SP v Secretary of State for the Home Department

Prison Service Orders must be read together. A young offender held in segregation is not automatically entitled to the ordinary full regime, but the ordinary regime remains the starting point. Governors must provide as much of it as is consistent with protecting the prisoner or maintaining good order or discipline, subject to the flexible use of available resources.

Fairness ordinarily requires an opportunity to make representations before an initial segregation decision. That obligation is qualified where good order, discipline, urgency or other relevant circumstances require immediate action. Later review and complaint procedures do not necessarily satisfy fairness, because the initial decision is the critical stage.

The claimant, aged 17, was held at a young offender institution after being remanded in custody and later sentenced to detention. She was segregated on three successive occasions under the prison and young offender institution rules because of concerns about threats, violence, self-harm and the effect of her conduct on others.

She sought declaratory relief on two grounds: that she had not received the hours of purposeful activity described in Chapter 7 of PSO 4950, and that she had not been given an opportunity to make representations before the initial segregation decision. The central issues were the interaction between PSO 4950 and PSO 1700, and whether fairness required a pre-decision hearing despite the safeguards available after segregation.

1. Purposeful activity. The first claim failed. Although SP was legally committed as a prisoner, she was held in the young offender institution and was entitled to the benefit of the YOI regime. The Prison Rules and YOI Rules supplied the statutory framework, while the Prison Service Orders supplied detailed policy.
2. PSO 4950 and PSO 1700 had to be read together. Chapter 7’s full regime continued to apply in principle, but PSO 1700 qualified it for segregated prisoners. Governors had to provide as much of the regime as possible, while restricting activities to the extent necessary to protect the prisoner or maintain good order or discipline. They had to adopt a flexible approach having regard to available resources. The full Chapter 7 regime was therefore not mandatory in segregation, although it could not simply be disregarded.
3. The decision in R(BP) v Secretary of State for the Home Department was not inconsistent with that conclusion. In BP, the institution had wrongly treated Chapter 7 as wholly inapplicable. The question of permissible adjustments under PSO 1700 had not arisen.
4. The second claim succeeded in principle. Fairness is context-dependent. It ordinarily requires a person adversely affected by an administrative decision to have an opportunity to make representations, but the content and timing of that opportunity depend on the statutory and administrative framework and operational circumstances.
5. The reasoning in R v Deputy Governor of Parkhurst Prison, ex parte Hague did not conclusively determine the issue in the changed context of the later Prison Service Orders, the European Convention on Human Rights, and the particular vulnerability of a child. The importance of the initial segregation decision meant that fairness required an opportunity to make representations before it was made, unless good order, discipline, urgency or other relevant circumstances justified proceeding without one.
6. On the facts, urgency did not appear to prevent representations, since approximately 24 hours had elapsed after the relevant threat. It was for the governor to decide whether there were good reasons not to afford the opportunity. The court accordingly declared that, subject to the stated limitations, SP should have been given that opportunity.

First-instance judicial review in the Administrative Court. Permission for the purposeful-activity claim was granted by Elias J; permission for the representations claim was granted by the Court of Appeal. No prior merits decision is stated.