Craig, R (on the application of) v HM Prison Albany

A prisoner’s recategorisation must be based on a clear reduction in risk, assessed by reference to escape or absconding and the risk to the public, victims and others. Continued denial of the index offence and consequent inability to undertake an offence-specific programme cannot, alone, justify retaining a prisoner in a higher category. The governor must consider practicable alternative work directed to the relevant risks. Reasons must record the actual matters relied on. Later evidence cannot ordinarily convert an inadequately reasoned decision into a lawful one. Nevertheless, relief may be refused where the evidence establishes that the decision-maker did consider relevant intelligence independently of the denial and would inevitably reach the same conclusion.

The claimant, a determinate-sentence prisoner serving a sentence for serious sexual offences against his daughter, sought judicial review of decisions refusing his progressive recategorisation from category B to category C. He denied the offences and could not undertake the recommended sex-offender treatment programme. The forms recording the decisions referred principally to that denial and the resulting absence of programme work, while later witness evidence identified intelligence concerning threats to, and attempts to trace, the victim.

The central issues were whether the decisions were unlawfully based on denial, whether the reasons recorded were adequate, whether later evidence could explain the decision-making process, and what work should be undertaken to address risk.

1. Recategorisation test. A prisoner must be held at the lowest category consistent with security and risk. A move from category B to category C requires evidence of a clear reduction in risk, including the risk of escape or absconding and the consequent risk to the public, the victim and fellow prisoners. The reasons for the previous categorisation and any new or additional information must be considered.
2. Denial and treatment programmes. A decision based solely on denial of the index offence is unlawful. Denial and inability to undertake an offence-specific course may make it difficult to demonstrate reduced risk, but they cannot operate as an automatic bar to recategorisation. The governor must explore practicable alternative professional work addressing the specific risks.
3. Reasons. The RC1 form must record in sufficient detail how circumstances have changed and why the existing category remains appropriate. The absence from the forms of important intelligence tended to suggest that denial was the sole reason. The governor’s later evidence therefore exposed a vulnerability in the decisions and amounted, on their face, to post-event justification.
4. Application and outcome. The evidence nevertheless established that the governor had considered intelligence independent of the claimant’s denial, including threats to the victim and attempts to discover her whereabouts. There was no demonstrated reduction in the relevant risk and, if anything, evidence of increased concern. Relief would therefore be academic and the application for judicial review was refused. The court emphasised that practicable work directed to the victim-specific risks should be undertaken well before release. Costs were reserved.