Cross, R (on the application of) v HM YOI Thorn Cross

Under the Home Detention Curfew scheme, a single term containing a sentence for an offence within a presumed-unsuitable category attracts the policy presumption against suitability. A Governor is not required to investigate the facts of that offence to decide whether exceptional circumstances exist. The policy’s purpose is to maintain public confidence, and the Secretary of State is responsible for that policy judgment. In this context, exceptional circumstances are generally circumstances peculiar to the offender, rather than the offence. The approach in R v Offen and others was not applicable because it concerned a different statutory purpose and a judicial assessment of public risk. The application for judicial review was dismissed.

The claimant, serving concurrent and consecutive custodial sentences including a one-month sentence for possessing a pointed blade in a public place, challenged the Governor’s refusal to release him on Home Detention Curfew. The refusal followed Prison Service Instruction 31/2003, which amended Prison Service Order 6700 and created a presumption of unsuitability, save in exceptional circumstances, for prisoners convicted of specified offences. The claimant argued that the minor nature and circumstances of the weapon offence, his progress in custody and previous temporary releases constituted exceptional circumstances. Leave to apply for judicial review had been granted by Gibbs J. The central issue was whether the Governor had to examine the facts of the presumed-unsuitable offence when considering exceptional circumstances.

1. Application dismissed. The Governor had properly and fully considered the claimant’s application. The fact that the weapon sentence was only one month and was not the primary sentence could not, by itself, amount to an exceptional circumstance.
2. Section 51(2) of the Criminal Justice Act 1991 meant that, where sentences formed part of a single term, the policy presumption applied if any sentence related to an offence within a specified category. The fact that the claimant would not have been eligible on the length of the weapon sentence alone did not prevent the separate offence-based presumption from applying.
3. The Governor was not required to investigate the facts of a presumed-unsuitable offence to determine whether exceptional circumstances existed. The Secretary of State had deliberately adopted a policy directed to maintaining public confidence and had excluded the offender’s risk level as an exceptional reason. Any risk assessment arose only after exceptional circumstances had been established.
4. The reasoning in R v Offen and others was distinguishable. That case concerned a statutory life-sentence regime directed to protection of the public, whereas the present policy concerned public confidence in the release scheme. The principle in Re Findlay supported the conclusion that responsibility for judging public acceptability and maintaining confidence lay with the Secretary of State, not individual Governors.
5. Even if the facts of the weapon offence had been examined, no circumstance in this case was capable of amounting to an exceptional circumstance. The claimant’s application was therefore dismissed.