Jones v HMP Full Sutton

In reviewing a prisoner’s security categorisation, the decision-maker must assess the risk arising if the prisoner escapes and must not refuse recategorisation solely because the prisoner denies guilt. In serious sexual-offence cases, however, denial may prevent the prisoner from undertaking relevant offending-behaviour work and may leave the decision-maker without cogent evidence that risk has diminished. The denial is relevant because of its effect on risk assessment, not as punishment. A low general risk of reoffending does not necessarily displace a specific high risk of harm to children. Where the decision-maker addresses the real question of reduction in risk and has rational evidence for concluding that reduction is not demonstrated, the decision is not susceptible to judicial review merely because the prisoner remains in custody.

The claimant, a Category B prisoner at Full Sutton, challenged decisions of the Governor maintaining that categorisation. Proceedings concerning an earlier decision were compromised after reconsideration. The claimant then challenged the decisions confirmed on 25 November 2009 and made on 25 March 2010. He denied the sexual offence for which he had been convicted and had not completed the available sex-offender training programme because admission of guilt was required. The central issues were whether the Governor had relied impermissibly on denial alone, whether the risk assessment justified maintaining Category B status, and whether the references to courses at Full Sutton confused allocation with categorisation.

1. Outcome. Permission was granted in relation to the March 2010 decision, but the applications for judicial review of both decisions were dismissed. Permission to appeal was refused. The claimant’s costs were subject to detailed assessment.
2. The governing categorisation principle was that prisoners must be placed in the lowest security category consistent with security and control. The relevant risk in categorisation differs from parole because the prisoner remains in custody, but the assessment must contemplate the consequences of escape.
3. The court applied the principles summarised by Laws J in R v SSHD (ex p Hepworth) [1997] EWCA (Admin) 324. Guilt must be assumed; the decision-maker must assess risk; denial alone cannot justify refusal; but, particularly following serious sexual offending, continued denial may mean that risk remains high or cannot be objectively assessed.
4. The court also applied the reasoning in Roberts v the Secretary of State for Justice [2009] EWHC 2321 (Admin). The significance of denial lies in its practical effect on the prisoner’s ability to address offending behaviour and provide evidence of reduced risk. It is not punishment for failing to admit guilt.
5. Mr Jones’s offence was a very serious sexual offence against a child. Although his general risk of reoffending was assessed as low, the evidence assessed the risk of harm to children in the community as high. The Governor was entitled to require positive or cogent evidence of reduced risk and to conclude that the absence of relevant offending-behaviour work left insufficient material to demonstrate that reduction.
6. The Governor had addressed reduction of risk rather than relying on denial as an automatic bar. Referring to courses available at Full Sutton did not establish confusion between allocation and categorisation.

The judgment records that permission for the November 2009 challenge was initially refused on the papers by Foskett J, but granted on oral renewal by HHJ Langan QC. Permission was subsequently granted in this judgment for the March 2010 decision. The applications for judicial review were dismissed.