Green, R (on the application of) v HM Prison Risley & Anor

A prisoner ordinarily must satisfy all requirements of the applicable incentives and earned privileges scheme to obtain enhanced status. Compliance with sentence planning is therefore capable of being a necessary condition, rather than merely one factor to be balanced against favourable conduct. Where a prisoner’s denial of sexual offending prevents attendance at a required sex offender treatment programme, the prison authorities may treat that failure as fatal to an application for enhanced status. The approach is fact-sensitive. Partial admissions or other individual circumstances may enable participation in treatment and justify enhanced status in an appropriate case.

The claimant, a convicted sex offender serving an eight-year sentence, sought judicial review of the refusal by the Governor of HMP Risley and the Secretary of State to grant him enhanced status under the Prison Service incentives and earned privileges framework. He had satisfied the applicable requirements apart from full compliance with his sentence plan, which required completion of a sex offender treatment programme.

Because he denied the sexual nature of his offending, he was treated as unable to participate in the programme. He argued that the refusal was unlawful because the Governor had treated non-attendance as conclusive without balancing it against his otherwise good conduct, and relied on the principle discussed in R v The Parole Board ex parte Oyston. The central issue was whether failure to attend the programme could lawfully constitute a bar to enhanced status.

1. The claim was refused. The Governor’s reasons were sufficiently clear. The claimant knew that failure to attend the required treatment programme was the reason for refusal, and the Governor had considered the sentence-plan material.
2. The incentives and earned privileges scheme ordinarily required satisfaction of all nine stated requirements, including full compliance with sentence planning. The requirements were not merely cumulative factors requiring an overall balancing exercise.
3. Following The Queen on the application of Potter and Others v Secretary of State for the Home Department, failure to attend a sex offender treatment programme because of denial of guilt could constitute a sufficient and fatal ground for refusing enhanced status. The reference in that decision to the weight attached to the requirement did not require the prison authority to treat it as only one factor among others.
4. The scheme retained flexibility. A partial admission might permit attendance at a treatment programme, and even denial might be overridden in the individual circumstances of a particular case. Those possibilities did not make the decision in this case unlawful.
5. R v The Parole Board ex parte Oyston was distinguishable. It concerned risk assessment for parole, whereas the present issue concerned eligibility for enhanced status under a prison privileges scheme. Denial was not being treated as an automatic bar in the abstract; the claimant’s inability to comply with the required treatment element was treated as fatal under the scheme.

The claim was refused. Detailed assessment of the claimant’s publicly funded costs was ordered.