R (Guittard) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | HHJ Stephen Stewart |
| Judgment Date | 18 November 2009 |
| Neutral Citation | [2009] EWHC 2951 (Admin) |
| Date | 18 November 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10041/09 |
[2009] EWHC 2951 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Civil Justice Centre
ADMINISTRATIVE COURT
HH Judge Stephen Stewart Q.C.
(sitting as a Judge of the High Court)
CO/10041/09
Mr Vijay Jagadesham appeared on behalf of the Claimant
Mr Ian Ponter appeared on behalf of the Defendant
Introduction
1 The Claimant (“C”) is a prisoner who is subject to imprisonment for public protection (“IPP”). He was convicted on 1 st July 2006 of an offence of wounding with intent and was sentenced to IPP with a tariff of 3 years and 45 days. The tariff period will expire on 31 st December 2009. He is at present detained at HMP Wold as a category C prisoner in closed conditions. On 8 th September 2009 he filed an application for Judicial Review of the Defendant's (“D”) decision which is described in the claim form as “The Defendant's refusal to conduct a review of the Claimant's suitability for a transfer to open conditions, outside of his parole review”. The claim form claims “a mandatory order requiring the Defendant to consider the Claimant's suitability for a move to open conditions forthwith” and “a declaration that the Defendant has acted unlawfully by refusing to consider the recategorisation and transfer of the Claimant to open conditions, outside of his parole review”.
2 Although opposing the claim, D did not contest the granting of permission and permission was granted on 30 th September 2009 by Judge Waksman QC. On 23 rd October 2009 D filed detailed grounds for resisting the claim.
3 There are also statements from the following witnesses:
* Russell A'Court, Head of the Public Protection Casework Section of the National Offender Management Service within the Ministry of Justice
* Nicholas Simon Wells, C's solicitor
* Sara-Jayne Pritt, Trainee Solicitor assisting Mr Wells.
4 The claim gives rise to two broad issues, summarised in C's skeleton as:
A Whether D's present rigid policy as regards the transfer of IPP prisoners is unlawful by reason of : (i) D having unlawfully fettered his discretion; and (ii) inconsistency with PSI 07/2008.
If so,
B The form of relief that should be granted in C's case.
Relevant Statutes, Statutory Instruments and Policy Documents
5 The Prison Act 1952 provides, so far as relevant:
Section 12
(1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.
(2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.
Section 47
(1) The Secretary of State may make rules for the regulation and management of prisons…..and for the classification, treatment, employment, discipline and control of persons required to be detained therein
6 Rule 7(1) of the Prison Rules ( SI 1999/728) states:
7.—(1) Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3.
7 Prison Service Order (“PSO”) 6010 issued on 2 nd April 2009 and entitled “General Parole Process” states at para 2.2
2.2 Move to Open Conditions
2.2.1 Indeterminate sentenced prisoners will normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted by the respective Case Managers in the PPCS on behalf of the Secretary of State.
The PPCS is the Public Protection Casework Section. The para then goes on to describe the process of transfer in some detail.
8 Prison Service Instruction (“PSI”) 07/2008, Implementation date 18 th February 2008, Expiry date 17 th February 2009 and entitled “Initial Categorisation of Male Indeterminate Sentence Prisoners” states, so far as relevant:
Purpose and output
1. This PSI introduces mandatory requirements for establishments on:
• the initial categorisation of adult male prisoners, with the introduction of a new ICA1 form revised to reflect indeterminate sentences for public protection (IPP)
• a review of the categorisation of most existing adult male IPPs, using the revised ICA1 form
• the onward allocation of adult male IPPs within the closed estate
Background
2. IPP prisoners now form a significant proportion of our indeterminate sentenced population. The average tariff length for an IPP prisoner is around 3 years 9 months. Prior to the introduction of the IPP sentence in April 2005, many of these cases would have received determinate sentences and been categorised to C at initial categorisation. The current categorisation algorithm within the ICA1 form treats all indeterminate sentenced prisoners the same, and will indicate B at initial categorisation. This has resulted in a significant number of IPPs being held in establishments which do not fit their security risk and has put pressure on local establishments through lack of movement, with the added problem of hindering the progress of IPPs through the system.
3. Following a review of the management of Indeterminate Public Protection sentences we are revising our approach to these cases. The key feature of the new arrangements outlined here is that we will cease to treat IPPs like life sentence prisoners, and instead manage them through the closed estate in the same way as determinate sentence prisoners.
4. A revised algorithm on the ICA1 categorisation form to take account of the IPP sentence has been agreed. This will generally indicate that those IPP prisoners with short tariffs (3 years and under) should be Category C, and can be allocated to the Category C training estate in the same way as determinate sentence prisoners. There is no longer a requirement for all IPP prisoners to move to Category B conditions if they are assessed as suitable for category C on the categorisation algorithm.
5. Following categorisation IPP prisoners will be allocated to appropriate training establishments. Category C prisons must not have allocation criteria which exclude or limit numbers of IPPs except where such criteria are exceptionally agreed by the Area Manager and the Deputy Director General. IPPs must not be moved into the open estate on initial categorisation.
9 PSI 03/2009, Implementation date 25 th May 2009, Expiry date 24 th May 2010
and entitled “NSF—Recategorisation to Cat.D and other matters”, states, so far as relevant:
RECATEGORISATION
The following instruction is effective immediately
8. Principles of recategorisation
8.1 The purpose of the recategorisation process is to determine whether, and to what extent, the risks a prisoner presented at his or her last review have changed and to ensure that the prisoner continues to be held in the most appropriate conditions of security.
Recategorisation must be based on:
• Evidence of a clear change in the level of risk posed by the prisoner in terms of escape or abscond and/or risk of harm to the public in the event of an escape or abscond.
• New or additional information, which impacts on the original categorisation decision
• Concern that the previous recategorisation decision is unsound. There must be corroborative evidence to support that concern.
• Control issues, which mean that the prisoner poses a threat to the security of the prison, or the safety of staff or other prisoners, or that the prisoner's notoriety potentially undermines the security of the prison.
Risk levels may increase or decrease depending on individual circumstances and the prisoner's security category must reflect this
8.2 In reviewing a prisoner's security category it is essential to look at the reasons why at his or her last review the prisoner was placed in the current security category. Only then is it possible to determine whether and to what extent circumstances may have changed to warrant a change in the prisoner's category. It is also essential to consider the particular characteristics of the estate for which the prisoner is being assessed taking account of physical security, supervision levels and regime availability. This is particularly important when considering a prisoner for open prison (see below, Recategorisation to category D).
8.3 It must be the aim that prisoners are held in the lowest possible security consistent with preventing escape or risk of harm to the public or to the security of the prison. However, for operational reasons, prisoners may be held in a prison of a higher security category, although the numbers of such prisoners must be limited by agreement between Regional Managers Custodial Services and PMU. On no account must a prisoner be allocated to a prison of a lower security category than the category assigned to the prisoner.
9. Timing
9.1 As a minimum, all adult prisoners other than those in open prison and those serving less than 12 months must have their security category reviewed at regular prescribed intervals. Prisoners will have their security category reviewed at least every six months for those serving between 12 months and under 4 years, and at least every 12 months for those serving a sentence of 4 years or more. EPP prisoners will be reviewed according to these criteria in line with the custodial part of their sentence. IPP prisoners will be reviewed according to these criteria dependent on tariff length.
……………………………………………..
14. RECATEGORISATION TO CATEGORY D.
14.1 It is essential that prisoners must be assessed as...
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