Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 109
P558/10	OPINION OF LORD TYRE in the petition MICHAEL ABSALOM (A.P). Petitioner; for Judicial Review of a decision of the Governor of HM Prison Kilmarnock dated 27 January 2010. ­­­­­­­­­­­­­­­­­________________

Petitioner: Bovey QC, Caskie; Drummond Miller LLP

First Respondent (Governor of HM Prison Kilmarnock): Lindsay; DLA Piper

Second Respondent (Scottish Ministers): Barne; Scottish Government Legal Directorate

10 August 2010

Introduction

[1] The petitioner is a citizen of South Africa. He arrived in the United Kingdom in about 1995 with leave to enter as a visitor. While in the United Kingdom he married a British citizen and was granted indefinite leave to remain in the United Kingdom. On 19 February 2008 he pled guilty in the High Court to two charges of armed robbery and on 25 March 2008 he was sentenced to eight and a half years' imprisonment. He is currently serving that sentence in HM Prison Kilmarnock. He is a "foreign national prisoner" for the purposes of immigration law.

[2] A prisoner may be transferred to the Open Prison Estate within two years before his parole qualifying date. The petitioner's parole qualifying date is 2 December 2011. An essential requirement for transfer is a recommendation by the Governor of the prison at which the prisoner is held that transfer is appropriate. The petitioner applied for progression to the Open Estate. His request was considered by the Progression Risk Management Group ("PRMG") (who take the decision on whether or not to recommend transfer on behalf of the Governor, and whose decision is regarded as that of the Governor) on 27 January 2010 and on 28 January 2010 the petitioner was informed that the PRMG had agreed not to recommend him for progression at that time. In this application for judicial review the petitioner seeks reduction of that decision and the matter came before me for a first hearing.

Factual background to the decision

[3] The petitioner's recent and current personal circumstances are narrated in the petition as follows. Although not all of the averments are a matter of formal admission by the respondents, I did not understand there to be any material dispute about them. The petitioner's marriage broke down after about four years and he then formed a relationship with another British citizen, Ms Iona Wright. Ms Wright had a child from a previous relationship who was born on 6 January 2002 and who is regarded by the petitioner as if she were his own daughter. The petitioner and Ms Wright also have a child who was born on 18 September 2004. Following the petitioner's imprisonment, his relationship with Ms Wright broke down. Since then, Ms Wright has concluded that it is not in the children's interests to visit the petitioner in prison. He does, however, maintain regular contact with them by telephone and Ms Wright is supportive of the petitioner continuing to play an important role in the children's lives.

[4] Mr Absalom's record while in prison has been good. For the purposes of Part 3 of the Prison and Young Offenders Institutions (Scotland) Rules 2006, he has been assigned low supervision level. He has had no misconduct reports and is employed as a passman in the prison kitchens. He has had no positive drug tests. He has attended and completed offending behaviour programmes including Alcohol Awareness and Constructs (which I understand to be a programme in which participants explore the circumstances of their offending and identify ways of reducing the likelihood of their re-offending).

Progression of a Foreign National Prisoner to the Open Estate

[5] Prisoners who fulfil certain standard criteria may apply for transfer to the Open Estate. Opportunities available in the Open Estate include community work placements and home leave. An information leaflet for prisoners published by the Scottish Prison Service lists the criteria that must be fulfilled before an application for transfer will be considered. So far as the petitioner is concerned these are that he is:

·          Low Supervision;

·          free from outstanding police charges;

·          free from misconduct reports resulting in an award greater than a caution in the last three months;

·          free to remain in the United Kingdom on release;

·          not appealing his conviction or sentence;

·          able to demonstrate that he has no identified high risks or needs that cannot be managed in the Open Estate;

·          able to demonstrate that he has not taken drugs within the last three months;

·          within two years of his parole qualifying date.

The petitioner met or was expected to meet all of these criteria except the fourth, which I discuss in detail below.

[6] Written guidance on the position of Foreign National Prisoners in Scottish Prisons has been issued to Governors by the Scottish Prison Service. The current edition of the guidance is Action Note 58A/09 dated 24 November 2009 (to which I shall refer as "the Guidance"), section 6 of which states as follows:

"Foreign national prisoners serving a sentence of imprisonment can in certain circumstances progress to the OE [i.e. Open Estate] or apply for release on licence.

The final decision to grant progression or to grant the prisoner a licence is at the Governor's discretion. However, United Kingdom Border Agency's (UKBA) comments must be sought, recorded and taken into account in the risk assessment undertaken prior to making a final decision.

Each case must be considered on its merits; however, the need to protect the public is paramount. Therefore, when assessing the suitability of a prisoner who has been referred to UKBA, the presumption that deportation will take place will be a significant factor for Governors in determining the risk of failure to comply with the licence. Where the nationality of the prisoner remains unclear, this will be an additional factor in determining the risk of absconding or failure to comply with the licence conditions.

When considering Irish prisoners for release on licence or for open conditions, unless there is a court recommendation for deportation in place which has not been assessed by UKBA, Governors should assess risk without any presumption that deportation action will follow on completion of sentence.

Any person detained in prison solely under the Immigration Act 1971 (Immigration Act detainees) must not progress to open conditions or be released on licence. If circumstances arise where release could be justified on compassionate grounds, Governors must refer the matter to the UKBA."

Action Notice 58A/09 superseded an earlier version (21A/06) which stated that Foreign National Prisoners should not be considered for early release, community access or open prison if their immigration status had not been confirmed and that prisoners who were confirmed by the Immigration Service as definite deportees on release should be considered as presenting an increased risk of abscond and should be held in suitably secure conditions. It appears that the information leaflet to which I have referred may continue to reflect this previous guidance, in that freedom to remain in the UK on release is stated to be a condition of consideration for transfer. The current position regarding exercise of the Governor's discretion is, however, as set out above.

[7] Counsel for the petitioner made two submissions regarding the reference in the Guidance to a presumption that deportation will take place. Firstly, it was submitted that on a proper construction of the relevant statutory provisions (contained in the UK Borders Act 2007) and the Immigration Rules there was no such statutory presumption in circumstances where deportation would breach the rights of a prisoner under the European Convention on Human Rights. This argument had not been raised in the petition and counsel for the respondents objected to it being addressed at the first hearing on the ground of lack of notice. Counsel for the petitioner accepted that fair notice of the point had not been given and invited me to appoint it to a further hearing if I were not minded to find in the petitioner's favour on the issues which were argued at the first hearing. Secondly, counsel submitted that on a proper reading of the Guidance, the reference to the presumption applied only to release on licence and not to transfer to the Open Estate. In my view this would be an unduly literal reading of the Guidance. It seems to me to be clear, having regard in particular to the reference in the last sentence to "the risk of absconding" and to the wording of the paragraph relating to Irish prisoners, that the Guidance requires the presumption to be taken into account in relation to transfer to the Open Estate as well as in relation to release on licence. I proceed, therefore, on the basis that when exercising his discretion in relation to the petitioner's application for transfer to the Open Estate, the Governor was required to treat the presumption that he would be deported on release from prison as a significant, though not determinative, factor.

[8] So far as the UKBA is concerned, I understand it to be common ground that its position at the material time was as stated in a letter dated 19 September 2009 to the petitioner's solicitors to the effect that the matter of his deportation was unlikely to progress any earlier than 18 months before his parole qualifying date. Counsel for the petitioner drew attention in this regard to section 4 of the Guidance which invites Governors, if no decision on deportation has been received, to make contact with UKBA 20 weeks prior to release date, 14 days prior to release date, and 24 hours prior to release date.

The Governor's decision

[9] The petitioner had no entitlement to be present or represented at the meeting of the PRMG at which his application was discussed, but his solicitors had submitted written representations to the PRMG, with supporting documents, in advance of the date of the meeting. The Governor's decision was intimated to the petitioner on 28 January 2010 in the following terms:

"Please be advised that your request for progression to the Open Estate was presented to the Progression Risk Management Group for their consideration on the 27^th January 2010.

The Progression Risk Management Group has agreed not to recommend you for progression at this time and have agreed that a further review would take place pending the outcome from the United Kingdom Border Agency review."

[10] In response to a request by the petitioner's solicitors for a more detailed written decision, reference was made on behalf of the Governor to the information contained in a form entitled "Prisoner Progression Assessment" which may be regarded as the minutes of the meeting of the PRMG on 27 January 2010. In the "Comments" section of the form, the following observations are made:

The PRMG advised that the UK Border Agency are not prepared to look at Mr Absalom as a special case. Mr Absalom had requested to attend the meeting but was informed that the meeting is about the board assessing his risk. Mr Absalom does not have a home address and is currently No Fixed Abode. Mr Absalom has stated that there is no way that he will be going back to South Africa to live.

The PRMG noted that Mr Absalom had also said that he will not be going back to South Africa to live because his children are in Scotland."

The PRMG noted that the petitioner's case could be considered by the UKBA in June 2010, that he maintained contact with his son and stepdaughter (sic) by phone and received visits from friends, and that he had been compliant with the prison regime and had addressed all of his offending behaviour needs. Having reviewed the terms of the Social Enquiry Report prepared at the time of the petitioner's imprisonment, the PRMG noted that he was now assessed as a moderate risk of causing harm to others based on his participation in the Constructs programme. They stated, however, that

"Due to the noted risk factors there may be a risk of Mr Absalom absconding with his children."

(I pause here to note that the PRMG had before them at their meeting information contained in a risk assessment prepared by a social worker for a previous meeting on 5 November 2009 with some informal updating to January 2010. It is not clear whether the PRMG had the written text, but this seems to be the source of the reference to "the noted risk factors". The document finishes with the words "Therefore must consider the risk of absconscion as he may do so to avoid deportation and separation from his children but also concern whether he may abscond with the children.")

Having made further favourable comments regarding the petitioner's conduct while in prison, the PRMG stated:

"The board agreed that it would be difficult to make any decisions until Mr Absalom's residency status had been agreed by the United Kingdom Border Agency."

The PRMG completed tabular sections of the form dealing respectively with (a) a summary of the issues to assist the Open Estate in managing the prisoner and access to the community; (b) factors supporting the prisoner for progression; and (c) early warning signs that would indicate a change in risk. The PRMG then completed a box in the form entitled "Decision" in the following terms:

"Recommended for progression and access to community: No

Please give supporting reasons for your decision and any further actions:

The board agreed that a further review would take place pending the outcome from the United Kingdom Border Agency review.

It was noted that Mr Absalom had been a compliant prisoner and has addressed all his offending behaviour needs. Mr Absalom is also a Foreign National prisoner who is No Fixed Abode.

** It was also noted that the outcome of the United Kingdom Border Agency's decision would influence any progression risk management board conclusion."

[11] Further correspondence between the Governor and the petitioner's solicitors ensued. In the course of that correspondence, the following further explanation for the Governor's decision was given in a memorandum dated 17 February 2010 addressed to the petitioner himself:

"You have intimated in past conversations - you have no intentions of returning to South Africa or leaving your children. The Board recognised the pressure this may put upon you - and actions that may or may not arise as a result of this. The Board did not state you would in fact abscond with your children.

The PRMG also discuss Risk factors - and until the PRMG have clear concise instructions from the UK Border agency on their intentions relating to deportation the PRMG were unanimous in their decision they could not sanction a transfer to open conditions at this present time. They are prepared to re-consider an application in the future - should your position become clearer."

[12] It was common ground at the hearing that all of the above documents could be looked at in order to ascertain the reasons for the Governor's refusal to recommend the petitioner for progression to the Open Estate. Some further explanation of the Governor's reasoning was, however, provided in answers lodged on his behalf to the petition. It is averred in Answer 20 that the petitioner's application was refused because there was a material risk that he would abscond from the Open Estate to avoid being deported to South Africa, and that that material risk arose because (i) he had repeatedly stated that he would not return to South Africa under any circumstances; (ii) his pattern of criminal offending demonstrated that he behaves irrationally and unpredictably when subjected to pressure; and (iii) there was statutory presumption that he would be deported. Counsel for the petitioner submitted that these reasons were significantly different from those given at the time when the decision was made. Taking each in turn, (i) was not an accurate representation of the petitioner's assertions quoted in the PRMG minutes; (ii) was not found anywhere in the decision documents; and (iii) was not in fact relied on by the Governor in the decision or relied upon in the risk assessment. There was a real risk that the reasons given in the answers were no more than a retrospective justification, and they should not be treated as forming part of the reasons for the decision.

[13] Counsel for the Governor contended that it was permissible in certain circumstances to amplify the decision-maker's reasoning after the giving of the decision itself. Reference was made to the opinion of Lord Reed in Chief Constable v Lothian and Borders Police 2005 SLT 315 at paragraph 70, in which his Lordship contrasted cases where there is a statutory duty to provide reasons as part of the notification of the decision to the parties with cases where there is no such duty. Lord Reed observed that in the latter category of cases, the court might, in principle, be willing to regard the provision of late reasons (either voluntarily, or in response to an order) as sufficient compliance with the statutory duty. His Lordship acknowledged, however, that the court would be cautious about accepting late reasons, and would take account of a number of overlapping factors, including whether the late reasons are consistent with any earlier reasons, whether it is clear that the late reasons are indeed the genuine reasons, whether there is a real risk that the late reasons are a retrospective justification of the decision, and the delay before the late reasons were put forward. In the present case, counsel for the Governor noted that there was no statutory duty to give reasons for his decision and submitted that the provision of further explanation in the answers was a continuation of a process of providing further reasons in response to requests for information made on behalf of the petitioner.

[14] I note that neither in the Chief Constable case nor in any of the English decisions cited by Lord Reed was there any discussion of whether it was acceptable to provide reasons in answers submitted on behalf of the decision-maker to a judicial challenge to the decision. In the present case, I am not satisfied that the reasons in the answers are consistent with those given at the time of the decision. In particular, I do not find any support in the contemporaneous documents for the second reason given in the Governor's answers. If the petitioner's irrational and unpredictable behaviour at the time of the offence had been taken into account by the PRMG, I would expect this to have been stated in the minutes, together with some assessment of the likely effect on it of the offending behaviour programmes which he had completed while in prison. There is no such statement or assessment and I conclude that the answers do in this respect include a degree of retrospective justification that does not reflect the Governor's reasoning at the time when the decision was made.

[15] Counsel for the petitioner sought reduction of the Governor's decision on two grounds. He contended that the Governor had unlawfully fettered his discretion in that he had abdicated responsibility for the decision on transfer to Open Estate by making it dependent upon the UKBA coming to a decision regarding the petitioner's immigration status. Alternatively, he contended that the decision was irrational in holding that there was a risk that the petitioner would abscond from the Open Estate. I deal with those arguments in turn below. The petition contains a third contention, namely that the Governor's decision was in breach of the petitioner's (and his children's) rights under Article 14 of the Convention when read with Article 8. Counsel for the second respondents explained that it was this contention that had prompted the lodging of answers on behalf of the Scottish Ministers. However, counsel for the petitioners stated that in view of the time available for the hearing he did not intend to argue the Article 14 point but, as with the statutory presumption argument to which I have already referred, invited me to continue it to a further hearing if I were against the petitioner on the two issues which were argued.

Fettering of discretion

[16] Counsel for the petitioner drew attention to a number of passages in the correspondence and in the minutes of the PRMG meeting which I have set out above to demonstrate that disposal of the petitioner's application for progression to the Open Estate was treated as being dependent upon a decision being taken by the UKBA on whether he would be deported on his release from prison. That being so, the Governor had unlawfully fettered his discretion or, to put it another way, had abdicated responsibility for a decision which he was bound to make. Reference was made to the case of R (Vary and others) v Home Secretary [2005] 1 PLR 262 in which it was held that a change of policy in relation to categorisation of prisoners as suitable for open conditions had resulted in the re-categorisation of prisoners as unsuitable without due regard being had to their individual circumstances. Counsel for the Governor submitted that there had been no abdication of responsibility. The Governor's decision was clear: to refuse to make a recommendation. That decision was in essence a decision taken in hoc statu. This was the correct approach, recognising that the decision would be reviewed once the petitioner's immigration status had been determined by the UKBA.

[17] In my opinion the submission of counsel for the Governor is to be preferred on this point. The petitioner's application for transfer to the Open Estate was submitted to and considered by the PRMG before the time when the UKBA would normally reach a decision on whether or not he should be deported on completion of his sentence. (It appears that the UKBA had not been minded to regard the petitioner as a special case warranting an earlier decision.) In these circumstances I accept that the Governor made a decision and that his decision is communicated in the first part of the sentence in the second paragraph of the memorandum dated 28 January 2010, i.e. that "The Progression Risk Management Group has agreed not to recommend you for progression at this time". The same conclusion is in my opinion clearly stated in the minutes of the PRMG meeting by the negative answer to the question "Recommended for progression and access to community". The Governor's decision leaves open the possibility - indeed the likelihood - of subsequent review, as is entirely proper, but that does not in my opinion mean that no decision was made in response to the petitioner's application. I therefore reject the petitioner's contention that no decision was made.

Irrationality of the decision

[18] In the alternative, counsel for the petitioner submitted that the decision not to recommend the petitioner for transfer to the Open Estate was irrational because it had failed to have regard to his individual circumstances, and in particular had failed to have regard to representations made on his behalf as to why there was no reasonable likelihood of his absconding. Reference was again made to Vary (above) and to R (Manhire) v Secretary of State for Justice [2009] EWHC 1788 (Admin). The latter case concerned a foreign national prisoner of Zimbabwean nationality who was refused re-categorisation to Category D (the category under English law for prisoners who can be reasonably trusted in open conditions) on the ground that there was a risk of absconding. It was held by His Honour Judge Langan QC that the Secretary of State's decision had to be characterised as irrational because the governor had failed to address two considerations: firstly, that it was barely credible that the applicant, who had an exemplary prison record, would abscond in the short period during which he would be held in open conditions given the consequences of absconding for further time to be served after recapture and the effect on a future application to the Immigration Appeal Tribunal (paragraph 40); and, secondly, that there was no real likelihood that he would either be deported to Zimbabwe on his release or held in custody pending a decision on deportation (paragraph 41). Counsel submitted that the present case was on all fours with Manhire so far as the first of these two considerations was concerned. The material submitted to the PRMG demonstrated that the petitioner, who like Mr Manhire had been an exemplary prisoner, had no motive to abscond because his purpose in seeking transfer was to allow him increased contact with his children. Nor was there any rational basis for a concern that he would abscond and take them with him.

[19] Counsel for the Governor submitted that the decision was within the range of decisions which the Governor could have reached. The facts of the present case were not on all fours with those of Manhire. It was this petitioner's circumstances that created the risk of absconding. He had expressed an intention not to return to South Africa. Given the irrationality of his behaviour at the time when the offences for which he was imprisoned were committed, no assumptions should be made about his behaving rationally if he found himself facing imminent deportation.

[20] The test for interfering with an administrative decision on the ground of irrationality is a high one but I have concluded that it is met in the present case. I do so on rather narrower grounds than those relied upon by the judge in Manhire. Having considered the reasons given in the correspondence and in the minutes of the PRMG meeting, read as a whole, I am satisfied that the decision was taken without due regard having been paid to the petitioner's individual circumstances. It seems to be beyond doubt that the Governor's refusal to recommend progression to the Open Estate was based upon risk of the petitioner absconding to avoid deportation and not upon any other factor such as risk of re-offending. However, I can find nothing in the documents explaining the decision to demonstrate that it was taken under reference to the particular circumstances of the petitioner. Rather it seems to have been taken on the basis of an assumption that, in the absence of positive indication from UKBA that a prisoner will not be deported on release, there is a risk that such a prisoner will abscond to avoid deportation. I reach this view with particular reference to those parts of the documentation which appear to me to narrate most directly the reasons for the decision, namely (i) the terms of the second paragraph of the memorandum dated 28 January 2010, (ii) the material contained in the box entitled "Decision" in the minutes of the PRMG meeting; and (iii) the terms of the second paragraph which I have quoted in paragraph 11 above from the memorandum of 17 February 2010. Each of these passages appears to me to have the same underlying reasoning: that because the petitioner's application for progression to the Open Estate was made before the outcome of the UKBA review was known, it had to be refused. In my opinion this is not in accordance with the guidance to Governors which requires each case to be considered on its merits and directs Governors to treat the presumption that deportation will take place as a "significant" factor rather than as an insuperable obstacle. It respectfully seems to me that the PRMG may have had in mind the earlier guidance that had been superseded by the guidance which they were obliged to follow when dealing with the petitioner's application.

[21] I should make clear that in reaching this conclusion I have taken account of the passages in the PRMG minutes and in the memorandum dated 17 February (quoted above) which narrate statements said to have been made by the petitioner in the past to the effect that he has no intention of returning to South Africa or of leaving his children. There is no indication in the papers that these statements were interpreted by the Governor as expressions by the petitioner of an intention to abscond (nor, in my opinion, could they reasonably have been so treated). In my opinion the narration of these statements adds nothing to the reasoning of the Governor to demonstrate that the petitioner's case was considered on its merits.

[22] It is important to emphasise, however, that in contrast to the views which Judge Langan QC felt able to express in his judgment in Manhire at paragraph 40, I express no view on the likelihood or otherwise of the petitioner absconding if transferred to the Open Estate. In the circumstances of the present case this is, in my opinion, a matter to be assessed by the Governor and not by the court, but that assessment must address the petitioner's case on its own merits, treating the presumption (so long as there has been no contrary decision by the UKBA) that the petitioner will be deported as a significant but not a determinative factor.

Disposal

[23] Counsel for the Governor submitted that even if I were against him on the merits of the application, I should exercise my discretion by refusing to reduce the decision. The Governor's refusal had only been given in hoc statu and it was open to the petitioner to apply again. If the UKBA delayed unreasonably in making a decision on the petitioner's immigration status, that could be the subject of challenge by judicial review. I do not accept these submissions. There does appear to be at least some possibility that the UKBA will not make a decision on the petitioner's immigration status until quite shortly before his release date. In the meantime he is, in my opinion, entitled to have a decision on his application for transfer to Open Estate taken on the correct legal basis and I see no good reason why a decision which I have held to be irrational should not be set aside.

[24] I shall therefore repel the pleas-in-law for the first and second respondents, sustain the first plea in law for the petitioner and grant decree of reduction of the decision of the first respondent dated 27 January 2010 not to recommend the petitioner for progression to the Open Estate.