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R (Omoregbee) v Secretary of State for Justice (1), Governor of Hewell Prison (2) & United Kingdom Border Agency




[2010] EWHC 2658

2010-09-08

Summary from Lawtel:

 PENOLOGY AND CRIMINOLOGY - IMMIGRATION

ABSCONDING : CATEGORISATION : DEPORTATION : ESCAPING : FOREIGN CRIMINALS : PRISONERS : CATEGORISATION OF FOREIGN NATIONALS MEETING CRITERIA FOR DEPORTATION : LAWFULNESS OF POLICY IN PRISON SERVICE ORDER 4630 : DEPORTATION STATUS : r.7(1) PRISON RULES 1999

The policy in paragraph 14 of Prison Service Order 4630 in relation to foreign nationals, namely that "the need to protect the public and ensure the intention to deport [was] not frustrated [was] paramount", was not ultra vires the powers of the secretary of state under the Prison Rules 1999 r.7(1).

The claimant prisoner (O) applied for judicial review of a decision of the second defendant deputy prison governor (M) to the effect that he should remain a Category C prisoner and should not be reclassified to Category D. O was a Nigerian national who had been convicted of three offences of obtaining property by deception, and was sentenced to three years' imprisonment. He was liable to automatic deportation, but had not yet been served with notice of intention to deport. He had been assessed as presenting a low risk of reoffending, his conduct in prison had been excellent, and his personal officer had recommended him for open conditions. M decided that O should remain in Category C despite the excellent reports, because his deportation status meant that there was a potential for abscond. Paragraph 14 of Prison Service Order (PSO) 4630 stated, in relation to foreign nationals, that each case had to be "individually considered on its merits but the need to protect the public and ensure the intention to deport [was] not frustrated [was] paramount", so that Category D would only be appropriate where it was clear that the risk of escape was very low. O argued that the policy encapsulated in PSO 4630 was unlawful as being ultra vires the powers of the secretary of state under the Prison Rules 1999 r.7(1). While accepting that liability to deportation could be taken into account in assessing the risk of abscond, O submitted that PSO 4630 went too far in that it required the decision-maker to act with a view to enabling the secretary of state to deport the prisoner. He further argued that M's decision was contrary to the weight of material before her and was irrational.

HELD: (1) The primary thrust of r.7(1) was contained in the opening words: prisoners were to be classified "in accordance with any directions of the Secretary of State". The words which followed specified matters which had to be taken into account when a prisoner was being categorised, but the rule did not require the court to hold that those words defined comprehensively all matters which the secretary of state could take into account, to the exclusion of anything else which he might reasonably consider relevant. Paragraph 14 of PSO 4630 was a direction of the secretary of state given pursuant to r.7(1). It did not incorporate some assumption by the secretary of state of functions which belonged to another minister. It did no more than emphasise that the risk of abscond, which was a consideration relevant to every categorisation decision, had a heightened importance when the prisoner was liable to deportation, and that in such cases the risk must be examined with particular care. However, as para.14 of PSO 4630 made clear, the prisoner had to be assessed as an individual so that deportation status itself could not be determinative (see paras 26-29 of judgment). (2) M's decision that O should remain Category C could not be characterised as either Wednesbury unreasonable or irrational (paras 31-35).

Application refused

Counsel for the defendants: Simon Murray