Lowe, R (on the application of) v Governor HMP Liverpool

A prisoner's security category should be reviewed consistently with the Secretary of State's policy. Recategorisation normally requires a change in circumstances or another substantial reason, such as a plain and simple error in the earlier decision. A mere difference of professional opinion between governors is insufficient.

The decision-maker must address the policy criteria and give rational, accurate reasons. Reliance on unsupported allegations, the prisoner's exercise of lawful rights, or materially incorrect information may render the decision irrational. The court may quash the decision without substituting its own assessment of the appropriate category.

The claimant, serving a long sentence for drug trafficking, had previously been recategorised from category B to category C. Following later decisions returning him to category B, those decisions were quashed by consent and the defendant undertook to reconsider his categorisation.

The defendant then recategorised him as category B. The claimant sought judicial review, alleging failure to follow Prison Service Order 0900, irrationality, and reliance on erroneous or irrelevant material. The central issues were whether a governor could revisit an earlier categorisation merely because of a different professional view, and whether the reasons given for the decision were lawful.

1. The decision was quashed. The recategorisation from category C to category B was flawed by serious irrationality, unsupported reasoning and factual errors.
2. Under paragraph 7 of the Prison Rules 1999 and Prison Service Order 0900, prisoners must be categorised objectively according to the likelihood of escape and the risk posed if escape occurs. They must be placed in the lowest security category necessary for security and control. The policy requires regular review, particularly after a significant change in circumstances.
3. The policy creates an expectation of consistent treatment. Recategorisation may follow a change in circumstances or another substantial reason, including a plain and simple error in the earlier decision. It is not justified merely because a later governor holds a different opinion within a range of reasonable professional views. Otherwise, prisoners could be moved between categories according to the governor of the establishment in which they happened to be held.
4. The additional sentence arising from the confiscation order was a factor which could properly be considered, although the judge would not himself have regarded it as establishing an increased escape risk. The decision-maker's reliance on the claimant's litigation as evidence of a will to escape was perverse. Exercising a lawful right to challenge categorisation, particularly where earlier challenges had succeeded, could not rationally support a higher security category.
5. The reasons also relied on an unexplained allegation that the claimant manipulated staff and sought secure information. No evidential basis was identified. The decision further misstated the relevant release position. Section 26 of the Criminal Justice and Immigration Act 2008 reduced the claimant's remaining period of imprisonment, and that change materially undermined the reasoning.
6. The undertaking to reconsider had been discharged by the reconsideration. No further reconsideration was required. Costs were payable by the defendant, subject to detailed assessment.

The judgment records earlier judicial review proceedings in which the December 2007 and January 2008 recategorisation decisions were quashed by consent. The defendant then reconsidered the claimant's categorisation, leading to the present claim.

Permission to appeal was refused, with liberty to apply to the Court of Appeal.