Neophytou, R (On the Application Of) v Governor of HMP Berwyn & Anor

Factual and Procedural Background

The Appellant is a prisoner detained at HMP Berwyn pursuant to a warrant issued due to default in payment of a confiscation order made in the Crown Court against him and his father for over £3 million. On 20 October 2023, the Appellant applied for early release on compassionate grounds ("ERCG") to the Secretary of State for Justice. The prison Governor refused to progress the application or submit it to the Public Protection Casework Section ("PPCS") of the Ministry of Justice, which handles ERCG applications on behalf of the Secretary of State. The Governor maintained this refusal in the Administrative Court. The Appellant sought judicial review to quash the Governor’s refusal. Permission was granted, but the substantive claim was dismissed. The Appellant now appeals that decision.

Legal Issues Presented

1. Whether the prison Governor had the authority to refuse to submit the ERCG application to the Secretary of State or PPCS, effectively making a substantive decision himself.
2. Whether the Governor correctly applied the Early Release on Compassionate Grounds Policy, particularly paragraphs 1.4(c), 4.17, and 4.21, in assessing the Appellant’s medical condition and application.
3. Whether the Governor failed to properly consider the expert medical evidence and the cumulative impact of the Appellant’s circumstances.
4. Whether the Governor erred in law by excluding the fact that the Appellant was imprisoned for default of a confiscation order from the holistic assessment of exceptional circumstances.
5. Whether the judge erred in applying a rationality standard rather than a full review of compliance with public law duties and policy adherence.

Arguments of the Parties

Appellant's Arguments

• The Governor made a procedural error by refusing to submit the application and instead made a substantive decision.
• The Governor misapplied the Policy, particularly paragraph 1.4(c), by treating the Appellant’s current medical condition as the same as that known at sentencing and equating the default term activation with a sentencing exercise.
• The Governor rejected expert medical evidence without evidential basis, particularly regarding the need for treatment outside prison.
• The Governor improperly applied the Policy’s fundamental principles as universally applicable without proper regard to the Appellant’s specific circumstances.
• The Governor gave undue weight to the prevalence of mental illness in prisons, failing to properly consider the Appellant’s specific evidence.
• The Governor failed to consider the absence of punitive necessity or public safety risk relevant to civil imprisonment.
• The Governor did not make a holistic assessment of exceptional circumstances, considering factors only individually.
• The Governor failed to properly engage with the medical evidence and the private and family life interests of the Appellant’s daughter and infirm mother.

Respondents' Arguments

• The Governor’s role includes making a preliminary assessment of whether the medical condition meets the threshold in paragraph 4.17 to justify submission to PPCS.
• Governors should use their knowledge and experience of the prisoner and prison in making this preliminary assessment.
• The Governor may refuse to submit the application only if it is clear that the criteria in paragraph 4.17 are not met.
• Paragraph 4.17 refers to exceptional circumstances justifying ERCG, and the Governor’s assessment that the Appellant’s condition was not exceptional was rational.
• The Governor was entitled to rely on the prevalence of mental health issues in prisons and the availability of treatment within the prison estate.
• Any decision on whether the Appellant’s default sentence impacts ERCG eligibility is for the Secretary of State or PPCS, not the Governor at the preliminary stage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Kelly [2000] QB 198	Definition and interpretation of "exceptional circumstances" in ERCG context.	The court adopted Lord Bingham’s exposition that exceptional means unusual or out of the ordinary, not necessarily unique or rare.
R (Lloyd) v Bow Street Magistrates' Court [2004] 1 Cr. App. R. 11	Characterization of default imprisonment term as enforcement mechanism for confiscation orders.	The court recognized the default term as a tool to enforce confiscation orders, relevant to understanding the nature of the Appellant’s imprisonment.
[2021] EWCA Crim 169	Upheld the confiscation order against the Appellant.	The Appellant’s appeal against the confiscation order was unsuccessful, affirming the legal basis for imprisonment.

Court's Reasoning and Analysis

The court analysed the scope of the Governor’s delegated authority under the Early Release on Compassionate Grounds Policy, particularly paragraphs 4.17 and 4.21. It concluded that while the Governor may refuse to submit an ERCG application on medical grounds only if it is clear the criteria in paragraph 4.17 are not met, the Governor does not have authority to make a substantive decision on the application or refuse submission based on disagreement with the merits.

The Governor erred in relying on paragraph 1.4(c) of the Policy to treat the Appellant’s current medical condition as unchanged from that known at sentencing, failing to recognize that the Appellant’s symptoms had significantly worsened since imprisonment and that the default sentence was not a sentencing exercise but a civil enforcement measure.

The Governor’s letter conflated the decision to support an application with the decision to submit it to PPCS, which the Policy distinguishes. The Governor was required to submit the application if the criteria in paragraph 4.17 were met or not clearly unmet, regardless of support.

Although the Governor was entitled to consider the prevalence of mental health issues in prisons and the availability of treatment, the court found the Governor’s assessment that the Appellant’s condition was not exceptional was not irrational given the evidence and the Policy’s high threshold for ERCG.

The court rejected the notion that the Appellant’s default imprisonment equated to having "the keys to his own cell" at the preliminary stage of the Governor’s consideration. This issue may be relevant for the Secretary of State or PPCS but not for the Governor when deciding whether to submit the application.

Overall, the court found that the Governor had no delegated power to refuse submission of the ERCG application on the merits if the criteria were arguably met, and thus the refusal to submit was unlawful.

However, the court acknowledged that even if the Governor had properly submitted the application, it was highly unlikely that the Secretary of State would have granted ERCG, given the evidence and Policy framework.

Holding and Implications

The court ALLOWED THE APPEAL and quashed the Governor’s decision refusing to submit the ERCG application to the Secretary of State.

The direct consequence is that the ERCG application must be submitted to the Public Protection Casework Section for consideration. The court ordered that this be done as soon as practicable by a Governor with no previous involvement in the matter.

No mandatory order was made requiring immediate submission, acknowledging that the application may need updating. The court emphasized that the decision on whether to grant ERCG remains with the Secretary of State or her delegated officials and that no new precedent was established regarding the substantive entitlement to ERCG.