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

A prison disciplinary scheme cannot impose punishment for disciplinary offences outside the statutory rules, even where the detainee appears to consent. The statutory framework requires an identifiable charge and offence, together with a proper opportunity to present the detainee’s case. A local scheme administered by junior officers, which permits arbitrary characterisation of incidents and lacks essential procedural safeguards, is unlawful.

An incentives scheme may withdraw periods of free-time association as a privilege under the Young Offender Institution Rules 2000, provided that detainees continue to have contact and interaction with other inmates during ordinary regime activities. Such withdrawal does not engage Article 8; alternatively, any interference is justified and proportionate.

The claimant, a 17-year-old former trainee at Wetherby Young Offender Institution, sought judicial review of two systems. The first was the Discipline Incident Report system, under which officers could impose escalating sanctions for specified incidents if the trainee signed an agreement. The second was the Incentives and Earned Privileges policy, under which a trainee on the basic level could lose designated evening periods of free time called “Association”.

The claimant argued that both systems were ultra vires and incompatible with Article 8 of the European Convention on Human Rights. The central issues were whether the disciplinary system was authorised by the statutory prison rules, whether consent validated it, and whether withdrawal of evening association was an unlawful denial of minimum association or a breach of Article 8.

1. Discipline Incident Reports. Section 47(2) of the Prison Act 1952 requires rules to provide cumulatively for an identifiable charging process, an identified offence and a proper opportunity for the person charged to present his case. Rules 55, 58 and 59 of the Young Offender Institution Rules 2000 provide that framework.
2. The DIR system was in substance a system of punishment, despite its terminology of “awards”. Its sanctions included extra work and forfeiture of privileges, matters falling within rule 60. Several listed incidents corresponded to offences under rule 55, while “miscellaneous” was impermissibly vague and arbitrary.
3. Consent did not remove the system from the statutory framework. In an environment involving a substantial power imbalance, the apparent consent of a trainee was an illusory safeguard. The system also allowed junior officers to act as accuser, witness and, in some circumstances, decision-maker. It was therefore ultra vires, actually or potentially arbitrary, and lacking minimum essential procedural safeguards.
4. The judgment was confined to the Wetherby system evidenced before the court. It did not prevent the Secretary of State from creating a properly authorised and safeguarded summary procedure for minor offences.
5. Incentives and Earned Privileges. Rule 6 of the Young Offender Institution Rules 2000 permits a privilege system under which extra association may be earned or lost. “Association” includes contact and interaction during meals, work, education, training, exercise and other regime activities. Rule 6(2) does not require a continuing entitlement to the separate evening free-time sessions labelled “Association”. The IEP policy was lawful.
6. Removal of association in the sense contemplated by rule 49 would engage Article 8, but the IEP policy withdrew only a privilege of evening free time and did not remove the claimant from contact with other inmates. The Article 8 claim therefore failed. Alternatively, any interference was justified and proportionate.
7. The claim was dismissed insofar as it challenged the IEP policy. It succeeded insofar as it challenged the DIR system, which was declared unlawful. The court declined to quash the system immediately.

First-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.