Recategorisation of prisoners – Classification – Prison governs – Interpretation of policy

R (on the application of Lowe) v Governor of Liverpool Prison: QBD (Admin) (Judge Michael Kay QC): 28 August 2008.

The claimant prisoner (L) applied for an order to quash a decision of the defendant prison governor (G) to recategorise him from a Category C prisoner to a Category B prisoner.

L had been categorised as a Category A prisoner following his conviction for drug trafficking offences. Following reviews, he was recategorised as a Category B prisoner and then, prior to his arrival at G’s prison, as a Category C prisoner. G’s subsequent decision to recategorise L as a Category B prisoner was quashed by consent. G gave an undertaking to reconsider L’s security categorisation and made the decision to recategorise him as a Category B prisoner.

G’s decision was made on the basis that: an earlier decision to recategorise L from a Category B prisoner to a Category C prisoner was wrong because L had not spent enough time in a Category B prison before the decision had been made; an additional 416 days’ imprisonment imposed on L for non-payment of a confiscation order gave rise to an increased risk of escape; L had the resources and the will to make a determined escape attempt; L had manipulated staff and attempted to access secure data which potentially influenced escape attempts; and when G made his decision, L still had eight-and-a-half years left to serve of his 24-year sentence.

L submitted that: G had not followed the secretary of state’s policy, set out in Prison Service Order 0900 – Categorisation and Allocation, when reconsidering his categorisation; and G’s decision to recategorise him as a Category B prisoner was irrational and had been based on either erroneous material or material which should not have been taken into account.

Held: (1) The principles of consistency and legitimate expectation had to be applied when considering the categorisation of prisoners, R v Secretary of State for the Home Department, Ex parte, Urmaza Times, 23 July 1996 QBD applied. There was a legitimate expectation of prisoners that their categorisation would be reviewed annually or, in accordance with chapter 2 of Prison Service Order 0900, more frequently than annually, where there had been a significant change in their circumstances. A plain and simple error by a previous governor would also be a substantial reason for recategorisation. Prison Service Order 0900 did not, however, provide that recategorisation could be based upon different professional judgments of different governors in different establishments. There was an expectation that prisoners would be dealt with consistently and their categorisation would not be dependent upon the differing views of different governors.

(2) The reasons for G’s decision were flawed. There was no guidance in Prison Service Order 0900 as to how long a Category B prisoner should spend in a Category B establishment before he could be recategorised. Although it was not perverse to take into account the increase in L’s sentence for non-payment of the confiscation order, the increase in sentence would not have given rise to an increased risk of escape. However, it was perverse to suggest that L had kept back money to effect an escape. Furthermore, it was irrational to say that L’s persistent efforts to change his category amounted to a will to make a determined escape attempt. It was also difficult to see how a request by L to find out his internal categorisation could potentially influence escape attempts.

G should have known that L’s sentence would be substantially reduced under section 26 of the Criminal Justice and Immigration Act 2008 and that, consequently, he would be less tempted to escape. Accordingly, G’s decision to recategorise L from a Category C prisoner to a Category B prisoner was quashed.

Application granted.

P Weatherby (instructed by Jackson Canter) for the claimant; V Sachdeva (instructed by the Treasury Solicitor) for the defendant.