Shutt & Anor, R (on the application of) v Secretary of State for Justice

A national prison policy allowing refusal of enhanced incentives status for a sex offender who was suitable but unready for a sexual offences treatment programme required an individualised decision. It did not authorise an automatic bar based solely on denial of guilt. A local points system was unlawful where it removed that discretion and failed to consider whether other sentencing objectives or circumstances were more relevant. However, unlawfulness did not necessarily require relief. The court had to assess whether the claimant suffered injustice. Where the treatment programme was plainly the sole and dominant remaining objective, and a proper later assessment confirmed unreadiness caused by denial, no injustice was established.

Two judicial review applications were heard together. Both claimants were prisoners serving substantial determinate sentences for serious sexual offences against children. Each had been assessed as suitable for a sexual offences treatment programme but had not initially been assessed for readiness. Their enhanced incentives and earned privileges status was refused or withdrawn because they maintained their innocence.

The claimants challenged both the failure to assess readiness and an Isle of Wight points-based policy which automatically limited a prisoner denying a sexual offence and unready for the programme to standard status. The central questions were whether the policy was inconsistent with the national framework and whether either claimant had suffered injustice.

1. Assessment issue. Before May 2011 neither claimant had received a proper assessment of readiness for the sexual offences treatment programme. Their applications were therefore unlawful in that respect. The later assessments, however, properly found both claimants suitable but not ready because they continued to deny their offences.
2. Construction of the national policy. The word “could” in paragraph 16 of Annex G to PSI 11/2011 meant that refusal of enhanced status was permissible in appropriate circumstances, but was not automatic. An informed decision was required in each case. The relevant approach, reflected in the evidence adopted from R (Hewlett) v Secretary of State for Justice [2009] EWHC (Admin) 2979, linked privileges to the sentence plan as a whole rather than to refusal of one individual programme.
3. Blanket-ban issue. The local points system awarded only one point in the OASYS category to a prisoner in denial for a sexual offences treatment programme. This meant that, regardless of performance in other categories, enhanced status could never be achieved. The system failed to ask whether the programme was the sole remaining objective, whether other objectives were more relevant, or whether other circumstances militated against refusal. It therefore unlawfully removed the discretion required by the national framework.
4. The distinction from R v Secretary of State for the Home Department, ex parte Potter and ors [2001] EWHC Admin 1041 was material. That case upheld an exercise of discretion to withhold enhanced status, not an automatic points-based bar. The general caution against judicial interference in prison management did not prevent review of a policy which made no decision at all.
5. Despite the unlawfulness, neither claimant suffered injustice. On the evidence, by the relevant periods the programme was the sole and dominant remaining objective, no other objective was more relevant, and the later proper assessments confirmed that denial made both claimants unready. Hypothetical effects on re-categorisation or parole were unsupported and could not establish injustice.

The local policy was unlawful, but no relief was granted on the basis that neither claimant had suffered injustice.