Young offender punishment regime is unlawful

A punishment regime at a young offender institution, which describes punishments as 'awards' and claims to be based on the consent of inmates, is unlawful, the High Court has ruled.

Mr Justice Holman said the Discipline Incident Report (DIR) system used at Wetherby in Yorkshire allowed the most junior rank of uniformed officer to be witness, accuser and, in some situations, 'victim'.

Giving judgment in R (on the application of KB) v Secretary of State for Justice [2010] EWHC 15 (Admin), Holman J said: 'The DIR system is described by the relatively anodyne title 'incident reports', which suggests that it is no more than a matter of 'reporting' and the keeping of a log or record of reports.

'The system and document uses the language of 'award' or 'awards'. In my view, however, it is clearly a system of punishment for offending.

'The first or lowest level of 'award' may be no more than a 'caution'. But subsequent or higher awards comprise extra work, loss of association, loss of dining and loss of television.'

He went on: 'In my view the system clearly results, or may result, in the reality of punishment which cannot be masked by the language or fig leaf of 'award'.'

Holman said he rejected the idea that the system could be saved by the 'supposed element of consent'.

He said that unless they were expressly curtailed by statute, rules or necessary implication from the fact of detention, prisoners or trainees retained all their civil rights.

'Whatever the reality, it is very understandable that a trainee may feel that if he does not agree to a DIR the matter will be reported to, and dealt with at, a higher level and a longer or severe penalty result.

'In an environment of such power imbalance as exists between a trainee and an officer, the safeguard of consent is, in my view, illusory.'

Mr Justice Holman said the DIR system was unlawful because it was ultra vires the Prison Act 1952, it was actually or potentially arbitrary in its characterisation of offences and it lacked minimum essential safeguards for the imposition of punishment.

'I wish to make clear at once that these conclusions relate and refer specifically to the system at Wetherby as to which I have evidence.

'If and insofar as there may be similar systems in place in other establishments, I have no information as to the detail of them and say nothing directly about them although they may require to be reappraised in the light of this judgment.'

Holman found that Wetherby's 'Incentives and Earned Privileges Policy' was entirely lawful and rejected the argument that it breached the claimant's human rights by providing a extra period of free time, which could be earned or lost as a privilege.

He allowed the claim for judicial review as it related to the institution's DIR.

'The secretary of state and HM YOI Wetherby (and HM Prison Service if there are similar systems in operation elsewhere) will need to consider and take stock of this judgment and, of course, to act upon it,' he said.

'In my view it is unnecessary, and a recipe for chaos, here and now to quash the DIR system, and I decline to do so.'

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