England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 April 2011

Lord Carlile of Berriew QC :

Background

1. The Claimant was born on the 20 April 1988. On the 7 August 2009, when he was 21 years old, he committed 2 offences, respectively robbery, and possession of a sharp bladed instrument (a knife). At a Crown Court hearing he pleaded Guilty: he was sentenced on the 21 December 2009 to a total of two years' imprisonment.
2. This was not his first court appearance: previously he had been convicted of criminal damage, for which he had received a community sentence. Thereafter he was sentenced for breach of that community disposal, but not to custody.
3. The 2 offences outlined in paragraph 1 above occurred when the Claimant entered a Threshers' off-licence wearing a motor-cycling helmet and carrying a knife. He demanded money from the till, and left with £300. This type of offence would normally attract a longer sentence than he received. However, the sentencing judge was of the view that there was substantial mitigation. This included the Guilty plea, genuine remorse, a positive risk assessment by the probation officer who drafted the pre-sentence report, and apparently the assertion that the money was needed to mitigate a threat to his partner arising from his (the Claimant's) use of cocaine.
4. The Claimant was sent to HMP Highdown. There he was a conscientious prisoner who fulfilled all the requirements made of him, completed various courses including one on money management and budgeting, and behaved very well in all respects.
5. His sentence release (and licence expiry) date were calculated as the 20 December 2010, when in fact he was released. However, he hoped to be released earlier with an electronic tag, on what is known as Home Detention Curfew [HDC]. Had this occurred, he would have been released on the 8 August 2010.
6. His application for Judicial Review was heard following permission to apply being granted by Kenneth Parker J on the 15 December 2010.

Correspondence concerning Home Detention Curfew

7. There was a relevant exchange of correspondence concerning the Claimant and HDC.
8. On the 16 February 2010 the Claimant wrote to the prison governor asking about possible HDC.
9. On the 23 February 2010 the prison offender manager wrote to the Claimant a letter containing arrangements for HDC generally, referring to the "general parameters of HDC"; but using as part of the letter the phrase "when you are released on HDC" (rather than "if you are released on HDC").
10. On the 4 May 2010 the governor gave to the Claimant a formal Notice of Refusal of HDC, with the reasons given as "Presumed Unsuitable Offence Pos/Off/Weapon". The Notice informed the Claimant of his right to make written or oral representations if he wished to complain about the decision. No oral hearing was requested or took place. On the 10 May a governor provided him with a memorandum stating:

"I am very sorry to decline your request but it is impossible to consider you for HDC. PSI 31/2003 Changes to Home Detention Curfew Scheme records the following as being unsuitable for HDC in Annex A

Possession of offensive weapons: Possession of an offensive weapon: Possession of a sharp bladed instrument

I appreciate your commitment to demonstrating your reliability but you do not meet the nationally prescribed eligibility criteria."

11. On the 18 May 2010 the Claimant's solicitors wrote to the governor. They asked for a full reconsideration as an appeal on the merits. They submitted that the application for HDC should be considered under current policies if exceptional circumstances existed, and set out what they asserted were exceptional circumstances: these related to the mitigation at trial including that the Claimant did not refer to the knife he was holding whilst committing the robbery, and that to a witness he appeared afraid, and also to his excellent progress in prison.
12. On the 15 June 2010 Mr Foster, Head of Reducing Reoffending at the prison, wrote a two page letter to the solicitors. He accepted that the earlier review process had not been dealt with by a governor of sufficiently senior grade. As a governor of the appropriate grade he then dealt with each point the solicitors had raised. He concluded as follows:

"The points raised in your letter, whether considered individually or together, do not represent exceptional circumstances and I am not prepared to give consideration to assessing Mr Young for suitability for release on Home Detention Curfew".

The Policy on Home Detention Curfew

13. The HDC Scheme is provided for by the Criminal Justice Act 2003 section 246 (Power to release prisoners on licence before required to do so) and section 253 (Curfew condition to be included in licence under section 246).
14. Pursuant to his general powers of prison management under the Prison Act 1952, the Second Defendant issued policies which govern how his discretion to release on HDC was to be exercised. These were Prison Service Order (PSO) 6700; and Prison Service Instructions (PSIs) 31/2003 and 31/2006.
15. PSI 31/2003 provided as follows.

"Purpose:

This PSI introduces two changes to the Home Detention Curfew Scheme which were announced by the Home Secretary on 10 April 2003 and will come into force on 14 July 2003. In summary the changes are:

...

- certain types of offences will render prisoners 'unsuitable' for consideration for release on HDC unless there are exceptional reasons to grant release.

...

PRESUMPTION OF UNSUITABILITY FOR CERTAIN OFFENCES

22. The Home Secretary has decided that, in order to maintain public confidence in the scheme, offenders serving sentences for certain current offences and prisoners with any history of sexual offending must be considered unsuitable for release on HDC unless exceptional circumstances exist. This presumption applies to prisoners serving under 12 months as well as those serving over 12 months whose current eligibility dates (i.e. HDCEDs prior to the Order coming into force) fall on or after 14 July 2003.

Categories of Presumed Unsuitable Offences:

23. The categories of offences referred to by the Home Secretary are as follows:

...

• Possession of offensive weapons

...

33. A decision that there are exceptional reasons to release a prisoner on HDC, who would otherwise be presumed unsuitable, must only be taken by the Governing Governor, subject to the normal risk assessment procedures. The Home Secretary has made it clear that the reasons for release in these circumstances must be exceptional. 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 re-offending or of breach. It is likely that only a very few 'presumed unsuitable' prisoners, nationally, will be released on HDC. It is impossible to give guidance on what will constitute an exceptional reason to release because such cases will be, by definition, exceptional. As a rule of thumb, such cases will stand out.

34. There will be no need to refer these exceptional cases to HQ for approval. The decision rests with the Governing Governor. However, details of any such cases must be sent to the HQ policy team with reasons why release was granted. The HQ policy team will be available for advice if necessary."

PSI 31/2006 provided as follows:

"19 Exceptional Circumstances and Presumed Unsuitable Offences:

Guidance on the interpretation of exceptional circumstances is contained in paragraph 33 of PSI 31/2003.

The Director of Operations, Michael Spurr, wrote to all Governing Governors on 20 May 2004 setting out a particular set of factors which would amount to one example of exceptional circumstances.

Following consultation with Ministers, the Chief Executive of NOMS advised that the following features would also amount to exceptional circumstances.

• The likelihood of re-offending on HDC is extremely small; and

• The HDC applicant has no previous convictions; and

• The applicant is infirm by nature of disability or age or both.

This interpretation should be used when determining whether an HDC application is exceptional, however, Governors may continue to exercise their discretion as described in the PSI 31/2003 and there may be other cases, which feature different factors from those above, which the Governor considers are exceptional."

Grounds of Claim

16. The grounds of claim helpfully were summarised by the Claimant's counsel as follows:

"(1) the treatment of the Claimant was

(i) irrational, and/or

(ii) in violation of Art. 8 ECHR, and/or

(iii) in violation of Art. 14 ECHR in conjunction with Art. 5 and/or Art. 8,

as the policy that creates starkly differential treatment between prisoners with a sentence comprising a separate offensive weapon conviction and a comparator group without such a separate conviction, irrespective of the principal and more serious offence, is in fact arbitrary and unlawful, or discriminatory and unjustified; and/or the policy in use is insufficiently clear and not being consistently applied.

(2) the procedure for determining whether Mr Young meets the criteria for HDC release for 135 days was unfair and flawed, failing either to apply existing policy procedure or to adopt a procedure to meet common law standards of fairness, in that:

(i) it ought to have allowed an oral hearing at which he could present his application to the Governor and answered any concerns or questions raised; and/or

(ii) the procedure adopted in this case by HMP High Down did not follow the policy in PSO 6700 in that (a) the risk assessment required by Chapter 5 was not undertaken; and (b) further or alternatively Mr Young was not told prior to the decision being made by Governor Browne that he was presumed unsuitable and must make written or oral representations as to why he is exceptional; and (c) further or alternatively the initial decision in his case, the exercise of discretion, was not done lawfully, as it was simply said it was "impossible" to consider him (and therefore despite the appeal process he was denied the opportunity to have the initial decision-maker consider his case to be exceptional as a matter of the exercise of discretion)."

The issues addressed in argument

Applicability of PSI 31/2003

17. In oral argument counsel Mr Rule submitted that PSI 31/2003 was not applicable to the Claimant.
18. PSI 31/2003 when published contained an explicit expiry date of the 15 July 2004, one year after its publication.
19. Of course, neither PSIs nor PSOs are of statutory authority, nor are they to be constructed as if they were statutes. They are statements of policy and its application.
20. It is to be noted that the first page of PSO 6700, which it is not disputed was applicable at all material times, makes clear that it needs to be read in conjunction with PSI 31/2003, PSI 31/2006 and a number of other PSIs. The relevant PSIs remain published on the Prison Service website.
21. Further, the Claimant's solicitors in their letter of the 18 May 2010, referred to in paragraph 11 above, referred to and were well aware that the test that their client had to satisfy was the test of exceptionality which is set out in the PSIs.
22. It is noted that no complaint was made in the Grounds of Challenge on this point. On the contrary, those Grounds stated: "None of the statutory exceptions apply to Mr Young. Nonetheless one of the policy documents giving effect to the Prison Service's approach to HDC is contained in PSI 31/2003 for all prisoners".
23. In my judgement this part of Mr Rule's submissions is unsustainable. It is clear from PSO 6700 that PSI 31/2003 remained applicable long after the initially expressed expiry date, and at all times material to this case.

Was the statutory scheme operated lawfully?

24. The Criminal Justice Act 2003 Sections 246 and 253 provide a discretion for the release of prisoners on HDC.
25. The Secretary of State devised a policy in relation to the exercise of that discretion. Essentially, the Claimant in this case asserts that the discretion was fettered, and in reality never exercised. Statistics were provided that exceptions to the policy as described above are very rare, about 0.05 per cent of cases; and that no such exercise of discretion had occurred at HMP Highpoint in the three years prior to the Claimant's application.
26. The purpose of the policy is clear. Bladed articles are unfortunately ubiquitous, far more so than, for example, firearms. The policy took into account that sometimes they are used unlawfully even in schools, and are a scourge which Ministers consider should be dealt with firmly, in the public interest. The message sent out by the policy is intended to convey the understanding that those convicted of knife crime will not be granted early release save in exceptional circumstances.
27. This type of policy background was the subject of comment by Lord Scarman in Re Findlay [1985] AC 318 at page 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 factors of importance. The Parole Board, through its judicial and other members, can offer advice on these 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 and to the electorate. 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 .." .

28. In R (Stephen Cross) v Governor of HM YOI Thorn Cross [2004] EWHC 149 (Admin) Henriques J, citing the above passage, dealt with aspects of the HDC policy. At [18-19] he said:

"... 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. ... 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, para 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."

29. PSI 31/2003 Annex A lists examples of offences for which offenders are presumed to be unsuitable for release on HDC. Attention was drawn to the fact that it does not include simple possession of a firearm (without a specific intent), whereas it does include possession of a sharp bladed instrument.
30. It was submitted by the Claimant that the failure to include other offences in the list of unsuitability offences renders the scheme unlawful on the grounds of discriminatory, irrational and unfair differentiation between one group of prisoners and another. It was also submitted that the policy treated the Claimant less favourably than an asserted comparator group consisting of other prisoners convicted of equally serious offences involving weapons but who happen not to have been charged separately with the weapons offence. In essence this is an allegation founded upon allegedly different treatment between the Claimant and a group of comparator prisoners.
31. As Mr Grodzinski submitted for the Defendants, the Claimant's argument depends upon the following premises:

a) It is common practice for the offence of possession of an offensive weapon not to be charged, where a defendant is facing more serious charges.

b) As a result of (a), there are prisoners who are in an analogous position to the Claimant ("the comparator group") – i.e. prisoners who have been convicted of exactly the same kind of robbery (i.e. robbery with a knife or other such weapon) and in respect of whom there was equally strong evidence of possession of a weapon - who have not been separately charged with possession of an offensive weapon.

c) PSI 31/2003 treats the Claimant less favourably than the comparator group without justification, in that he has to prove his case is exceptional before he gets a full HDC risk assessment, whereas the comparator group is entitled to a full HDC risk assessment as of right.

d) As a result, PSI 31/2003 breaches Article 14 and /or is irrational.

32. In my judgement the Claimant's analysis is unsustainable. First, it is highly unlikely that any significant comparator group exists. Premise (a) above is wrong. On the contrary, the Crown Prosecution Service's guidance makes clear that where there is evidence to support a charge of possessing an offensive weapon, that charge should be laid on the indictment.
33. I was reminded that Paragraph 6.1 of the Code for Crown Prosecutors states that charges should be selected which:

• "reflect the seriousness of the offending;

• give the court adequate sentencing powers; and

• enable the case to be presented in a clear and simple way.

This means that Crown Prosecutors may not always continue with the most serious charge where there is a choice nor continue with more charges than are necessary. However, where there is sufficient evidence to prove an offence of carrying an offensive weapon or bladed or pointed article in a public place or school in addition to another offence it is good practice to charge both offences, even where the knife or weapon has been used during the commission of the other offence. This will ensure that the prosecution case and the basis of any pleas are clear. It will also allow an offender to be brought to justice for an offence of possession, and allow the court to order the forfeiture and destruction of the weapon if the defendant is acquitted of the other offence."

34. I was reminded too that the Director of Public Prosecutions, then Sir Ken Macdonald QC, said in 2008:

"People who carry knives put themselves as well as others at serious risk of injury. Those caught in possession of a knife in a public place and with no reasonable excuse can expect to be prosecuted. In addition, anyone carrying a knife during the commission of any other offence will be prosecuted for the possession of the knife as well".

35. Thus if the CPS policy above has been applied, the claimed comparator group will simply not exist. The Court cannot be asked to proceed on the assumption that the policy has not been applied, without material to support the claim.
36. The Claimant provided a list of 9 cases in the Court of Appeal since 2008 where there was not a separate charge of a weapons offence having been laid. However, this has to be set against the 110,000 plus defendants prosecuted each year in the Crown Court. It is impossible to discern from the 9 cases mentioned any widespread practice which is contrary to the CPS policy, nor to infer the existence of any significant comparator group who might (because they were not separately charged with a weapons offence) be in a more advantageous position in terms of HDC. There may be cases where for very good reasons, for example the factual basis for a plea, the prosecution proceed in relation to robbery but not against the particular defendant for carrying a bladed article. The argument falls very far short of establishing any comparator group.
37. This part of the Claimant's submissions carries less weight than many often rejected submissions about disparity of sentence between one defendant and another.
38. I agree with the Defendant's submissions that the principal goal of the policy contained in PSI 31/2003 is to maintain public confidence in the HDC scheme. This has been accepted as a legitimate goal for the Defendant when setting policies on the release of prisoners: see Re Findlay above and R (Cross) v Governor of HMYOI Thorn Cross [2004] EWHC 149 (Admin) at [20]. Public confidence is particularly important, in relation to HDC, because that scheme operates to release prisoners before the end of the custodial period of their sentences at a time when the public might expect them to be imprisoned. Public confidence in the HDC system could be undermined if those convicted of offences which the public considered particularly serious or anti-social were released early.
39. In order to achieve that goal it is necessary to have a workable and clear policy on which kinds of offender should not generally be allowed out on HDC. PSI 31/2003 is clear and workable – Governors are to look at the offences of which the prisoner has actually been convicted. This is a fair way of selecting those prisoners whom the public would not expect to be released. Given the CPS policy, the use of convictions as the basic criteria is a fairer and more certain methodology than an attempt by prison governors to determine facts from what may well be incomplete material.
40. Counsel for the Claimant relied too on alleged breach of ECHR Article 14, and common law irrationality and inconsistency. I was addressed on the decision of the House of Lords in Clift v UK [2010] ECtHR 1106 (application 7205/07), R (Clift) v Home Secretary [2010] UKHL 54, and [2007] 1 AC 173 and subsequent cases. In that case it was held by the ECtHR, but not by The House of Lords a few months earlier, that a prisoner serving a determinate sentence of 15 years or more acquired a 'status' within Article 14. In this context I consider that I am bound by the decision of the House of Lords; see Kay v Lambeth London Borough Council [2006] UKHL 10.
41. Further, applying first principles I can find no status such as would bring the Claimant within Article 14. That a prisoner serving 15 years or more has a 'status' does not suggest that a prisoner serving a lesser period also has a status. There may be some other categories that do acquire such status. However, a status based on being a prisoner to whom HDC does not apply is far from anything envisaged by Article 14. It is clear to this Court that Article 14 does not protect all differences in treatment between individuals or groups.
42. A number of additional authorities were cited in support of the Article 14/common law discrimination submission. I hope that I do not do injustice to that submission in not repeating them. In any event, I hold that the scheme and policy complained of fall far short of being discriminatory in any unlawful sense. I hold the statutory scheme to be lawful.

ECHR Article 8

43. It was further submitted by the Claimant that his failure to obtain release under HDC gave rise to a breach of Article 8, in relation to respect for his private life.
44. The immediately obvious problem about this submission is that the Claimant was sentenced lawfully to imprisonment for two years, and was not entitled to release under the relevant statutory provisions until the 20 December 2010. Thus he fell firmly within the exceptions to Article 8 provided in Article 8(2), as he was imprisoned "for the prevention of disorder or crime". Article 5 being satisfied by the HDC (see Cranston J in John Mason v Ministry of Justice [2008] EWHC 1787 (QB) at [39]), Article 8 has nothing to add.

Other procedural points

45. Other procedural points were raised. One was the absence of an oral hearing. However, as stated in paragraph 10 above the opportunity to make oral representations was offered to the Claimant and not asked for. The Claimant's solicitors were able to put the case in full, as they did by letter. They did not request an oral hearing either. Mr Foster's reply dated the 15 June 2010 dealt in sufficient detail with the points made by the solicitors.
46. I find the written procedure followed was entirely fair. My conclusion to this effect is fortified by the decision of Keith J in R (Sahra Yusuf) v The Parole Board [2010] EWHC 1483 (Admin) at [40]: here, as in that case, the Claimant's solicitors did not ask for an oral hearing at the time, and the prison governor can hardly be criticised for not giving one in the absence of a request.
47. It was submitted too that the infelicitous and inaccurate use of language in the prison letter dated the 23 February 2010 and the memorandum of the 10 May 2010 result in such procedural unfairness that the decision should be quashed.
48. Unfortunate or lacking in care as the words used in earlier correspondence may have been, in my judgement the considered reply by Mr Foster dealt with all points succinctly and fairly, in the correct legal and policy framework. If there was earlier potential unfairness, albeit in the busy and demanding context of a prison, none remained after Mr Foster's response.

Conclusion

49. In all the circumstances I do not grant the Declarations or Orders claimed, and find in favour of the Defendants.