Osborne, R (on the application of) v HM Prison Littlehey

Recategorisation of a prisoner must address the relevant risks in the governing prison policy, including risk to the public if the prisoner escapes or absconds. Good conduct, educational progress and a low risk of escape do not by themselves establish the reduction in risk required for transfer to open conditions. Denial of sexual offending and consequent inability to undertake offence-related programmes are relevant because acceptance of responsibility and work addressing future conduct may ordinarily provide evidence of reduced risk. They cannot operate as an automatic rule that denial makes recategorisation impossible. The decision-maker must consider the material factors holistically, but may give greater weight to a continuing high risk of serious harm to children.

The claimant, a Category C prisoner serving a sentence for sexual offences against children, challenged three refusals by the Governor of HM Prison Littlehey to recategorise him to Category D and transfer him to open conditions. He maintained his innocence and therefore could not undertake the relevant sex-offender treatment and victim-awareness programmes. He relied on good prison conduct, educational progress, a low OASys score and a reduction in that score.

The court treated the third decision as superseding the earlier decisions. The central issues were whether the Governor had treated non-participation in offence-related work as conclusive, failed to consider favourable factors, or misunderstood the relationship between escape risk and risk of harm after escape.

1. The claim was dismissed. The court confined its substantive review to the third categorisation decision, treating the first two decisions as background.
2. Under Chapter 2 of PSO/0900 and PSI 3/2009, recategorisation required consideration of whether the prisoner’s risk had clearly changed, including risk of escape or absconding and the risk to the public if escape occurred. The decision-maker had to consider the reasons for the existing category and relevant control factors.
3. Good, compliant behaviour was relevant only if it showed a change of attitude and an associated reduction in the risks identified at the previous review. Good behaviour, educational achievements and a low risk of escape did not by themselves justify Category D.
4. It would be unlawful to retain a prisoner in Category C solely because he denied the offences or had not attended the relevant courses. However, denial and non-participation were relevant because acceptance of responsibility and concrete steps addressing future conduct were ordinarily fundamental evidence of reduced risk. The court relied on the discussion in The Queen (on the application of) Roberts v Secretary of State for the Home Department [2004] EWHC 679 (Admin).
5. The February 2010 decision adopted a holistic approach. It considered the claimant’s conduct, educational progress, outstanding offence-related work, OASys assessment and continuing high risk to children. The omission of an express reference to the low escape risk and the reduced OASys score did not invalidate an otherwise comprehensive assessment. The risk of harm was central, and the risk posed by an absconder from open conditions could exceed that posed after release on licence because the latter would be subject to controls.
6. The criticism that the Governor had not expressly identified the existing categorisation as the starting point was insufficient to undermine the decision. The claim was therefore dismissed.