Manning, R (on the application of) v Secretary of State for Justice

Prison categorisation requires an individual assessment of escape or absconding risk and related security risks. An outstanding confiscation order does not automatically prevent transfer to open conditions, but its amount, the prisoner’s willingness and ability to pay, and any additional custodial term for non-payment must be considered. A prisoner’s good conduct in closed conditions does not by itself establish suitability for open conditions. Decision-makers must consider both favourable and adverse factors. Categorisation decisions concerning other prisoners do not determine an individual prisoner’s category. Where material information shows that an earlier decision was unsound, the category may be reviewed and corrected.

The claimant challenged decisions by governors at HMP Stocken to recategorise him from category C to category D and then to retain him in category C. He had been sentenced to imprisonment for conspiracy to commit burglary and was subject to a substantial unpaid confiscation order, with a consecutive default term of imprisonment.

The initial recommendation for open conditions omitted the confiscation order and related circumstances. After the governor learned of them, he reviewed the decision and concluded that the claimant presented a significant absconding risk. The claimant challenged that decision and later category C decisions on grounds including failure to assess the relevant risks, excessive reliance on the confiscation unit’s objection, and inconsistency with the treatment of co-defendants.

1. The claim was dismissed. The court accepted the governor’s evidence that the first category D decision had been made without knowledge of the confiscation order. The recommendation itself was fundamentally flawed because it assessed the claimant’s conduct in custody but omitted a material factor bearing on absconding risk.
2. The existence of a confiscation order was not an absolute bar to open conditions. However, the amount outstanding, default status, ability and willingness to pay, additional imprisonment for non-payment, and the possibility of post-release enforcement were relevant to the assessment of risk. A model prisoner in closed conditions might nevertheless pose a significant absconding risk in open conditions.
3. The 31 May 2012 decision was lawful. The governor considered the confiscation order, the objection from the East Midlands Confiscation Unit, and the factors in the claimant’s favour. He was entitled to conclude, on balance, that the risk associated with open conditions was unacceptable. He was not required to set out every stage of that balancing exercise in elaborate terms, provided the decision was intelligible.
4. The later decisions were also lawful. They proceeded on the correct basis that the 31 May decision had lawfully restored category C status. In any event, the earlier decision’s fundamental deficiencies would have justified later decision-makers in treating the claimant as a category C prisoner.
5. The comparison with co-defendants was immaterial. Categorisation decisions are individual risk assessments and do not require identical outcomes for prisoners with allegedly similar characteristics.

First-instance judicial review proceeding. No appellate history was stated in the judgment.