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

Prisoner categorisation concerns security and risk, whereas allocation concerns the selection of a suitable establishment. Matters relevant to allocation do not thereby become relevant to categorisation. Revised guidance requiring consideration of public confidence does not alter that basic distinction. Family circumstances must be considered only where they bear on security, risk of escape or reoffending, or a related matter addressed by the categorisation policy. The possibility of maintaining contact with a child did not bear on those issues on the facts. Even if family circumstances had been relevant, their consideration could not have affected the decision. A prisoner retains rights under Article 8, but an interference arising from a lawful security decision may be justified where it is in accordance with law and necessary.

The claimant, a serving prisoner, challenged the decision to recategorise him from category D to category C. He contended that the decision-maker was required to consider the effect on his contact with his children, including contact contemplated by a magistrates’ court order. The Secretary of State maintained that family circumstances were relevant to allocation, but not to categorisation, which was concerned with security and risk. The claim also engaged revised Prison Service guidance concerning long-term prisoners, public confidence and exceptional circumstances. The central issue was whether the recategorisation decision was lawful without consideration of the claimant’s family circumstances.

1. Application refused. The decision to recategorise the claimant from category D to category C was lawfully reached.
2. Prison Service Order 09000 drew a clear distinction between categorisation and allocation. Categorisation concerned the likelihood of escape and the risk posed if escape occurred. Matters such as family needs, educational needs and suitable vacancies were matters for allocation and could not influence categorisation.
3. PSI 45/2004 provided revised guidance but did not change the nature of categorisation. Public confidence was to be considered within the context of security and risk. The reference to exceptional circumstances concerned earlier downgrading where necessary to support an individual release plan. Individual merits remained assessed by reference to security-related matters.
4. Family circumstances could be relevant if, on the particular facts, they affected the likelihood of escape, absconding or reoffending. On the facts of this case, contact with the claimant’s daughter could not sensibly be regarded as reducing those risks. The observations in R (on the application of Vary & Ors) v Secretary of State for the Home Department [2004] EWHC 2251 concerned prisoners who had spent time in open conditions before being returned to closed conditions. They did not govern this case.
5. Alternatively, even if family circumstances had been relevant, their consideration could not have affected the outcome, given the legitimate weight of the revised policy and the commonplace nature of the circumstances relied upon.
6. A prisoner does not lose Article 8 rights by reason of imprisonment. Assuming that categorisation engaged those rights, any interference was unarguably in accordance with law and necessary because the decision concerned security and risk, and consideration of the claimant’s contact difficulties could not have changed the result. Permission to appeal was refused. Costs were determined under the standard provisions.

This was a first-instance judicial review. The application was refused, and permission to appeal was refused.