TB, R (on the application of) v Secretary Of State For Home Department

Prison Service Orders are policy guidance and do not, merely by omission or general wording, remove the Secretary of State’s statutory discretion concerning the categorisation or placement of prisoners. A gap in guidance cannot itself establish a binding policy preventing a particular security classification. The scope of a Prison Service Order must be determined from its language, purpose and surrounding context. A regime directed to establishments where it is delivered does not necessarily apply to every under-18 prisoner wherever detained. Relevant service-level arrangements may assist in identifying the current policy where they illuminate the parties’ understanding of the guidance.

TB, aged 16 when the relevant events occurred, was remanded in custody on charges of abduction and attempted murder. He was assessed as highly dangerous and provisionally placed in Category A on a medical wing of a prison serving adults and young offenders.

Although later changes made parts of the claim academic, the court permitted a discrete challenge based on alleged breaches of the Secretary of State’s policies. The challenge concerned Prison Service Order No. 0900, Prison Service Order No. 4950, related security guidance and a service-level agreement. The central issue was whether those materials created policies preventing the categorisation or placement adopted.

1. The policy challenge failed. The court held that the claimant had not established either an alleged categorisation policy or an alleged placement policy. The claim therefore failed on the limited ground permitted to proceed.
2. Section 12 of the Prisons Act 1952, read with section 92 of the Powers of Criminal Courts (Sentencing) Act 2000, confers power concerning the prisons in which prisoners may be confined. Security categorisation is part of the exercise of that statutory power. A policy gap in PSO 0900 and the Security Manual, whether deliberate or accidental, could not prevent the Secretary of State from exercising that discretion in response to the risk posed by the claimant.
3. PSO 0900, read alone or with the Security Manual, did not establish that persons under 18 could not be categorised as Category A or provisionally Category A. The relevant materials either left the position unstated or contained indications, including the exception in the National Security Framework, that Category A or Restricted Status could apply to juveniles.
4. PSO 4950 was directed to regimes at establishments where those regimes were to be applied. It did not create a policy that every under-18 prisoner, wherever held, had to be placed in an establishment providing those regimes. The service-level agreement between the Youth Justice Board and the Prison Service was relevant context. It expressly contemplated exceptional placement outside the juvenile estate and provided that PSO 4950 would not apply there unless otherwise stated.
5. The court recognised that the policy challenge was artificially isolated from Convention-rights and fact-sensitive challenges concerning the claimant’s actual treatment. Those issues were not determined. The judgment was confined to rejecting the contention that categorisation and placement breached the Secretary of State’s general policies.