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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lowe, R (on the application of) v Governor HMP Liverpool [2008] EWHC 2167 (Admin) (28 August 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2167.html Cite as: [2008] EWHC 2167 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		28th August 2008

1. JUDGE KAY: The claimant seeks an order by these proceedings to quash a decision to recategorise him as a category B prisoner. There is a small dispute which may, or, as I think, may not be relevant as to the exact date on which that decision was made. The document incorporating that decision is to be found at B1 to B9 of the bundle of documents and it bears two dates. On its final page the date is 6th June 2008. Two names are mentioned on that page, Mr Jerry Spencer and Mr Alan Brown. Against both their names (although on the document before me there is no signature) the date is 6th June 2008. On the front sheet of the document, which seems to incorporate and summarise the reasons for the decision, the date is given as 9th June 2008. As I said, I do not think that that makes any great difference for the purposes of this judgement, but nevertheless I record that distinction.
2. The claimant alleges that the defendant has not followed the Secretary of State's policy set out in Prison Service Order 900, the decision is irrational and it is based upon either erroneous material or material that should not have been taken into account.
3. The background is as follows. The claimant, Mr Paul Lowe, was sentenced on 5th February 2001 for drug trafficking offences. According to the Court of Appeal, who considered his appeal against sentence and conviction, he was "a big fish" in the operation. That operation was the smuggling of substantial amounts of heroin into this country from abroad and its distribution here. The amounts of heroin were said to be in the order of 100 kilogrammes. Mr Lowe was sentenced to a prison term of 24 years and his appeal against that sentence was dismissed. Mr Lowe has no convictions for any violent or sexual offences and up until that point had a minor criminal record. As I understand it, this sentence led to his first incarceration.
4. As was to be expected, given the length of that sentence and the serious nature of the offending, Mr Lowe was initially categorised as a category A prisoner. Shortly I will come on to the Prison Order which explains those categories. He was then recategorised to category B at some point in 2004, although on the papers before me it is not clear whether that was May or November 2004. It is not in dispute that whilst in prison Mr Lowe has a good record and is a trusted prisoner on enhanced status. He has completed offending behaviour work, and, as I understand it, completed all such work that has been offered to him. What is known as an OASys assessment was conducted on him in April 2008 and he was found to have a low risk of reconviction.
5. On 3rd July 2006 Mr Lowe was recategorised to category C on his annual review. At that stage he was incarcerated in a category B prison. He remained in that prison. It was said that he did so in order to complete further offending behaviour work. It seems to be common ground that he did not complete any such further work, but he did undertake a number of vocational courses. Nevertheless, despite being a category C prisoner, he remained for some considerable period of time in a category B establishment.
6. His next annual review was in July 2007 and he remained a category C prisoner. On 13th November 2007 he was relocated to Risley prison which is a category C closed prison. It was at that stage that his categorisation and his location matched. On 14th December 2007, on what was described as a reassessment of allocation, Mr Lowe was upgraded back to a category B prisoner. This was not an annual review of his categorisation but seems to have been prompted by apparent concern over the allocation of the particular prison establishment. I need not go into that re-categorisation and its terms because it was subsequently quashed by consent.
7. As a result of that recategorisation, Mr Lowe was relocated to Liverpool prison as a category B prisoner. On 15th January 2008 Liverpool prison reviewed him again and assessed him as a category B prisoner. Mr Lowe caused judicial review proceedings to be issued in relation to the Risley and Liverpool prison decisions.
8. In the meantime, on 22nd February 2008, Mr Lowe came back before the court in relation to a confiscation order that had been made in Proceeds of Crime Act Proceedings. The figure for his benefit as found in those proceedings is not before me, although one might suppose that it would be a large figure given the he nature of the drug trafficking involved. In any event, the confiscation order was in a much smaller amount.
9. The original confiscation order which reflects the assets identified as owned by Mr Lowe by the relevant investigating authority was £62,165. Mr Lowe had paid some £35,000-odd of that order. With interest which had accrued on the original order, there remained £47,000-odd outstanding in February 2008 which was unpaid. As a result there was added to Mr Lowe's sentence 416 days' imprisonment, or just under 14 months.
10. On 2nd May 2008 a consent order was made in this court quashing the decisions of the defendant and of the governor at Risley of December 2007 and January 2008 re-categorising Mr Lowe as a category B prisoner. The second defendant to those proceedings, which is the defendant in these proceedings, gave an undertaking to the court to reconsider the claimant's security categorisation on or before 27th May 2008 and to notify his solicitors in writing of the outcome and the reasons by 3rd June. In the meantime the claimant was to remain at Liverpool prison whilst that decision was taken. I note that no decision was in fact notified by 3rd June it was notified a few days later than that but no point is taken in relation to that.
11. It was therefore on 9th June that the decision was made to which I have already referred, and to which I will return later in this judgment, that Mr Lowe was recategorised as a category B prisoner and he was then transferred to HM Prison Garth on that basis. On 9th July 2008 this further application for judicial review was issued. On 17th July the defendant lodged its acknowledgment of service. It indicated that it did not contest the grant of permission to apply and as a result permission was granted on 22nd July 2008.
12. Before I go on to the substance of the matter I should deal with one other point by way of background. As a result of section 26 of the Criminal Justice and Immigration Act 2008, which came into effect on 9th June 2008, the sentence which Mr Lowe has to serve has been significantly altered. Prior to that Act Mr Lowe, who was a long-term prisoner under the previous statutory regime, was not entitled to be released until he had served two thirds of his sentence, although he could be released earlier if the Parole Board saw fit.
13. The 2008 Act was passed to bring into line the position of those prisoners who were still serving their sentences under the old regime and prisoners who have been sentenced under the new sentencing regime. The result is that as from 9th June 2008 both are treated the same. Mr Lowe is, therefore, entitled to be released on licence after serving half his sentence. Taking into account the additional sentence imposed for non-payment of the Confiscation Order, the effect is that Mr Lowe's release date is on or about 22nd September 2012. Previously, under the old regime and in the absence of the 2008 Act, his release date would have been in or about November 2016.
14. I turn then to the law that applies in this case. Under paragraph 7 of a statutory instrument entitled Prison Rules 1999 prisoners are to be classified in accordance with any directions of the Secretary of State having regard to various matters which are there set out. A policy document has been issued by the Secretary of State; it is Prison Service Order Number 0900. There is no dispute that it applies to this case. That policy deals with categorisation of prisoners and separately their allocation to prison establishments.
15. The purpose of the policy is described at paragraphs 3 and 4 of the introduction. It states that assigning prisoners to the correct prisoner category:

"... helps to ensure that they do not escape or abscond or threaten the control of establishments. It also means that prisoners are not held in conditions of security higher than necessary.

... The correct categorisation ... balancing security issues and the needs of the prisoner, helps prisoners to use their sentences constructively, to tackle their offending behaviour and to prepare for release."

It seems therefore that matters need to be looked at from both sides; both from the view of the State in ensuring that prisoners do not escape and do not disrupt a prison establishment, but also from the view point of the prisoner who wants to use his time in prison constructively and to prepare for his or her release.

16. The policy then goes on to deal in more detail with categorisation. A category B prisoner is defined as one for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult. A category C prisoner is defined as one who cannot be trusted in open conditions, but who does not have the resources and will to make a determined escape attempt. Under the heading "The Principles of Categorisation" the policy provides that:

"Prisoners must be categorised objectively according to the likelihood that they will seek to escape and the risk that they would pose should they do so."

It also provides that every prisoner must be placed in the lowest security category necessary for the needs of security and control.

17. Chapter 2 deals with the recategorisation of adult male prisoners. It begins with what are described as key points. They include the following:

"With the passage of time or changes in circumstances, prisoners may become more or less of a risk to the public and/or more or less likely to escape. Regular reviews of prisoners' security categorisation help ensure that prisoners are held in conditions of security commensurate with the risk they pose.

All prisoners, other than those serving less than 12 months, must have their security category reviewed at regular intervals, or whenever there is a significant change in their circumstances (eg attempted escape, reduction of sentence on appeal, removal of a deportation order, et cetera)."

Prisoners serving more than a four year term must be considered annually.

18. Under a paragraph headed "The Principles of Recategorisation" it provides that:

"The aim of the recategorisation is to use this information to establish whether there has been any clear change in the risk the prisoner poses. More specifically, staff must answer two important questions: (1), is the prisoner more or less of a risk to the public than when he was first categorised; and (2), is he now more or less likely to escape or abscond."

19. At paragraph 2.5 the policy deals with what is described as "Non-Routine Recategorisation Reviews". It provides that:

"Some prisoners may need to have their security category reviewed outside the normal review cycle, and often at short notice, because of a sudden change in their circumstances."

20. It also states that it must be ensured that any recategorisations are based on genuine risk or allocation issues. The RC1, which is the form that must be completed on a recategorisation review, must clearly state how the prisoner's circumstances have changed. It says:

"In all cases the form RC1 must be used to record in full detail how the prisoner's circumstances have changed since his last review and why his current security category and allocation are no longer appropriate."

21. The first point that arises on this hearing is the question of consistency. It is the claimant's submission that the principle of consistency, particularly in the context of good administration of prison establishments, applies here. It is said on the claimant's behalf that there is here a policy issued by the Secretary of State so as to promote good administration and therefore consistency. It emphasises, as I accept from the passages I have read out, that the focus in the policy is upon changes in circumstances in the context of recategorisation. It is submitted that there should only be a change in the category of a prisoner if there is such a change in circumstances. Mr Weatherby says that otherwise, if governors of prisons were free to recategorise at will based upon their own judgments rather than the judgment of a previous governor, there could be a situation where administration would break down. The particular example he gave is where there is a professional and honest difference of view between two prison governors as to how long a prisoner should remain in a category B establishment before he could be recategorised as a category C prisoner. The governor of the category B establishment might take the view that, for instance, one year in such an establishment was enough to allow re-categorisation and transfer or re-allocate the prisoner to a category C establishment. The governor of the category C establishment to which the prisoner is removed might have a different view as to how long a prisoner should remain in a category B establishment before being recategorised downwards. On that basis the governor of the second establishment could recategorise a prisoner back to category B and send him back to where he came from. That is the sort of problem that can arise if, as Mr Weatherby submits, recategorisations can occur simply where there is a difference of professional judgment.
22. He goes further to say that there has been no significant or adverse change in the circumstances of Mr Lowe since 2006 when he was categorised as a category C prisoner. The only change that there has been which is adverse to Mr Lowe is that in February 2008 a term of 416 days was added to his sentence. In practical terms that means he has to serve roughly a further six and a half months, thus making his release date September 2012 rather than in about March 2012.
23. Set against that he refers to the passage of time there has been since 2006 to 2008 for all but one month of which Mr Lowe has been in a category B establishment. He points out the change effected by the Criminal Justice and Immigration Act 2008 which has significantly reduced the term of imprisonment that Mr Lowe has to serve. He refers to the fact that Mr Lowe has served eight years in custody with a further four years to serve. He also points out that the risk assessment OASys form has now been completed which had previously been said to be an important omission when considering the category into which Mr Lowe should be placed.
24. Mr Sachdeva on behalf of the defendant not surprisingly takes a different tack. He points out, firstly, that the policy does not specify what should happen if an earlier categorisation decision is wrong. There might, he says, have been an error in the previous decision and therefore there must be a mechanism whereby decisions can be revisited and corrected. He goes on to say that it was the honest and professional view of Mr Spencer who made the decision in this case in June 2008 that the previous decision of governor Baulf in 2006 was an error. He says that the decision maker in 2008 was entitled to take the view that the previous decision was wrong. He went further and said that if a governor has a rational basis for thinking that a previous decision was wrong, then it was his duty to recategorise a prisoner either upwards or downwards.
25. In support of his submissions he referred me to three cases. The first was the case of R (O'Brien and Others) v Independent Assessor [2007] UKHL 10. That case arose out of the notorious Carl Bridgewater murder and the subsequent applications of those who had been convicted, as it turned out wrongly, for compensation for their imprisonment. The particular issue in the case concerned deductions from their award relating to non-pecuniary loss. It was submitted on their behalf that the deductions were too high in view of the fact that a different independent assessor had come to a much lower deduction for non-pecuniary loss in respect of a different defendant in that case. It was held that while it is generally desirable that decision makers should act in a broadly consistent manner, the assessor's task was to assess fair compensation for each of the applicants and he was not entitled to award more or less than in his considered judgment they deserved. It was held that he was neither bound nor, indeed, entitled to follow a previous decision which he considered erroneous and which would yield what he adjudged to be an excessive award.
26. I should say that it seems to me that that case involves a different scenario. That case did not involve successive awards in relation to the same person, one award displacing another. That was not a decision in a context of what I might describe as continuous assessment, which is the position which Mr Lowe is in. The claimants in the O'Brien case were seeking one-off payments of compensation. Mr Lowe is in a position where he is subject throughout his incarceration to categorisation at a particular level. It is also not a case in which there was any policy issued by the government or a public body as to how to apply any particular set of rules.
27. I was also referred by Mr Sachdeva to two planning cases. One is R on the application of Spencer Chisnell and Linda Chisnell v London Borough of Richmond upon Thames [2005] EWHC 134 (Admin). It is a decision of Newman J. It relates to a judicial review in connection with a planning decision to grant planning permission to the interested party in that case. There had been two previous applications for planning permission made by that interested party. On each occasion permission had been refused.
28. In giving judgment Newman J stated at paragraph 19:

"... in the planning process the previous history in connection with the site, including decisions in connection with the site, are material considerations, but anybody having any power to reach a decision in connection with the site at a subsequent date has a discretion. The discretion must be exercised in accordance with their own judgment. The requirement for consistency does not mean that they must be slaves to the previous decision and are in any sense bound by it, or must therefore come to the same conclusion. Their judgment and discretion is informed but not fettered by the history."

He went on to say that because of the importance to be attached to consistency, decision makers should not depart from a previous decision without realising the importance to be attached to it and, when departure occurs, reasons for departure must be given. The judge examined those reasons, found them to be unsatisfactory and quashed the decision.

29. The final authority I was referred to was R v Aylesbury Vale District Council and Harold Price ex parte Chaplin. The judgment of the Court of Appeal was on 31st July 1997. It was an appeal against a decision of Keene J refusing an application to quash a planning permission granted by the council. What appears to have happened is that permission was refused on a planning application contrary to the report of the planning officer. An appeal was launched against that refusal and a public local enquiry was called. In the meantime, the planning department of the council submitted a further report to the planning committee. The committee thought about the matter again, certain individuals on their committee changed their minds and planning permission was granted.
30. At page 6 of the judgment Pill LJ referred to the arguments put before him. He cited Mr Singh, who was counsel for the appellants, as follows:

"Mr Singh relies upon the need for consistency in administrative decisions. He submits that it is unlawful to make apparently inconsistent decisions without giving a good explanation. Mr Singh describes the second decision as irrational but, upon analysis, this was another way of submitting that reasons for the grant ought to have been given He accepts that opposing views could reasonably be held on the central planning issue. It is the attack upon the absence of reasons for the grant which is the essential basis of Mr Singh's submissions."

Then the court went on to consider submissions about the absence of reasons.

31. It seems to me that the real point in that case was about the absence of any reason given by a planning committee for their change of view. That change of view seems to have been to head off an appeal that had already been issued. So, again, the circumstances seem to me to be somewhat different from the position of this case.
32. Mr Weatherby in support of his submission in response referred to certain cases. He referred me to the case of Findlay [1985] 1 AC 318 at to 338C to G. At just past E on page 338 the following was stated by the House of Lords:

"Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute."

Again, the facts of this case are somewhat different, but the point that Mr Weatherby draws out is that there is an expectation that if a policy has been issued by the Secretary of State that a person's rights will be governed and dealt with in the light of that policy.

33. He also referred me to R v Secretary of State for the Home Department ex parte Urmaza decided by Sedley J on 11th July 1996. There is reference in the case to the legal principle of consistency in the exercise of public law powers. At page 10 Sedley J said:

"... I would venture to formulate the modern approach to a departmental policy document, whether published or not, in this way:

(a) The legal principle of consistency in the exercise of public law powers ... creates a presumption that in the ordinary way the Secretary of State, through his officials, will follow his own policy. This presumption corresponds with the practical purpose of such an internal policy, which is precisely to secure consistency of approach -- in this case among officers administering paragraphs 364 and 365 of the Immigration Rules (HC 395). If there is to be departure from the policy, there must be good reason for it ... I would add that the impact of such a departure in a case otherwise within this particular policy is almost certainly such as to demand that reasons be given."

34. There is a similar reference to these points, which I need not repeat, in the final case of R v Governor HM Prison Latchmere House and the Parole Board ex parte Jarvis decided by Sullivan J on 20th July 1999, [1999] EWHC Admin 712, at pages 6 to 7 of his judgment.
35. The point that I raised in argument was as to how the following situation is to be dealt with. Suppose there is within the prison service a honestly held difference of view between governors of prisons as to how long a prisoner should remain in a category B establishment before being considered for recategorisation downwards to category C? If Mr Sachdeva's submission is correct, then if a prisoner is transferred to a prison where a governor holds a different view about the length of time which should be served in a category B prison, a prisoner is liable to find himself, and indeed would find himself, recategorised by the new governor. That is because the submission to me was that a governor would have a duty to recategorise if he had a rational basis for thinking that the previous decision of recategorisation was wrong. It could not be said to be irrational if there were a range of perfectly respectable views on such a matter.
36. It seems to me that that cannot be the position. If it were, there would potentially be chaos within the prison system with prisoners being transferred backwards and forwards depending upon the particular view of a governor as to this factor. So what is the principle? It seems to me that, following on from the cases that have been referred to me by Mr Weatherby, there is here a principle of consistency and legitimate expectation. A policy has been produced which does emphasise that recategorisations should in all normal circumstances, or indeed in abnormal circumstances, occur when there is significant change in the circumstances of a prisoner. It does not provide, nor would one expect it to provide, that there would be a recategorisation based upon different professional judgments of different governors in different establishments. There is an expectation of prisoners that they will be reviewed annually, or less than annually, if there is a significant change in their circumstances. There is an expectation that they will be dealt with consistently and not dependent upon the differing views of different governors.
37. There is, of course, Mr Sachdeva's point: how is an error in a previous decision to be dealt with? It seems to me that recategorisation can take place if there has been a change in circumstances or there is some other substantial reason for a recategorisation. One obvious circumstance would be a plain and simple error by a previous governor. That error could be pointed out and could be explained in reasons for the recategorisation. But it does not seem to me to be right that a substantial reason could simply be a differing view of a governor within a range of reasonable views as to how long a prisoner should stay in a particular category of establishment before his category can be reconsidered.
38. That seems to me the position in the absence of any guidance in the policy or otherwise as to how long a prisoner should stay at a particular establishment before recategorisation. Neither side has put before me any such guidance. I am not going to try to identify what other substantial reasons there might be for a re-categorisation other than error. That may depend on a case by case assessment. But that seems to me the position.
39. Having gone into that point in some detail, the essence of the matter still relates to the reasons given by the decision maker on either 6th or 9th June for recategorising Mr Lowe from a C to a B category.
40. I should say straight away that it does seem to me that the reasoning is flawed. It is in some parts perverse and irrational. It also contains incorrect material. The reasons summarised at page B1 are as follows. I will deal with each in turn. Firstly:

"The original decision to recategorise you from B to C by HMP Lowdham Grange was flawed and you have not spent sufficient time as a category B prisoner given your length of sentence in line with PSO 0900."

41. The first point is that there is no guidance in line with PSO 0900 as to how long a category B prisoner should spend in a category B establishment set in the context of any particular sentence before he could be recategorised.
42. Mr Sachdeva said one should not read it as literally as that, in other words "in line with PSO 0900". One should treat it more broadly as the decision maker considering the risk to the public. That is one possible interpretation but it is certainly an unfortunate use of language.
43. The decision maker goes on at page B6 paragraph 4 to discuss why he has reached this view. He begins by saying that Mr Lowe was downgraded from category A to B in January 2005. I stop there to say that that seems to be incorrect on the basis of the material before me. Page B10 suggests that the recategorisation was May 2004. Page B11 suggests that it was 17th November 2004. No other document suggests it was January 2005, so he seems at the very first point perhaps to have made an error in that assessment of how long it was before Mr Lowe was re-categorised from category A to category B.
44. The essence of his concern seems to be that when the decision was made in 2006 Mr Lowe had not spent sufficient time in a category B establishment. As I say, that was not the view of the governor of Lowdham Grange who recategorised Mr Lowe in July 2006. There is no policy, as I have said, setting out how long a person should stay in such an establishment, and there is no explanation as to why, even if that view is maintainable, it remains so when, as we know, Mr Lowe continued to be incarcerated in a category B establishment for very much longer after July 2006. This appears to be the Defendant second guessing the decision made in 2006 without necessarily all the same material being in front of him.
45. The reasons also suggest some sort of conspiracy theory on the part of the decision maker. He says that there is evidence to suggest that the recategorisation occurred because of the pressure of a threat of judicial review. That is the only suggestion to that effect in the papers. Let me assume for a moment that there was a threat of judicial review in 2006. It seems to me to be absurd and perverse to think (without more evidence) that the decision of a governor of another prison was flawed because he gave in, presumably wrongly, to the threat of judicial review proceedings. The starting point is that it was a decision of a governor based upon his professional honest judgment at the time. It would be quite wrong for a governor to recategorise because of a threat of judicial review and it seems to be quite wrong for the decision maker here to have come to that conclusion about the previous governor without some further evidence.
46. He also seems to attribute at (iv) on page B7 some sort of wrongful intent on the part Mr Lowe as to why he stayed at Lowdham Grange, a category B establishment, following his re-categorisation as category C prisoner. He seems to attribute bad faith to Mr Lowe because, having obtained a recategorisation downwards on the basis that he was going to stay at Lowdham Grange and complete offending behaviour work, he did not complete the offending behaviour work. The fact remains that, having been categorised downwards to a category C prisoner, Mr Lowe, voluntarily on the face of it, stayed in a category B establishment. If anything, that shows that Mr Lowe was not anxious to ensure he was moved to an establishment of a lower security level so as to effect an escape, which is what this categorisation is essentially concerned with. Rather than move to a category C establishment, where escape would be easier, having obtained the category C categorisation, he remained in the category B establishment of his own volition. So rather than suggesting some nefarious intent on the part of Mr Lowe, it seems to me it suggests something quite different, and, the view taken by the Defendant there seems to be irrational.
47. The second ground that is given in the summary of the reasons for the decision is that Mr Lowe had a Confiscation Order imposed on 22nd February 2008 which increased the sentence by one year, one month and 23 days.
48. Leaving aside that that is not factually correct in relation to the date of the Confiscation Order, the fact remains that it was on 22nd February 2008 that Mr Lowe's sentence was increased by something under 14 months. I am quite satisfied that that is a factor which could be taken into account by the decision maker. It is not for me to place myself in his position. I would not have taken the view that the increase in sentence of six months would give rise to an increased risk of escape, which seems to be the view taken by the decision maker here, but I can't say that that view to take that into account is so wrong that it amounts to perversity and so I move on.
49. Point 3 is this. The decision maker states that Mr Lowe does not fit the category C criteria because he is not a person who does not have the resources and will to make a determined escape attempt. The reasons given are "this is due to the non-payment of the Confiscation Order (resources)", which I take to be a reference to having the resources to effect an escape, and "your persistent efforts by litigation to change your category" which I take to be exemplifying a will to make a determined escape attempt."
50. It does seem to me that that line of reasoning is so incorrect that it is perverse. It is, of course, correct that not all of the Confiscation Order was paid. The line of reasoning, one assumes, is that Mr Lowe did not pay some £40,000-odd including interest of his Confiscation Order when he had the money and was keeping it back so as to effect an escape; it must be said an escape that had not shown any sign of happening over the previous seven to eight years of incarceration. In so doing, of course, he is attracting a further sentence of approaching seven months of time served. The leap in reasoning seems to me to be enormous.
51. Much worse is the second part of that reasoning. The decision maker seems to think that exercising a right to challenge categorisation evinces a will to make a determined escape attempt. That is set against a background in which Mr Lowe's efforts to have himself recategorised downwards have consistently been successful. If it was the case that he was threatening judicial review proceedings in 2006, it seems to me the only reasonable inference is that the governor at that stage accepted the argument that category C was the proper category for Mr Lowe. As regards his challenges to the decisions in December 2007 and January 2008, he was successful in those because those decisions were quashed by consent. It would be almost Kafkaesque to say that by successfully exercising a right to challenge your categorisation from category C to category B, you thereby increase the risk that you will escape and therefore you should be re-categorised back up from category C to category B.
52. Point 4 taken is that Mr Lowe manipulates staff and attempts to access secure data that could potentially influence escape attempts. Again no evidence has been put before me as to what that refers to and there is no further explanation of what that is about in the reasons. If there is such evidence then I know nothing of it and it should have been set out in some greater detail in the reasons.
53. As far as either Counsel has been able to guess what that refers to, they seem to agree that it might have something to do with a request made by Mr Lowe to find out on the prison's internal computer system what his categorisation was. Of course this was a categorisation which he and everyone else knew. There is no indication as how that is a manipulation of staff which could potentially influence escape attempts. Again I suggested in argument that that appeared to me to be nonsense and I do not resile from that. I cannot see rationally how asking staff to look at the internal categorisation of Mr Lowe could potentially influence escape attempts.
54. Finally, the fifth point is length of time left to serve. At paragraph 7 of the reasoning on page B8 the decision maker refers to how long Mr Lowe has to serve. The dates he sets out are those that applied under the 1991 sentencing provisions, when entitlement to release was only after serving two thirds of a sentence. The decision maker therefore says that Mr Lowe has a substantial part of his sentence left to serve, namely eight and a half years. That page is dated 6th June 2008. Technically speaking, on 6th June 2008, that was correct. On 9th June 2008 that was incorrect because on that date the 2008 Act to which I have referred came into force. As at 9th June 2008 Mr Lowe only had four and a quarter years to serve, i.e half of the time indicated at paragraph 7.
55. Mr Sachdeva sought to persuade me that that could not be criticised because as at 6th June that was the correct position in law. However, I cannot for a moment believe that the governor of a significant prison such as Liverpool would not have been well aware on 6th June 2008 that the law was to change in three days' time. In any event, given the date when the decision was promulgated, on the face of it 9th June 2008, it was incorrect when it was promulgated. That seems to me to be a very significant error. Much of the argument for recategorising Mr Lowe to category B reflects the length of time he has to serve before he is to be released. One can see the sense in that. The longer a prisoner has to serve the more likely it is that a prisoner might be tempted to escape. This very substantial reduction in the time he had to serve obviously leads to the opposite view and it seems to me that that alone undermines the reasoning in this decision.
56. For all those reasons, in my judgment, this decision was flawed in a number of serious respects. I will now hear submissions about what relief I should give.
57. MR WEATHERBY: My Lord, should I go first?
58. JUDGE KAY: You want me to quash the decision.
59. MR WEATHERBY: Yes, I simply say that the decision should be quashed.
60. MR SACHDEVA: We don't oppose the quashing.
61. JUDGE KAY: So the decision --
62. MR SACHDEVA: In the light of your judgment rather than prior to your judgment.
63. JUDGE KAY: I understand. Well, the decision of the -- whether the 6th or 9th, I am not sure -- the decision made to recategorise Mr Lowe from a category C prisoner to a category B prisoner of June 2008 is therefore quashed.
64. MR SACHDEVA: My Lord, there is one other matter. I am instructed to ask for permission to appeal your judgment, in particular on the consistency aspect of it. I would not like to suggest that your judgment was arguably wrong, but it is sufficiently arguable that I can make that submission in particular because of the O'Brien case and in particular the very great general importance of the principle. For those two reasons I ask for permission to appeal to the Court of Appeal, notwithstanding that we will not necessarily challenge the quashing of the decision itself because you have given other reasons why it should be quashed that do not go to the consistency point.
65. JUDGE KAY: I think you will have to ask the Court of Appeal for that permission. I refuse permission. You can go to the Court of Appeal if you think it right.
66. MR WEATHERBY: My Lord, can I seek, first of all, costs, and, secondly, if necessary, a detailed assessment.
67. MR SACHDEVA: Neither are opposed, my Lord.
68. JUDGE KAY: Right. So costs to be paid by the defendant to the claimant on a detailed assessment or will you ask me to summarily assess?
69. MR WEATHERBY: A detailed assessment, please.
70. MR SACHDEVA: It is detailed assessment of publicly funded costs.
71. MR WEATHERBY: If not agreed.
72. JUDGE KAY: Detailed assessment of publicly funded costs to be paid by the defendant if not otherwise agreed.
73. MR SACHDEVA: To be assessed if not otherwise agreed.
74. JUDGE KAY: To be assessed, yes.
75. MR SACHDEVA: My Lord, there is one question on which we would welcome your clarification. A challenge has been made, and I think I understand your Lordship's judgment but it would help us to understand straight from the horse's mouth, if it can be said in that way. I am not sure that it can without being in contempt of court. I wasn't in any way calling your Lordship a horse. The point is that the claimant has said that the only right to reconsider arises on a change of circumstances and you can't reconsider in any other circumstances other than that. That was the contention put by the claimant.
76. As I read your Lordship's judgment, you have accepted that change of circumstances is a reason to recategorise, but also in the case of error in -- where there is I think a very plain error. A plain and simple error you said that it can be reconsidered. So, strictly speaking, we do have the power to reconsider the category now within the terms of that judgment I presume. There is no ruling by your Lordship, as I understand it, that the only circumstances in which one can reconsider a categorisation decision on a non-regime basis is a change of circumstances.
77. JUDGE KAY: What I recall saying, and it certainly is in my mind is this, that there can be a consideration of recategorisation where there is a change of circumstances, as set out in the policy, or some other substantial reason.
78. MR SACHDEVA: Indeed, you did say that.
79. JUDGE KAY: And that can include error.
80. MR SACHDEVA: But there might be a further reason.
81. JUDGE KAY: I wasn't prepared to say -- to give an exhaustive list of what other substantial reasons might be. It would be on a case by case basis. Error is obviously one of them that comes to mind. What I expressly said was not correct was just simply that there is a difference of view between governors, a honest difference of view as to how long a person should stay in a particular establishment.
82. MR SACHDEVA: And the effect of the undertaking to reconsider is, strictly speaking, if you quash this decision, as you have done, the undertaking technically to reconsider by a particular date still exists. That is what my solicitor is wishing to clarify.
83. JUDGE KAY: No, I don't think so. The undertaking was given to the court to reconsider and you have reconsidered.
84. MR SACHDEVA: Indeed, and notwithstanding that has been quashed. I suppose it would depend whether it is quashed ab initio, or -- the short question is whether we have an obligation --
85. JUDGE KAY: The short answer is that that undertaking is discharged. That is the short answer to it.
86. MR SACHDEVA: I am grateful.
87. JUDGE KAY: It has probably been --
88. MR SACHDEVA: Subsumed in the judgment.
89. JUDGE KAY: You have probably complied with your undertaking because you have reconsidered and issued a decision on it. The fact that it is later quashed because it is wrong does not mean that you have failed to comply with your undertaking.
90. MR SACHDEVA: Indeed. I am most grateful.
91. JUDGE KAY: I suppose I should add, if it was not clear from the judgment, which has been delivered, as I say, ex tempore, without any delay in this case, is that there was no change of circumstances or other substantial reason in this case to recategorise. I would hope it was obvious from the judgment that that was the case. But since there can be a recategorisation if there is a change of circumstances in accordance with the policy or some other substantial reason, I find that there was no change of circumstances or other substantial reason.
92. MR SACHDEVA: My Lord, one final point that I need to trouble you with. The way I read your judgment, what you said after judgment, is that you are not expecting us to reconsider this decision for any reason.
93. JUDGE KAY: No. Absolutely not.
94. MR SACHDEVA: That was the point. We need to write that down.
95. JUDGE KAY: There is no expectation that you are going to reconsider. The fact of the matter is that since all decisions that he is a category B prisoner are now quashed, he is a category C prisoner presumably.
96. MR SACHDEVA: My Lord, yes. Thank you very much, my Lord.
97. JUDGE KAY: Nothing you want to clarify, Mr Weatherby?
98. MR WEATHERBY: No, thank you very much.