Manhire, R (on the application of) v The Secretary of State for Justice

Prisoner categorisation must be determined objectively by reference to the likelihood of escape and the risk posed if escape occurs. Deportation liability may be relevant, but only insofar as it informs the risk of absconding; it cannot operate as an automatic bar to Category D conditions.

A decision-maker must address the particular circumstances bearing on each relevant risk. Where a prisoner’s record, imminent release, family ties and the practical likelihood of deportation materially reduce the risk of absconding, failure to consider those matters may render a refusal of recategorisation irrational. A previous categorisation decision creates no legitimate expectation where it was procedurally defective, unexplained and expressly subject to further approval.

The claimant, a serving foreign national prisoner, sought judicial review of a governor’s decision to retain him in Category C rather than recategorise him to Category D. He had previously been told that he had been recategorised, but the proposed transfer was made conditional on further approval and was not implemented.

The claimant challenged the later decision on grounds of inconsistency and irrationality. The court considered the applicable Prison Service Orders and Instructions, the claimant’s low assessed risk of reoffending, his risk of absconding, his family circumstances, his deportation liability and the Government’s stated policy concerning returns to Zimbabwe. The central issues were whether the earlier decision generated a legitimate expectation and whether the later risk assessment was rational.

1. Permission and substantive relief. Permission to apply for judicial review was granted on the irrationality issue. The decision of 30 June 2009 was quashed.
2. Consistency and legitimate expectation. The principle identified in The Queen (on the application of Lowe) v Governor of HMP Liverpool [2008] EWHC 2167 (Admin) was that prisoners should generally be dealt with consistently on successive reviews, absent a material change or an obvious error in the earlier decision. It did not assist the claimant. The February decision had been made without the required input from the Criminal Casework Directorate, gave no reasons, was not communicated on the appropriate form and was subsequently qualified by the requirement for further approval. It therefore created no legally protected legitimate expectation.
3. Relevant risks. The assessment for Category D had to address the risk of reoffending and the risk of absconding. The claimant’s OASys assessment established a low, though not non-existent, risk of reoffending. The governor had therefore focused principally on absconding.
4. Irrationality. The court recognised that judicial review was not an appeal or rehearing and that the burden of proving irrationality was heavy. The claimant’s deceptive fraud was relevant because it suggested intelligence and organisational ability capable of facilitating escape. His liability to deportation was also relevant, since the applicable policy required the decision-maker to assume that deportation would occur and to treat the prevention of frustration of deportation as paramount.
5. Those considerations did not, however, exhaust the assessment. The governor had to consider the short period before the claimant’s release, his exemplary prison record, the practical improbability of deportation to Zimbabwe at that time, his settled family circumstances and the absence of any real likelihood that he would be detained pending deportation. Failure to address those matters and give them due weight meant that the decision was irrational in the unusual circumstances of the case.
6. The decision was quashed. A speedy fresh appraisal was expected in view of the claimant’s impending release date.

First-instance judicial review proceedings. No appellate history is stated in the judgment.