Campbell & Anor, R (on the application of) v The Governor of HMP Wakefield

The court carried out judicial review of decisions by the Governor of HMP Wakefield (acting by his appointed representative) refusing permission for each claimant to undertake an NCFE Level 2 distance learning course in human anatomy and physiology. The primary legal questions were whether a local Wakefield protocol unlawfully derogated from the national policy in PSI 33/2010 (enforceable by reference to rule 32 of the Prison Rules) and, in relation to Mr Campbell only, whether the decisions breached duties under the Equality Act 2010.

The judge held that compliance with PSI 33/2010 is mandatory. The Wakefield protocol imposed a stricter requirement (in practice requiring prisoners to have Level 2 in literacy, numeracy and ICT before any further, higher or distance learning) which materially departed from the PSI and was therefore unlawful. The defendant’s decisions were vitiated by failing to apply the PSI criteria in a fact-sensitive way and by taking immaterial considerations into account. It was unnecessary to decide Mr Campbell’s Equality Act argument, although the court recorded the obligations set out in sections 6 and 20 of the Equality Act 2010 and explained the factual, prisoner-specific inquiry required if a disability adjustment is relied upon.

This is a first instance judicial review hearing brought by two mandatory life prisoners detained at HMP Wakefield challenging refusals to permit them to undertake a distance learning (DL) NCFE Level 2 diploma in human anatomy and physiology. The claimants sought quashing of the decisions refusing permission. Permission to apply was previously granted.

Background and parties: The claimants (Mr Campbell and Mr Ferguson) wished to undertake DL courses. The defendant was the Governor of HMP Wakefield. The contested local instrument was a Wakefield protocol governing access to further, higher and distance learning at that establishment. The national framework relied upon was rule 32 of the Prison Rules and PSI 33/2010, which the judge accepted establishes mandatory, nationwide requirements and sift procedures for DL applications.

Procedural posture and relief sought: The claimants sought judicial review relief quashing the refusals to permit the courses and declaring the Wakefield protocol to be inconsistent with the PSI. Permission had been granted on 14 April 2011. Witness statements were filed including from the Head of Learning Development and Skills at Wakefield.

Issues framed: (i) Whether the Wakefield protocol unlawfully derogated from PSI 33/2010 and so rendered the decisions unlawful; (ii) whether, as an alternative in Mr Campbell’s case, the defendant had breached duties under the Equality Act 2010 by failing to consider reasonable adjustments.

Material facts: Both claimants sought the same NCFE Level 2 DL course. Mr Ferguson had previously completed a Level 3 DL archaeology course at another prison; Wakefield required him to undergo a Level 2 assessment before approving DL. Mr Campbell held a Level 2 adult literacy certificate and other Level 2 qualifications. The Wakefield protocol required prisoners to have Level 2 in literacy, numeracy and ICT before being considered for further, higher or distance learning.

Court’s reasoning: The judge construed PSI 33/2010 and concluded its eligibility criteria (notably paragraph 2.2) require evidence of appropriate learning and attainment at or above NQF Level 2 "appropriate" to the particular DL course. The Wakefield protocol’s mandatory requirement of Level 2 in all three functional skills regardless of the course was a materially more demanding and different test than the PSI required and therefore an unlawful departure from the mandatory PSI and rule 32. The protocol could produce irrational or absurd outcomes (for example preventing a humanities-specialist from studying humanities because of lack of numeracy) and led decision-makers to close their minds to course-specific evidence of aptitude, attainment and motivation (for instance Mr Ferguson’s completed Level 3 archaeology course or Mr Campbell’s existing Level 2 qualifications). The judge recorded that resource pressures or fears of being overwhelmed were not lawful justifications for unilateral narrowing of eligibility under a local protocol. Because the PSI breach decided the case, the court did not determine the Equality Act point, but set out the factual, prisoner-specific approach the defendant must adopt if a disability-based reasonable adjustment is asserted.

Result: The challenged decisions were quashed and the defendant ordered to pay the claimants’ costs.

The claimants' judicial review claims succeed. The court quashed the defendant’s decisions refusing permission for the claimants to undertake the distance learning courses because the Wakefield protocol materially departed from and was inconsistent with the mandatory national policy in PSI 33/2010 and rule 32, leading to defective decision-making. It was unnecessary to determine Mr Campbell's Equality Act claim, but the judge explained the duty to consider reasonable adjustments on a fact-sensitive basis.