Ali, R (on the application of) v The Director High Security

The Claimant in these proceedings is a convicted prisoner who is detained at HMP Full Sutton. He has been categorised as a Category A prisoner. All such prisoners are given an Escape Risk Classification (“ERC”). The Claimant has been classified as having a High Escape Risk. In these judicial review proceedings, the Claimant challenges the decision of the Defendant to maintain the Claimant’s ERC within Category A conditions as High on the basis that it was a decision that was unlawful because it was reached by an unfair procedure and/or was unreasonable; and/or was disproportionate to his Article 8 rights and/or because no proper reasons were given.

The decision in respect of which these proceedings have been brought is one notified to the Claimant by a letter dated 19^th May 2008. The proceedings were started in August 2008. An AoS followed in October 2008 and permission was refused on paper but was granted by me at the oral renewal hearing on 11^th February 2009.

Save in one respect the factual position is not in dispute between the parties. On 3^rd June 2006, an altercation took place between two rival gangs involving the use of baseball bats. At 5.30 the same day, the Claimant walked up to a vehicle and fired a number of shots into a car containing three male occupants. One victim was fatally injured as a result of being shot 5-6 times through the head and body and the others received non fatal injuries. On 11^th January 2007, the Claimant was sentenced to a mandatory life sentence for murder and two concurrent sentences, each of 14 years, for attempted murder. The minimum term was set at 30 years less 221 days. The trial Judge described the murder as being as “… premeditated as it is cold blooded…”.

Prior to conviction the Claimant had been held at HMP Leeds but not as a provisional Category A prisoner. Following conviction he was made a Category A prisoner with a High Risk escape classification.

The first formal review of categorisation was held on 19^th September 2007. By then the Claimant was detained at HMP Full Sutton. The formal notification of this decision (34) records the circumstances of the index offence and some limited information about the Claimant’s antecedent convictions before recording, under the heading “Additional Police Information”, that “Intelligence from PAS dated 10^th May 2007 indicates that Mr Ali is actively endeavouring to escape from custody”. Neither party’s representatives were able to tell me what “PAS” was or what the initials meant. The formal notification then recorded the decision of the Defendant that the Claimant should remain in Category A giving as his reasons that “… the serious nature of the present offences and the use of extreme violence in Mr Ali’s offending behaviour evidenced a high level of potential dangerousness”. Although the formal notification did not in terms address ERC, it was addressed in the covering letter dated 17^th October 2007 which confirmed that the ERC remained “High”. No reasons were given for this last mentioned decision.

ERC reviews are carried out approximately every 6 months and every other such review coincides with the annual review of categorisation. On 10^th April 2007, the solicitors acting for the Claimant wrote to the Category A Review Team asking when the next ERC review was due to take place, for any available reports and for disclosure of the information considered at the September 2007 review. The reply (dated 6^th May 2008) said that the review was currently taking place and that the Directorate was unable to disclose any information provided by both the police and the prison. On 12^th May, the Claimant’s solicitors wrote seeking documentation under the Data Protection Act 1998. This resulted in a response which acknowledged the applicability of the Act but draw attention to the exemptions to disclosure contained within the Act. No material was disclosed but the solicitors were informed that the review was to take place in 2 days time and informing them that any submissions would be considered by the Director. No submissions were made by or on behalf of the Claimant.

On 19^th May 2008 the Claimant was notified of the decision the subject of these proceedings. He was not supplied with the information that had been considered at the review or the gist of what had been considered. The Claimant was informed of the outcome of the review by a letter dated 19^th May 2008 which read:

“Review of Escape Risk Classification

The Director of High Security reviewed your escape risk classification on 14 May 2008. In considering your case the Director took into account information from police and prison sources.

The decision is that you are at present to remain Category A High Escape Risk. ”

A further review took place on 26^th November 2008 with a similar outcome. Since then a further review has taken place also with the same outcome. On each occasion when there has been a review, the outcome has been notified by a letter in the same terms as that dated 19^th May 2008. In each case neither the reports nor the gist of the reports considered by the Defendant before arriving at his decision were supplied before the relevant review took place, no reasons were given for the decision taken after the review had been completed nor was the information relied on for reaching the decision, or the gist of it, supplied after the decision had been taken and notified.

The significance of sub-categorisation within Category A as a high escape risk is said to be of significance to the Claimant (and others in his position) because:

The other factual dispute that I should mention concerns the effect on parole prospects for those with a high risk ERC. As I have said, the Claimant maintains that the effect of such a classification is that it is in practice an absolute bar to obtaining parole for as long as it remains in place because parole is not granted to Category A prisoners and having a high risk ERC is in practice a bar to declassification to lower threat categories. Mr Patel disputed this to be the case – his point being that there could be a Category A prisoner who posed no risk of escape but nonetheless could only be categorised as a Category A prisoner because of the risk that he or she posed to the public if that prisoner escaped.

I am sure that the point Mr Patel makes is right as far as it goes but in my judgment does not meet the point that is being made by the Claimant. The ERC regime applies only to persons who are Category A prisoners. In practice (it is asserted by the Claimant) there is no prospect of a person who might otherwise be eligible for de-categorisation to Category B or below to be so de-categorised as long as they have an ERC that is otherwise than standard. No statistical material has been produced by the Defendant that addresses this question. The position adopted by the Claimant is inherently logical as will become apparent when I consider the relevant administrative framework. Further, the point was raised as a central point in the Claimant’s case at Paragraph 19 of the Detailed Statement of Grounds (14), where it was stated that should this assertion be challenged “ … the Claimant will seek disclosure of statistics indicating the number of Category A “high risk” prisoners who progress to Category B conditions in any given year”. The reason why this is said to be important is because of the reliance that is placed by the Claimant (by analogy) on the cases concerning common law fairness in relation to Category A status reviews. No such material was produced by the Defendant even though it is clear from Paragraph 33 of the Detailed Grounds For Opposing The Claim For Judicial Review that the Defendant appreciated the significance of the point. The evidential point was not disputed by the Defendant and no disclosure was in the event sought. In those circumstances, I proceed on the basis that the Claimant is correct in the assertion that is made. The significance of the point to the facts of this is case is however limited for the Claimant is not himself eligible for parole until 2036.

Finally before turning to the legal issues that arise on this application, I should record that in the witness statement of Mr Steve Easton, a member of the Category A Review Team, which is dated 31^st March 2009, Mr Easton states at Paragraph 8 that

“I can confirm that the Claimant’s escape risk Category is maintained at “high” on the basis that he is serving a life sentence for murder (in year 3 of a 30 year tariff) for an offence which involved the use of a firearm and was gang-related and where in May 2007, there was intelligence that the Claimant was “actively endeavouring to escape from custody”. ”

On the basis of this information, Mr Patel submits that even failing all else, the relevant information has been supplied and no remedy (even a declaration) is appropriate in the circumstances.

Category A prisoners are defined in Chapter 1 of PSO 0900 as being “Prisoners whose escape would be highly dangerous to the public … no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible”. Category B prisoners are “Prisoners for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult”. In it this contrast between definitions which leads me to the conclusion about the logicality of the Claimant’s case concerning parole referred to in paragraph 10 above.

ERC is a non-statutory, internal administrative procedure applied to all Category A prisoners whether convicted or un-convicted. The only internal guidance concerning ERC is that contained in PSO1010 “Category A Prisoners: Reviews of Security Category” The substance consists of definitions of standard, high and exceptional escape risk as follows:

“Standard Escape Risk

Most Category A prisoners are classified as standard escape risk. They are not considered to have the determination and skill to overcome the range of security measures which apply to the custody or movement of Category A prisoners. There is no current information to suggest that they have external resources which could be used to assist them to overcome those measures. They have no history of escape or determined escape planning. Even so the Prison Service must assume that they would take any opportunity to escape, and that if unlawfully at large, they would pose a very serious threat to the public, the police or the security of the state.

High Escape Risk

They have a history and background which suggest that they have the ability and determination to overcome the range of security measures which apply to the custody of standard risk Category A prisoners. There may be current information to suggest that they have associates or resources which could be used to plan and carry out an assisted escape attempt. If there is information that the prisoners or associates have access to firearms or explosives, and had been willing to use them in committing crime or in avoiding capture, high risk is the expected Category. [Emphasis supplied]

Exceptional Escape Risk

A small number of Category A prisoners are classified as an exceptional escape risk. These are usually cases having the same features which apply to high escape risk, but where the nature and extent of the external resources which could be called upon to mount an escape attempt are such that the level of threat posed requires that the prisoner be held in the most secure accommodation and conditions available to the prison service in order to achieve the aim of making escape impossible. Prisoners who have a history and background which suggests that they have the personal resourcefulness to overcome, with or without any external assistance, all but the highest conditions of security available, may also warrant an exceptional escape misclassification.”

No guidance is given as to how ERC is to be carried out although there is substantial guidance given as to how Category A reviews are to be carried out which have clearly been designed to give effect, in the most administratively convenient manner possible, to the previous decisions of the courts relating to those reviews, some of which are expressly identified by name in the text of the guidance. The only guidance of any sort in relation to the issues now under consideration is contained in paragraph 1.5 of PSO 1010 which is to the following effect:

“Decisions on escape risk classification are based on an assessment of a prisoners escape potential, i.e. the ability to overcome, with or without assistance, the security measures that are applied to the custody or movement of Category A prisoners. Although the two matters, Security Category and Escape Risk Classification, and are connected and may overlap (in the sense that, for example, circumstances such as association with criminal gangs may be relevant to both) they are distinct and considered separately. ”

This is hardly surprising given that Category A is concerned with the risk that a prisoner poses if he or she were to escape and ERC is concerned with the risk of escape that the prisoner poses.

Procedural Unfairness

The Defendant’s submission is that this issue is essentially one of internal prison management, is not governed by statute and thus not open to criticism on the grounds identified. Even if the decision is one that engages the common law rules of fairness, it is submitted that what those rules require depends on the circumstances and that aside from an implicit acceptance that the reasons given for the decision set out in the statement of Mr Easton referred to above ought to have been supplied with and as part of the decision letter, nothing further was required. Further it is said that the material considered when making a decision to classify or continue the classification of a prisoner as a High or Exceptional Escape Risk is likely to be so sensitive that it would attract exemption from disclosure under s.29 (1) of the 1989 Act and ought not to be required to be disclosed even in gist form. It was submitted that it had long been recognised that the issues arising in relation to categorisation as a Category A prisoner gave rise to special issues directly impacting on the liberty of the subject and that the case law as to fairness in that context could and should not be applied in the present context. The position in this context was submitted to be similar to that which applied to decisions to transfer between categories B to D, as to which it was clearly established by R v. SSHD Ex P. Peries (1997) Unreported 25^th July that the Category A case law principles were of no application.

In my judgment the suggestion that an ERC decision is not amenable to the common law rules of fairness is unsustainable. The underlying rationale of the decision of Jowitt J in R v. SSHD ex P. Peries (ante) does not apply to ERC. That case decided that the Category A cases were of no application to decisions concerning re-classification between categories B to D because those cases depended upon the conclusion that a decision to retain a prisoner within Category A was a decision which prevented the prisoner from being granted parole and thus had a direct effect on the liberty of the subject. By contrast as Jowitt J concluded that there was no evidence that a Category D prisoner had a better chance of being granted parole than a Category C prisoner and that whilst that fact it might have some influence on the decision it was unlikely to be significant and certainly no where near as significant as was the position in relation to Category A categorisation. There was no other basis of disadvantage argued in that case other than the alleged effect on parole and, as I have summarised, that was rejected as untenable.

In my judgment Jowitt J’s analysis is of no assistance in addressing the issues I have to decide in this case because here there are two distinct reasons advanced as to why the decision concerning ERC has a direct and deleterious effect on the life of the prisoner – the parole issue and the markedly more intrusive regime that applies to prisoners given a high risk ERC. So far as I am aware the ERC issue has been considered in relation to fairness principles in only one other reasoned judgment – R(Allen) v. SSJ and Governor of HMP Belmarsh [2008] EWHC 3298 (Admin). That case is plainly distinguishable from the present case because it was concerned with an ERC classification applied to a prisoner held on remand while in the course of his trial. As Blake J said at paragraph 19 of his judgement:

“this is not a case of the future treatment in the prison estate of a convicted prisoner whose classification at a particular period in time of course is a matter of importance to him or her and has some impact upon his prospects and timing of any application for parole.”

This case is concerned with the type of case that Blake J held was not the one before him. In my judgment Blake J was with respect entirely correct to conclude that the position was different in relation to a convicted prisoners because of the effect a high or exceptional escape risk assessment has on that prisoner’s circumstances while imprisoned as well as his prospects of being granted parole – see in particular paragraph 9 of the judgment where largely similar points to those relied on by the Claimant in this case were relied on there. Having declined to interfere in the circumstances of the case before him, Blake J said at paragraph 38 of his judgment:

“There is a legitimate basis in an appropriate case at an appropriate time for supervision of the decision-making process and its impact upon a Claimant.”

Aside from the narrow points so far considered, in my judgment the attempt to characterise the decision as merely an internal prison management decision misses the point. In my judgment the common law duty of procedural fairness is engaged wherever the function being carried out affects the liberty and/or status of the persons affected by it – see R v. SSHD Ex P Duggan [1994] 3 All ER 277 at 287G-288A. In my judgment it is clearly the case that an ERC decision falls squarely within this definition of applicability. It is true to say that the analysis of Rose LJ in R v. SSHD Ex P Duggan (ante) was concerned with the question of Category A categorisation and it is also true to say that what was regarded as the minimum required to achieve fairness in that case was focussed by the direct impact such decisions had on the liberty of the subject. However, it does not follow that the common law duty of fairness has no application in any prison related issue that does not engage liberty in the same stark way.

In my judgment there are two distinct questions that have to be considered. The first is whether the duty is engaged at all, as to which for the reasons I have given, I consider that it is in relation to ERC decisions. The second is what compliance with that duty requires, which, as Lord Mustill said in R v. SSHD Ex P. Doody [1994] 1 AC 531 at 560D-G, “ … is dependent on the context of the decision …”. This is so because the fairness duty will only supply “… so much and no more … by way of additional procedural safeguards as will ensure the attainment of fairness” – see Lloyd v. McMahon [1987] 1 AC 625 per Lord Bridge at 702H-703B. It was this consideration that led Lord Mustill to conclude in R v. SSHD Ex P. Doody (ante) that the principles of fairness are not to be applied by rote identically in every situation. As was recognised by Lord Mustill in that case (1) fairness may often require that a person who may be adversely affected by the decision should have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result or after it has been taken with a view to procuring its modification; and (2) since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interest, fairness will very often require that he be informed of the gist of the case that he has to answer.

It is now necessary that I consider what fairness requires applying the principles referred to a decision to impose or continue either a High or Exceptional ERC. As I have said, the effect of the common law duty of fairness on the decision making now under consideration has been considered by this Court only on one previous occasion where a reasoned judgment has been given. It follows that a cautious step by step approach is required to this question.

In the context of the issue now under consideration, two different situations are likely to arise. The first is where the Defendant may have to act quickly on intelligence provided at very short notice and in circumstances where such intelligence may have been supplied from second or third hand sources in circumstances of great personal risk or where for other reasons a high degree of confidentiality must be preserved. Thus I unhesitatingly and respectfully adopt what Blake J said in Allen at paragraph 19:

“… it is in the very nature of risk assessment that one may need to act promptly. Indeed, if one is not to give rise to the very risk that the regime is designed to avert, it would be wrong to rule that there is an arguable case of a minimum requirement of fairness to notify the person before the measures are put in place of the basis on which it is assessed there is a risk of escape or exceptional escape risk in advance. The very nature of risk requires that those who have the obligations to prevent untoward events and to make assessments of risk have to have the freedom to move in the way that they conclude is best having regard to the nature of the risk, the consequences and suchlike.”

It might be argued that a difference of approach is justified depending on whether the decision is one that is driven by new information suggesting some imminent development of or change in risk or one that is to be taken following a routine 6 monthly review. However that was not argued before me and in any event I see no necessity to distinguish between the two situations. As long as a person in the position of the Claimant is (1) aware of the decision that has been taken, (2) the reasons for it in sufficient detail to enable him to decide whether a worthwhile challenge to the decision can be made (together, arguably, with the material relied on in reaching that decision to the extent that disclosure of it is not exempted by operation of s.29(1) of the 1989 Act, as to which see further below) coupled with (3) an opportunity reasonably soon after the decision has been taken to make representations with a view to it being modified, the person concerned cannot claim seriously to have been treated unfairly. As Blake J observed in Allen at Paragraph 20 of his judgment, the fact that a challenge to an assessment will have to be retrospective does not mean that it is appropriate never to explain a decision or to give reasons for it.

There will be some, perhaps many, ERC decisions that are not capable of serious challenge. However that can only be clearly shown to be so if sufficiently detailed reasons are given. In my judgment, it is for that reason that the minimum requirement of fairness in this context is that reasons must be given for any decision which involves classifying a Category A prisoner as either a High or Exceptional Escape risk or maintaining such a classification following a review. The reasons have to be sufficiently detailed to enable the prisoner concerned to decide whether a worthwhile challenge to the decision can be made. This is so because the failure to give reasons or to give reasons that are any less detailed prevents the person concerned from understanding why a decision has been reached or challenging it. It is the essential first stage to enabling someone who is the victim of factual error or, fabrication or irrationality to correct its effect.

It is necessary next to consider the degree to which if at all the material relied on by the Defendant in reaching a decision ought to be required to be disclosed. The Claimant’s case is that the only information he should be supplied with is information to which he is entitled under the 1998 Act. There is no dispute that the Claimant would be entitled to that material if he asked for it. The defendant’s case is that all material considered for the purpose of making an ERC decision is by its very nature material to which the exception contained in s.29(1) applies and thus the material is not disclosable.

Although Mr George submitted that “… in some cases the material might be sensitive and in those circumstances a “gist” of the material should be provided”, it seems to me that confuses two separate points. There is no dispute here, any more than there was in R(Lord) v. SSHD [2003] EWHC 2073(Admin), that as Munby J held in that case:

“… in each case within the meaning of the various definitions in section 1 (1) of the Act, the Claimant is a "data subject", the secretary of state is a "data controller" and the Category A reports are both "data" and "personal data". It is also common ground that subject to any other relevant provisions of the Act, the Claimant is entitled by virtue of section 7 (1) (c) of the Act

"to have communicated to him in an intelligible form –

(i)

the information constituting any personal data of which (he) is the data subject; and

(ii)

any information available to the data controller as to the source of those data""

The only difference between this case and Allen that is material for present purposes is that Munby J was considering Category A reports whereas here what is under consideration are reports relevant to an ERC review. However it is not suggested by Mr Patel that this gives rise to any relevant distinction for present purposes. Although s.29(1) of the Act provides that:

“ Personal data processed for any of the following purposes –

(a)

the prevention or detection of crime,

(b)

the apprehension or prosecution of offenders or

(c)

…

are exempt from ... section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection. ”

as Munby J held in Lord at Paragraph 94:

“… the words "in any case" in section 29(1) of the 1998 Act are to be read as meaning "in any particular case", so that it is for the data controller, if he wishes to rely upon the exemption in section 29(1), to show that one of the statutory objects is likely to be prejudiced in the particular case in which the question arises.”

Having considered detailed argument on the point, Munby J then concluded at Paragraph 126:

“I emphasise that I am not saying that every Category A prisoner will in every case be entitled to see the full contents of his Category A reports. There will be cases -- for all I know there may be many cases -- in which the Secretary of State will be able to rely upon section 29(1) as justifying less than complete disclosure. All I am saying is that the Secretary of State's present policy of blanket nondisclosure cannot be justified under section 29(1). What section 29(1) requires ... is a more selective and targeted approach to nondisclosure, based on the circumstances of the particular case.”

As I have said already, I do not consider it arguable that fairness requires that the Claimant be given a prior opportunity to answer the case to be put before the Defendant prior to him taking an ERC decision either initially or at a routine review. Thus in my judgment no question of the prior disclosure of material to be considered by the Defendant arises. Equally, I am not satisfied that fairness requires that in every case the Defendant should be required to carry out a review of the material considered for the purpose of informing a prisoner what has been relied on that can be released (if anything). As I have said already, in many cases the decision together with reasons for it (if given in the sort of detail I have mentioned) will be sufficient to show that a request for reconsideration would be pointless. Thus it would not be appropriate to require that in every case the Defendant or his staff should have to review all the material considered in order to decide whether s.29(1) applies to it or not. In my judgment the need for such an exercise could only arguably arise if a request is made for such material after a reasoned ERC decision has been delivered to the prisoner cocnerned. The need to consider whether fairness requires such an exercise to be undertaken does not arise in this case because it is the decision of 19^th May that the Claimant seeks to review not the refusal of the Defendant to comply with earlier requests for information used to arrive at earlier decisions – see the Judicial Review Claim Form. That being so I prefer to express no concluded view about this particular issue which should await a case with appropriate facts.

Likewise, reliance was apparently still being placed by the Defendant on the 2007 PAS Report at the later reviews. It is possible that what justified non disclosure under s.29(1) originally may cease to do so with the passage of the years so that it becomes unlikely that an objection to disclosure could be maintained. However, these issues were highly fact sensitive, were not argued before me and in my judgment their ultimate resolution ought to await a case with an appropriate factual context. Accordingly, again I prefer to express no concluded view on them.

In my judgment the reliance by the Claimant on Article 8 adds nothing to what I have considered already. Article 8(1) is qualified by Article 8(2). The requirements of Article 8 do not in the circumstances lead to any conclusion that differs from that which I have reached applying common law principles. A decision concerning ERC which is lawful applying these principles attracts the protection of Article 8(2).

The relief sought by the Claimant is a quashing order in relation to the decision notified by the letter of 19^th May 2008. However, as I have said already, reasons have been given (albeit after the event and only after the commencement of proceedings) in the witness statement of Mr Easton filed in these proceedings.

It was not argued before me that the reasons given were flawed or otherwise inadequate and in any event it is clear that even if the decision under attack was quashed the decision the Defendant would reach would be the same for the reasons identified by Mr Easton. That much is apparent from the fact that there have been at least two subsequent decisions to similar effect made since the decision the subject of these proceedings. Further and more fundamentally, given my view that fairness requires in the first instance only a decision supported by reasons in sufficient detail to enable the prisoner concerned to decide whether a worthwhile challenge to the decision can be made, it would be wrong to quash the decision itself for to do so might result in the occurrence of the very problem that the ERC process is designed to eliminate.

However, for the reasons I have set out above, I consider that it was unlawful for the Defendant to have failed to give reasons for the decision originally and in the interests of avoiding similar difficulties in the future it is appropriate to grant a declaration that reflects the substance of what is set out above.

I will hear counsel further as to the form of order and any applications that either party may have consequential on the hand down of this judgment.