Cooper v Her Majesty's Prison Service

Prison categorisation is principally concerned with escape risk and the risk posed to the public if escape occurs. A governor may take account of an unproved further allegation where it materially affects those risks, including through its possible effect on parole assessment. Procedural fairness requires that a prisoner have a reasonable opportunity to know the grounds for recategorisation and make representations, but substantial oral and written representations may satisfy that requirement where they are considered before the substantive decision.

A lawful prison policy restricting personal computers is not unlawful merely because a prisoner seeks an exception. The governor must consider relevant individual circumstances, including equality of arms and access to legal materials, but retains operational discretion where suitable alternatives and specific accommodations are provided.

The claimant, a discretionary life prisoner, challenged his recategorisation from Category C to Category B at HMP Bristol after police began investigating a further alleged sexual offence. He also challenged the refusal to allow him unrestricted access to his personal computer, relying on encrypted material, extensive litigation and alleged interference with legally privileged mail.

He sought to amend the judicial review grounds to allege a deliberate policy of intercepting privileged correspondence. The issues were whether the categorisation decision was irrational or procedurally unfair, whether the computer decision unlawfully applied the prison policy without considering his particular circumstances, and whether amendment should be permitted.

1. The applications were dismissed. The decision challenged was the substantive recategorisation decision made at Bristol, not the earlier treatment of the claimant as Category B while held as a remand prisoner.
2. The recategorisation was rational. The further alleged offence could affect the Parole Board’s assessment under section 18(6)(c) of the Crime (Sentences) Act 1997, potentially extending detention and increasing both the incentive to escape and the risk to the public. The allegation also suggested a wider range of potential victims because the alleged victim was a stranger.
3. Procedural fairness was satisfied. Applying R (Hirst) v Secretary of State for the Home Department [2001] EWCA Civ 378, the claimant had a reasonable opportunity to make representations. He made detailed oral and written submissions, those submissions were communicated to the recommending and deciding governors, and a subsequent appeal was independently considered.
4. The restriction on personal computers was a lawful exercise of operational discretion. The policy was not challenged as unlawful and was not applied rigidly. The Prison Service considered the claimant’s proposed encrypted communication, the volume of material on his computer, his legal proceedings and his concerns about computer security. It offered a standard computer, access to his own computer during legal consultations and arrangements for retrieving or printing material.
5. R (Ponting) v Governor of HMP Whitemoor and the Secretary of State for the Home Department [2002] EWCA Civ 224 recognised that computer access may sometimes engage equality of arms, but did not establish a general entitlement to a private computer. The arrangements offered were sufficient on the evidence and no legal error was shown.
6. Although breaches of Prison Rule 39 had occurred, the evidence did not support the alleged deliberate policy of interference. Permission to amend was refused because the proposed claim was substantially new, out of time and essentially a misfeasance claim involving substantial factual disputes.