R (John Smith and John Mullally) v The Governor of HMP Lindholme
| Jurisdiction | England & Wales |
| Judge | HH Judge Roger Kaye QC |
| Judgment Date | 11 June 2010 |
| Neutral Citation | [2010] EWHC 1356 (Admin) |
| Docket Number | CO/10498/2009, CO/10503/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 June 2010 |
[2010] EWHC 1356 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
Leeds Combined Court Centre
The Courthouse,
1, Oxford Row
Leeds LS1 3BG
His Honour Judge Roger Kaye QC
(Sitting as a Judge of the High Court)
CO/10498/2009, CO/10503/2009
Appearances:
Mr Jason Elliott instructed by Chivers, Solicitors, for the Claimants
Mr John Z Hunter instructed by the Treasury Solicitor for the Defendant
Hearing dates: 04 June 2010
Hand down Judgment: 11 June 2010 at 10.00 am
Introduction and Issue
The claimants Mr John Smith and Mr John Mullally, are (or were at the relevant time) serving prisoners at HMP Lindholme. Both made application for re-categorisation of their security status from Category C to Category D. In both cases they had, at the time of the relevant determination, more than 2 years to serve before they reached their Conditional Release Date ("CRD"). In both cases their application was refused on the grounds, amongst others, that each had more than two years left of sentence to serve and no exceptional circumstances were shown to justify re-categorisation. Subsequent reviews have led to the same determination, essentially on the same grounds. Both prisoners have applied for judicial review of these decisions. The issue in both cases is the same: was the decision lawful?
Evidence
The evidence (unchallenged) in these cases has largely consisted of production of copies of documents. Aside from the claim form I have seen no witness statements or narrative evidence from either side in particular none from the defendant Governor so have been unable, for what it might have been worth, to ascertain how, in fact, the relevant decisions were reached or even by whom. In both cases there have been tantalising notes on the relevant prison forms about security issues but these have been left largely unexplained save by reference to further (in some cases redacted) documents. Accordingly my impression of the facts and relevant procedures has been left entirely to the documents (consisting largely of barely legibly completed prison forms) and relevant Prison Service Orders ("PSOs") and Prison Service Instructions ("PSIs") placed before me.
The Facts – Mr Smith
So far as I can ascertain, the essential facts are not in dispute.
Mr Smith was sentenced to 13 years imprisonment for offences of conspiracy to supply controlled drugs and possession of an offensive weapon. His CRD is 13 November 2012. In 2009 he was categorised as a Category C prisoner. He completed an application form "Application for Recategorisation in Exceptional Circumstances" asking to be re-categorised from his existing Category C status to Category D. What he sought, according to his application, was a chance to prove himself in D open conditions.
The comments by his wing officer were positive. He was described as "a polite and respectful prisoner". He had met his targets and was anxious to progress. The wing principal officer commented it was too long to his release date and suggested a transfer nearer to his home.
Following the application and in order to be able, no doubt, to make the appropriate determination, the prison authorities duly completed prison form RC1 dealing with his security and suitability assessments in line with the instructions contained in the relevant PSOs. Part of this form as disclosed was redacted. Item 6, the security assessment, was blanked out. The upshot was that apart from one comment, no adverse remarks against Mr Smith were made on the form. The exception was a comment "Security See 6" but no part 6 was shown.
The final decision dated 16 June 2009 (in handwriting barely decipherable) noted the security issue (in the same terms), noted there had been no adjudications against the prisoner during his term, that he had met his targets, that there were good reports but also that Mr Smith was "well outside criteria of PSI 03/09 – has over 3 years to serve". Accordingly the decision was to leave him at Category C.
On 24 June 2009 Mr Smith appealed via the prison internal appeals procedure. The following day his appeal was rejected. (I infer this although the response supposed to be attached to this form was not.)
The result was a formal Pre-Action Protocol letter sent on his behalf by his solicitors dated 11 August 2009 to which the Ministry of Justice replied on 28 August 2009. This letter stated as follows, so far as relevant:
"PSI 03/2009 states that prisoners who are automatically released at the halfway stage of their sentence should not normally proceed to open conditions until they are within two years of their release date. The Governor has adopted the criteria laid down in PSI 03/2009.
The countersigning Governor has reviewed your client's case and found that no exceptional circumstances exist to support a variance from the original decision."
This led to an application for judicial review of the Governor's decision which was lodged on 15 September 2009. An Acknowledgment of Service was filed which did not contest the application for permission (Mr Hunter, counsel for the defendant, accepts that an arguable issue arose) but asked for a stay for 28 days pending reconsideration. No Summary Grounds of Defence were filed.
On 5 November 2009 HH Judge Langan QC extended time, granted permission on paper, and granted the requested stay until 1 December 2009. He observed:
"The defendant has realistically not opposed the grant of permission: there is clearly scope for debate as to the interface between the 'lowest category' principle in PSO 0900 and the two-year requirement in PSI 03/2009 in the particular circumstances of this case."
On 7 December 2009 the Governor reconsidered Mr Smith's application. The decision, this time on a form headed "Security Category Assessment and Review" informed Mr Smith the assessment showed he was not considered suitable for open conditions. The reasons were ticked in the appropriate box on the form as follows:
• "The length of your sentence and time left to serve. More than 2 years to serve and no demonstration of exceptional circumstances"
•"Security information."
•"Wing/work reports."
No reasons were elucidated for the "Security" or "Wing/work reports" though a further document (form RC 1) suggests the two latter matters amounted to the same thing: a report of tampering with food and a Security Information Report ("SIR") suggesting drug involvement (as to which no further details were given). The same document gave the reasons for refusal as "Security info and more than 2 yrs to serve and no demonstration of exceptional circumstances".
On 17 December 2009 Mr Smith was allowed a child and family day visit, something he was informed he would not have been selected for had he not passed "strict criteria" and "shown a positive attitude to [his] sentence".
Mr Smith, I was told, is no longer at HMP Lindholme but has been moved to a prison nearer his home. As I understand it the issue of his categorisation continues, however, to be reviewed every six months.
The Facts – Mr Mullally
Mr Mullally was sentenced on 24 July 2006 to 14 year's imprisonment for conspiracy to supply drugs. His CRD is 29 September 2012.
He too applied for re-categorisation as a Category D prisoner. He too had completed all offending behaviour courses and achieved his sentence plan goals.
On 23 June 2009 his application was refused on the sole ground that he had "3 years to serve. Criteria laid down in Prison Service Instruction 03/2009 states should be within 2 years of release date". Again the completed Suitability Assessment form referred to undisclosed security matters but the final decision does not seem to have relied on this. Instead the completed form (again barely legible) refers to over 3 years to CRD ad Mr Mullally being outside the criteria. It also referred to his OAsys assessment as low risk of reconviction, a medium risk of harm to the public and enhanced good reports.
Mr Mullally also adopted the internal appeals procedure on 29 June 2009. His appeal was rejected on the following grounds:
"Prison Service Instruction 03/ 2009 Chapter 15.1 states that prisoners serving a sentence of 4 years or more who will be released at the halfway point of their sentence (conditional release date) must generally be within 2 years of CRD. Your CRD is 29/09/12 which is over 3 years away. The Governor will not sign up prisoners who are outside the criteria. The implementation date for PSI 03/09 was 25/5/09. I agree that other prisoners have gone to open conditions with longer than 2 yrs to serve but not since the implementation of PSI 03/09."
Mr Mullally appealed again against this response. Again his appeal was rejected on 15 July 2009 by a letter this time in the following terms:
"In May 2009 a new Prison Service Instruction was published and applies to your re-categorisation review. The main impact of this PSI upon yourself is contained in paragraph 15.2:
Prisoners serving a standard determinate sentence are automatically released at the halfway point in their sentence (CRD) and must generally be within 2 years of CRD.
I have assessed your individual case and I am unable to support your re-categorisation due to the length of time you have left to serve. The overriding factors in this decision are the increased risk of abscond due to the length of time left to serve and the potential risk to public confidence if you were to...
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