Abel Oge-Dengbe v Secretary of State for Justice

Prison categorisation decisions must be made through an individual and genuine assessment of risk. A policy identifying deportation as a paramount consideration does not permit every other relevant factor to be ignored. The decision-maker must weigh the competing risks, including the risk of absconding, risk of harm, public confidence, the prisoner’s conduct and risk-reduction efforts, and the practical benefits of open conditions.

Reasons may be succinct, but they must identify the essential elements of the decision-making process. Where the stated reasons give the appearance that a single factor was determinative, without showing that relevant countervailing matters were considered, the decision may be unlawful for unreasonableness and unfairness. Prison policy guidance is not a rule book and must not be applied mechanically.

The claimant, a refugee from Sierra Leone serving a lengthy sentence for conspiracy to import class A drugs, challenged the refusal of the Governor of HMP Wellingborough to reclassify him from category C to category D.

The prison review board had initially supported reclassification, taking account of his exemplary conduct and risk-reduction work. After the UK Border Agency indicated that his refugee status was under consideration for withdrawal, the decision was changed. The stated reason was that prospective deportation would significantly increase the risk of non-compliance with open conditions.

The claimant argued that the decision relied solely on deportation status and failed to consider relevant matters. The ultra vires challenge had been conceded to be unarguable. The issue was whether the decision was irrational or unreasonable.

1. The claim succeeded. The decision dated 29 April 2010 refusing reclassification to category D was quashed.
2. The governing prison framework required an individual assessment of whether the claimant could reasonably be trusted in open conditions. The policies required consideration of the likelihood of escape or absconding, the risk posed if absconding occurred, the risk of harm to the public, damage to public confidence, time remaining before release, risk-reduction efforts and the benefits of open conditions.
3. Although the need to protect the public and prevent frustration of intended deportation was described as paramount in PSO 4630, that did not mean that all other factors could be disregarded. The policies were guidance with built-in flexibility, not a rule book to be followed blindly, slavishly or mechanically. This approach was consistent with the observations in R (Smith and Mullally) v Governor HMP Lindholme [2010] EWHC 1356 (Admin).
4. The review form stated only that the UK Border Agency’s communication increased the risk that the claimant would not comply with open conditions. It did not show that his exemplary record, positive work, family circumstances or the other relevant matters had been weighed against the new information. The evidence filed later could not cure the appearance created by the decision as communicated.
5. The court distinguished R (Omoregbee) v Secretary of State for Justice [2010] EWHC 2658 (Admin), where the decision form referred to the prisoner’s excellent reports and the point now taken had not apparently been argued. The court also treated R (Manhire) v Secretary of State for Justice [2009] EWHC 1788 (Admin) as materially different on its facts, particularly because removal to Zimbabwe was not then contemplated.
6. A later deportation decision and any appeal could affect a future categorisation review, but they did not alter the lawfulness of the decision under challenge.