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

The Court of Appeal held that, under the Secretary of State's Early Release on Compassionate Grounds (ERCG) Policy, a prison Governor may only refuse to submit an application based on the applicant's health to the Public Protection Casework Section (PPCS) where it is clear that the criteria in paragraph 4.17 are not met. Paragraph 4.21 therefore confers only a narrow delegated power to refuse where non‑compliance with the paragraph 4.17 criteria is clear. The Governor was not entitled to treat paragraph 1.4(c) of the Policy as excluding consideration of medical deterioration occurring after sentence activation, nor to collapse the separate roles of deciding to support an application and deciding whether to submit it to PPCS.

The court clarified that, at the Governor stage, any real doubt about whether the health criteria are met should be resolved in favour of submission to PPCS. In the specific context of a default term activated for non-payment of a confiscation order, the test in paragraph 4.17 (suffering greater than the deprivation of liberty intended by the punishment) must be read as suffering greater than that inherent in any custodial sentence of the relevant length.

Background and parties: The appellant, Mr Stefanos Neophytou, detained at HMP Berwyn under a default term activated for non‑payment of a confiscation order, applied on 20 October 2023 for early release on compassionate grounds (ERCG) on medical grounds. The prison Governor (Simon Keller) decided on 22 December 2023 not to submit the application to the Public Protection Casework Section (PPCS). The appellant sought judicial review in the Administrative Court (His Honour Judge Keyser KC), which dismissed the claim on 11 September 2024. The Court of Appeal heard the appeal on 11 March 2025 and handed down judgment on 26 March 2025.

Nature of the claim and relief sought: The claim sought quashing of the Governor's decision refusing to forward the appellant's ERCG application to PPCS so that the Secretary of State could determine it.

Issues before the Court of Appeal:

• Whether the Policy (in particular paragraphs 4.17 and 4.21, read with paragraph 1.4) permitted a Governor to refuse to submit an application on health grounds unless the Governor supported release;
• Whether the Governor misapplied paragraph 1.4(c) by treating the appellant's present medical condition as the same as that known at the activation of his default term;
• How the Governor should assess applications where the prisoner is serving a default term under a confiscation order; and
• Whether the Administrative Court could properly refuse relief on the basis that the outcome would have been the same (Senior Courts Act 1981, s.31(2A)).

Court’s reasoning and conclusions: The Court of Appeal concluded that paragraph 4.21 requires submission of health‑based applications to PPCS where the paragraph 4.17 criteria are met, and permits refusal to submit only where it is clear the criteria are not met. The Governor’s reference to paragraph 1.4(c) was wrongly applied: that provision does not bar consideration of medical deterioration occurring after sentence activation, and paragraph 4.16 is designed to deal with situations where circumstances have significantly changed since sentencing. At the Governor stage any real doubt should be resolved in favour of submission to PPCS. In the context of a default term for non‑payment of a confiscation order, the comparison in paragraph 4.17 is to suffering greater than that inherent in a custodial sentence of the relevant length. The Court allowed the appeal, quashed the Governor’s refusal to submit the application and directed that the application should be completed promptly and considered by a Governor with no previous involvement; it declined to make a mandatory order requiring immediate submission because the application may need updating.

Procedural path: judicial review in the Administrative Court (AC-2024-CDF-000073) dismissed (HHJ Keyser KC), permission to appeal granted and appeal allowed by the Court of Appeal ([2025] EWCA Civ 348).

Appeal allowed. The Court of Appeal held that the ERCG Policy requires a Governor to submit health‑based applications to PPCS unless it is clear that the criteria in paragraph 4.17 are not met; doubts must be resolved in favour of submission. The Governor misapplied the Policy in this case, and his refusal to submit the application was quashed. The application should be completed promptly and reconsidered by a Governor with no prior involvement.

Judicial review issued in the Administrative Court (AC-2024-CDF-000073); permission granted and substantive claim dismissed by His Honour Judge Keyser KC on 11 September 2024. Permission to appeal to the Court of Appeal was granted and the appeal was allowed: [2025] EWCA Civ 348.