On 26 March 2025 the Court of Appeal allowed the appeal by a prisoner seeking Early Release on Compassionate Grounds (‘ERCG’), represented by Philip Rule KC and Mirren Gidda of No5 Barristers’ Chambers (R (Neophytou) v Governor of HMP Berwyn; Secretary of State for Justice [2025] EWCA Civ 348).

The application was made on health grounds. The judgment ensures the correct application of the Secretary of State for Justice’s applicable policy requiring that where such an application is made, it
must be submitted to her specialist central team, unless it is clear the prisoner’s experience of imprisonment does not cause suffering greater than the deprivation of liberty intended by the punishment.

In the High Court below HHJ Keyser KC had held that the Governor was right to consider that, in determining if an application should be submitted to the Secretary of State for Justice, he himself needed to consider if it evidenced “exceptional circumstances” in his view. The judge also held that, if he was wrong, he would have anyway refused relief pursuant to section 31(2A) of the Senior Courts Act 1981, saying it was “highly unlikely” that the outcome would have been substantially different in exercise of the
power to grant ERCG and that “for these purposes, I take the Governor’sdecision to be that of the Secretary of State, via delegated authority.”

The appeal, heard by Lord Justice Bean, Lord Justice Phillips and Lady Justice Falk, challenged the judgment on several grounds. The CA holds that:

  1. The judge was wrong to hold that, contrary to the express wording of the ERCG policy, “paragraph 4.17 is “meant to refer to the kind of exceptional circumstances that are capable of justifying ERCG””(§37). Bean LJ considered what is meant by permitting a Governor to refuse to submit an ERCG application on health grounds only where it is clear the prisoner’s experience of imprisonment does not cause suffering greater than the deprivation of liberty intended by the punishment. Bean LJ held at §41 that the “natural meaning of the phrase… is to refer to suffering in custody caused by a health condition of which the sentencing court was unaware, unless the prisoner’s symptoms have materially worsened since sentence was passed.” He also noted (at §41) that “at this stage the prisoner is entitled to the benefit of the doubt.”
  2. There was no requirement of exceptionality for the Governor’s function. In “routine cases” where a prisoner might “experience depression, anxiety and other common consequences of custody”, it is likely a Governor will find the criteria has not been met, but any real doubt should be resolved in favour of the prisoner (§43).
  3. It was also wrong to say that an individual held the “keys to his cell” because he is in custody due to default in payment of a confiscation order. That is not relevant at the Governor stage of consideration (§44).
  4. It was not open to the judge to rely on section 31(2A) of the Senior Courts Act 1981. The policy does not give the Governor delegated authority to act on  behalf of the Secretary of State for Justice but only to refuse to submit an application to her if it is clear the relevant criteria are not met. If the Governor had properly applied the policy the outcome would almost certainly have been that the application would have been submitted to the Secretary of State for Justice.

Accordingly, the Court allowed the appeal and quashed the Governor’s decision. It ordered that decision to be re-taken by a Governor with no previous involvement with the case.

Philip Rule KC is head of the Public Law Group at No5 Barristers’ Chambers. Mirren Gidda is a member of the Public Law group at No5 Barristers’ Chambers.

The judgment is available here.