Cooper, R (on the application of) v HM Prison Littlehey & Anor

A prison incentives scheme may withhold earned privileges after repeated minor infractions, but it cannot impose punishment outside the adjudication system required by the Prison Rules. The judgment indicated that education, training, employment and offending-behaviour courses are not privileges within the scheme and should not ordinarily be lost when a prisoner enters a basic regime. Rule 32 requires reasonable educational facilities, although it creates no right to education. Those observations did not determine the appeal. Permission and an extension of time may be refused where delay is substantial, effective relief is unavailable, the alleged wrong cannot recur, and release is approaching.

The applicant, a serving prisoner, renewed applications for permission to appeal in several judicial-review matters arising from prison regimes. Most applications concerned alleged restrictions on correspondence and access to justice and were refused because they were out of time and concerned matters that could not effectively be undone.

The remaining application concerned the three-strikes operation of the Incentives and Earned Privileges scheme at HM Prison Littlehey. After three infractions which were not disciplinary offences, the applicant was placed on a basic regime and lost access to his Open University studies. The application came from the Administrative Court before Mr Justice Tucker. The central issues were whether the loss of education was lawful and whether permission and an extension of time should nevertheless be granted.

1. Applications dismissed. The court refused to extend time in the remaining matter and therefore refused permission to appeal. The other renewed applications were also dismissed.

2. The substantive legality of the three-strikes scheme was not necessary to the outcome because of the delay and the lack of effective legal redress. Lord Justice Sedley nevertheless identified it as a serious point requiring an answer. His observations on that issue were obiter.

3. The Prison Rules establish an adjudication system. It is a legal precondition to imposing punishment, including cellular confinement, that punishment is administered in conformity with those rules. A scheme cannot lawfully use withdrawal of benefits as punishment outside that system.

4. The Incentives and Earned Privileges scheme may place privileges such as access to cash, improved visits and own clothes at risk after three infractions falling short of disciplinary offences. Education, training, employment and offending-behaviour courses are not privileges. The schemes examined indicated that they should not be withdrawn merely because a prisoner reverted to basic regime.

5. Rule 3 of the Prison Rules identifies the purpose of training and treatment as encouraging and assisting convicted prisoners to lead a good and useful life. Rule 32 of the 1999 Prison Rules does not create a right to education, but requires reasonable facilities for prisoners wishing to profit by them. The practice at Littlehey appeared to reverse that approach by treating education as lost unless continuation was separately approved.

6. The application was about a year out of time. The alleged wrong at Littlehey could not realistically recur, the applicant was approaching release, and the court had no power to provide the educational resources lacking at his later prison. Despite the underlying issue being serious and arguable, those circumstances did not justify enlarging time.

• Court of Appeal (Civil Division): Lord Justice Sedley refused an extension of time and dismissed the applications. [2002] EWCA Civ 632
• High Court of Justice, Administrative Court (Mr Justice Tucker): decision appealed from; no citation or full outcome is stated in the supplied judgment.