estate. His request was considered by the Progression Risk Management Group ("PRMG") (who take the decision on whether or not to recommend transfer on behalf of the Governor, and whose decision is regarded as that of the Governor) on 27 January 2010 and on 28 January 2010 the petitioner was informed that the PRMG had agreed not to recommend him for progression at that time. In this application for judicial review the petitioner seeks reduction of that decision and the matter came before me for a first hearing.
Factual background to the decision
[3] The petitioner's recent and current personal circumstances are narrated in the petition as follows. Although not all of the averments are a matter of formal admission by the respondents, I did not understand there to be any material dispute about them. The petitioner's marriage broke down after about four years and he then formed a relationship with another British citizen, Ms Iona Wright. Ms Wright had a child from a previous relationship who was born on 6 January 2002 and who is regarded by the petitioner as if she were his own daughter. The petitioner and Ms Wright also have a child who was born on 18 September 2004. Following the petitioner's imprisonment, his relationship with Ms Wright broke down. Since then, Ms Wright has concluded that it is not in the children's interests to visit the petitioner in prison. He does, however, maintain regular contact with them by telephone and Ms Wright is supportive of the petitioner continuing to play an important role in the children's lives.
[4] Mr Absalom's record while in prison has been good. For the purposes of Part 3 of the Prison and Young Offenders Institutions (Scotland) Rules 2006, he has been assigned low supervision level. He has had no misconduct reports and is employed as a passman in the prison kitchens. He has had no positive drug tests. He has attended and completed offending behaviour programmes including Alcohol Awareness and Constructs (which I understand to be a programme in which participants explore the circumstances of their offending and identify ways of reducing the likelihood of their re-offending).
Progression of a Foreign National Prisoner to the Open Estate
[5] Prisoners who fulfil certain standard criteria may apply for transfer to the Open Estate. Opportunities available in the Open Estate include community work placements and home leave. An information leaflet for prisoners published by the Scottish Prison Service lists the criteria that must be fulfilled before an application for transfer will be considered. So far as the petitioner is concerned these are that he is:
· Low Supervision;
· free from outstanding police charges;
· free from misconduct reports resulting in an award greater than a caution in the last three months;
· free to remain in the United Kingdom on release;
· not appealing his conviction or sentence;
· able to demonstrate that he has no identified high risks or needs that cannot be managed in the Open Estate;
· able to demonstrate that he has not taken drugs within the last three months;
· within two years of his parole qualifying date.
The petitioner met or was expected to meet all of these criteria except the fourth, which I discuss in detail below.
[6] Written guidance on the position of Foreign National Prisoners in Scottish Prisons has been issued to Governors by the Scottish Prison Service. The current edition of the guidance is Action Note 58A/09 dated 24 November 2009 (to which I shall refer as "the Guidance"), section 6 of which states as follows:
"Foreign national prisoners serving a sentence of imprisonment can in certain circumstances progress to the OE [i.e. Open Estate] or apply for release on licence.
The final decision to grant progression or to grant the prisoner a licence is at the Governor's discretion. However, United Kingdom Border Agency's (UKBA) comments must be sought, recorded and taken into account in the risk assessment undertaken prior to making a final decision.
Each case must be considered on its merits; however, the need to protect the public is paramount. Therefore, when assessing the suitability of a prisoner who has been referred to UKBA, the presumption that deportation will take place will be a significant factor for Governors in determining the risk of failure to comply with the licence. Where the nationality of the prisoner remains unclear, this will be an additional factor in determining the risk of absconding or failure to comply with the licence conditions.
When considering Irish prisoners for release on licence or for open conditions, unless there is a court recommendation for deportation in place which has not been assessed by UKBA, Governors should assess risk without any presumption that deportation action will follow on completion of sentence.
Any person detained in prison solely under the Immigration Act 1971 (Immigration Act detainees) must not progress to open conditions or be released on licence. If circumstances arise where release could be justified on compassionate grounds, Governors must refer the matter to the UKBA."
Action Notice 58A/09 superseded an earlier version (21A/06) which stated that Foreign National Prisoners should not be considered for early release, community access or open prison if their immigration status had not been confirmed and that prisoners who were confirmed by the Immigration Service as definite deportees on release should be considered as presenting an increased risk of abscond and should be held in suitably secure conditions. It appears that the information leaflet to which I have referred may continue to reflect this previous guidance, in that freedom to remain in the UK on release is stated to be a condition of consideration for transfer. The current position regarding exercise of the Governor's discretion is, however, as set out above.
[7] Counsel for the petitioner made two submissions regarding the reference in the Guidance to a presumption that deportation will take place. Firstly, it was submitted that on a proper construction of the relevant statutory provisions (contained in the UK Borders Act 2007) and the Immigration Rules there was no such statutory presumption in circumstances where deportation would breach the rights of a prisoner under the European Convention on Human Rights. This argument had not been raised in the petition and counsel for the respondents objected to it being addressed at the first hearing on the ground of lack of notice. Counsel for the petitioner accepted that fair notice of the point had not been given and invited me to appoint it to a further hearing if I were not minded to find in the petitioner's favour on the issues which were argued at the first hearing. Secondly, counsel submitted that on a proper reading of the Guidance, the reference to the presumption applied only to release on licence and not to transfer to the Open Estate. In my view this would be an unduly literal reading of the Guidance. It seems to me to be clear, having regard in particular to the reference in the last sentence to "the risk of absconding" and to the wording of the paragraph relating to Irish prisoners, that the Guidance requires the presumption to be taken into account in relation to transfer to the Open Estate as well as in relation to release on licence. I proceed, therefore, on the basis that when exercising his discretion in relation to the petitioner's application for transfer to the Open Estate, the Governor was required to treat the presumption that he would be deported on release from prison as a significant, though not determinative, factor.
[8] So far as the UKBA is concerned, I understand it to be common ground that its position at the material time was as stated in a letter dated 19 September 2009 to the petitioner's solicitors to the effect that the matter of his deportation was unlikely to progress any earlier than 18 months before his parole qualifying date. Counsel for the petitioner drew attention in this regard to section 4 of the Guidance which invites Governors, if no decision on deportation has been received, to make contact with UKBA 20 weeks prior to release date, 14 days prior to release date, and 24 hours prior to release date.
The Governor's decision
[9] The petitioner had no entitlement to be present or represented at the meeting of the PRMG at which his application was discussed, but his solicitors had submitted written representations to the PRMG, with supporting documents, in advance of...
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