Ryle, R (On the Application Of) v Secretary of State for Justice

A prisoner’s categorisation may be reviewed where new information indicates that the existing security category may be unsound. A policy referring expressly to an enforced confiscation order does not exclude consideration of ongoing confiscation proceedings, suspected hidden assets or related escape risks. Re-categorisation decisions must follow published policy and comply with ordinary public law principles, but the decision-maker determines the appropriate manner and intensity of investigation. Historical information about escape may remain relevant in a re-categorisation review even if it falls outside a three-year period used in an initial algorithm. The threshold for excluding a prisoner from category D is whether he can reasonably be trusted not to abscond; it is not necessary to establish a high risk of absconding.

The claimant, a serving prisoner, challenged decisions made on 23 November 2018 and 18 March 2019 which re-categorised him from category D to category C. The decisions followed information from HMRC concerning ongoing confiscation proceedings, suspected hidden assets and a perceived risk that he might abscond or frustrate recovery of criminal proceeds.

The challenge alleged departure from the Secretary of State’s policy, inadequate investigation, reliance on an old escape conviction, application of an erroneous high-risk threshold, and a mistake about whether a confiscation order had been made. The central questions were whether the policy permitted consideration of ongoing proceedings and whether either decision was unlawful.

1. The claim was dismissed. Both categorisation decisions were lawful.
2. Under rule 7(1) of the Prison Rules 1999, prisoners must be classified in accordance with the Secretary of State’s directions. The Secretary of State’s discretion is subject to ordinary public law principles, including compliance with published policy, exclusion of irrelevant considerations and rationality. The court would not substitute its view for that of the prison authorities on security matters.
3. The policy’s references to an enforced confiscation order and other specified changes were not exhaustive. Ongoing confiscation proceedings, information about suspected hidden assets and the risk of dissipation could constitute new or additional information, or give cause for concern that the existing categorisation was unsound. It was therefore unnecessary for the decision-makers to depart from the policy.
4. The policy did not impose an inquisitorial obligation to obtain every item of information potentially relevant to the risk assessment. The information supplied by HMRC, including the large discrepancy between the benefit figure and available assets, was sufficient. The decision-makers were entitled to rely on it as provided by a government enforcement agency.
5. The three-year limitation in the initial and provisional algorithm did not govern the wider re-categorisation review. The policy expressly permitted consideration of relevant historical information about previous escapes or trust failures. The claimant’s 1996 escape conviction could therefore be considered, although the weight to be given to it was for the decision-maker.
6. The policy did not require a high risk of absconding before a prisoner could be refused category D. Category D required that the prisoner could reasonably be trusted not to abscond. A real or other risk falling below the high-risk threshold could nevertheless justify category C.
7. Read as a whole, the governor’s reasons showed awareness that confiscation investigations were ongoing, rather than a mistaken belief that a confiscation order had already been made.