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

A temporary operational transfer of prisoners from open to closed conditions may lawfully be made under the Secretary of State’s broad statutory discretion where officials rationally perceive an increased risk of absconding and immediate individual assessments are impracticable. The court must respect the decision-maker’s assessment of operational risk. A blanket policy may be unlawful if it effects a permanent transfer without regard to individual circumstances, but an interim measure pending individual assessment is materially different. Public confidence in the prison system may be a legitimate consideration, even where governmental criticism may also result. Any interference with Article 8 rights arising from lawful detention must be justified, but the same rationality assessment may establish justification.

The claimant, an Italian national serving a life sentence for murder committed when he was 15, challenged his transfer from an open prison to closed conditions. The transfer formed part of an immediate decision to move foreign nationals serving life sentences or long determinate sentences for serious offences, following heightened public and media concern about deportation and a perceived increased risk of absconding.

The claimant alleged that the decision had an ulterior political purpose, was irrational and disproportionate, and interfered unlawfully with his rights under Article 8 of the European Convention on Human Rights. The central issue was whether the temporary group transfer, pending individual risk assessments, was lawful.

1. Application dismissed. The decision to transfer the claimant temporarily from open to closed conditions was lawful.
2. The transfer was an operational decision made under section 12(2) of the Prison Act 1952. It was distinct from any later decision to re-categorise the claimant. The distinction between transfer and re-categorisation was recognised in Hurst v Secretary of State for the Home Department [2001] EWCA Civ 278.
3. The court accepted the evidence that officials believed media attention and the Home Secretary’s deportation policy might increase the risk of absconding among foreign prisoners. That assessment was not rendered irrational merely because the prisoners had previously been assessed as suitable for open conditions or because life prisoners might generally be less likely to abscond. The seriousness of any absconding and its effect on public confidence were legitimate considerations.
4. The decision to transfer the group immediately, rather than await individual assessments, was rational because prior case-by-case assessment was considered impracticable. The court was not entitled to substitute its own assessment of the operational risk. A permanent blanket transfer without individual consideration would be materially different and would almost certainly be unlawful, but this decision was a temporary expedient pending individual assessment.
5. The court was not convinced that the difference between open and closed conditions engaged Article 8. Even if it did, any interference was justified by the rationality findings.

First-instance judicial review decision. No prior or subsequent appellate decision is stated in the judgment.