Francis, R (on the application of) v Secretary of State for Justice & Secretary of State for the Home Department

An immigration detention authority (IS91) does not itself make a prisoner statutorily ineligible for Home Detention Curfew under section 246 of the Criminal Justice Act 2003. The Prison Service must therefore consider an eligible prisoner for release on a proper timetable.

However, HDC exists to assist transition into the community. The Secretary of State may take account of an IS91 and immigration requirements when exercising the general HDC discretion. Where immigration detention prevents community release, HDC will ordinarily be very unlikely. A breach of the duty to consider HDC gives no damages where the alleged loss of immigration bail is remote and speculative. It also does not make detention under a lawful criminal sentence false imprisonment or contrary to article 5.

The appellant, a Jamaican national serving a fixed-term prison sentence, became eligible for consideration for Home Detention Curfew (HDC) on 27 July 2009. An IS91 immigration detention authority had been issued shortly before that date. The Prison Service did not consider HDC promptly because its policy wrongly treated the IS91 as a statutory bar.

The Divisional Court granted a declaration that the relevant part of Prison Service Order 4630 was unlawful, but rejected claims for false imprisonment, damages under articles 5 and 8 of the European Convention on Human Rights, and a proposed article 14 claim. It also held that HDC was properly refused once the position had been assessed. The appellant appealed from that decision: [2011] EWHC 1271 (Admin).

The central issues were whether the delay in considering HDC caused a compensable loss, whether it affected the lawfulness of detention under the sentence, and whether the different treatment of a prisoner subject to deportation action infringed Convention rights.

1. The appeal was dismissed unanimously. Pill LJ gave the principal judgment, with which Lloyd LJ agreed; Lewison LJ agreed without further reasons. The Divisional Court’s declaration that the second sentence of paragraph 11.1 of PSO 4630 was legally wrong remained undisturbed.
2. An IS91 did not itself make the appellant liable to removal for the purposes of section 246(4)(f) of the Criminal Justice Act 2003. She should therefore have been considered for HDC from her eligibility date. The Prison Service’s failure to do so because it treated the IS91 as a statutory bar was a breach of duty.
3. That error did not establish a loss. HDC is intended to manage an offender’s transition from custody to the community. The statutory discretion under section 246 was general. It was lawful for the Secretary of State to consider the IS91, the fact of immigration detention, and the need for liaison with UKBA. Proper and earlier consideration would probably have accelerated the immigration decision that made the appellant ineligible for HDC. In any event, release on HDC while immigration detention subsisted was most unlikely. The alleged chance of obtaining earlier immigration bail was too remote and speculative to justify damages.
4. The court rejected an implied statutory prohibition on HDC merely because an IS91 was in force. The detailed exclusions in section 246 did not permit a further exclusion to be inferred from the curfew requirements. That conclusion did not alter the practical exercise of the discretion in this case. Nor was paragraph 11.3 of PSO 4630 unlawful: it appropriately required co-operation and confirmation of immigration status before a final HDC decision.
5. Detention until the end of the requisite custodial period remained detention under a sentence lawfully imposed by a criminal court. Applying R (James, Lee and Wells) v Secretary of State for Justice, [2010] 1 AC 553, a public-law error concerning early release did not make that detention false imprisonment or contrary to article 5(1). There was no article 8 breach because the interference with family life arose from lawful detention and was justified under article 8(2).
6. The proposed article 14 claim was also unsustainable. The distinction was based on immigration status and the inapplicability of a community-resettlement scheme to a person facing removal, rather than nationality. Prisoners liable to removal were not in an analogous position to other prisoners.

• Court of Appeal (Civil Division): Dismissed the appeal in [2012] EWCA Civ 1200.
• Divisional Court, Queen’s Bench Division: Granted a declaration that part of PSO 4630 was unlawful, but otherwise refused the judicial-review claims and refused permission to add the proposed article 14 claim: [2011] EWHC 1271 (Admin).