Palmer, R (on the application of) v Secretary of State for the Home Department

Prison categorisation must be based on the prescribed security considerations: likelihood of escape, risk to the public if escape occurs and, in limited cases, custodial behaviour affecting control. A decision-maker must apply those criteria objectively and address the material evidence. Speculative or materially inaccurate information cannot justify recategorisation. Fairness ordinarily requires reasons and an effective opportunity to appeal, rather than advance representations before the initial decision. Where the reasons are flawed, the appropriate remedy is fresh reconsideration.

Mr Palmer, a serving prisoner, was initially moved towards category D and an open prison. The decision was reconsidered and he was returned to category C, then moved to category B. The stated reasons included an outstanding compensation order, a possible civil claim of up to £80 million, alleged financial resources and criminal associates, and his request to work in the prison gardens.

He sought judicial review, challenging the substance of the decisions and the fairness of the procedure. The central issues were the criteria governing categorisation and recategorisation, whether advance representations were required, and whether the reasons given established an increased risk of escape.

1. Fairness. The reasoning in R v Secretary of State for the Home Department ex parte Allen applied to recategorisation decisions generally. Fairness ordinarily required the prisoner to know enough of the case against him to respond and to have an effective appeal, rather than a right to make representations before the initial decision. The position might differ for discretionary life prisoners who had completed their tariff, as recognised in Hirst v Secretary of State for the Home Department, and potentially for category A prisoners.
2. Applicable criteria. Under Prison Service Order 0900, categorisation concerned principally the likelihood of escape and the risk to the public if escape occurred. Custodial behaviour could justify a higher category only where it created control problems. No such problem or public risk was established, leaving risk of escape as the only live issue.
3. Substantive review. The reasons could not support the decisions. The compensation order was covered by money lodged with the court. The proposed civil claim was greatly overstated. The alleged financial uncertainty, criminal associations and request to work in the gardens did not provide a rational evidential basis for concluding that the claimant presented an increased risk of escape.
4. Remedy. The decisions were declared flawed and should not stand. The matter was to be reconsidered by the relevant decision-maker, taking account of the judgment and any further written submissions or material supplied on the claimant’s behalf. The claimant’s costs were subject to detailed assessment.

First-instance judicial review proceedings. The judgment records earlier Court of Appeal proceedings concerning the claimant’s confiscation and compensation orders, but this claim was determined in the Administrative Court.