Odigie, R (on the application of) v Secretary of State for Justice [2013] EWHC 3795 (Admin)

Case No CO/707/2013

[2013] EWHC 3795 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 4 December 2013

Before

PHILIP MOTT QC

Sitting as a Deputy High Court Judge

Between

THE QUEEN (on the application of JUDE ODIGIE)Claimant

SERCO LIMITEDDefendant

SECRETARY OF STATE FOR JUSTICEInterested Party

Julian Coningham (solicitor advocate Coninghams Solicitors) for Claimant

Iain Daniels (instructed by Horwich Farrelly) for Defendant

Hearing Hearing dates: 7 November 2013

Judgment

Philip Mott QC :

[1]The Claimant is a prisoner serving an indeterminate sentence. On 9 November 2012 he was transferred from HMP Lowdham Grange, a private prison operated by the Defendant, to HMP Full Sutton, a High Security prison operated by NOMS under the Ministry of Justice. He seeks an order quashing the decision to transfer him and requiring the Defendant to return him to HMP Lowdham Grange.

[2]Permission was refused on paper by Walker J on 18 February 2013, but granted at an oral renewal by Robin Purchas QC, sitting as a Deputy High Court Judge, on 17 May 2013.

Factual Background

[3]The Claimant is a black Muslim, born on 18 March 1989. On 14 February 2007 he was sentenced, following a trial in which he was convicted of manslaughter, to detention for public protection with a minimum period of 7 years, 3 months and 8 days. His appeal was dismissed by the Court of Appeal Criminal Division in June 2008. His earliest release date is therefore in May 2014.

[4]The offence arose when he was part of a gang which invaded a christening party at a community centre in Peckham. During the course of the incident, in which mobile phones and handbags were stolen, a shot was fired by another member of the gang and hit a woman holding a baby. The baby was unhurt, but the woman later died in hospital.

[5]Between 2007 and 2012 the Claimant appears to have been held at various prisons, including HMP Full Sutton, HMP Woodhill and HMP Aylesbury. By June 2012 he was at HMP Whitemoor, a High Security prison. On 8 June 2012 he was transferred from HMP Whitemoor to HMP Lowdham Grange, where he stayed until the disputed transfer to HMP Full Sutton on 9 November 2012.

[6]At 2.20 pm on 29 October 2012 there was an intelligence-led search of his cell. In it were found a tin opener which came apart, with one handle sharpened to a point, and a plastic handle wrapped in bootlaces into which the sharpened part of the tin opener could fit to make a weapon.

[7]That day, 29 October 2012, the Claimant was issued with a notification that his Incentive and Earned Privilege status (“IEP”) would be reviewed and he was invited to make comments. At some point thereafter, but at the latest on 1 November 2012, he was demoted from Enhanced to Standard level.

[8]The Claimant was also charged with breach of the Prison Rules, and an adjudication hearing was convened for 12.43 pm the following day, 30 October 2012. He did not deny his possession of these items. He said that he had borrowed the tin opener quite innocently, and the plastic handle was something he used in the course of his weight training. He wished to call witnesses to substantiate his defence.

[9]At 1.15 pm the same day, 30 October 2012, just after the first adjudication hearing, the Claimant was provided with reasons for his segregation to the Reintegration Unit under Rule 45, Good Order or Discipline. It was said to be “due to intelligence suggesting that you are involved in bullying and intimidating other inmates and also homemade weapons”.

[10]These intelligence reports are now summarised in a GIST which has been provided during the course of these proceedings. It suggests that the Claimant had been consistently named as bullying others to join the Muslim faith, and was implicated in a serious assault on another prisoner. The discovery of a homemade weapon in his cell appeared to substantiate this intelligence.

[11]Before the adjudication of the charge against the Claimant was resumed, and therefore before any evidence had been heard, the Claimant was transferred to HMP Full Sutton on 9 November 2012. The explanation given to the Claimant at the time was “because of the threats you pose to the Good order and discipline of the establishment in relation to threats to other prisoners and the manufacture of weapons”.

[12]Following that transfer, the charge against the Claimant could have been the subject of an adjudication at HMP Full Sutton. In fact it was not proceeded with because of the transfer, although a letter to the Claimant’s solicitors on 13 November 2012 said that the charge had been dismissed. The decision not to proceed was made by HMP Lowdham Grange. No adjudication was ever made on the evidence.

[13]The Claimant felt aggrieved and made a series of complaints: i) On 31 October 2012 he complained of being segregated for bullying, and also of being treated differently from another prisoner who was found with a weapon in his possession. The other prisoner was white and the Claimant suggested that this was evidence of a racial issue. The complaint was referred to the Safer Custody Officer at HMP Lowdham Grange. ii) Also on 31 October 2012 he complained of being segregated because he was a black Muslim, and also about the charge laid against him. He was told he would have to wait for his adjudication. iii) On 1 November 2012 he complained because his IEP status had been downgraded from Enhanced to Standard without being given the opportunity to make representations. He was told he would have to appeal through the IEP scheme. iv) On 13 November 2012 he complained about being sent to a high security prison, saying that he did not know why this was. He was told that “due to your custodial behaviour at HMP Lowdham Grange they believed that you should be transferred to a high security establishment”. v) On 20 November 2012 he sought to appeal the decision on the last complaint. The additional response was that “You were moved due to intelligence that strongly linked you to weapons and gang activity. You were therefore deemed unsuitable for category B location”. vi) On 5 December 2012 he complained that he was not satisfied with the reasons given for his move to high security, because he had not been given any opportunity to answer the allegations against him. He asked for an investigation of the evidence at HMP Full Sutton and disclosure of the allegations to him. The answer was that “Your intelligence information indicates that you are appropriately located in the high security estate”. vii) The final complaint is not complete in the hearing bundle, but was answered on 31 December 2012. It highlights the fact that the previous response was forwarded to HMP Lowdham Grange and states that the Claimant is becoming increasingly suspicious.

These proceedings

[14]The claim form was issued on 22 January 2013. It seeks to challenge the move to HMP Full Sutton, and asks for an order quashing the decision to move the Claimant and an order requiring the Defendant to arrange his return to HMP Lowdham Grange.

[15]The Grounds raise two issues; first, whether the decision to move the Claimant was unlawful because of procedural unfairness, and secondly, whether the Defendant abused its powers in making the transfer. In essence, these are two ways of making the same complaint of unfairness.

[16]In relation to the facts, two particular matters are asserted: i) The Claimant had no adjudications or IEP warnings until 29 October 2012. ii) On 30 October 2012, at the first hearing of his adjudication when he said he wanted to call a witness, he was told by the Adjudicating Governor that this was evidence of him being a bully.

[17]The allegation of procedural unfairness is said to be made out for the following reasons: i) The move to HMP Full Sutton was a retrograde step for the Claimant. ii) The policy for routine transfers should have been followed. This is set out in Prison Service Instruction 36/2010, which introduced a revised Chapter 4 to Prison Service Order 4700. iii) Even if this was a disciplinary transfer, rather than a routine transfer, the procedures failed to comply with PSI 36/2010. iv) The reasons given state that the Claimant is not suited to the Category B estate. Although there was no change to his Category B status, the move to High Security demanded the same standards of fairness and disclosure as a re-categorisation. v) The Defendant acted throughout, despite complaints from the Claimant, as if his adjudication had been proved, without giving the Claimant an opportunity to challenge it. The removal of his Enhanced IEP status before the conclusion of the adjudication reinforces this submission.

[18]The allegation of abuse of power is based on the failure to proceed with the adjudication, thus depriving the Claimant of the opportunity to challenge the allegations against him.

[19]The Defendant’s Detailed Grounds raise a number of matters: i) The decision to transfer was entirely different from a decision to re-categorise. PSO 4700 sets out in detail the process of consultation to be carried out in the case of re-categorisation, but no such requirements with respect to transfer. ii) This was a disciplinary transfer, governed by paragraphs 4.9.11 and 4.9.12 of PSO 4700. The detailed basis of decision must be communicated to a number of people, but not to the prisoner. iii) The transfer of a disruptive prisoner is not a punitive measure, which might require the application of rules of natural justice, but a decision taken for the good order and discipline of the prison. Reliance is placed on the decision of the House of Lords in R v Home Secretary, ex.p. Hague

[1992] 1 AC 58

. iv) The Defendant was not compelled to commence or complete a disciplinary process before transfer (see also Hague). v) There is no general duty to give reasons for administrative decisions, but in fact the Claimant was given reasons which were more than sufficient. vi) Security intelligence should not be disclosed to prisoners because it would jeopardise the prison’s security systems, reduce the flow of intelligence, and put the source of information at risk. vii) Such material can be placed before the Prison and Probation Ombudsman (“PPO”) without disclosure to the prisoner, but that cannot happen where there is a court challenge. For this reason, judicial review is not an appropriate remedy. The Claimant has chosen not to pursue a complaint to the PPO, which remains a clear alternative remedy. viii) The Claimant was moved from HMP Full Sutton to HMP Whitemoor, which is run by the Prison Service. The Defendant has no power to compel or arrange the return of the Claimant to HMP Lowdham Grange. Since the Claimant has not made the Secretary of State for Justice a Defendant, no useful remedy could be ordered and the proceedings are to that extent academic.

[20]The Claimant’s skeleton argument for this hearing concentrates substantially on the failure of the Defendant to disclose any documents evidencing the decision-making process. However, there has been no specific application for an order for disclosure, and the arguments beg the question of whether there is a duty of disclosure in such a case as this. The core of the legal challenge is now directed to the fairness of a transfer to the High Security estate which, it is argued, is akin to a re-categorisation.

[21]The Defendant’s skeleton argument points out that by 31 October 2012 the Claimant had been the subject of 44 allegations of offences against prison discipline, of which 31 had been found proved. However, it appears that the last offence prior to the charge on 29 October 2012 was on 13 August 2008, and this is accepted by the Defendant.

[22]It also adds the assertion that the Claimant has now been charged with an offence in connection with an alleged hostage-taking at HMP Whitemoor, and awaits trial at the Central Criminal Court. During the hearing I was informed by Mr Coningham that this is incorrect, there was an investigation but the police took no further action against the Claimant. I therefore do not take it into account.

[23]The Claimant made a late application, received on 31 October 2013, to rely on additional grounds. In the first place he asserts that the decision to transfer him was unlawful for failure to follow published guidance in two additional respects: i) A letter of 28 October 2013 states that there was no communication with Prison Service Headquarters about the transfer, whereas paragraph 4.9.11 of PSO 4700 states that transfers to High Security prisons are arranged by the Director of the High Security Prisons Operations Unit. ii) Paragraph 8 of PSO 1810 requires Governors to develop a Local Security Strategy for the management of prisoners whose behaviour is difficult or disruptive, yet a second letter of 28 October 2013 states that there is no written policy. To my mind these amount simply to using additional evidence to support the existing grounds of failure to follow published policy, not a new ground. Insofar as it is a new ground, I gave permission to rely on it.

[24]The Claimant also asserts, in the alternative, that the Defendant followed an unpublished policy and was thereby unlawful. It now appears that transfers to the High Security estate are arranged with the Governor of the relevant prison, rather than the Director of the High Security Prisons Operations Unit. The Claimant says this is an unpublished policy. The Defendant says it is merely an administrative delegation, but that if there is anything in the point further evidence will be required to deal with it. I concluded that the point is not arguable, for reasons which will appear later in this judgment, and refused permission to rely on the additional ground.

[25]The Defendant issued an application notice on 5 November 2013, just two days before the hearing, asking that the claim be struck out for failure to file a trial bundle within the time required by court orders. It was not pursued at the hearing before me.

[26]I should note that there is no claim to quash the decision not to proceed with the adjudication opened on 30 October 2012. This was made by the Defendant at HMP Lowdham Grange after the transfer. As a result, if the transfer was reasonable but the Claimant should have been given the opportunity to challenge the charge relating to possession of the homemade weapon, no relief could be granted in these proceedings. I pointed this out to Mr Coningham, but he made no application to add this as a complaint.

Prison Service Orders

[27]PSO 4700, Chapter 4 is entitled “Serving the Indeterminate Sentence”. The version applicable at the material time was introduced by PSI 36/2010, effective from 12 July 2010. Its background is an acknowledgement that a prisoner serving an indeterminate term, whether life imprisonment or imprisonment or detention for public protection, cannot be released until the Parole Board is satisfied that it is safe to do so. That in turn is unlikely to occur unless the prisoner has attended appropriate courses and has moved gradually to conditions of lesser security and greater responsibility prior to release. Thus the prisoner is entitled to expect reasonable sentence planning to enable him to meet the requirements of the Parole Board, if he can and it is safe to do so. The failure to provide that opportunity may lead to a successful challenge by way of judicial review.

[28]One of the relevant characteristics of a sentence is the categorisation of the prisoner. As a general rule, expressed in writing in PSI 40/2011, “All prisoners must have assigned to them the lowest security category consistent with managing their needs in terms of security and control”. The Claimant was at all times placed in Category B, and it is not suggested that he should have been in any other category. Accordingly the provisions in PSO 4700, Chapter 4 concerning categorisation and re-categorisation have no direct application to this case.

[29]Mr Coningham argues that a transfer back to the High Security estate carries with it some of the same disadvantages as a re-categorisation to a higher security category, and thus the same principles should apply as a matter of fairness. The requirements in the case of re-categorisation are set out in PSO 4700, paragraphs 4.2.6 to 4.2.13. It is not necessary to set them out in full here. The most relevant passages are as follows: i) Paragraph 4.2.6 provides that “Where time allows before a transfer, a sentence planning and review meeting must be convened … Where, for operational reasons, it is not possible to hold a sentence planning board first, a board must be held, by the prison making the decision, as soon as possible afterwards …”. ii) Paragraph 4.2.8 provides that “The ISP must be notified in writing of the reasons and evidence (but see below) for raising their security category. If being transferred, they must receive this information prior to the transfer. Evidence can only be withheld on security grounds or to protect the safety of a third party”.

[30]It is clear that, even where there is a re-categorisation to a higher security category, there may be occasions where operational reasons will make a transfer necessary before full reasons are given, and that the extent of the information provided to the prisoner may be restricted by security and other grounds.

[31]PSO 4700, section 4.9 deals with the Routine Transfer process. In general, transfers must take account of the prisoner’s needs and sentence planning. There will be time for discussion and explanation at a sentence planning meeting. The Defendant says that this was not a routine transfer, but comes within the provisions for Disciplinary Transfers, as follows: 4.9.11 Disciplinary Transfers. Most transfers are organised as part of the ISP’s individual sentence plan. However, transfers are sometimes necessary for disciplinary reasons, poor behaviour, escape attempts, absconds, or to enable an ISP to return to normal location in another establishment. Governors/Directors are expected to make every effort to manage an ISP without automatic recourse to a transfer. Where they cannot do so, or all avenues have been exhausted, the establishment (not PPCS) [Public Protection Casework Section] must arrange the move. Transfers to and between High Security prisons are, however, still arranged by the Director of High Security Prisons Operations Unit (DSHP-OU). 4.9.12 When deciding upon a transfer for disciplinary reasons, the Governor/Director must base their decision upon proven offences or on the basis of reliable security information, rather than suspicions, and their report laying out the full reasons for the transfer must accompany the ISP on transfer. A copy must also be sent to the Offender Manager for their OASys input. In lifer cases, a copy must also be sent to their Home Probation Officer.

[32]It seems to me that this is quite clearly the applicable provision to the present case, and Mr Coningham did not seriously seek to argue to the contrary.

[33]He also drew my attention to the provisions of PSO 1810, paragraph 8, which requires Governors to develop a Local Security Strategy for the management of prisoners whose behaviour is difficult or disruptive. It was pointed out for the Defendant that this section, though headed “Maintaining Order in Prisons”, is directed at Category C prisons and therefore does not apply to this case. Mr Coningham accepted that this is so, and therefore disposes of the second limb of his Additional Grounds [paragraph 23(ii) above].

Legal Principles

[34]Mr Coningham bases his challenge on general principles of administrative law. He does not submit that the decision to transfer was necessarily perverse – it may even have been the right decision – but he says that it was not reached by the proper procedure. There is no record of any consideration being given to any other option, such as moving the Claimant to another part of the prison or to another Category B prison outside the High Security estate. Segregation under Rule 45 was sufficient to deal with any immediate risk, and there was no need for a transfer prior to the completion of the adjudication. He does not submit that there was a failure to give sufficient information to the Claimant. The challenge is to the process leading to the decision.

[35]Mr Daniels, for the Defendant, relies on a number of authorities, and in particular R v Deputy Governor of Parkhurst Prison, ex.p. Hague

[1992] 1 AC 58

. That was a challenge by a Category A prisoner to his segregation and transfer to another Category A prison. He claimed declarations and damages for false imprisonment. To some extent the decision concerns whether the provisions of the Prisons Act and Prisons Rules give rise to private law rights allowing a prisoner to sue for damages for their breach. To that the answer was No, but that is different from a public law challenge. Nevertheless, there are passages in the judgments of the Divisional Court and the Court of Appeal on which Mr Daniels relies.

[36]One of the complaints made in Hague was that he had been placed in segregation under Rule 43, and transferred to another prison, without being placed on a disciplinary charge and allowed to defend himself. The decision was made, as it no doubt seemed to him, upon the unproved assumption that he was guilty (see page 88A). The Divisional Court held, supported by the Court of Appeal, that there was no obligation on a prison governor to prefer a disciplinary charge as a precondition of acting on information as a ground for segregation and transfer. The Divisional Court explained, at page 89D:

“Such a precondition would impose upon the exercise of the governor’s discretion, in his task of maintaining discipline, a fetter which is not expressly imposed by the prison rules and which, in our judgment, is not only not implicitly required by those rules, upon their proper construction, but seems to us to be contrary to the fullness of discretion which in such matters those rules intend a prison governor to have.”

Mr Daniels submits that the same applies in this case.

[37]The Divisional Court also considered the right to prior notice and the right to be heard. The duty to act fairly was not in dispute, but as the court explained “The existence of a duty to act fairly does not, as we have said, define in a particular case what the content of that duty is” (page 91E). The judgment continued, at page 92C:

“In this case Mr Sedley [counsel for the Claimant] acknowledged that there could not be an unqualified obligation in all cases upon the governor to allow the right to be heard. There may be cases of urgency. We would add that there may be difficulty in disclosing the reasons, or part of them, if, for example, the intention to segregate is based upon information obtained as to threatened misconduct, such as violence against another prisoner. Giving detailed notice of the grounds might well indicate to the prisoner the source of the information and thereby create the risk of an immediate retaliation against the giver of the information … In another case a governor might reasonably claim that he could not sensibly disclose the reasons for his intended decision, or some part of those reasons, because of the need not to reveal either the source of the information or that certain facts are known to the prison department.”

[38]I was also referred to the brief report of Ex.p. Ross, The Times, June 9, 1994, in which the Court of Appeal concluded that a prison governor was not required to give chapter and verse detailing the prisoner’s conduct justifying a transfer.

Application to the present case

[39]For the reasons explained by the Divisional Court in Hague, I reject the submission that the Defendant was bound to follow by analogy a procedure which the Prison Service Orders require in different circumstances, namely re-categorisation. It would have been simple for the present circumstances, a transfer back into High Security, to be included if it had been thought right to do so. They quite conspicuously are not included in re-categorisation, whereas they are envisaged as likely to occur in Disciplinary Transfers.

[40]It seems to me clear that the duties of the Defendant are set out in paragraphs 4.9.11 and 4.9.12 of PSO 4700, and that these paragraphs correctly follow the guidance in Hague and Ex.p. Ross. The questions which arise here are as follows: i) Could the situation have been managed without recourse to a transfer back to the High Security estate? ii) Was the decision based on reliable security information (no offences having been proved at the time of the decision)? It may be more helpful to take these in reverse order.

[41]The clear and undisputed facts available to the decision-maker were as follows: i) The Claimant had been involved in a criminal gang which used firearms, resulting in the death of an innocent woman and the terrorising of a christening party. He had been convicted by a jury of manslaughter on the basis of joint enterprise, although he had not personally discharged the gun. ii) The danger he presented to the public was properly judged to merit an indeterminate sentence, and this was upheld by the Court of Appeal. iii) He had been placed for much, if not all of his sentence, in High Security. Certainly he had only been at HMP Lowdham Grange for five months. iv) A search of his cell had found a homemade weapon, capable of causing serious injury, and he acknowledged that he knew the component parts were there. v) There had been recent violence within the prison in which an inmate had received severe cuts to his face.

[42]Together with this undisputed information was security intelligence which is only summarised for me in a GIST. Mr Coningham submits that this cannot be demonstrated to fit the criterion of “reliable security information”, as set out in paragraph 4.9.12. It carries no reliability coding and no indication of its source. I bear that very much in mind, but the GIST does set out a consistent pattern of information pointing to pressure being put on other prisoners to convert to Islam, and the use of threats to those who did not comply. Some further details are supplied in the first witness statement of Mr Shirtcliffe, Assistant Director of Security and Operations at HMP Lowdham Grange. It must also be remembered that the cell search was prompted by intelligence, and proved to be absolutely justified. The intelligence also gains support from the redacted log of incidents at HMP Whitemoor. On 8 January 2012 the Claimant was interviewed by three staff members. During the interview he was intimidating and made threats before trying to leave the room.

[43]In my judgment the undisputed facts and background were sufficient to justify action being taken without waiting for the result of the adjudication. The finding of the weapon was a very serious matter. The background of perceived threats and bullying clearly had to be borne in mind also, but was not needed to justify taking action. In those circumstances, any difficulties in judging the reliability of the security information do not undermine the decision to act.

[44]As to the nature of the action, it is in my judgment unrealistic to suggest that some action short of transfer could and should have been tried as a permanent solution to the problem. Nor was it necessary to wait for the completion of the adjudication before transfer. Temporary segregation under Rule 45 would have been unlikely to quieten the prison generally, or the Claimant in particular, or to have made it easier to maintain order. The Governor was perfectly entitled to conclude that his overriding duty to staff and other prisoners to maintain order could only properly be discharged by arranging a transfer as soon as possible. In view of the reasons for the transfer, and that the Claimant had come from a High Security prison only five months earlier, it is also unrealistic to suggest that he could be transferred to another Category B prison without High Security status.

[45]Mr Coningham expressly disclaimed any complaint that the Claimant had not been given sufficient explanation or reasons at the time of transfer. For completeness, however, I should say that I am perfectly satisfied that he knew sufficiently why it was happening. As set out in paragraphs 9 to 13 above, he was told on various occasions that the steps that were being taken arose from intelligence suggesting that he was involved in bullying and intimidating other inmates, and because of the discovery of a homemade weapon in his cell. Specifically at the time of transfer he was given a written explanation that it related to “threats to other prisoners and the manufacture of weapons”. There can be no valid complaint about this.

The procedure followed

[46]There remains the challenge to the absence of documentation, which would allow the Claimant and his advisers to check the administrative steps taken in the process. Linked to this is the complaint that there was no communication with the Directorate of High Security Prison Operations Unit.

[47]There has been no application for an order requiring specific disclosure, and in my judgment none would have been appropriate. The practical arrangements for transfer are of no concern to the prisoner. They are not designed to be part of the safeguards of fairness for him. Arrangements between two parts of the prison system designed to ensure smooth and consistent cooperation do not of themselves give rise to any public law rights in favour of those affected by those arrangements in practice. All that the Claimant is entitled to is that his transfer is decided in accordance with PSO 4700, paragraphs 4.9.11 and 4.9.12, that it is conducted fairly and honestly, and that he is told in sufficient terms the reason for his transfer.

[48]For these reasons any complaint about the precise procedure, once a proper decision was taken, must fail. For the same reason it seems to me to be unarguable that variations by way of delegation of functions could amount to an unpublished policy to which the principles in Lumba v SSHD

[2011] UKSC 12

apply, and for that reason I refused permission to add this as an additional Ground.

Remedies

[49]In practical terms, the Claimant could never have achieved what he wanted without adding the Secretary of State for Justice as a Defendant. It was the Secretary of State who was responsible for HMP Full Sutton and the High Security estate, and only he could arrange a transfer out of it and back to HMP Lowdham Grange. The Secretary of State was only served as an Interested Party and has decided, quite reasonably, to take no part in these proceedings.

[50]In the absence of any power in the Defendant to effect any change in the Claimant’s present circumstances, it would also be pointless to quash the transfer decision, as this would have no practical effect without the involvement of the Secretary of State for Justice.

[51]In these circumstances, a complaint to the Prison & Probation Ombudsman (“PPO”) would be just as effective as a remedy. It would also have a number of advantages: i) The PPO has special experience of the operation of the Prison Service, and what could reasonably be expected, which might be more than the minimum required and enforceable on judicial review. ii) The PPO would see the whole of the Security Intelligence Reports and, although these would not be disclosed to the Claimant, the PPO could then make a more informed judgment on the decision to transfer and whether it was strictly necessary. iii) Any finding of the PPO would be relevant to sentence planning, including any future transfers, and to the consideration in due course by the Parole Board of whether the Claimant can safely be released on licence.

[52]The disadvantage of the PPO, submits Mr Coningham, is that it cannot order a transfer back to HMP Lowdham Grange. But since I cannot do that either, the disadvantage is not a significant one. Had the Secretary of State for Justice been a Defendant, and had I concluded that the transfer was unlawful and should be reversed, I would not have refused relief simply because the Claimant had declined to pursue a complaint to the PPO first.

[53]For completeness, I note that the Claimant has made a complaint to the PPO in respect of his IEP downgrade, but no decision has yet been published by the Ombudsman.

Conclusion

[54]The claim for judicial review fails on all grounds. I will leave the parties to agree an order on receipt of this draft judgment. If that proves impossible, written submissions are to be filed and served on the other party in writing within 28 days of this judgment being handed down. I will decide them on paper unless an oral hearing is requested by either party, in which case that party will be at risk on the costs of that hearing.