Rowen, R (on the application of) v The Governor of HMP Kirkham & Anor

The claimant in this matter is a prisoner who is currently detained at Her Majesty’s Prison in Risley. He seeks to challenge three matters. The first is the refusal by the governor of a previous prison at which he was detained, HMP Kirkham, to allow him to have home detention curfew. That decision was taken formally on 15 May 2009, whilst I would indicate it appears that the claimant had knowledge of earlier than that. The second matter is that he seeks to challenge his re-categorization from Category D to Category C. That took place on 20 May 2009. Thirdly, he seeks to challenge and assert that the handcuffing to which he was subjected on a 24-hour basis while he was in the hospital between 20 May 2009 and 4 June 2009 was contrary to his rights under the European Convention of Human Rights.

This claim was issued in Manchester on 9 June 2009. It was recognized as being urgent, because the claimant is entitled to be released in any event on 24 July 2009. On 22 June 2009, HHJ Waksman QC, sitting as a judge of the High Court, directed that there should be a rolled-up permission and substantive hearing on 3 July. It is that hearing which I am conducting today.

I will say a little about the background of the matter. In August 2008, the claimant was convicted of two offences of deception, a charge of theft and another of escape from lawful custody. He was sentenced to a total of two years and ten months’ imprisonment. I am told by the defendant that the claimant had an extensive offending history prior to this. They included 11 previous convictions for 65 offences. Those included deception, kidnap, battery and escape from custody. That escape from custody, as I understand it, was additional to the index offence for which he is now serving his sentence.

On 30 March 2009, he was re-categorised as a Category D prisoner. He was transferred on 6 April 2009 to HMP Kirkham. A Category D prisoner is one who is considered to suitable for open prison conditions, as HMP Kirkham was. On various dates in April 2009, he was allowed temporary release to permit him to attend at the Blackpool Victoria Hospital. The reason for that was that he suffers from heart disease and has for some time. He was released on a special purpose license for those attendances. The hospital was about ten miles from the prison. I am told by the claimant that he generally travelled there by taxi or on his own, i.e. without any escort.

Between 5 and 19 May 2009 he had an extended stay at the Blackpool Victoria Hospital. He was then in the hospital’s cardiac unit. Again, he was without an escort. Again, the evidence from the claimant is that he very regularly telephoned the prison to report on his position, so regularly that the claimant says that the prison became somewhat annoyed at the frequency of his contacts and told him that less frequent contact would be sufficient.

The claimant applied for home detention curfew, but this was refused, as I have indicated, and is the first matter that he seeks to challenge. 13 May 2009 seems to have been a date on or before which he was informed about the refusal. I can be confident that that was so because, on 13 May 2009, his solicitors wrote asking to appeal against that refusal. The formal written refusal, however, is dated 15 May. The reasons given for the refusal were a “likely risk of re-offending” and a “likelihood of failure to comply with HDC conditions.”

The claimant had been recommended to have a heart operation on 18 May, but he was concerned that after the operation, he would, if refused the Home Detention Curfew, have to spend that period of recuperation in prison. His preference would have been to recuperate at home on the HDC. For this reason, he chose not to have the operation and he discharged himself from the hospital. Again, the evidence from the claimant is that he made his own way back to prison without an escort on 19 May.

The re-categorization decision was made on 20 May 2009. At the time, the reasons for the decision were given as:

“Mr Rowen has a medical condition that requires a more intensive health care assistance than can be provided at Kirkham and this presents a risk to himself. In addition his recent HDC refusal has now increased his risk of absconding.”

The claimant’s heart condition took a sudden turn for the worse and he had to be returned to the hospital by ambulance on 20 May 2009. On 28 May, he had a quadruple bypass operation. On this visit to the hospital, he was accompanied by, I believe, two prison officers, and claims that he was handcuffed to an officer 24 hours a day until his return to prison on 4 June.

I will turn first to the refusal of HDC. The defendants these proceedings, are the Governor of HMP Kirkham and the Secretary of State for Justice. Mr Watson, on behalf of the defendants, draws attention to the fact that Home Detention Curfew powers are a discretionary matter for the Secretary of State. Section 246 of the Criminal Justice Act 2003 provides that the Secretary of State may:

“… release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period.”

Mr Rowen would, therefore, have been eligible in that sense for Home Detention Curfew from sometime in March 2009. This, as I have said, is a discretionary power resting with the Secretary of State, and it is to be contrasted with the obligation in section 244 of the Criminal Justice Act 2003 to release a prisoner on license after he has served the requisite custodial period. I have indicated already that in Mr Rowen’s case the requisite custodial period will end on 24 July 2009.

The Prison Service Order dealing with Home Detention Curfew is known as PSO 6700. It requires an applicant for HDC to be subjected to a risk assessment, as one would expect. The risk assessment was to take account of prisoners’ previous convictions, the risk predictor assessment based on those convictions and the report of the Home Probation Service. The Prison Service Order gives general guidance on risk assessment, and at paragraph 5.13.3 says this:

“Unless they have requested not to be considered, prisoners must normally be released on HDC unless there are substantive reasons for retaining the prisoner in custody until his or her conditional or conditional or automatic release date. These reasons must fall under one of the five headings below:

(i)

an unacceptable risk to the victim or to members of the public;

(ii)

a pattern of offending which indicates a likelihood of re-offending during the Home Detention Curfew period;

(iv)

a likelihood of failure to comply with the conditions of the curfew;

(v)

lack of suitable accommodation for HDC; or

(vi)

shortness of the potential curfew.”

In Chapter 7 of the same Prison Service Order at 7.2, it is provided that:

“Prisoners must be notified of the decision that they are not suitable for release on Home Detention Curfew using form HDC(6). He or she must be informed of the reasons, and of the right to appeal through the Request\Complaint procedures (see paragraphs 7.10-14 below). Reasons for refusing to release an otherwise eligible prisoner on Home Detention Curfew must be based on those listed at paragraph 5.38.”

I have quoted the reasons which were given in this case for the refusal of Home Detention Curfew and they simply recited the heading under (ii) and the heading under (iii) in paragraph 5.13.3 of PSO 6700. They did not descend to any reasons that came under those headings, but simply recited the headings themselves.

The appeal in this case was considered and refused on 28 May 2009. On that date, the claimant was simply informed: “Unfortunately, the refusal stands.”

The day before, that is on 27 May 2009, the claimant’s solicitors were told:

“Refused HDC upon review. What are the reasons? Likely risk of re-offending and likely failure to comply with conditions of HDC licence.”

Also the solicitors were told, just for their information, the OM (Offender Management) did not support his application for HDC.

Chapter 7, paragraphs 7.10 to 7.16, of PSO 6700 deals with appeals against a refusal of HDC. Paragraph 7.13 says this:

“If the prisoner asks to make oral or written representations in support of his or her appeal, this should be permitted. In considering the appeal the Governor must look at the case afresh and address all points raised by the prisoner in any representations. If necessary the Governor may seek further information to assist in the consideration of the appeal, and this may include interviewing the prisoner even where there has been no request for oral representations. The Governor must give reasons in writing for upholding on appeal the original decision to refuse Home Detention Curfew. Where the decision to uphold the appeal is based on the same reasons as the original refusal, the Governor should seek to expand on those reasons and clarify why they apply.”

In this case, Mr Jagadesham on behalf of the claimant says that there has been a plain failure to comply with 7.13 and indeed at the earlier stage to comply with the obligation of paragraph 7.2 to give reasons for the original refusal.

Mr Watson accepts that paragraph 7.13 in this case was not complied with. He says that that is mitigated, because some information was provided over the phone to the solicitors. But as I have recorded, what the solicitors were told was in essence a repetition of the bare headings as to why HDC was refused, without any expansion, save to say that the OM had not supported the application. Mr Watson also submits that I should recognise that, by 27 May, events had moved on and the claimant had been re-categorised and had been in hospital since 20 May.

I do not find that submission persuasive. The reasons, such as they were, that were given at any stage for refusal of HDC did not include the re-categorisation of the claimant. The fact that he had been in hospital since 20 May in my judgment made the need for HDC and his wish to have HDC the greater rather than the lesser. As I have previously indicated, his original application for HDC in the first place had been so that he could recuperate at home rather than in prison after his cardiac operation.

Mr Jagadesham has also emphasised to me the importance that is placed on prisoners in a position such as the claimant’s being told why decisions such as the refusal of HDC have been taken. He refers me to the case of R v SSHD ex parte Martin Lillycrop [1996] EWHC Admin 281, a decision of the Divisional Court on 27 November 1996. That concerned a decision of the Parole Board to refuse parole where, as in the present case, the obligation to give reasons originated from administrative measures rather from legislation. The concern of the Divisional Court was with an attempt by the defendant to expand on the reasons that had been given in the course of the judicial review proceedings. At page 10 of the transcript Butterfield J said:

“If, as we have heard, the purpose of the decision letter [that is, the decision of the Parole Board] is to inform the prisoner why parole has not been recommended in sufficient detail so that he understand the reasons why the conclusion has been reached, it is prima facie unacceptable that a prisoner must move for judicial review in order to obtain an intelligible explanation of a decision.”

Then the court referred to the decision R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302, where the Court of Appeal again, in a different context, and where there was a statutory obligation to give reasons, resisted the idea that a defendant could expand upon the reasons that had led to the decision in the course of judicial review proceedings. In Lillycrop, Butterfield J continued:

“In particular, a Court should not substitute the reasons contained in the proffered evidence for the reasons advanced in a decision letter. To do so would unquestionably raise the perception, if not the reality, of subsequent rationalisation of a decision that had not been properly considered at the time.”

Until yesterday that there was very little further information about what had caused the decision to be taken to refuse HDC. Yesterday the defendant and Mr Watson served a skeleton argument on behalf of the defendant and it included further information about the decision to refuse HDC and indeed to re-categorise the claimant’s status from a D to a C prisoner. Mr Watson accepted that it is not satisfactory for evidence to be given by way of a skeleton argument. The right mode of proceeding is for evidence to be set out in a witness statement or more than one witness statement. The purpose of a skeleton argument is then to develop the arguments of the party concerned on the foundation of the evidence that pre-exists the skeleton. Mr Watson accepted that was the proper approach and apologised for the fact that it had not been followed in this case. He explained that it was a consequence of the speed in which this matter had come before the court and the difficulties the defendant encountered in this case, because there had been several changes of location at which the claimant was being detained and, correspondingly, where the court file in relation to him was held.

I appreciate the difficulties the defendants were under in this case and it is certainly more preferable that the court should have the information through the medium of a skeleton than it should not have it at all. Nonetheless the proper approach of setting out evidence through a witness statement or witness statements should, in my judgment, be followed as a matter of course.

Mr Watson’s skeleton then says this about the refusal of HDC, and the refusal of the Governor’s Board to vary the decision. He says:

“In reaching this decision, the Board had before it:

25.1

The representations made on behalf of the claimant which drew attention to the Claimant’s ill-health, his period in open conditions, his successful release on temporary licence, his time in hospital without guard, and the proposed address.

25.2

The claimant’s extensive history of offending, including 11 previous convictions for 65 offences, including acquisitive and deception offences, vehicle crime, kidnap (1982, domestic related), battery (female victim, 2008);

25.3

The claimant’s previous breaches of trust, including:

(i)

breach of probation order;

(ii)

driving while disqualified

(iii)

failing to surrender (2008);

(iv)

previous escapes from custody -- while in hospital (1999);

(v)

breach of probation order;

(vi)

six offences committed while on bail; and,

(vii)

extensive history of offences of fraud and deception;

25.4

The Home Probation Officer’s refusal to support the application on the basis of the Claimant’s offending history (see above), and in particular the earlier ‘breaches of trust’, combined with the Claimant’s history of domestic violence in circumstances where the proposed release of the Claimant was the home of the Claimant’s girlfriend who was considered to be unaware of the extent of the Claimant’s offending history.”

Mr Watson then goes on:

“In light of the above, the Defendants submit that the decision to refuse the Claimant release on HDC cannot be criticised. It was both rational and lawful. The Defendants invite the Court to refuse permission in relation to this decision.”

But in my judgment, while that is useful information as to the material that was before the Board, it is not a substitute for the decisions of the Board on the basis of that material. It is not a proper substitute for the type of reasons that paragraph 7.13 of PSO 6700 requires.

Mr Watson also submitted that the complaint of inadequate reasons was beside the point, because at paragraph 7.10 the PSO provides that:

“A prisoner may, of course also raise complaints outside this system [that is, the system of appeals], for example, through his or her solicitor. As with other complaints affecting imminent release dates, all complaints about Home Detention Curfew must be dealt with as a matter of priority.”

I do not regard that possibility as a good reason for the court not to take action when the obligations to give reasons in paragraph 7.13 have not been followed.

Paragraph 7.14 of the PSO says this:

“If the prisoner remains dissatisfied after appealing at establishment level then he or she should be informed that the next stage is to appeal to the Area Manager at Prison Service Headquarters.”

The claimant has not taken that stand, and the absence of him taking that stand was not a matter that was adverted to in the summary grounds of defence. And Mr Watson, in response to a question from me, was not able to elucidate the nature of the appeal to the Area Manager, whether it be a full appeal or whether it would have more limited function. For those reasons, I set aside that as a possible reason for not permitting this application for judicial review.

In deciding what course should be taken because of the absence of reasons, one of the relevant matters is whether it is clear that if the proper procedure had been followed, then the outcome would have been the same. The material that was before the Governor’s Board included, as Mr Watson has indicated, a lamentable previous offending history. However, it also has to be recognised in this case that the claimant, despite those previous convictions, had been trusted to make his way to the hospital for treatment on several occasions. On one of those occasions, he had spent two weeks in hospital without any guard, with him being trusted to telephone in to the prison periodically, and he had manifestly undertaken that; and also that the claimant had returned to the hospital without any escort, making his own way back even though by that stage he had been told that he was to be refused HDC. All those are important matters to be set against the adverse circumstances which are set out in the material.

In those circumstances, I could not be certain that if proper procedures had been followed the result would have been the same, or that for some other reason the court should refuse to grant relief in its discretion. In my judgment, the right course is to quash the refusal to grant HDC. That would require the appropriate governor to take the decision again.

I turn to the second subject of challenge; that is the claimant’s re-categorisation. I have already set out the original reasons for this, given on 20 May. On 27 May two letters were written to the claimant’s solicitors. One of those was written by the Governor of HMP Kirkham. He said the factors in the decision were primarily the perceived increased abscond risk posed following the claimant’s HDC refusal, previous absconding history from Tameside General Hospital, significant intelligence received about his non-compliant behaviour at Blackpool Victoria Hospital, and his need for prison medical care in closed prison conditions.

The second letter was from D Corbishley, a security manager. He said:

“With regard to his status I can tell you that he was re-categorised as C on 20 May 2009. A decision was taken by a local Risk Management meeting following his HDC refusal, intelligence received about his behaviour at the hospital and his previous history of escape from lawful custody.”

The skeleton argument from Mr Watson again gave further material about this decision. He produced as part of his skeleton the minutes of the internal risk management committee of HMP Kirkham. The meeting being held on 20 May. The minutes, as reproduced in Mr Watson’s skeleton, say this:

“Reason for the meeting

The meeting is to consider evidence received about the [claimant] and to assess his level of risk of harm/re-offending/abscond and therefore his suitability to remain at HMP Kirkham.

[…]

Current Issues

Was admitted to BVH [Blackpool Victoria Hospital] with chest pains, and is required to undergo heart surgery to correct it. He refused this on two occasions and was released fit from hospital by the Consultant. Whilst in hospital he has demonstrated manipulative behaviour by informing elderly and vulnerable patients that he is a property developer and has managed to gain address details from them. Along with this the surgeon has given him the address of his holiday home in Cyprus.

There are numerous security concerns that he makes inappropriate comments to staff by asking personal information.

He also claims that he does not want to return to Kirkham as he believes that he will be beaten up as he is know[n] as a ‘grass’. He has informed his personal officer that upon his return his cell has been flooded by other prisoners.

His external Offender Manager does not support Rotl of any kind.

Action Plan

Mr Rowan has demonstrated manipulative behaviour whilst in hospital, this is consistent with his offending behaviour and therefore his risk of re-offending is increased.

Due to his claims that he is under threat from other prisoners he should be returned to closed conditions for his own safety.

He has a history of escaping from lawful custody, previously from Tameside Hospital. He has entered an appeal for HDC, should this be refused he may become an abscond risk.

To be returned to either Risley or Preston with 24 hour healthcare so they can provide him support where necessary.”

Two of the letters referred to in that action plan were accepted by Mr Watson as irrelevant considerations when it comes to re-categorisation. The purpose of categorisation is to assess the risk of prisoners to others, and their abscond risk. It should not be part of the categorisation decision to take account of either the prisoner’s medical needs or a threat to him from others. Both of those may be matters that influence the institution to which the prisoner is allocated; but the Prison Service Order, in this case 0900, makes quite clear that those issues are to be kept distinct and separate from the criteria of a test of the environment when determining the prisoner’s categorisation.

Accordingly, the comment in the action plan, “Due to his claims that he is under threat from other prisoners he should be returned to closed conditions for his own safety”, and also the comment, “To be returned to either Risley or Preston with 24 hour health care so they can provide support where necessary”, were not relevant considerations for the categorisation decision. I note in this context that the letter written by the Governor on 27 May 2009 to the claimant’s solicitors specifically alluded to “the claimant’s need for prison medical care in closed prison conditions” as one of four factors that were primarily involved in the re-categorisation decision. It is quite true, as Mr Watson observed, that Mr Corbishley in his letter did not mention the need for prison medical care in closed prison conditions; however, in my judgment I could not conclude from the omission of that factor in Mr Corbishley’s letter that it was not a matter that was taken into account by the Governor when the Governor himself specifically alluded to it as one of the four matters that had primarily affected the decision. It is true also that neither letter alludes to the need to return the claimant to closed conditions for his own safety. But Mr Watson, having put this record before the court, cannot in my judgment avoid the conclusion that it was one of the factors that was taken into account.

Mr Watson seeks to argue that even though it was the case that two irrelevant factors were taken into account, I should conclude that the decision would inevitably have been the same even if those factors had been omitted. Of course, as a matter of principle it is right that this court will not quash a decision because irrelevant factors had been taken into account if it can be sure that the same decision would have been reached irrespective of those factors. If that is the conclusion to which the court comes, quashing the decision is a futile exercise since ex hypothesi the same decision will inevitably follow.

In my judgment, though, while there are powerful factors that are alluded to in the material that was before the IRM on 20 May that suggested the need to re-categorise the claimant as a Category C prisoner, I could not be confident that the decision would inevitably have been the same if those two matters had been set aside.

Accordingly, it appears in my judgment that the claimant makes out a legal flaw in that decision, and since I am not persuaded that the result would inevitably have been the same if those irrelevant matters were not included, the proper course is for me to quash that decision as well.

I turn to the third subject of challenge; that is the handcuffing of the claimant. The claimant, as I have said, argues that this was excessive; it was disproportionate to any security risk that he faced; it was degrading and humiliating for him to be handcuffed in this way while he was in the hospital; and for those reasons there was a breach of his rights under Article 3 and possibly Article 8 of the ECHR. As to this, the defendant submits that it is inappropriate for the court to reach a view about this since the handcuffing has come to an end; this aspect of the claim does not, therefore, have the urgency that the other two aspects did; and that in the time available it has not been possible for the defendant to investigate this matter as it would wish and present the evidence that it would wish in response to this part of the claimant’s claim.

The claimant accepts that the immediate period of handcuffing has come to an end, and indeed had come to an end by the 4 June. He fears, however, that his medical condition may mean that he has to go back to hospital at some point before the date when he is entitled to be released on 24 July. He fears that if that were the case he would be handcuffed again following the precedent of what happened to him on the previous occasion.

In my judgment, the defendant is right that this is not a matter that requires the court’s immediate adjudication. That being so, it is right also that the defendant should have a proper opportunity to investigate the matter and put before the court the evidence that it wishes on this aspect. Mr Watson’s skeleton suggested that the matter should continue as a private law claim. I am not convinced that that is the right procedural course since the claimant also apparently wishes to have a declaration in addition to damages as to the violation of his rights under the Convention, and that is a matter which may more conveniently be conducted in the Administrative Court.

I would respond to the claimant’s concerns as to how he might be treated if he had to go back to hospital in future. This part of the claim has not yet been adjudicated upon. So far as is necessary, and indeed I do give permission for this aspect of the claim to continue (that is of course without prejudice to how the claim may appear once the defendant’s evidence is presented) it does demonstrate that at least as the evidence now stands there is an arguable case fit for the matter to proceed. Should the claimant have to return to hospital, and should the question therefore be revived as to what security measures are in place, the prison authorities will need to bear in mind that there remains as yet unadjudicated his claim that it would be contrary to the Convention to have him handcuffed in the way that he was during that previous period when he was in the hospital.

I have also indicated to Mr Watson that it would be sensible, if it already has not happened, for the prison authorities to receive advice as to the current state of the authorities on handcuffing prisoners while they are visitors to hospital, and that is sensible in light of some very recent Court of Appeal authority on this very topic.

I hope that that is sufficient to allay the claimant’s concerns that the omission of the court to adjudicate on this claim at this stage will in some way lead to the inevitability of being treated in the same fashion should it be necessary for him to return to hospital before his formal release.

I am grateful to both counsel for their succinct and persuasive submissions to me this afternoon. I have been conscious that it is very desirable for a decision to be given on this application as quickly as possible, and I have therefore given this judgment ex tempore. I will hear submissions now as to what further directions or orders the court should make.