Lexi Holdings Plc v Luqman & Ors

The decision to grant temporary release to a prisoner serving a sentence for civil contempt belongs exclusively to the Secretary of State, ordinarily acting through the prison governor, under Rule 9 of the Prison Rules 1999. Prison Service guidance cannot require the sentencing judge’s permission or delegate that statutory discretion to the court. The sentencing court’s role ends when the contempt sentence is imposed, subject to its separate jurisdiction to consider applications to purge contempt or obtain release on exceptional grounds. Contempt prisoners must have temporary-release applications considered on the same basis and under the same criteria as other prisoners. The governor may seek administrative confirmation of court dates and relevant judgments or sentencing remarks, but must not invite the sentencing judge to exercise or influence the Rule 9 discretion.

Mr Luqman, serving concurrent terms of imprisonment for civil contempt, applied for permission for the prison governor to grant him release on temporary licence on terms applicable to prisoners serving criminal sentences. The application was prompted by paragraph 5.2 of Prison Service Order 6300, which stated that prisoners serving terms for contempt could not receive temporary release without the permission of the clerk of the court. In practice, the Prison Service treated that as requiring the sentencing judge’s consent.

The central issue was whether the sentencing court had a judicial or administrative role in the grant of temporary release, and how paragraph 5.2 was to be reconciled with Rule 9 of the Prison Rules 1999.

1. Jurisdiction and responsibility. The application for temporary release was a matter for the Secretary of State under Rule 9 of the Prison Rules 1999, normally exercised through the prison governor. The rule identifies the permitted grounds, public-protection requirements, public-confidence safeguard and power of recall.
2. Unlawfulness of the guidance. Prison Service Order 6300 could provide guidance for implementing Rule 9, but could not contradict the rule or delegate the discretion to anyone other than the Secretary of State or his representative. Paragraph 5.2 was unlawful insofar as it required the sentencing judge’s permission before temporary release could be granted.
3. Limited administrative communication. The governor could ask the sentencing court’s administrative officers to confirm whether release would clash with a court date. The governor could also request relevant judgments or sentencing remarks. The judge should not express a view on the merits or otherwise interfere with the governor’s discretion. The court left open whether consultation could properly go further in any particular case.
4. Equal treatment. There was no presumption against temporary release for contempt prisoners. Their applications had to be considered by the governor under the same criteria as applications by other convicted prisoners.
5. Disposition. No order was made on the application because it was framed as seeking a form of permission which the court had no power to grant. A copy of the judgment was directed to be provided urgently to the governor of HMP Kirkham. The applicant was ordered to pay three quarters of the claimant’s costs and to provide, within 14 days, details of the funding arrangements for the application by witness statement, with liberty to apply for an extension.