Neutral Citation Number: [2013] EWHC 1821 (Admin)
Case No: CO/10342/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Birmingham Civil Justice Centre
33 Bull Street
Birmingham B4 6DS

Date: 03/07/2013

Before :

MR JUSTICE KENNETH PARKER
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Between :

	R(on the application of GEOFFREY MANNING)	Claimant	
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	SECRETARY OF STATE FOR JUSTICE	Defendant	

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Mr J Bunting (instructed by The Johnson Partnership) for the Claimant
Mr P Halliday (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 23 May 2013
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Judgment

Mr Justice Kenneth Parker : 

Introduction
1.	The Claimant challenges two decisions taken by Governors of HMP Stocken on behalf of the Defendant, namely, on 31 May 2012 to recategorise the Claimant to security category C and on 25 July 2012 to retain the Claimant in category C.
The Legal Framework
2.	The full legal framework is somewhat lengthy and is set out in an annex to this judgment.
3.	The framework mandates the use of the correct form, in this case, the RC1 form for recategorisation.  The purpose of the recategorisation process is stated to be to determine whether, and to what extent, there has been a change in the risks a prisoner presented at his last review and to ensure that he continues to be held in the most appropriate conditions of security.  The fact that a prisoner is subject to a confiscation order, although of considerable relevance, should not necessarily preclude a transfer to open conditions.  Certain factors need to be taken into account in assessing risk, particularly the risk of absconding, and it is stated to be important to contact the relevant enforcement agencies who may have information that will assist when making decisions in the relevant circumstances.
Factual Background
4.	In autumn 2008, the Claimant was sentenced to 9 years’ imprisonment for conspiracy to commit burglary.  By the Criminal Justice Act 2003, he would have become eligible for automatic release half way through his sentence, after four and a half years, in early 2013.
5.	On 22 December 2009 the Lincoln County Court made a confiscation order against the Claimant.  Confiscation orders are designed to deprive criminals of property which they have obtained through their criminal conduct.  To make a confiscation order, a judge has to quantify an offender’s financial benefit from his crime and make the order in that sum unless the offender is able to demonstrate that his capacity to pay is less than the quantified figure, in which case the order is made in an amount representing the offender’s capacity to pay.  When making a confiscation order, the judge must fix a term of imprisonment which the offender should serve if he fails to pay the amount ordered.  If the offender does not pay all of the amount ordered before the time to pay has expired, interest will accrue daily at a rate of 8% per annum on the unpaid amount.  Serving the default term does not remove the requirement to pay the amount ordered.  Regional “Confiscation Units” may take steps to recover any outstanding amount owed after the offender is released from custody.
6.	In the Claimant’s case, the confiscation order was in the sum of £150,000; and the default term of imprisonment was 2 years and 3 months.
7.	The Claimant was convicted with three co-defendants:  Mr Westley Smith, Mr John Smith and Mr Steven Upton.  Mr Upton, like the Claimant, also received a 9-year sentence.  Mr Westley Smith and Mr John Smith each received a slightly shorter, 8-year sentence, on account of earlier guilty pleas.  Each of the three co-defendants received a confiscation order which was similar to the Claimant’s confiscation order.
8.	In breach of his confiscation order, the Claimant failed to make any payment.  Accordingly, he will serve a term of 2 years and 3 months in prison at the end of the last custodial day of his current sentence.  Under the Criminal Justice Act 2003, he will be eligible for automatic release half way through that term of 2 year sand 3 months, which will be in about March 2014.
9.	Interest is also accruing daily on the sum owed by the Claimant under the confiscation order.  The amount of this daily interest is £32.88.  The Claimant has been notified that, if he does not pay the debt, the East Midlands Regional Confiscation Unit will take action to obtain the money from him on his release from prison.  For example, it may seek deduction of the money from his benefits or wages or instruct bailiffs to seize goods from him.
10.	On 2 May 2012 Governor Sutherland, the Head of Reducing Re-offending, Learning and Skills at HMP Stocken, where the Claimant was imprisoned, decided, following a re-categorisation review, to re-categorise the Claimant as security category D.  Category D is the lowest security category for prisoners, and category D prisoners may be held in “open” conditions.  The circumstances of that decision were as follows.
11.	Under the national process for categorisation review decisions, a recommendation is first made by prison staff; then, a separate, designated member of staff takes the recategorisation decision, deciding whether or not to follow the recommendation which has been made.  At HMP Stocken the recommendation is made by a member of the prison’s staff who knows the prisoner; and the final decision is taken by a Governor, in consultation with a Categorisation Review Board.  Both the recommendation and the decision are recorded on a RC1 form.  That standard process was followed on 2 May 2012.
12.	In this case the recategorisation recommendation was made on 11 April 2012 by Ms Nicola London, a probation officer who was the offender supervisor of the Claimant.  Part 2 (Risk assessment for move to lower security category) of RC1 states in terms:
“The review of a prisoner’s security category is based on an assessment of risk.  In particular, whether there has been a reduction in risk sufficient to make recategorisation to a lower security category appropriate.  The assessment of risk should be regarded as both risk of escape/abscond and risk of harm to the public in the event of an escape or abscond, and any control issues that impact on the security and good order of the prison and the safety of those within it.
In making the provisional assessment consider any issues which, at initial categorisation or during any previous reviews, indicated that the prisoner was unsuitable for the security category for which  he is now being considered and whether new information about the prisoner suggests that the risk has reduced.”
13.	In the present case, in the box on RC1 headed “state if/how risk has changed since the last review”, the consideration of risk in respect of the Claimant was restricted to the following points:
“Continues to reside on the Enhanced wing.  Good reports from staff.  Recent IEP for having a radio in possession which did not belong to him.  Remains polite to staff and is reported to be a hard worker on the wing.”
14.	The RC1 contained no reference to the fact that the Claimant was subject to a substantial confiscation order, that a further significant custodial term had been imposed for breach of that order, and that he had so far paid no amounts due under the confiscation order.  Given the purpose of the RC1 and the express direction on the form to include each and every factor bearing on risk, including the risk of absconding, the absence of reference to the above facts was a fundamental failure.  There is no evidence before me that Ms London even knew of any of these material facts.  Her assessment of risk was mistakenly confined to an evaluation of the Claimant’s conduct as a prisoner.  It goes without saying that an inmate may be a model prisoner in secure conditions but nonetheless pose a very significant risk of absconding if he is moved to open conditions when remaining under a liability to discharge a substantial debt arising from an unsatisfied confiscation order.
15.	In any event, on this fundamentally flawed basis, Ms London proceeded to recommend the Claimant’s recategorisation to category D, that is, open conditions.
16.	According to his first witness statement made in the present claim, Governor Sutherland considered in this instance a number of documents as part of the Claimant’s security category review, including the RC1, the Offender Management Unit File (containing details of previous convictions, details of current offence, current custodial record, Public Protection Information) and the Claimant’s most recent OASys report, dated 5 October 2010.  The OASys report is a fairly lengthy document, but at Section 2 – Analysis of Offences, under paragraph 2.1 (Brief Offence Details), there is set out in half a page of fairly dense type-script, a detailed description of the Claimant’s offending.  At the end of that description there was included the following somewhat cryptic information:
“There is a second conviction relating to the proceeds from the burglaries, and he was sentenced to 2 years and 3 months which is to run consecutively, a total of 11 years and 3 months …”
17.	There was also before Governor Sutherland a previous security category review decision form, dated 20 October 2010, signed by Governor Bell, refusing to recategorise the Claimant from category C to category D.  The reasons for that decision were stated as follows:
“ – not in scope – CRD [conditional release date] March 2014  - serving sentence for confiscation”
18.	In his first witness statement Governor Sutherland stated unequivocally that, at the time that he took the first recategorisation decision, he was not aware of the fact that a confiscation order had been made against the Claimant.  For the purpose of these proceedings Governor Sutherland reviewed the relevant documents, including the two documents that contained references, albeit in the first case somewhat cryptically, to the confiscation order.  In a second witness statement he said this:
“I do not recollect seeing the references to the Confiscation Order amongst the considerable number of documents placed before me for the purpose of the review.  It is not my function on a review to carry out in effect a fresh assessment but to consider the recommendation made, and to review such documents as seem relevant for that purpose.  I would not therefore have looked at the file in its entirety but would have focussed on the particular materials relevant to the recommendation.”
19.	It should be remembered that the Governor’s essential role was to review the recommendation made to him.  He had to take up to 50 categorisation decisions each week, on top of his other duties and responsibilities.  As explained above, Form RC1 should have alerted him to the relevant risk factor, among other material considerations, of the Claimant’s confiscation order but it failed fundamentally to do so.  Given, in particular, the purpose and significance of  RC1, it would be inefficient if the Governor were required to scrutinise every page of every document collated for the recategorisation review, and he cannot reasonably be expected to do so.  It is unfortunate that he did not pick up the references to the confiscation order, such as they were, but, in my view, the omission was understandable in all the circumstances.
20.	In any event, Governor Sutherland, relying on the flawed RC1, approved the recategorisation recommendation.  The decision to recategorise was communicated to the Claimant by letter dated 2 May 2014.  According to the evidence, what then happened was as follows.
21.	After 2 May 2012, Governor Sutherland was told by the Governing Governor of the existence of the confiscation order.  Governor Sutherland then asked the East Midlands Confiscation Unit for further particulars.  On 31 May 2012 Governor Sutherland, in the light of the further information, reviewed the recategorisation.  In his witness statement he explained how he took the decision:
“17.  …I took into account the size of the confiscation order, the fact that interest was increasing at a daily rate and the fact that the Claimant had no means of paying off his debt.  As is mentioned at paragraph 3.20 of PSI 16/2010, an offender with an outstanding confiscation order may abscond in order to access the hidden proceeds of his crime.  Furthermore, he may abscond in order to avoid the Regional Confiscation Unit, on his release from prison, taking action to obtain from him the outstanding debt which he owes, for example by deducting money from his benefits or wages or instructing bailiffs to seize his goods.  With these considerations in mind, I formed the view that the abscond risk was higher than I had previously thought.  I concluded that the decision of 2 May 2012, to change the Claimant to Category D, had been wrong, since it had been taken without consideration of the Claimant’s confiscation order, and had therefore underestimated his risk of abscond.  I now decided that the Claimant presented a significant risk of abscond, and made the decision that he should remain in closed conditions, which meant his security category reverting to Category C.
18.  I will add that the fact that the Confiscation Unit objected to the Claimant’s transfer was a factor that I took into consideration but it was not the only reason I decided that the Claimant was unsuitable for open conditions.  I formed a view on the basis of all the evidence before me, which included all of the material I have referred to at paragraph 8 above.  In particular, in reaching my decision on 31 May, I took into account various factors which weighed in the Claimant’s favour, as set out by the board in Part 2 of the RC1 form.  It is fair to say that the confiscation order against the Claimant and the objection of the Confiscation Unit were ultimately the critical factors in my decision; however, they were certainly not the only factors which I took into account.
19.  When I took my decision on 31 May 2012, I used the same RC1 form which had been used for the purposes of the decision on 2 May 2012.  I have exhibited a copy of the completed RC1 form as it stood after 31 May 2012.  I should point out that the RC1 that I had in my possession at the re-categorisation board on 2 May did not include the information under the heading Details of relevant information “outstanding confiscation order of £175K – not suitable”.  This information was added by the Administrator, Hazel Fawkes when the decision of 31 May was taken.  Additionally, the RC1 records “23 months left to serve” and this was on the RC1 when I made the decision of 2 May.  I was aware of length of the sentence and the release dates but not the composition of the sentence.   I did not and do not routinely look at the makeup of prison terms in making decisions on re-categorisations.  When I took the decision of 31 May 2012, I added the following text which appears in Part 5 of the form: “Confiscation order unit object to open conditions … 31/5/12 – confiscation unit object to open conditions due to £175K confiscation order.  Reverse decision to Cat D – now Cat C.”
The Grounds of Challenge
22.	Mr Jude Bunting, on behalf of the Claimant, put his grounds of challenge with his characteristic vigour and force.  His first submission was indeed a bold one.  In effect he invited the Court to reject the evidence of Governor Sutherland as to how he had taken the first recategorisation decision of 2 May 2012.  Contrary to what he later said in his witness statement, and viewing the matter objectively, the Court, it was urged, should conclude that as at the date of that decision, Governor Sutherland had all relevant information before him, including the relevant information about the confiscation order and the Claimant’s continuing default under that order.  In reality, it is contended that Governor Sutherland simply changed his mind about recategorisation when the East Midlands Confiscation Unit raised its objection.
23.	I reject that submission.  I of course accept that this Court should be alert to ex post facto explanations for decisions that might well not accord with the reasons (if any) which at the time motivated the challenged decision:  see the classic exposition of Stanley Burnton J, as he then was, in R(Nash) v Chelsea College of Art & Design [2001] EWHC Admin 538.  But in this case, as already explained, Governor Sutherland has given a cogent and convincing account of how he came to take the first recategorisation decision.  In short, form RC1 had failed to mention the confiscation order at all, and this was a fundamental failure.  Governor Sutherland had before him documents that made reference to the confiscation order.  But those references were far from prominent, and in the circumstances already explained Governor Sutherland understandably did not pick up on them.  I am satisfied on the evidence that he made the first recategorisation decision in complete ignorance of the confiscation order.  The recategorisation recommendation itself seems to have been made on the basis of the same unawareness of a significant risk factor (see paragraph 14 above), and it appears to me that there would be a strong case for concluding that the whole exercise leading to the first challenged decision was flawed.  That conclusion would not of course assist the Claimant because the original categorisation would on this footing have remained in place.  In any event, it is not necessary to go that far in rejecting the first ground to the effect that Governor Sutherland made the recategorisation decision in full knowledge of all material considerations, including any risk occasioned by the confiscation order.
24.	The second ground of challenge in essence comes to this.  Governor Sutherland did not at the end of May 2012 in reality carry out a full assessment on his own of all material factors:  he simply accepted the “objection” of the East Midlands Confiscation Unit, allowing that objection to dictate his decision, and giving no weight (or at least no significant weight) to the factors that supported recategorisation of the Claimant to open conditions.
25.	In support of this ground Mr Bunting submitted that the RC1 form did not suggest that this decision was put in any context at the time, despite the careful witness statement of Governor Sutherland, particularly balanced against the other factors previously noted.  There was no reference in the form containing the decisions in the present case that the positive aspects were even considered or reconsidered.  There was no fresh RC1 form on 31 May 2012.  Rather, there was an addition of a single line of reasons on an otherwise positive form.
26.	Mr Bunting also contends that there was no suggestion in any of the relevant evidence that the Claimant had posed any risk of absconding at any stage of his sentence.  There was no evidence at all of escape attempts.  There was no analysis at all of any raised risk of absconding in the 31 May 2012 decision, other than a reference to the East Midlands Confiscation Unit’s objection.  Whilst it is accepted in principle that the imposition of a confiscation order can raise a prisoner’s risk, in the Claimant’s case the confiscation order had been imposed some years previously and there was no evidence that it had caused any prison officer any concern.
27.	By 2 May 2012 the Claimant had completed all sentence-planning targets, displayed positive behaviour, and had been punished for the failure to pay his confiscation order by the imposition of a default sentence.
28.	However, on this aspect I again accept the evidence of Governor Sutherland (see paragraph 21 above) that he did take account of all relevant factors but, having weighed them, concluded that the risk of recategorisation in this case was not acceptable in the light of the confiscation order.  The evidence is consistent with the amended RC1 form.  The form itself makes reference to factors weighing in the Claimant’s favour.  The Governor could have expressly recited that he had taken into account all relevant factors, including the positive considerations identified in form RC1, and that, on a careful balancing of those factors, he believed that the risk occasioned by recategorisation was not acceptable, given the position under the confiscation order.  However, he was not obliged to recite the reasons for the decision in that elaborate manner, and there is much to be said in the present context in favour of the Governor stating the decision in terms that the prisoner will have no difficulty in understanding, namely, in this case, that the existence of the confiscation order in the final analysis was decisive against recategorisation.  The prisoner would then know with certainty exactly what he needed to address in order realistically to improve his prospects of recategorisation.
29.	In the present context Mr Bunting relied on Abel Oge-Dengbe v Secretary of State for Justice [2011] EWHC 266 (Admin).  However, in my view, the judgment in that case of HH Judge Kaye QC, sitting as a High Court Judge, discloses no new principle of law.  On the facts of that case the judge found that the decision maker had not considered any positive factors that were favourable to the prisoner.  It appears that the form RC1 in that case did not refer at all to any of the positive factors.  By contrast, the amended form RC1 did refer to such factors, and Governor Sutherland in his evidence, which, I repeat, I accept, stated unequivocally that he had regard to all factors, positive and negative, in arriving at this decision.
30.	Mr Bunting also attacked the further recategorisation decisions of 25 July 2012, 15 November 2012 and 28 March 2013 on a similar basis.  However, I am again satisfied on the evidence that the decision maker in each instance had regard to all material considerations, did not treat the existence of the confiscation order as an absolute bar to recategorisation but concluded, on balance, that the risk occasioned by the order made recategorisation unacceptable.  In fairness to Mr Bunting, his main point in respect of the later decisions was that they proceeded on a false basis, namely, an assumption that the subsequent 31 May 2012 recategorisation decision was lawful:  the later decision makers, he contended, should have proceeded on the basis that the initial 2 May 2012 recategorisation (to open conditions) remained validly in place, and should have asked whether a heightened security categorisation (to category C) was justified.  However, for the reasons already given, the decision of 31 May 2012 was lawful, the assumption was not false and the later decision makers proceeded on the correct legal basis.
31.	Furthermore, the later decisions leaving the Claimant in category C represented comprehensive and understandable assessments of the Claimant, concluding that transfer to open conditions, given the substantial unsatisfied compensation order, created an unacceptable risk of absconding.  Even if the earlier decision of 31 May 2012 had been invalid, on any of the reasons advanced by the Claimant, I would on this aspect have held that the initial decision of 2 May 2012 was itself so unsatisfactory (see paragraphs 14 and 23 above) that the later decision makers in July 2012, November 2012 and March 2013 were in any event justified in proceeding on the basis that the Claimant was, and always had been, a category C prisoner (in contrast to the position in Dsane v Secretary of State for Justice [2010] EWHC 514 (Admin), at paragraph 32).
32.	The final ground is that the recategorisation decision in respect of the Claimant is inconsistent with decisions taken in respect of the Claimant’s co-defendants.  This ground is hopeless.  It appears that in the case of John Smith and Westley Smith the recategorisation to category D was made in ignorance of the confiscation orders and simply raises questions about its appropriateness.  In any event categorisation decisions are individual risk assessments (see paragraph 3.2 of PS1 40/2011).  It does not help a Claimant to point to other prisoners, who might or might not be subject to certain similar characteristics, with a view to contending that the same security categorisation should apply to him.
33.	For these reasons, I dismiss this claim for judicial review.

ANNEX
1.	By section 12 of the Prison Act 1952, a prisoner may be lawfully confined to such prison as the Secretary of State directs.  Under section 47(1) of the 1952 Act, the Secretary of State may make rules for the classification of prisoners.
2.	Rule 7(1) of the Prison Rules 1999 states:
“(1) Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3.”
3.	The Defendant’s Prison Service instruction 40/2011, which is entitled “Categorisation and Recategorisation Of Adult Male Prisoners”, provides comprehensive policy and guidance on categorisation of adult male prisoners.  Insofar as it is material, it states the following.
“SECTION 1: PURPOSE OF CATEGORISATION
1.1      The purpose of categorisation is to assess the risks posed by a prisoner in terms of:
•	likelihood of escape or abscond 
•	the risk of harm to the public in the event of an escape or abscond 
•	any control issues that impact on the security and good order of the prison and the safety of those within it 
and then to assign to the prisoner the lowest security category consistent with managing those risks.  
…
SECTION 2: DEFINITION OF SECURITY CATEGORIES
2.1   Adult male prisoners may be held in one of four 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 present a low risk; can reasonably be trusted in open conditions and for whom open conditions are appropriate. 
 … 
SECTION 3: PRINCIPLES OF CATEGORISATION
…
3.3   The correct forms must be used
•	Categorisation assessments must be made using the appropriate categorisation forms: the ICA1 form for initial categorisation and the RC1 form for recategorisation. …
•	…
5.1   The purpose of the recategorisation process is to determine whether, and to what extent, there has been a clear change in the risks a prisoner presented at his last review and to ensure that he continues to be held in the most appropriate conditions of security…  
…
5.9  In addition to the prescribed timetable of reviews, prisoners may have their security category reviewed whenever there has been a significant change in their circumstances or behaviour which impacts on the level of security required. Changes might include those listed below, although other circumstances might also arise: 
•	…
•	a Confiscation Order is enforced 
•	…
•	new or additional information comes to light. For example, during completion or updating the OASys assessment which highlights additional risk factors
•	there is cause for concern that the current categorisation decision is unsound. (There must be corroborative evidence to support that concern)
•	…”
4.	Annex D to PS1 40/2011 gives guidance on completion of RC1 forms.  It states, at paragraph 1:
“New or outstanding charges, (including enforced Confiscation Orders) must be assessed for the likely impact on the prisoner’s escape/abscond risk… Establishments should seek more information from the enforcement authorities as to the level of risk.  PSI 16/2010 provides more information on confiscation orders.”
5.	At paragraph 6 and 9, under the subheading “Recategorisation to Category D”, it states:
“6.  Prisoners recategorised as suitable for Category D must be assessed as presenting a low risk of  abscond…
9.  The amount of any outstanding Confiscation Order must be taken into account.  Existence of a Confiscation Order does not in itself preclude a prisoner from categorisation to Category D and subsequent allocation to open conditions.  However, the impact on abscond risk of the amount of the Order; the prisoner’s willingness/ability to pay it; the additional time to be served in lieu of non-payment must be considered. Establishments should seek more information from the enforcement authorities as to the level of risk.  Prisoners at high risk of absconding for any reason should not be categorised to Category D.”
6.	PSI 16/2010 is further guidance issued on behalf of the Secretary of State, entitled “Confiscation Orders”.  Paragraph 3.20 states:
“The fact that a prisoner is subject to a confiscation order should not necessarily preclude a transfer to open conditions.  However, the following factors should be considered when assessing risk; particularly the risk of abscond.
•	Whether the offender is in default and the size of the outstanding confiscation order;
•	Whether the offender may have hidden his/her assets abroad and therefore may abscond to be able to access them or make it harder for the authorities to find them or access them by no longer being able to be questioned on their whereabouts or to sign powers of attorney over them.
It is important to contact the relevant enforcement agencies who may have information that will assist when making decisions in these circumstances.”