Stefanos Neophytou, R (on the application of) v The Governor of HMP Berwyn & Anor

Where an application for early release on compassionate grounds is based on the prisoner’s health, a prison governor must submit it to the Public Protection Casework Section unless it is clear that the relevant health criteria are not met. The governor’s task is preliminary. It is not to decide whether exceptional circumstances justify release or to determine the application on behalf of the Secretary of State. Any real doubt should be resolved in favour of submission. The assessment must consider whether imprisonment causes suffering greater than that inherent in the relevant custodial term, including material worsening of a previously known condition. Expert medical evidence must be taken into account. In a default term arising from a confiscation order, the possibility of release by payment cannot justify refusal at the governor stage.

The appellant, a prisoner serving a default term activated for non-payment of a confiscation order, applied for early release on compassionate grounds under the Secretary of State’s policy. His application relied principally on expert evidence that imprisonment had materially exacerbated complex post-traumatic stress disorder and that appropriate treatment required a supportive environment outside prison.

The prison governor refused to submit the application to the Public Protection Casework Section. The Administrative Court dismissed the appellant’s judicial review claim, holding that the governor had delegated authority to refuse the application where the relevant criteria were not met and that relief would in any event have been refused under section 31(2A) of the Senior Courts Act 1981. The appeal concerned the proper scope of the governor’s role under paragraphs 4.17 and 4.21 of the policy, and whether the claim should have been allowed.

1. Appeal allowed. The governor’s decision refusing to submit the application was quashed.
2. Under paragraph 4.21 of the Early Release on Compassionate Grounds policy, an application based on the prisoner’s health must be submitted to the Public Protection Casework Section if the paragraph 4.17 criteria are met. The governor may refuse submission only where it is clear that those criteria are not met. The phrase “it is clear” does not impose a test of unarguability or no real prospect, but it does require the governor to resolve any real doubt in favour of the prisoner and submission.
3. The governor’s preliminary assessment is whether the prisoner has a health condition such that imprisonment causes suffering greater than the deprivation of liberty intended by the punishment. It is not an assessment of whether exceptional circumstances justify release, or whether the Secretary of State would ultimately grant the application. The governor may express support or opposition when submitting the application, but cannot refuse submission because success appears unlikely.
4. For a custodial sentence imposed as punishment on conviction, the relevant suffering ordinarily concerns a condition unknown to the sentencing court, unless symptoms have materially worsened since sentence. A previously known diagnosis does not make later deterioration irrelevant. The governor may need to consider sentencing remarks, medical evidence available at sentence and up-to-date medical reports.
5. In a default term following non-payment of a confiscation order, the relevant phrase means suffering greater than that inherent in any custodial sentence of the relevant length. The possibility of release by payment might be relevant to the Secretary of State’s later decision, but not to the governor’s health-based submission decision.
6. The expert medical evidence could not properly be disregarded. Reliance on section 31(2A) of the Senior Courts Act 1981 was also unavailable because proper application of the policy would almost certainly have resulted in submission to PPCS. The matter required a fresh decision by a governor with no previous involvement.

• Court of Appeal (Civil Division): appeal allowed; the Administrative Court’s decision was set aside and the governor’s refusal to submit the application was quashed. A fresh decision was required from a governor with no previous involvement.
• Administrative Court: judicial review claim dismissed. The judgment was given by His Honour Judge Keyser KC on 11 September 2024 in AC-2024-CDF-000073.