Secretary of State for the Home Department v SP

Where an inmate under 18 in a young offender institution faces removal from association for good order or discipline, fairness normally requires an opportunity to comment on the tentative reasons before the order is made. The requirement is displaced where good order, discipline, urgency or other relevant circumstances require an immediate order.

Post-decision reviews and complaint procedures do not ordinarily cure the absence of a prior opportunity. They are less effective for testing the factual basis before an initial decision becomes entrenched. The required opportunity is limited. It does not import the full disciplinary-hearing safeguards under the Young Offender Institution Rules 2000, and detailed reasons may be withheld where disclosure would endanger safety or security.

SP was a 17-year-old remand prisoner at HMP and YOI New Hall. The governor removed her to the segregation unit for three days under rule 49 of the Young Offender Institution Rules 2000, citing risks to others and her effect on a co-accused. She was informed of a reason for the removal but was not invited to comment before the decision.

Jack J allowed her judicial-review claim in part. He held that fairness required a prior opportunity to make representations unless good order, discipline, urgency or other relevant circumstances required an immediate order. The Secretary of State appealed. The central issue was whether the statutory and post-decision safeguards made a prior opportunity unnecessary for an under-18 inmate removed to segregation for good order and discipline.

1. Appeal dismissed. Hooper LJ, with whom Jacob and Ward LJJ agreed, upheld Jack J’s conclusion. An inmate under 18 who faces removal to segregation for good order and discipline must normally be given an opportunity to comment on the tentative reasons before the order is made.
2. The requirement was justified by the seriousness of the practical consequences of segregation, the vulnerability of children in custody, and the applicable policy requirement that young women be treated openly and fairly. Although rule 49 removal is not formally punitive, its effect and likely perception may be substantially punitive. The court treated the child’s welfare and the rehabilitative value of fair treatment as material features of the context.
3. Safeguards after removal, including reviews, visits and complaints, did not supply an equivalent safeguard. The initial decision was the stage at which an inmate most needed to address the factual basis for segregation. A later decision-maker may be less open-minded once an order has been made. The observation in R (Daly) [2001] UKHL 26 that qualified rights survive custody supported that approach.
4. The court distinguished the conclusion concerning adult prisoners under the earlier rule in R v Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58. The modern regime for under-18 inmates and the relevant Prison Service Orders materially altered the context. The court did not decide whether Hague remained binding for prisoners aged 18 or over.
5. The required procedure is limited. It requires only an opportunity to comment on the tentative reasons, not the full disciplinary process contemplated by the Young Offender Institution Rules 2000. An immediate order remains permissible where operational circumstances require it, and detailed reasons may be withheld where disclosure would threaten safety or security.

• Court of Appeal (Civil Division)—the Secretary of State’s appeal was dismissed: [2004] EWCA Civ 1750.
• Administrative Court—Jack J allowed the judicial-review claim in part, holding that fairness normally required a prior opportunity to make representations before an under-18 inmate was segregated for good order and discipline.
• Court of Appeal (permission stage)—Maurice Kay LJ, with Brooke LJ agreeing, granted SP permission to apply for judicial review after Elias J had refused permission.