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

Judicial review of decisions concerning Incentive and Earned Privileges is highly restricted because such decisions concern internal prison management. Intervention requires an exceptionally strong case, such as an obvious departure from fairness, irrationality or inconsistent application of the governing criteria.

A sex offender’s denial of responsibility may legitimately be taken into account when assessing IEP status where it prevents participation in the Sex Offender Treatment Programme. Absent exceptional individual circumstances, there is no point at which an entrenched denial automatically makes that programme inappropriate. An annual review may alter an existing enhanced status for a relevant change of circumstances or other good reason, even without a disciplinary incident.

The claimant, an automatic life prisoner, challenged decisions by the IEP Board at HMP Wymott reducing his status from Enhanced to Standard. He had consistently denied responsibility for the sexual offences for which he was convicted and was therefore assessed as unsuitable for the Sex Offender Treatment Programme, which remained an objective in his sentence plan.

He alleged that the review process failed to comply with the Prison Service’s published IEP policies, that the reasons were inadequate, and that the decision was irrational and inconsistent because his circumstances had not materially worsened. The central issues were whether the procedural defects were reviewable or had been cured on review, and whether continued denial and inability to complete the SOTP provided a lawful basis for reducing IEP status.

1. The claim was dismissed. The decisions reducing the claimant’s IEP status were neither irrational nor inconsistent with previous decisions and fell well below the exceptional circumstances required for judicial review in this field.
2. IEP decisions are executive decisions arising in the context of internal prison management. Judicial review is available only in an exceptionally strong case. Intervention may be justified by an obvious departure from fairness, but it is not generally unfair to take account of a convicted sex offender’s denial of responsibility where that denial makes him unsuitable for the SOTP.
3. The initial decision was procedurally unsatisfactory. The claimant had not been consulted, the decision was communicated cursorily, and the decision-makers’ identity was unclear. However, the subsequent review considered detailed written representations, the claimant’s records, and advice from relevant prison departments. That process cured any judicially reviewable procedural complaint, although it did not follow the appeal procedure originally indicated to the claimant.
4. The requirement to give reasons under PSO 4000 was satisfied when the internal note, the initial notification and the final decision were read together. They disclosed that the review applied the relevant IEP criteria, considered the claimant’s continuing denial and inability to complete the SOTP, and treated completion of that programme as an important sentence-planning and risk-reduction objective.
5. There is no point in a prisoner’s sentence at which an SOTP becomes inappropriate solely because a denial has continued for a long time. Exceptional individual circumstances may justify disregarding non-completion for IEP purposes, but the broader suggestion that entrenched denial eventually makes the SOTP inappropriate was not supported by the fuller expert evidence or the February 2008 guidance.
6. The claimant had changed establishment and category, was in a training prison where SOTP work was undertaken, had been refused transfer to open conditions in circumstances connected with the outstanding target, and was subject to a full review after new guidance had been issued. These were changed circumstances and other good reasons capable of supporting the reduction from Enhanced to Standard, even without a disciplinary occurrence.