G v Secretary of State for the Home Department

LORD JUSTICE PILL: This is an appeal against a decision of Jackson J dated 20 September 2005, by which he dismissed G’s application for judicial review. The application was made on a number of grounds, on each of which the judge held against the applicant. The appeal is confined to the single submission, summed up in the declaration which the appellant seeks:

“… that the Prison Services Director of High Security was wrong in law not to have considered whether the reduced risk of escape the Appellant presents due to his status as a protected witness should have led him to consider whether he can be safely contained within less secure conditions than category A conditions.”

Only the briefest statement of facts is necessary for present purposes. The appellant is a serving prisoner. He has been sentenced to a discretionary life sentence for serious offences which included the use of serious violence. The offences were committed while he was on licence. The most recent reports on the appellant indicate a high risk of future violence. There was also evidence before the director, in his review team’s report, when the director made the decision challenged, of recent and serious threats made to other prisoners in custody with the appellant. The director maintained the appellant’s status as a category A prisoner.

The appellant’s submission is that if he escapes, he would, as a protected witness, stand to lose the advantage of being on the police’s witness protection plan, which potentially gives him life protection and may include not only new accommodation but in extreme circumstances, of which we are told this is likely to be an example, a new identity upon release. If he were to escape he would lose that potentially substantial advantage. That meant, Mr Wise submits on his behalf, that he is not likely to seek to escape. Further, or alternatively, the extent of the possibility of escape was a material consideration which the director was obliged to take into account in deciding upon categorisation.

The Prison Rules 1999 were made by the Secretary of State pursuant to powers conferred in section 47(1) of the Prisons Act 1952. Rule 7(1) of the Prison Rules provides:

“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.”

A series of Prison Service Orders (“PSO’s”) have been issued. PSO0900, as amended by PSO1010, paragraph 1.2, deals with categorisation and allocation. Paragraph 1.1.1 provides:

“ The security categories are as follows:

Category A: Prisoners whose escape would be highly dangerous to the public or the police or the security of the state and for whom the aim must be to make escape impossible.

Category B: Prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult.

Category C: Prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt.

Category D: Prisoners who can be reasonably trusted in open conditions.”

Paragraph 1.2.3 of PSO0900 now provides:

“Every prisoner must be placed in the lowest security category consistent with the needs of security and control. A prisoner must be assigned to the correct security category even if it is clear that it will not be possible to allocate him to a particular establishment for prisoners in that category.”

The earlier definition of category A in PSO0900, before the amendment to which I referred, was:

“A category A prisoner is a prisoner whose escape would be highly dangerous to the public or the police or the security of the state, no matter how unlikely that escape may be, and for whom the aim must be to make escape impossible.”

Thus the reference to the unlikelihood of escape has been removed.

PSO1000 requires that all life sentence prisoners should begin their sentences in category A conditions, and that such categorisation should be reviewed annually. In May 2005 the director decided that the appellant should remain “Category A (Standard Escape Risk)”. In a long letter to the appellant, the director referred to representations submitted by solicitors on the appellant’s behalf, to a psychologist’s report submitted and to the factors which had been taken into account in reaching a decision. It was stated that the appellant’s “custodial behaviour was an important consideration in determining his security category”. Reference was made to the appellant’s previous convictions and to the “extreme violence” involved in the index offences. In reaching his conclusion the director was mindful that he was required not only to look at the risk of re-offending on escape, but the nature of harm that would result. In the appellant’s case the director concluded that:

“… notwithstanding the progress you had made, having balanced the evidence of risk reduction against the very serious nature of the present offences, there remained a significant (albeit reduced) risk of your re-offending in a similar way if unlawfully at large, and that you must therefore at present continue to be regarded as potentially highly dangerous to the public.”

There is no reference in the letter to the appellant’s position as a protected witness, or to the loss of that status he would suffer if he escaped. That is a potentially serious loss.

On behalf of the appellant, it is submitted that the argument based on the strong incentive not to escape is a reasonable argument and required specific consideration by the director. The director should have asked himself whether the fact that G was a protected witness removed the need for category A conditions. Reliance is placed on the decision of Turner J in William Pate v Secretary of State for the Home Department [2002] EWHC 1018 (Admin). The applicant in that case was in poor health, both physically and psychologically. Reports on him assessed him as being a person “who would be incapable of mounting an escape in any event.” On behalf of the Secretary of State it was argued that it was impossible to say that any prisoner had no escape potential. Examples were given:

“… the actions of third parties outside prison; corruption of prison officers; human error; the possibility a prisoner might tag along on an escape (including a mass escape) by other prisoners.”

These were possibilities on which the Secretary of State relied in opposing the applicant’s submission in Tate.

At paragraph 36 of his judgment, Turner J stated:

“In the present case, it can be seen that there is an in-built tension between the acceptable policy of ensuring that prisoners who represent an unacceptable danger to the public, if at large, and the implication of a discretion for the decision maker as to the category in which such prisoners should be placed. The resolution of this tension is to be found by analysing what it is that gives rise to the problem. It is not, as I have suggested above, the policy about preventing escapes of particularly dangerous prisoners which is susceptible to challenge. It is in relation to the further aspect of that policy, which is premised on the basis that the only way in which the prevention of escapes of such prisoners can be ensured is by categorisation regardless of the escape potential, which is susceptible to challenge.”

Turner J concluded at paragraph 38:

“The objective (aim) may be capable of being met with a lower categorisation in which event there is plainly scope, and I would hold duty, for the exercise of discretion. On the evidence which has been submitted in this case, it is not possible to be sure that this was so. It is sufficient to indicate that it is a policy which requires to be justified, if it is not to be declared illegal.”

Paragraph 39:

“In the absence of justification, I hold that such part of a policy which does not differentiate between the escape potential of individual prisoners is illegal and must be quashed.”

It appears that the amendment to the category A definition in the Prison Rules, already mentioned, resulted from the decision in Pate. By way of explanation, paragraph 1.3 of PSO1010 provided:

“The high court judgment in the case of ex parte Pate required that in deciding whether category A is necessary, consideration may also need to be given to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security and that the prisoner is categorised accordingly. However this will only arise in exceptional circumstances. Its escape potential will not normally affect the categorisation, as it is rarely possible to foresee all the circumstances in which escape may occur.”

The appellant submits that, because he has a strong incentive not to escape, he properly comes within a lower category than category A. In any event, it is submitted, a decision as to categorisation cannot be taken without giving consideration to the existence of that incentive. The judge in the present case held that paragraph 1.3, just quoted, was a perfectly proper response to the decision in Pate. The judge stated at paragraph 32:

“The facts of Pate were exceptional. Pate does not open the gateway to a general consideration of escape potential in all cases.”

On behalf of the Secretary of State, Mr Grodzinski accepts the principle stated in Pate and does not seek to challenge the soundness of that decision. He submits that there is a fundamental distinction between a case in which a physical condition suffered by the prisoner affects his ability to escape, and other cases in which it is asserted that a prisoner does not wish to escape. His state of health may mean that there is no realistic chance that the prisoner would try to escape, but the extent of a prisoner’s motivation to escape is not relevant to a decision as to categorisation.

If, contrary to that submission, consideration of the appellant’s status as a protected witness may be taken into account by the director, it is submitted that he was not bound to do so as a matter of law. Reliance is placed on the statement of Sedley LJ in R (National Association of Health Stores & Jennifer Seagrove) v Secretary of State for Health [2005] EWCA Civ 154:

“In CREEDNZ Inc v Governor General [1981] 1 NZLR 172 Cooke P drew the distinction, which our courts had failed to previously draw, between things that are so relevant that they must be taken into account and things which are not irrelevant and so may legitimately be taken into account. It is axiomatically only a failure to take into account something in the former class that will vitiate a public law decision.”

Further, it is submitted, the absence of express reference to this factor in the decision letter does not render the decision unlawful for lack of reasons. It is conceded that the disincentive to escape was advanced to the director on the appellant’s behalf as a reason for the appellant being placed in a lower category, but it was not one of the “principally important controversial issues” to which reference by the decision maker was required. Reference is made to the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No. 2) [2004] 1WLR 1953 at paragraph 36. Further, it is submitted, had the factor been considered, it is inevitable that the director would have found the point insufficient to alter his decision as to categorisation.

In considering the principle to be applied, I find it difficult to distinguish this case from Pate. In that case it was submitted on behalf of the Secretary of State that it was impossible to say that the prisoner had no escape potential. Examples already mentioned were given. Though they are arguably less applicable in the case of a disabled prisoner than in the present case, they were nevertheless, in the Secretary of State’s submission in that case, real possibilities in the case of a disabled prisoner. Turner J rejected submissions that escape potential was irrelevant.

The change in the rules since the decision of Pate has already been mentioned. The director had to decide whether to place the prisoner in category A, or category B, or elsewhere. As the definitions stand, there is no limitation upon the factors to be taken into account for the purposes of category B, when considering whether the very highest conditions of security are not necessary. They could relate to physical disability, as in Pate, but other possibilities are not excluded. Paragraph 1.3 of PSO1010 does not exclude them. It accepts that exceptionally the impossibility of escape may be achieved for a particular prisoner in lower conditions of security. Moreover, it does not address the lack of limit upon an apparently broad range of factors which may be taken into account when considering category B.

Mr Grodzinski accepts that there will be cases in which the decision maker, the director, has to decide between placing a prisoner in category A or category B. His submission is that in neither category is it necessary for him to take into account the disincentive to escape. In the absence of any limitation upon the conditions in category B, and acknowledging that decisions will have to be made as between category A and category B, I cannot hold that the possibility of escape is not a relevant factor to be taken into consideration.

In their submission to the director in May 2005, summarising the points which arose in this particular case, the review team included a summary of the submissions made on the appellant’s behalf. His solicitor had stated that placement on the Witness Protection Support Scheme on release would reduce his risk of re-offending. They also submitted, citing Pate, that G would not seek to escape because to do so would result in him losing the lifelong protection of the witness protection scheme. The words “no matter how unlikely that escape might be” have been deleted from category A. It appears to me that, once the submission made in this case is made on behalf of a prisoner, it is incumbent upon the decision maker to address the question of unlikelihood of escape. Consideration should have been given to the submission that the circumstances were exceptional. Without consideration being given to the relevance of the motivation to escape and the weight to be attached to it, the decision was in my judgment unlawful.

I now consider the further submission, already mentioned, that there was an inevitability that, however strongly this point had been taken, however carefully considered by the director, the result must have been the same, maintenance of category A status. In seeking to make good that submission, Mr Grodzinski has found it necessary to take us through a good many documents, to which reference need not be made but which spell out the factors which are in the review team’s opinion to be taken into account. They are not all unfavourable to the appellant in this case. If the court makes its own decision, it is in my judgment trespassing upon what is rightly the role of the decision maker. There may be a powerful argument for retaining the appellant in category A, and I express no opinion on that. The court should not, however, itself decide that the categorisation is so obvious that there is no need to refer the case back to the decision maker. The annual review to which I have referred is now due, and should in my judgment be conducted on the basis stated. I would hear counsel before deciding whether, in addition to quashing the decision, it is appropriate to make a further declaration as sought.

For the reasons I have given I would allow this appeal.

LORD JUSTICE DYSON: I agree. I add a few words of my own, only because we are differing from the decision of the judge. The primary question is whether an assertion by the prisoner of lack of motivation to escape is a relevant factor to be taken into account by the director when deciding whether or not to reclassify a category A prisoner. Mr Grodzinski submits that it is not a relevant material consideration to be taken into account. He argues that it cannot be enough to demonstrate that the prisoner’s motivation to escape is lower than for typical category A prisoners. The director would need to be satisfied that there is no realistic chance that the prisoner would try to escape if given the opportunity to do so. When he or she is considering prisoners who ex hypothesi are believed to be highly dangerous if they escape, it will as a matter of practical reality not be possible for him or her to be satisfied that that is the position.

In my judgment the issue in this case turns on a proper understanding and application of paragraph 1.3 of PSO1010, which my Lord has already quoted. Mr Grodzinski submits that the consideration referred to in this paragraph may be given only where the question is whether the prisoner is physically unable to escape. An example of that approach is to be found in the decision of Turner J in ex parte Pate. I cannot read paragraph 1.3 in the way suggested by Mr Grodzinski. It contains no reference to the physical impossibility of escape. It states that consideration needs to be given to whether the stated aim of making escape impossible in lower conditions of security can be achieved for a particular prisoner in exceptional circumstances. Whether exceptional circumstances exist in a particular case is a matter for the decision of the director. It seems to me that the position was accurately summarised by the senior panel at paragraph 62 of the judgment in the case of the application of Dennis Roberts v the Secretary of State for the Home Department [2004] EWHC 679 (Admin). The review panel in that case had said:

“The review team accepts it has a duty to consider whether there are any exceptional circumstances in a highly dangerous prisoner’s case that would allow it to achieve the aim of making escape impossible in conditions of lower security. However the review team is satisfied there are no exceptional circumstances in Mr Roberts’ case that would warrant such a consideration.”

Physical impossibility of escape may amount to exceptional circumstances, but I see no basis for saying that exceptional circumstances must necessarily be so limited. Mr Grodzinski goes on to submit that even if it could be said, contrary to my view, that the appellant’s status as a protected witness was not irrelevant, so that the director might have to take it into account, it does not follow as a matter of law that he was bound to do so. Mr Grodzinski refers to the speech of Lord Scarman in Re Findlay [1985] AC 318 (333H – 333A) when he cited with approval the passage in the judgment of Sir Robin Cook P in CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 183.

In my view, paragraph 1.3 of PSO1010 provides the answer to this submission. Where the existence of exceptional circumstances is raised as an issue by the prisoner so as to engage that paragraph, then in my judgment the director is required to address it. In the present case it seems to me clear that the director did not apply his mind to the question whether the asserted lack of motive to escape amounted to exceptional circumstances within the meaning of paragraph 1.3. It was in my judgment a principal controversial issue that had been raised by the appellant’s solicitors in their letter of 30 March 2005. It was clearly understood by those to whom that letter was sent as raising a discrete and significant issue: see the summary of representations on the second page of the document dated 12 May 2005. In these circumstances the absence of any reference to the point in the long and detailed decision letter of 24 May justifies drawing the inference that the point was not considered. This conclusion is entirely consistent with the submission advanced by Mr Grodzinski on behalf of the Secretary of State, that the issue was legally irrelevant.

As to whether, as a matter of discretion, this court should have refused relief because it can be quite certain that it would futile to refer the matter back to the director because the director would be bound to reach the same decision as previously, I have nothing to add to the points made by Pill LJ.

For these reasons, as well as those given by Pill LJ, I would quash the decision and allow the appeal.

LADY JUSTICE HALLETT: I agree. I add only this: that in my view this may be something of a Pyrrhic victory for the appellant. A review of his categorisation, bearing all relevant matters in mind, may well lead to the same result.