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

A prison governor may transfer a prisoner for disciplinary reasons without first completing disciplinary proceedings where the decision is based on proven offences or reliable security information. Procedural safeguards applicable to re-categorisation do not apply by analogy to a disciplinary transfer between prisons. The prisoner is entitled to a decision made in accordance with the applicable Prison Service Order, taken fairly and honestly, and accompanied by sufficient reasons. Administrative arrangements between prison authorities do not ordinarily create public law rights for the prisoner. Judicial review may also be ineffective where the defendant lacks power to provide the remedy sought.

The claimant, an indeterminate-sentence prisoner, challenged his transfer from a privately operated Category B prison to a high-security prison. The transfer followed the discovery of components capable of making a weapon and intelligence concerning bullying, intimidation and threats to other prisoners. The disciplinary adjudication had not been completed before the transfer and was later discontinued.

He alleged procedural unfairness, failure to follow Prison Service policy, and abuse of power. He sought an order quashing the transfer and requiring his return. The issues were whether the transfer required the safeguards applicable to re-categorisation, whether it was supported by reliable security information, and whether the claimed procedural defects justified relief.

1. The claim was dismissed. The transfer was a disciplinary transfer governed by paragraphs 4.9.11 and 4.9.12 of PSO 4700, rather than a re-categorisation. The safeguards applicable to re-categorisation could not be imported by analogy.
2. A transfer for disciplinary reasons may be made before a disciplinary adjudication is completed. The decision-maker must rely on proven offences or reliable security information. In this case, the discovery of a potentially dangerous homemade weapon, together with the claimant’s criminal and prison background and supporting intelligence, justified immediate action. The weapon evidence alone was sufficient.
3. The governor was entitled to conclude that segregation was not an adequate permanent solution and that transfer to another Category B prison outside the high-security estate was unrealistic. There was no need to await the adjudication.
4. The claimant had been given sufficient reasons for the transfer. Security intelligence need not be disclosed in full where disclosure could compromise prison security or endanger sources. The claimant was entitled to a decision made in accordance with PSO 4700, taken fairly and honestly, and explained in sufficient terms.
5. Arrangements between prison authorities, including the delegation or allocation of transfer functions, did not themselves create public law rights in favour of the prisoner. The suggested unpublished-policy ground based on Lumba v SSHD was therefore unarguable.
6. Relief would in any event have been ineffective. The defendant could not arrange the claimant’s return to the former prison, and the Secretary of State had not been joined as a defendant. A complaint to the Prison and Probation Ombudsman provided an alternative means of investigation, although the court would not have refused relief on that basis alone had the Secretary of State been a defendant and the transfer unlawful.