England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court Centre 1 Oxford Row, Leeds LS1 2BG
		16 July 2009

His Honour Judge Langan QC:

Introduction

1. This is an application by Allan Manhire for permission to apply for judicial review, with the substantive hearing of the application to follow if permission is granted. As will appear from a later part of this judgment, the application has had a somewhat chequered procedural history. The decision which was eventually the subject of challenge before me is one which was made on 30 June 2009, some weeks after the commencement of proceedings, and which came to the knowledge of Mr Manhire and the Treasury Solicitor only one day before the hearing. This was a decision made by a governor at HMP Lindholme, not to recategorise Mr Manhire, who is a serving prisoner, from Category C to Category D. The grounds of the challenge are: (1) inconsistency with what is said to be an earlier decision to recategorise Mr Manhire to Category D; and (2) irrationality, particularly with regard to what is said to be the unlikelihood that Mr Manhire, who is illegally in the United Kingdom and is a citizen of Zimbabwe, would abscond if he were held in an open prison.

Narrative

2. Mr Manhire was born on 28 April 1982 and arrived in the United Kingdom in 2002. He appears to have been here lawfully until 31 March 2003 and since then has been an 'overstayer.' He has three children in this country: a daughter who is 4 years old, who was born from a relationship which ended some time ago, but with whom he is still in contact; and a son and daughter aged respectively 2 year and 1 year, who are the children of his present partner. Mr Manhire and his partner have a house in Liverpool and she has been supportive of him during his time in prison.
3. On 6 November 2008, Mr Manhire appeared before His Honour Judge Robertshaw at the Crown Court at Sheffield and, upon his plea of guilty, was sentenced to a term of 39 months imprisonment for an offence of conspiracy to obtain a pecuniary advantage by deception. Mr Manhire was one of the participants in a fraud, the exact nature of which I do not know, which was perpetrated upon Norwich Union, and which, in the words of the judge, "netted over £500,000 and… would [have realised] many more times that amount, had it not been stopped when it was." Mr Manhire's role was that of "laundering the proceeds of the fraud by arranging recipient bank accounts into which monies obtained by fraud could be paid and from which, and [he] was instrumental in this again, cash withdrawals were made so that the fruits of the fraud could be realised and no doubt shared out between all of those who were involved."
4. After having regard to credit for time spent in custody prior to sentence, and to statutory adjustments, Mr Manhire's conditional release date is 19 September 2009.
5. On 7 November 2008 at HMP Doncaster Mr Manhire was given an initial classification of Category C.
6. Thereafter Mr Manhire was transferred to HMP The Wolds. He applied for recategorisation to Category D, which was refused.
7. Mr Manhire was given an OASys assessment by the Probation Service, which was completed on 13 January 2009. His risk of reconviction was assessed as low with a score of 15 out of 168. His risk of serious harm, in every category (children, public, known adult, staff, prisoners), was also assessed as low.
8. On 6 February 2009 Mr Manhire's solicitors wrote a letter before claim to the Treasury Solicitor. Shortly stated, their complaint was that too much weight had been given to Mr Manhire's immigration status, and they asked for "a further categorisation taking into account the proper criteria, namely risk of abscond and risk of harm in the event of an abscond."
9. On 9 February 2009 the Director at HMP TheWolds wrote to the solicitors, stating that he had "carried out an early review (due May 2009) of Mr Manhire's security category and have recategorised him to level D."
10. The solicitors then wrote to the Director, asking that Mr Manhire be transferred to an open prison near to his family. On 23 February 2009 the Director replied

"As you are aware Mr Manhire is a Foreign National Prisoner and subject to deportation to Zimbabwe therefore in line with Prison Service Instruction 1608 we have submitted his details to Population Management Unit. Providing PMU give their approval a transfer to a category D prison will be organised."

11. At some date the Prison Service referred the case to the Criminal Casework Directorate ('CCD') of the United Kingdom Border Agency ('UKBA'). The information from CCD was dated 19 March 2009, and included the following. First, it stated that Mr Manhire has used an alias. Second, in answer to what is presumably a standard question as to liability of the prisoner to enforcement action under the Immigration Act 1971, the information given was "Yes – UKBA are pursuing deportation." Thirdly, under the heading 'Risk Considerations', the writer said this:

"The Border and Immigration Agency consider it a risk if the Subject is moved because they [sic] are recommended for deportation.

Please note that the Criminal Casework Directorate consider it a risk for any Foreign National Prisoner to be moved to open conditions if they have a history of deception (e.g. alias names, deceptive crime, a history of absconding).

The Criminal Casework Directorate can only provide information to inform your risk assessment and the final decision regarding re-categorisation of any foreign national prisoner lies with the Governor or Controller of the prison."

12. A day or so before the end of April 2009, Mr Manhire was transferred to HMP Lindholme, which is a Category C establishment.
13. On 1 May 2009 Mr Manhire made a formal complaint about the failure of the prison authorities to transfer him to a Category D prison. On 5 May a governor at Lindholme rejected this complaint, stating that Mr Manhire had not been in Lindholme long enough for staff to conduct a meaningful risk assessment, but that a review of his category would be carried out in July.
14. I can pass over some intervening events until I come to 2 June 2009, when the claim form was issued, together with an application for urgent consideration. There were then two matters under attack by Mr Manhire's lawyers: (1) the continuing failure to implement the recategorisation decision of 9 February 2009, and (2) failure to consider Mr Manhire for early release under the Home Detention Curfew ('HDC') scheme. There was also an application for urgent consideration. On considering the papers, I gave directions for a 'rolled-up hearing' to come on in the week starting 6 July 2009. I recall that it was the second of the complaints which I have just mentioned which persuaded me to lay down a tight timetable to lead to the hearing, which in fact took place on 8 July.
15. In the meantime, and unknown either to Mr Manhire's representatives or to the Treasury Solicitor, a further assessment of Mr Manhire was carried out at Lindholme. The first two pages of the relevant form deal with 'RISK OF ESCAPE/ABSCOND' and 'RISK TO THE PUBLIC.' These contain only one matter adverse to Mr Manhire: in section 4 of the form, it is recorded under 'outstanding charges' that he is an illegal immigrant.. There is then a manuscript report by a prison officer, whom I take to be Mr Manhire's wing officer. This reads in full:

"Mr Manhire is an enhanced prisoner who is currently working in education.

Mr Manhire is a very polite prisoner, probably the most well behaved on the wing, and causes no problems at all."

There is then a 'SUITABILITY ASSESSMENT.' This deals specifically only with adjudications, which are shown as nil, and security intelligence, the comment on which is illegible. There is a question as to "any other issues which prevent the prisoner being held in conditions of lesser security", but none of the boxes asserting the existence of such issues has been ticked. Finally, there is the decision, made by a governor, which is to retain Mr Manhire in his current category. The reasons given are:

"Enhanced prisoner – excellent reports.

Nil adjud

Security see 4

3 months to serve

Nil breaches

Foreign National

Low risk of harm

Seek view of UKBA

UKBA state - deportation is being pursued

Risk of abscond due to deceptive nature of index offence."

16. On the day before the hearing, this decision came to the knowledge of the Treasury Solicitor, who immediately informed Mr Manhire's solicitors.
17. Further, shortly before the hearing, material was obtained from the West Midlands Police which demonstrated that CCD's earlier suggestion that Mr Manhire had used an alias was erroneous. On the contrary, it was another person who, upon being arrested for failing a breath test, had falsely given Allan Manfire as his name.
18. There then had to be, understandably, some last-minute shifting of ground. Mr Stanbury had already recognised, in view of what had been said in the summary grounds of defence, that Mr Manhire's case on release to HDC was not tenable. What Mr Stanbury had to tackle, at very short notice, was the decision of 30 June 2009, which was now the only decision under attack and, as I indicated at the beginning of this judgment, it was challenged on two grounds, inconsistency and irrationality. Before I turn to the submissions which were made to me, I must set out some relevant material from the Prison Instructions and Orders and refer to certain extracts from Hansard.

Relevant material

19. The general definition of the different categories of prisoner and the principles of categorisation are set out in Prison Service Order 0900 ('PSO 0900').
20. Paragraph 1.1.1 of PSO 0900 contains the following, among other, definitions of security categories.

"Category C

Prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt.

Category D

Prisoners who can be reasonably trusted in open conditions."

21. Then one gets

"1.2 The Principles of Categorisation

1.2.1 Prisoners must be categorised objectively according to the likelihood that they will seek to escape and the risk that they would prove should they do so… The security category must take account of the above considerations alone…

1.2.3 Every prisoner must be placed in the lowest security category consistent with the needs of security and control. A prisoner must be assigned to the current security category even if it is clear that it will not be possible to allocate him to a particular establishment for prisoners in that category."

22. Chapter 2 of PSO 0900 states that prisoners in Category C who are serving more than 12 months but less than 4 years must have their security category reviewed every 6 months.
23. Prison Service Instruction 35/2002 ('PSI 35/2002') came into force on 18 July 2002 and was intended to permit something which had not previously been allowed, namely the allocation to Category D of prisoners who are subject to deportation proceedings.
24. The following paragraphs from PSI 35/2002 are material:

"Impact assessment

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 will remain a major factor in the risk assessment process, but it may be taken into account only in so far as it might be indicative of the likelihood of abscond and not as a determinative factor precluding allocation to open conditions…

Mandatory action

5 References in Chapter 9 of the Security Manual and in PSO 0900 to prisoners subject to enforcement action must now be disregarded. Foreign nationals must be risk assessed as to their categorisation and allocation in the same way as all other prisoners but they should not be allocated to open conditions without reference to the Criminal Casework Team in IND who will advise on any known factors relevant to risk of absond."

25. Then there is Prison Service Order 4630 ('PSO 4630), which was issued on 11 January 2008 and which deals at length with immigration and foreign nationals in prison.
26. Paragraph 1.1 of PSO 4630 states that for the purposes of the PSO a foreign national is a person who is not a British citizen.
27. Parts of paragraph 14 are relevant:

"Security Classification Policy and Allocation to Open Conditions

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…

14.2 Prisons should complete the CCD3 form Request for information for transfer of a prisoner to Category D/Open Conditions… and submit it to CCD by Fax…

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.

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 the risk is very low."

28. Finally, reference was made to the current policy of HM Government as to deportations to Zimbabwe. Two relevant answers have been given by the former Home Secretary and one of her departmental ministers earlier this year. In the first of these, Ms Jacqui Smith said that UKBA "detains only those Zambabwean nationals who have committed crimes within the United Kingdom are subject to deportation action and have been assessed as unsuitable for release due to being either a threat to the public and/or are likely to abscond." There were currently only about 35 Zimbabwean criminals who were being detained beyond their sentence. (Hansard, 14 January 2009, col. 787W). In the second answer (Hansard, 5 May 2009, col. 35W), Mr Phil Woolas stated that the Government was not currently enforcing the return of Zimbabwean nationals.

The consistency issue

29. I can deal with this quite shortly. The submission made on behalf of Mr Manhire was that, if one placed side by side the decisions of 9 February and 30 June 2009, the latter decision was one which breached what was called by His Honour Judge Michael Kay QC in a recent prisoner classification case "a principle of consistency and legitimate expectation": The Queen (on the application of Lowe) v Governor of HMP Liverpool [2008] EWHC 2167 (Admin), para. 36. The expectation is that, on successive reviews, prisoners "will be dealt with consistently and not dependent upon the differing views of different governors": ibid. So, if there is no obvious change in a prisoner's circumstances between one periodical review and the next, he can fairly expect not to be reclassified to a higher security category. But, as Judge Kay pointed out, "one obvious circumstance would be a plain and simple error by a previous governor": para. 37.
30. Here, it does not appear to be that the decision of 9 February 2009 has the quality requisite to create an expectation of the kind referred to by Judge Kay. First, it was made in breach of the express requirement of PSO 4630, paragraph 14.2, that the views of CCD be obtained. Second, no reasons were given. The decision was not even communicated (as it should have been) on the appropriate form RC 1, nor does attention seem to have been given to the specific questions on that form, and there is no sign of any input from prison staff. Third, the decision was soon afterwards qualified by the letter of 23 February 2009, telling Mr Manhire's solicitors that his details were being referred to Population Management Unit, and that a transfer to a Category D prison was dependent on PMU's approval. There is a difference between what at one end of a wide spectrum is no more than an understandable disappointment and at the other is the denial of what the law recognises as legitimate expectation. This case falls all too plainly at the disappointment end.
31. If the consistency issue stood alone, I would without hesitation have refused permission to apply for judicial review.

The irrationality issue

32. The challenge on the ground of irrationality is clearly arguable. Accordingly I give permission to apply for judicial review and proceed to determine the substantive application. I have found the arguments on this issue to be evenly balanced.
33. It is common ground that the two risks which have to be considered in relation to the reclassification of a prisoner to Category D are the risk of reoffending and the risk of absconding from open conditions. It is also, I understand, common ground that the risk of reoffending in the case of Mr Manhire must, on the basis of the OASys assessment, be low (which is not to say that it is non-existent), so that the mind of the decision-maker must have been focused primarily on the risk of absconding
34. Before I examine this aspect of the decision, I remind myself that this is not an appeal or rehearing and that it is not for the court to substitute its judgment for that of the decision-maker. A decision may appear to be surprising, but that does not mean that it must fail a challenge by way of judicial review. The burden on an applicant who asserts that a decision is irrational is a heavy one
35. The factors which most clearly weighed with the governor in coming to a conclusion adverse to Mr Manhire were the deceptive nature of the offence for which he was sentenced and his liability to deportation. Both matters were highly relevant to the decision. As regards the offence, a person who has participated in a serious fraud is likely to have the intelligence and organising ability to devise means of escaping which would not be seized upon by a less resourceful person. As to deportation, Mr Manhire is as a matter both of fact and law liable to be deported; and, as a matter of policy (which is not the subject of challenge) PSO 4630 requires the decision-maker to assume that deportation will take place and to treat as paramount the ensuring that the intention to deport is not frustrated. On this basis, it is said for the Secretary of State, the decision cannot be impeached.
36. The criticism made of the decision is that the governor took no account of the high degree of improbability that Mr Manhire will in fact be deported to Zimbabwe, nor of his settled family circumstances. These factors, it is said, make the risk of absconding so low as to be negligible. Once the risk has been properly assessed in this way, it is said for Mr Manhire, the decision which was reached becomes logically unsupportable.
37. Written and oral submissions were made by counsel at some length and at an impressive level of sophistication, but I do not think that I do injustice to either party by summarising the issues as succinctly as I have done in the last two paragraphs. The question for the court is a simple one, however difficult it may be to arrive at the right answer.
38. After considerable hesitation, I have come to the conclusion that the decision of 30 June 2009 must be characterised as irrational. I do not think that Mr Stanbury, on behalf of Mr Manhire, was, as Mr Sachdeva, who appeared for the Secretary of State complained, was asking the court either to place in a special category Zimbabwean prisoners who are liable to deportation or to pre-empt a decision which properly belongs to the Immigration Appeal Tribunal
39. The risk of absconding which falls to be considered in this case is, on analysis, a twofold one.
40. There is, in the first place, the risk of absconding from an open prison (should Mr Manhire be transferred there) between 30 June, the date of the decision, and 19 September, the probable date of release. It is barely credible that a person with Mr Manhire's exemplary prison record who was held in open conditions would jeopardise his position by walking out during this short period. The consequences, in terms of further time to be served after recapture, the conditions in which that time would be served, and the effect on a future application to the Immigration Appeal Tribunal, would be hugely disproportionate to any benefit to be derived from absconding.
41. The other risk is that of evading the process of deportation. It is, given the material which I have quoted from Hansard, simply not on the cards that Mr Manhire will be deported upon release on 19 September. Nor, given the nature of his offending and the fact that he has a settled family, can there be any real likelihood that he will be held in custody pending a decision on his deportation: he is neither a danger to the public nor a person without community ties. It may be that conditions in Zimbabwe will at some time in the future improve to such an extent that deportations to that country will be resumed: but I cannot see how a recategorisation of Mr Manhire to Category D now is going to make him less amenable to the deportation process at some time in the future than he would be if he were to retain Category C status for the next few weeks.
42. It seems to me that, if these considerations had been present to the mind of the governor, his decision might well have been different. A decision which fails to address them, and then gives them due weight in the decision-making process was, in the somewhat unusual circumstances of this case, not a rational decision.

Disposal

43. As regards remedy, it will be sufficient to quash the decision of 30 June 2009. I am confident that, in the light of the short time between the handing down of this judgment and Mr Manhire's release date, arrangements will be made for a very speedy fresh appraisal of the category in which he should serve the balance of his sentence.