Judgement on case of HDC and exceptional circumstances

The case concerns a vulnerable disabled prisoner (who cannot be named, for legal reasons) at HMP Lewes.

He has long standing and significant mental health problems, in particular social phobia characterised by psychological and physical symptoms of anxiety and panic attacks.

The Home Detention Curfew scheme (HDC)

HDC allows prisoners serving short sentences to serve the remainder of their sentence on licence in the community (tag) and with a curfew. They remain prisoners serving a sentence. HDC is a normal part of short term sentenced prisoners’ progression through their sentences. A number of prisoners will be excluded, for reasons relating to their offences but in certain circumstances where risk of re-offending is assessed as extremely small, the prisoner has no previous convictions, and he or she is infirm by nature of disability or age, then this will amount to exceptional circumstances for these purposes and the Governor must direct release.

Where the following three conditions are satisfied, exceptional circumstances will exist to allow release on HDC: Prison Service Instruction 31/2006,

– The likelihood of re-offending on HDC is extremely small.
– The HDC applicant has no previous convictions.
– The applicant is infirm by nature of disability or age or both

The Governor in this case repeatedly refused the Claimant release on HDC. We were contacted by the prisoner’s family and PAS argued that the exceptional circumstances criteria were met in this case. It was accepted by HMP Lewes that he meets the first two.

The case centred on whether he was infirm. He was moved to the vulnerable prisoners’ wing. He spends almost 24 hours a day in his cell. He struggles to leave to get food, and has to build himself up for some time before doing even that. He does not shower for fear of social contact with others. A consultant psychiatrist assessed the Claimant and described his social phobia on 15 December 2010 as being “one of the most intense and debilitating I have seen in my career.” He further said in his report “It is difficult to conceive [of] a more difficult environment for a person suffering from Social Phobia than a prison”.

The Claimant has requested not to have his categorisation reviewed. This is because he is potentially eligible to be transferred to an Open Prison. The Claimant specifically requested not to be de-categorised to Category D as he was afraid of the social contact and change that he would be subjected to an Open Prison.

Judgment today, on 28 February 2011, judgment was read out at the High Court by Mr Justice Burnett. He did not allow the Claimant’s claim for judicial review and he accepted the Respondent’s case. This was that the Claimant was coping in custody, ‘infirm’ is not a medical term and the Governor was entitled to make the decision he made on the basis of all the evidence in front of him that the Claimant was not ‘infirm’ by nature of his disability (Social Phobia). Therefore the Claimant did not meet the third criterion and was not unlawfully refused release on HDC.

PRISONERS ADVICE SERVICE COMMENT: PAS are very disappointed with the judgment in this case. We are considering launching an appeal. This will be difficult, given the short time frames in this case, but this option has not been ruled out.

It is agreed by both sides that the vulnerable prisoner in this case is of very low risk of re-offending and has no previous convictions; the judgment ultimately turned upon a subjective judgment of what ‘infirm’ means.

All enquiries to:

Laura Orger
Prisoners’ Advice Service
PO Box 46199
London, EC1M 4XA
020 7253 3600