Omoregbee, R. On the application of v Secretary of State for Justice

Rule 7(1) of the Prison Rules 1999 permits the Secretary of State to issue directions appropriate to prisoner classification. Its references to age, temperament, record, good order and training are not exhaustive. A policy making deportation-related risks important does not remove the duty to consider each case on its merits. The word “paramount” means important, with emphasis, rather than overridingly decisive. Foreign national prisoners liable to deportation may require additional consideration because their status creates an added risk, but the same general low-risk test applies to all prisoners. The immigration authorities’ treatment of a prisoner after release is irrelevant to the Prison Service’s categorisation decision.

The appellant was a convicted foreign national prisoner liable to deportation. The Secretary of State refused to reclassify him from category C to category D, which would have permitted allocation to open conditions. He sought judicial review, challenging both the legality of the relevant Prison Rules and policies and the rationality of the decision on his individual circumstances.

The Administrative Court proceedings were heard by HHJ Langan QC on 22 October 2010, and permission to appeal was granted. By the time of the appeal, the appellant had completed his custodial sentence and been released. The Court of Appeal therefore considered only the general challenge to the governing rules and policy, leaving the individual irrationality challenge academic.

The appeal had become academic following the appellant’s release. The court nevertheless considered the general challenge because it could assist future cases, but declined to examine the individual circumstances.

1. Statutory authority. Section 47(1) of the Prison Act 1952 authorised rules concerning the classification and management of prisoners. Rule 7(1) of the Prison Rules 1999 was made under that provision. The phrase requiring classification in accordance with the Secretary of State’s directions permitted directions appropriate to prisoner classification. The subsequent references to age, temperament, record, good order and training were illustrative, not exhaustive. The challenge to the legal validity of the directions therefore failed.
2. Meaning of “paramount”. In paragraph 14.4 of PSO 4630, describing public protection and preventing frustration of deportation as paramount did not make deportation-related escape risk overridingly decisive. It did not remove individual discretion or consideration of the prisoner’s merits. Read with the requirement that each case be individually considered on its merits, “paramount” meant important, with emphasis.
3. Post-release conduct. The manner in which the Secretary of State or immigration authorities dealt with a prisoner after release was irrelevant to the Prison Service’s decision while the prisoner remained in custody.
4. No unlawful variable test. Deportation status gave rise to an additional matter requiring consideration, but did not create a separate legal test. The general requirement in paragraph 14.1 of PSI 03-2009, including assessment of whether the prisoner was sufficiently trustworthy and low risk, applied to all prisoners. The first ground of appeal accordingly failed.

The order was: application dismissed on the first ground of appeal.

1. Court of Appeal (Civil Division) — On 13 April 2011, the court considered the general challenge, rejected it, and declined to determine the individual irrationality challenge because it was academic: [2011] EWCA Civ 559.
2. Queen’s Bench Division, Administrative Court — HHJ Langan QC heard the judicial review on 22 October 2010. Permission to appeal was granted.