Young, R (On the Application Of) v Governor of Her Majesty's Prison Highdown Secretary of State for Justice

A policy governing early release on home detention curfew may lawfully create a presumption of unsuitability for specified offences, provided the exceptional-circumstances discretion remains available. A policy based on offences for which a prisoner was actually convicted is a rational and workable method of maintaining public confidence in early release. Article 14 is not engaged by every difference in treatment, and Article 8 adds nothing where continued imprisonment is lawful and falls within Article 8(2). A written procedure may be fair without an oral hearing where the opportunity for one was offered but not requested and the written representations were properly considered.

The claimant, serving a two-year sentence for robbery and possession of a sharp bladed instrument, challenged the refusal to consider him for release on home detention curfew. The refusal relied on the policy in Prison Service Instructions 31/2003 and 31/2006, under which possession of an offensive weapon created a presumption of unsuitability unless exceptional circumstances existed.

He alleged that the policy was irrational, discriminatory and contrary to articles 5, 8 and 14 of the European Convention on Human Rights. He also alleged procedural unfairness, including failure to conduct a risk assessment, inadequate notice and failure to provide an oral hearing.

1. Applicability of the policy. Prison Service Instructions were policy statements rather than statutory instruments. Nevertheless, Prison Service Order 6700 expressly required them to be read together. PSI 31/2003 therefore remained applicable despite its stated expiry date, and the claimant’s challenge on that basis was unsustainable.

2. Lawfulness of the HDC scheme. Sections 246 and 253 of the Criminal Justice Act 2003 conferred a discretion concerning release on home detention curfew. The policy did not unlawfully fetter that discretion. It preserved a power to release prisoners presumed unsuitable where exceptional circumstances existed, with the decision resting on the governing governor.

3. The policy’s principal purpose was maintaining public confidence in the HDC scheme. That was a legitimate consideration, as recognised in Re Findlay [1985] AC 318 and R (Stephen Cross) v Governor of HM YOI Thorn Cross [2004] EWHC 149 (Admin). Using actual convictions as the criterion was clear, workable and fairer than requiring prison governors to reconstruct disputed facts from incomplete material.

4. The alleged comparator group was not established. The evidence did not show a widespread practice of failing to charge weapon offences where supported by the evidence. The policy was therefore neither irrational nor unlawfully discriminatory. The claim under article 14 failed, and the court was bound by Kay v Lambeth London Borough Council [2006] UKHL 10.

5. Articles 5 and 8. The claimant was lawfully sentenced to imprisonment and was not entitled to release before the statutory release date. His detention fell within article 8(2), and, article 5 being satisfied, article 8 added nothing. The court relied on John Mason v Ministry of Justice [2008] EWHC 1787 (QB).

6. Procedure. The written procedure was fair. An oral hearing was available but was not requested by the claimant or his solicitors. The later detailed response addressed the representations within the correct legal and policy framework and cured any earlier potential unfairness. The declarations and orders sought were refused, and judgment was given for the defendants.