Penology and criminology - Absconding - Category D prisoners - Classification

R (on the application of Gregory Omoregbee) (Claimant) v (1) Secretary of State for Justice (2) Governor of Hewell Prison (Defendants) and UK Border Agency (Interested Party): CA (Civ Div) (Sir Anthony May (president QB), Lord Justice Sullivan, Mr Justice Gross): 13 April 2011

The appellant Nigerian national (O) appealed against a decision ([2010] EWHC 2658 (Admin)) dismissing his claim for judicial review of his prisoner categorisation.

O had been convicted of three offences of obtaining property by deception, and was sentenced to three years’ imprisonment.

He was liable to automatic deportation, but had not yet been served with notice of intention to deport.

He had been assessed as presenting a low risk of reoffending.

The second defendant deputy prison governor (M) decided that O should remain as a category C prisoner rather than be classified as a category D prisoner because his deportation status meant that there was a potential for absconding.

Paragraph 14.4 of the Prison Service Order (PSO) 4630 stated, in relation to the classification of foreign nationals as category D prisoners, that ‘each case must be individually considered on its merits but the need to protect the public and ensure the intention to deport [was] not frustrated [was] paramount.

'Category D will only be appropriate where it [was] clear that the risk [was] very low’.

A judge held that paragraph 14 did no more than emphasise that the risk of absconding was a consideration relevant to every categorisation decision but that it had a heightened importance when the prisoner was liable to deportation, and that in such cases the risk had to be examined with particular care.

O contended that the word ‘paramount’ in paragraph 14.4 withdrew any discretion or individual consideration of whether an individual prisoner subject to deportation should be categorised a category D prisoner because his immigration status effectively superseded any other consideration.

Held: The use of the word ‘paramount’ in its context did not remove individual consideration of the classification of prisoners such as O.

Immigration status was obviously relevant to the risk that the prisoner posed and by the very fact of their immigration status prisoners such as O were of a different class to other prisoners, and that additional point had to be taken into consideration in an assessment of the appropriateness of their being categorised as category D prisoners.

It was clear from the opening words of paragraph 14.4 that the classification in each case had to be individually considered on it merits so that the immigration status of a prisoner could not in itself be determinative of the matter.

The fact that prisoners who might be subject to deportation might be refused category D status but yet be granted bail on release from prison did not mean that the classification policy was irrational because it was not a matter for the Prison Service what the secretary of state decided to do after a prisoner was released.

Appeal dismissed.

Matthew Stanbury (instructed by Grayson Willis Bennett (Sheffield)) for the appellant; Simon Murray (instructed by Treasury Solicitor) for the respondents; no appearance or representation for the interested party.