England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		20th January 2004

1. MR JUSTICE HENRIQUES: This is an application for judicial review, leave having been granted by Gibbs J on 22nd December of last year.
2. The claimant is serving a three and a half year term of imprisonment for drugs related offences, concurrent sentences of six months in prison for motoring offences, and one month for possession of a pointed blade in a public place. He is due for release automatically on 10th February 2004.
3. The claimant challenges the decision of the Defendant Governor made on 9th September 2003, refusing to grant his release on a Home Detention Curfew. That decision was made pursuant to a policy promulgated by the Secretary of State for the Home Department in Prison Service Instruction 31/2003 which amended Prison Service Order 6700 on the operation of the Home Detention Curfew Scheme. The instruction provides that, save in exceptional circumstances, prisoners serving sentences for offences falling into certain categories, including possession of offensive weapons, would not be considered suitable for release.
4. The claimant's case is that the government failed to consider whether there were exceptional circumstances qualifying him for release on Home Detention Curfew. He submits that the circumstances of his case must be seen as exceptional. Firstly, the sentence for possession of the offensive weapon would not have made the claimant a candidate for Home Detention Curfew because he would have been released after two weeks, therefore the presumption cannot apply to him. Secondly, the offence itself cannot be said to constitute a serious offence for the purpose of the policy. Thirdly, public confidence in the Home Detention Curfew Scheme would not be undermined if the claimant had been released under the scheme, despite the new policy. Furthermore, it is submitted that the facts of the claimant's exceptional progress in custody and numerous releases in the community both can be said to constitute exceptional circumstances.
5. Section 34A(3) of the Criminal Justice Act 1991 states:

"In relation to short-term prisoners serving a sentence of imprisonment for a term of three months or more, the Secretary of State may, after such a prisoner has served the requisite period of his detention, release him on licence, subject to section 37A of the Act."

Section 37A(1) of the Act states:

"A person shall not be released under section 34A(3) unless the licence includes a condition (the curfew condition) which

a) requires the released person to remain for periods for the time being specified in the condition, at a place for the time being so specified (which may be an approved probation hostel); and

(b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified."

Section 51 of the 1991 Act provides:

"(a) the sentences were passed on the same occasion; or

(b) where they were passed on different occasions, the person has not been released under this Part at any time during the period beginning with the first and ending with the last of those occasions."

6. It is submitted on behalf of the Governor that initial representations made on the claimant's behalf were restricted to relying upon the successful completion of a number of unescorted town visits and a period of release on temporary licence, and the fact that he successfully completed the three months Princes Trust course at Chester Fire Service. These matters were plainly considered. Additional matters were subsequently put forward and considered, namely that the one month sentence was not the primary sentence and was only for one month. It is submitted that that factor cannot, of itself, amount to an exceptional circumstance. I agree.
7. The very nub of Miss Krause's submission is that exceptional circumstances can arise out of the nature and facts of presumed unsuitable offences. The intention of the policy was expressed to be to maintain public confidence in the Home Detention Curfew Scheme. For that purpose, offenders convicted of serious offences would not be suitable unless there were exceptional circumstances relating to the offence.
8. The difficulty faced by Miss Krause is that she is unable to identify any exceptional circumstance relating to the offence of possessing the offensive weapon, which either exists or which the Governor has not considered. Even if I were to decide that the Governor was obliged to consider the facts of a presumed unsuitable offence in order to ascertain whether an exceptional circumstance existed, I am fully satisfied that in the present case there is no such exceptional circumstance to be found.
9. Further, it is submitted that any argument to the effect that had the claimant had been sentenced for this offence alone, he would not have been eligible for Home Detention Curfew and, thus, the policy cannot apply to him, is ill-founded. The fact is that he was not sentenced for this offence alone. As Mr Grodzinski puts it:

"The fact that the statute provides one reason (based on length of sentence) why a person should be excluded from eligibility to the scheme is in no way consistent with the policy providing a separate presumption against eligibility related to the nature of the offence."

10. The effect of section 51(2) of the 1991 Act is that if any of the sentences forming part of the single term was imposed for one of the categories of offence covered by the policy, the presumption against suitability will apply.
11. The real question in issue is to what extent, if any, the allegedly minor nature of the offence can amount to an exceptional circumstance. In granting leave on the papers, Gibbs J wrote:

"It is at least arguable

(a) that 'exceptional circumstances' may be interpreted to include circumstances arising out of the nature and facts of the 'presumed unsuitable offences';

(b) that such circumstances were not taken into account in reaching the challenged decision;

(c) that, if they had been taken into account, the decision might have been different."

12. It is submitted that possession of a penknife is at the very bottom end of the scale and that, in any event, he only had the knife because he needed it as part of his job at the Post Office. As is pointed out in section 139 of the Criminal Justice Act 1988, the Act provides a defence for a person with a good and lawful excuse for having the article with him in a public place and, accordingly, upon conviction, such a factual scenario cannot be accepted.
13. Mr Grodzinski submits that the Home Secretary has deliberately not exempted from the policy offences at the less serious end of the spectrum. That, he says, is a social policy decision and courts should be reluctant to interfere. Before a Governor could have regard to the fact that a particular offence was at the lower end of the scale in terms of gravity, it would be necessary for the Governor to consider the facts of each individual case, both as represented to the sentencing court by the prosecution and as represented to the Governor by the prisoner or his representative.
14. Mr Grodzinski submits that a policy which requires Governors to investigate in detail the facts of every individual case, and to decide whether the element of the single term attributable to the 'presumed unsuitable' offence was sufficiently minor to be outside the true purpose of the policy, would be manifestly unworkable, and would be likely to lead to inconsistent decisions, thus, itself, undermining confidence in the system (including on the part of prisoners).
15. Miss Krause submits that in order to determine whether exceptional circumstances exist, it is necessary to look at the facts of the presumed unsuitable offence. The stated intention of the policy was expressed to be to maintain public confidence in the Home Detention Curfew Scheme. For that purpose, offenders convicted of certain serious offences would not be suitable unless there were exceptional circumstances relating to the offence. She cited the case of R v Offen and others [2001] 1 WLR 253 in which the Court of Appeal Criminal Division concluded that where an automatic life sentence fell to be passed under section 2 of the Crime Sentences Act 1992, a judge should take into account all the circumstances of both offences before determining whether exceptional circumstances existed to justify the passing of a sentence other than one of life imprisonment.
16. Section 2(2) of the 1997 Act reads:

"The court shall impose a life sentence, that is to say

(a) where the person is 21 or over a sentence of imprisonment for life ... unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so."

Specific reference is made to Lord Woolf LCJ's observations at paragraph 79:

"Before leaving Buckland and turning to the decision in Offen we should point out that we regard it as a striking feature of the reasoning in Buckland, as in the case of Kelly, that the court regarded the rationale of the section as being relevant when the court had already come to its conclusion that there are exceptional circumstances and not as to whether the exceptional circumstances exist. We would suggest that quite apart from the impact of the Human Rights Act 1998, the rationale of the section should be highly relevant in deciding whether or not exceptional circumstances exist. The question of whether circumstances are appropriately regarded as exceptional must surely be influenced by the context in which the question is being asked. The policy and intention of Parliament was to protect the public against a person who had committed two serious offences. It therefore can be assumed the section was not intended to apply to someone in relation to whom it was established there would be no need for protection in the future. In other words, if the facts showed the statutory assumption was misplaced, then this, in the statutory context, was not the normal situation and in consequence, for the purposes of the section, the position was exceptional. The time that elapsed between the two serious offences could, but would not necessarily, reflect on whether, after the second serious offence was committed, there was any danger against which the public would need protection. The same is true of two differing offences, and the age of the offender. These are all circumstances which could give rise to the conclusion that what could be normal and not exceptional in a different context was exceptional in this context. If this approach is not adopted, then in the case of the serious offences listed in the section, the gravity of which can vary very greatly, the approach to exceptional circumstances could be unduly restrictive. This is illustrated by the extensive range of situations which can constitute the offence of manslaughter."

17. Miss Krause submits that the same reasoning is applicable for the question to be asked by the Governor in relation to the Home Detention Curfew Scheme. The question of proportionality must raise its head when considering such matters. In response to the assertion that a policy which required Governors to investigate, in detail, the facts of every individual offence would be manifestly unworkable, she contends that since the Governor would, in any event, have to carry out a risk assessment, involving considering the facts of the prisoners's offences, it would be no onerous task to consider the facts of the presumed unsuitable offence.
18. That submission overlooks the fact that no risk assessment is necessary in cases where a prisoner has committed a presumed unsuitable offence. It is only if there are exceptional circumstances that a risk assessment is carried out to see if the risk is low enough for the prisoner to be released on Home Detention Curfew. Further, the approach in Offen is dictated not only by the words of the statute, but also by the fact that a judge, in carrying out his task under section 2(2) of the 1997 Act, is concerned with risk to the public, whereas the Governor, in considering exceptional circumstances, is concerned with maintaining public confidence in the scheme. The Secretary of State has decided that Governors should not have regard to the circumstances of the offences. Paragraphs 26 and 33 of the Prison Service Instruction makes this clear.
19. In particular, paragraph 33 states that exceptional reasons will not include the level of risk the offender poses. Prisoners presumed unsuitable may, indeed, be judged as presenting a low risk of offending or of breach. It is likely that only a very few presumed unsuitable prisoners, nationally, will be released on Home Detention Curfew. Since exceptional reasons will not include the level of risk the offender poses, it seems to me that circumstances will be peculiar to the offender rather than the offence.
20. The bringing in of the policy was the decision of the Secretary of State. As Lord Scarman said in Re: Findlay [1985] AC 333:

"The Secretary of State has, clearly, to consider other aspects of the early release of a prisoner serving a sentence of imprisonment. Deterrence, retribution and public confidence in the system are matters of importance. The Parole Board, through its judicial and other members, can offer advice on those aspects of the question. But neither the board nor the judiciary can be as close or as sensitive to public opinion as a minister responsible to Parliament. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice."

The maintenance of public confidence is for the Secretary of State. He is in a position to judge the public mood. Prison Governors are in a different position. They are not required to evaluate factual submissions on behalf of prisoners as to the circumstances of each individual offence; submissions which may or may not be truthful. This was clearly not envisaged by the scheme.

21. I conclude:

(1) The Governor has properly and fully considered the claimant's application.

(2) No circumstances exist in the present case capable of amounting to exceptional circumstances, even upon considering all the facts of the presumed unsuitable offence.

(3) It is not incumbent upon a Prison Governor to examine the facts of a presumed unsuitable offence to determine whether exceptional circumstances exist.

Accordingly, this application is dismissed.

22. MS KRAUSE: My Lord, may I ask for a Legal Aid assessment?
23. MR JUSTICE HENRIQUES: Yes, Miss Krause.
24. MR GRODZINSKI: My Lord, thank you. I have no application.