Rowen, R (on the application of) v The Governor of HMP Kirkham & Anor

A discretionary decision to refuse home detention curfew must be supported by intelligible reasons addressing the individual case. Merely repeating policy headings is insufficient, particularly where the governing procedure requires a fresh appeal decision and written reasons. Decision-makers must also keep categorisation criteria separate from matters concerning a prisoner’s medical needs or personal safety. A decision incorporating irrelevant considerations should be quashed unless the court is satisfied that the outcome would inevitably have been the same without them. Where a Convention claim concerning past treatment requires further evidence and is not urgent, the court may permit it to continue without immediate adjudication.

The claimant, a prisoner with serious heart disease, challenged three decisions or measures: refusal of home detention curfew, his re-categorisation from Category D to Category C, and continuous handcuffing while receiving hospital treatment. The claim was issued urgently because his release date was approaching. A rolled-up permission and substantive hearing was directed by HHJ Waksman QC.

The central issues were whether the home detention curfew decision gave adequate reasons, whether irrelevant considerations entered the categorisation decision, and whether the handcuffing breached Articles 3 or 8 of the European Convention on Human Rights.

1. Home detention curfew. Section 246 of the Criminal Justice Act 2003 confers a discretionary power, contrasted with the release obligation in section 244. The applicable policy, PSO 6700, required a risk assessment and substantive reasons within specified categories. The reasons given merely repeated two policy headings and did not explain their application to the claimant. The appeal decision also failed to address the representations afresh or expand upon the reasons, contrary to paragraph 7.13 of PSO 6700.
2. The later material in the defendants’ skeleton argument described evidence before the decision-maker but did not substitute for reasons given by the decision-maker. The court applied the reasoning in R v SSHD ex parte Martin Lillycrop [1996] EWHC Admin 281 and considered R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302. The court could not be certain that a properly reasoned process would have produced the same result, having regard both to the claimant’s offending history and to his previous compliance with unescorted hospital visits. The refusal was quashed and remitted for a fresh decision.
3. Re-categorisation. Categorisation under PSO 0900 concerned risk to others and absconding risk. Medical needs and protection from threats by other prisoners concerned allocation and institutional management, not categorisation. Those matters were nevertheless taken into account. Although powerful relevant factors existed, the court could not conclude that the decision would inevitably have been the same without the irrelevant considerations. The re-categorisation decision was therefore quashed.
4. Handcuffing. The court declined to determine immediately whether the past handcuffing breached the Convention. The defendants required a proper opportunity to investigate and provide evidence. Permission was given for this part of the claim to continue, including the claim for declaratory relief and damages. The prison authorities were advised to consider the current law before any future hospital treatment. Two-thirds of the claimant’s costs of the hearing were awarded, with assessment and payment deferred; the remaining costs were reserved.

Not an appeal. The judgment records that HHJ Waksman QC directed a rolled-up permission and substantive hearing in the Administrative Court.