PA, R (on the application of) v Governor of Her Majesty's Prison Lewes, Court of Appeal - Administrative Court, February 28, 2011, [2011] EWHC 704 (Admin)

Resolution Date:February 28, 2011
Issuing Organization:Administrative Court
Actores:PA, R (on the application of) v Governor of Her Majesty's Prison Lewes

Neutral Citation Number: [2011] EWHC 704 (Admin)

Case No. CO/363/2011




Royal Courts of Justice

The Strand



Date: Monday 28 February 2011

B e f o r e:



The Queen on the application of



- v -




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Miss Elizabeth Prochaska (instructed by Prisoners Advice Service) appeared on behalf of the Claimant

Miss Rosemary Davidson (instructed by the Treasury Solicitor) appeared on behalf of the Defendant




1. This is an application for judicial review of a decision of Governor Robin Eldridge taken originally on 19 November 2010 refusing to release the claimant from prison on home detention curfew. The decision was affirmed by the Governor in the light of further representations and evidence on 22 December 2010 and 27 January 2011 (the last following the issue of these proceedings).

2. The claimant is a 25 year old man who suffers from a condition known as social phobia. It is defined in the World Health Organisation International Classification of Diseases as:

"Fear of scrutiny by other people leading to avoidance of social situations. More pervasive social phobias are usually associated with low self-esteem and fear of criticism. They may present as a complaint of blushing, hand-tremor, nausea or urgency of micturition, the patient sometimes being convinced that one of the secondary manifestations of their anxiety is the primary problem. Symptoms may progress to panic attacks."

3. On 7 October 2009 the claimant was sentenced to a total of three years' imprisonment for two offences: inflicting grievous bodily harm on one of his children (younger than six months old at the time) and cruelty to the same child. The claimant is due for release on licence, after serving half of his sentence, on 7 April 2011. He became eligible for home detention curfew from 24 November 2010.

4. Section 246(1) of the Criminal Justice Act 2003 provides:

"Subject to subsections (2) to (4) below, the Secretary of State may:

(a) release on licence under this section a fixed-term prisoner other than an intermittent custody prisoner at any time during the period of 135 days, ending on the day on which the prisoner will have served the requisite custody period."

The requisite custody period in the claimant's case is one-half of the three year sentence imposed in the Crown Court. None of the exceptions to the exercise of this power, set out in subsections (2) to (4) applies to the claimant. These powers had their origins in earlier release schemes dating back to the late 1990s.

5. The discretionary power conferred on the Secretary of State is in practice exercised by prison governors on his behalf, subject to the policy guidance set out in Prison Service Order 6700 and relevant Prison Service Instructions. Paragraph 2 of that order provides that all prisoners serving sentences of more than three months but less than four years will be eligible for home detention curfew unless they fall within specified categories, which are not relevant for the purposes of this claim. Prison Service Instruction 31/2003 identified a list of offences for which it was presumed that home detention curfew would not be granted unless exceptional circumstances existed. The purpose of establishing such a list was to maintain public confidence in the scheme. It is common ground that the claimant's offending fell within the list presumed unsuitable for inclusion in the home detention curfew scheme. The maintenance of public confidence in the scheme is unquestionably a proper factor which may be taken into account in the exercise of the statutory power to release on home detention curfew. One category presumed unsuitable is that of prisoners convicted of sexual offences, for example. This prison instruction required any such case to be referred to headquarters if the Governor thought exceptional circumstances existed, together with a list of specific documentary requirements. That goes to emphasise the public confidence issues in play. Otherwise the application of the policy to presumed unsuitable prisoners was found in paragraphs 33 and 34 of Prison Service Instruction 31/2003. They are headed: "Prisoners with current convictions for non-sexual presumed unsuitable offences". They continue:

"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."

6. From these paragraphs the following factors governing the exercise of the Secretary of State's discretion may be extracted:

(1) there was to be a risk assessment;

(2) a low risk of re-offending was not itself sufficient to find exceptional circumstances;

(3) very few prisoners presumed unsuitable for release would in fact be released on home detention curfew;

(4) an exceptional case would stand out.

7. Despite the reluctance in 2003 to spell out any further the indicia of exceptionality, Prison Service Instruction 31/2006 (implemented at the end of that year) did so. Its main purpose was to explain differences between the early release schemes under the Criminal Justice Act 2003 and the earlier legislation. However, it said this:

"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 .... 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 to be exceptional."

Thus, whilst exceptionality remains at large for the purposes of the exercise of discretion, the combination of the three features identified in paragraph 19 would amount to exceptional circumstances. The corollary is that if only two out of three of those features are present, exceptional circumstances would not be established.

8. The claimant has no previous convictions. The likelihood of re-offending has been judged to be low. The question, as it developed in the exchanges to which I shall shortly refer, became whether the claimant's mental illness (that is to say his social phobia) was such as to result in his being "infirm by nature of disability". The claimant's short submission is that his social phobia is such that the only conclusion which the Governor could properly and lawfully reach was that he is indeed infirm by nature of that disability, and so entitled as a matter of law to release on home detention curfew.

9. The claimant has had the assistance of the Prisoners Advice Service in connection with his application for early release on home detention curfew. I should pay tribute to the constructive and friendly way in which the Prisoners Advice Service and the Governor of the prison have worked in testing the policy against the facts of the claimant's case.

10. On 22 September 2010 the Prisoners Advice Service wrote to the Governor. The letter referred to the claimant's social phobia and to his earlier (but now resolved) conditions of agoraphobia and Attention Deficit Disorder. These two latter conditions have fallen out of consideration.

11. A large volume of supporting material was attached to the letter of representations. The letter identified the criteria set out in paragraph 19 of Prison Service Instruction 31/2006 and then went on to examine the material relevant to a consideration of each of the three criteria. The third criterion was dealt with in this way:

"c) Suffers from a physical or mental illness

We attach an extract from a psychiatric report of Dr Duncan Angus from 2008, and a report from his counsellor, which confirm [PA's] diagnosis of a recognised mental illness, being a moderate to marked social phobia. Ms Watkinson's report remarks upon the...

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