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
		24 November 2006

1. MR JUSTICE UNDERHILL: The claimant is a prisoner serving a life sentence for a murder committed when he was aged 15. The murder, which was of the head teacher Philip Lawrence, was particularly notorious and shocking but that is not a relevant consideration for the purpose of this application.
2. The claimant is now aged 26. He is an Italian national but he has lived in this country since the age of 5 or 6. In August 2005 he was transferred from the closed prison where he previously had been to Ford Open Prison. On 8 May 2006 he was returned to closed conditions at Blakenhurst Prison. In these proceedings he challenges the legality of that decision. He is represented before me by Ms Flo Krause. The defendant, the Home Secretary, is represented by Mr Nigel Giffin QC.
3. The circumstances in which the transfer came about are explained in a witness statement of Mr Michael Spurr, the Director of Operations at HM Prison Service. I can summarise his evidence as follows. At the end of April and the beginning of May 2006 there was considerable concern expressed in the news media about alleged failures by the Immigration and Nationality Department and the Prison Service to ensure that foreign prisoners were considered for deportation on release or, if deportation orders were made, were in fact deported. In response to that concern the Home Secretary had made it clear that in cases where deportation could properly be considered there would be a clear presumption that deportation would follow in the absence of special circumstances. Mr Spurr was concerned that that announcement, and in particular the crude or distorted versions of it that might be expected to circulate among prisoners, created a real risk that foreign prisoners currently in open prisons who had previously hoped to avoid deportation at the end of their sentences, or who had not focussed on the likelihood of it, would be tempted to abscond. As he put it in his evidence:

"There was obviously a possibility that the risk of absconding would be heightened among foreign prisoners by the media focus, both because of an increased fear of deportation and because of the fear of re-categorisation and return to closed conditions in light of these events. It is important to appreciate that news and rumours spread very quickly across the prison estate."

In view of that risk he decided to transfer from open to closed prisons all foreign nationals serving life sentences - who numbered about 25 - together with a rather larger number of foreign nationals serving long determinate sentences for serious offences. It was in the case of this group, viewed as a group, that the risk of absconding was thought to be highest and/or most serious if any did abscond. It was recognised that the actual risk would vary from individual to individual; but it was believed that the time taken to carry out individual risk assessments in each case made it impracticable to defer action until that could be done. Accordingly the decision was made to transfer the whole group forthwith and then to carry out individual assessments following the transfer.

4. On that basis, what was involved was not any re-categorisation of individual prisoners but an operational decision, using the Home Secretary's wide discretion under Section 12 (2) of the Prison Act 1952. Re-categorisation might follow as a result of the intended individual assessments but that would be a distinct matter. This distinction between transfer and re-categorisation is clearly recognised in the decision of the Court of Appeal in Hurst v Secretary of State for the Home Department [2001] EWCA Civ 278. The claimant, as a foreign national serving a life sentence, was part of the group to which the decision described by Mr Spurr applied, and the transfer of which he complains occurred pursuant to it.
5. The process of re-assessing the claimant's risk has resulted in a letter to him from the National Offenders Management Service dated 22 November 2006 indicating that the Secretary of State is minded to re-categorise him to closed conditions, not least because in the interim he has been served with notice of intention to deport (alhtough that is subject to appeal). The proposed re-categorisation is subject to the advice of the Parole Board and no final decision has been made. Miss Krause is critical both of the decision to serve notice of intention to deport and of the delay in proceeding with the proposed assessment. But these events post-date the decision which he seeks to challenge and I need form no view about whether her criticisms are justified.
6. The issue for me is whether the decision described by Mr Spurr was lawful. Ms Krause submits that it was not on three bases.
7. First, Ms Krause submits that the decision complained of was taken for an ulterior "political" purpose. Mr Giffin observed, with some justification, that Ms Krause never spelt out what that purpose was, but I agree with him that what appears to be being suggested is that the transfer of the foreign national prisoners from open to closed prisons was carried out as a gesture to show that the Home Secretary meant business, rather than because he or his officials believed that there was a risk of absconding. Ms Krause was not able to produce any direct evidence that that was so, but she invited me to infer it from what she submitted was the inadequacy and implausibility of the account given by Mr Spurr. The essential point that she made was that no prisoner in the category in question would have been categorised as suitable for an open prison without a careful individual assessment of risk having been made, and that assessment would have taken into account his liability to be deported at the end of the term. There was no reason to suppose that the Secretary of State's pronouncements about his approach to deportation, or the associated media publicity, rendered individual prisoners who had passed through that rigorous assessment any more likely to abscond. The belief that it would do so was based simply on speculation. She also pointed out that the published research showed that, generally speaking, prisoners serving life sentences were less likely to abscond.
8. It must be appreciated that the effect of Ms Krause's submission is that Mr Spurr's evidence as to the reasons for the decision under challenge should not be believed. That would be a conclusion to which it would be very hard for me to come in circumstances where no application has been made to cross-examine. But in any event I can say nothing in the matters relied on by Ms Krause seems to me to justify my doubting Mr Spurr's explanation for the purpose behind the decision. I see nothing implausible about officials forming the view that the Secretary of State's announcements about his deportation policy might provoke some prisoners to abscond, notwithstanding that they had, by definition, previously been judged low risk. The numbers who might do so were inevitably speculative, but even a few cases would be serious. There would be particular concern if the offenders in question had committed serious offences, as they all by definition have. For that reason also it is not of any real significance that, as Ms Krause suggested, life sentence prisoners are, as a group, less likely to abscond. Even if that were so generally, and were true of the group of foreign nationals, the fact remains that it is inherently much more serious when they do. Mr Spurr acknowledged in his witness statement that part of the concern was not only about the undesirability as such of prisoners serving long sentences absconding but also about the damage which any such incidents would do to public confidence in the prison system, particularly in the light of the media campaign to which he referred. Mr Giffin submits that that is a perfectly legitimate consideration. I agree. It is not the less so because such incidents might also be politically damaging to government. It is impossible always to draw a sharp line between legitimate public policy considerations and illegitimate "political" considerations.
9. Ms Krause sought to avoid the unattractiveness of having to invite me frankly to disbelieve Mr Spurr by suggesting that I could accept his evidence about the "purpose" of the policy but find that the "motivation" was different and unexplained. In some circumstances the distinction between purpose and motivation may be important, but in this context I cannot see that it has any content. The question is: what factors led the defendant to act as he did? It is that which Mr Spurr's witness statement purports to address.
10. The second basis of challenge advanced by Ms Krause was that even if Mr Spurr's account of the reasons behind the decision was to be believed it was irrational and disproportionate. I cannot accept that submission. Even if I were persuaded to be sceptical about whether the risk perceived by Mr Spurr was as great as he thought, the judgment was his and the Secretary of State's to make and not the court's. The same applies to the decision to make a blanket transfer on 8 May rather than first to carry out individual risk assessments. The reasons advanced by Mr Spurr as to why immediate case by case assessment prior to any transfer was impracticable are, in my judgment, plainly rational. Once that point is reached it is not for the court to seek to assess them further. The position would of course be very different if the decision had been to effect a permanent transfer, whether by re-categorisation or otherwise, on the basis of a blanket policy which took no account of individual risk. Such a decision would almost certainly not have been lawful. But the decision here was a temporary expedient pending individual assessments.
11. Ms Krause's third basis of challenge depended on Article 8 of the European Convention on Human Rights. She submitted that the difference in regime between an open and a closed prison was a difference which affected the claimant's private and family life in a manner which engaged Article 8 notwithstanding that it arose in the context of lawful detention. I am far from convinced that that is so, but, even if it were, it follows from my decision on the irrationality challenge that such impact as the decision may have had on the claimant's Article 8 rights was justified.
12. I accordingly dismiss this application.