ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE LANGAN QC)
Strand, London, WC2A 2LL
B e f o r e :
(SIR ANTHONY MAY)
LORD JUSTICE SULLIVAN
LORD JUSTICE GROSS
| THE QUEEN ON THE
APPLICATION OF OMOREGBEE
|- and -
SECRETARY OF STATE FOR JUSTICE
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Mr Simon Murray (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
(AS APPROVED BY THE COURT)
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Sir Anthony May:
"The Secretary of State may make rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein."
"Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 3."
"This policy change removes the blanket ban on the categorisation and allocation to open conditions of prisoners subject to enforcement action under the Immigration Act. These prisoners must now be risk assessed as to their suitability for categorisation and allocation to open conditions on an individual basis in the same way as all other prisoners. Deportation status will remain a major factor in the risk assessment process, but it may be taken into account only in so far as it is might be indicative of the likelihood of abscond and not as a determinative factor precluding allocation to open conditions."
"It is essential that prisoners must be assessed as trustworthy and sufficiently low risk before being allocated to open conditions. In making the decision, governors must keep in mind the particularly challenging management issues associated with the low physical security and supervision levels of the open estate and that the environment and regime opportunities available in open prison may not be suitable for a prisoner who is still many years away from possible release."
"14.1 The overriding purpose of security classification is to ensure that prisoners are retained in custody with a level of security which is consistent with the need to prevent escape and to protect the public.
14.3 Before a foreign national prisoner who meets the deport criteria and for whom a CCD2 has been sent, is classified, the individual risk must be assessed on the assumption that deportation will take place, unless a decision not to deport has already been taken by the BIA; a decision which must be recorded in the prisoner's record."
I interpose to say that Mr Stanbury does not argue with the suitability of that assumption. Then paragraph 14.4, which is the burden of his submission,
"14.4 Each case must be individually considered on its merits but the need to protect the public and ensure the intention to deport is not frustrated is paramount. Category D will only be appropriate where it is clear that the risk is very low."
Lord Justice Sullivan:
Lord Justice Gross:
Order: Application dismissed on first ground of appeal