A policy that prioritised the transfer to open conditions of post-tariff prisoners ahead of pre-tariff prisoners was a breach of the Secretary of State for Justice’s duty to allow indeterminate sentence prisoners a reasonable opportunity to demonstrate to the Parole Board that it was no longer necessary that they should remain in prison. Failure to publish that policy was a further breach of duty.
Two prisoners (H and J) applied for judicial review of a policy, administered by the defendant secretary of state, prioritising the transfer to open conditions of post-tariff indeterminate sentence prisoners, ahead of pre-tariff indeterminate sentence prisoners (indeterminate sentence prisoners (ISP) = life sentence prisoners).
H and J were pre-tariff indeterminate sentence prisoners in closed condition prisons. Their most recent Parole Board reviews had identified that they would need to undertake further work in open conditions to demonstrate their eligibility for release. Because of constraints on resources, a policy was put in place that prioritised the transfer of post-tariff prisoners to open conditions. The relevant prison rules and policies contained no mention of any policy or arrangement for prioritising some categories of prisoners over others when implementing transfers to open conditions. H and J therefore experienced a delay in their transfers to open conditions.
H and J submitted that (1) the delay was a breach of the secretary of state’s duty to allow ISPs a reasonable opportunity to demonstrate to the Parole Board that it was no longer necessary that they should remain in detention; (2) it was irrational and unfair to prioritise post-tariff prisoners ahead of pre-tariff prisoners, regardless of their position on the waiting list; (3) the secretary of state was unlawfully operating an inflexible policy; (4) the policy was unlawful because it was unpublished and was inconsistent with published policy; (5) their rights under the European Convention on Human Rights 1950 art.5 had been breached; (6) their rights under art.8 had been breached; (7) the policy discriminated between pre-tariff and post-tariff in the enjoyment of their art.5 rights contrary to art.14.
HELD: (1) The secretary of state was in breach of his public law duty.
In consequence there was excessive delay in implementing the transfers of H and J to open conditions to enable them to undertake the work required to meet the objectives for their Parole Board reviews on the expiry of their tariffs (see para.66 of judgment).
(2) Prioritisation of post-tariff prisoners was rational and fair because they were already eligible for release. They were at least presumptively detained unlawfully and the legality of their detention was subject to art.5(4). There was a pressing need for the secretary of state to address their position. Ceasing the transfer of determinate prisoners and increasing the number of ISPs transferred would have resulted in unacceptable pressures on the management of the prisoners (paras 73-74 of judgment).
(3) The secretary of state’s discretionary power to place prisoners under the Prison Act 1952 s.12 was sufficiently wide to entitle him to adopt a policy on the prioritisation of certain categories of prisoners when deciding how to clear the backlog. He was required to apply that policy in the interests of consistency and fairness whilst retaining an open mind to the need to make exceptions in appropriate cases. The policy had included an express provision providing for exceptional circumstances. H and J were unable to point to anything exceptional about their cases (paras 76, 79).
(4) The new arrangements were properly characterised as policy. There was a public law duty to publish the new arrangements for the transfer of prisoners to open conditions. The prioritisation scheme affected the timing of their transfer which could affect the outcome of a Parole Board review and thus release. Importantly, prisoners could not make an individual request for their cases to be treated as exceptional if they were not aware of the arrangements, R. (on the application of Lumba) v Secretary of State for the Home Department  UKSC 12,  1 A.C. 245 applied. It was not appropriate to quash the policy merely because of a failure to publish when it was lawful and J had suffered no detriment. The appropriate public law remedy for an unlawful failure to publish was a mandatory order requiring publication (paras 83-85).
(5) The instant court was bound by the decision in R. (on the application of Wells) v Parole Board  UKHL 22,  1 A.C. 553 in which the art.5 rights of ISPs had not been breached, despite the fact that the ECtHR consequently reversed that decision in James v United Kingdom (25119/09) (2013) 56 E.H.R.R. 12 and found that a breach had occurred, Wells followed and James considered. H and J’s art.5 rights had not been breached (paras 89-95).
(6) J’s art.8 rights were not interfered with by the delay in transfer to open conditions. The transfer, of itself, did not bestow upon J temporary leave in the community, to visit his family or to pursue employment decisions. The decision to grant such leave would be made separately from the transfer decision and would depend upon a specific assessment of risk (para.102).
(7) Although the ECtHR had ruled otherwise in Clift v United Kingdom (7205/07) Times, July 21, 2010, the instant court was bound by the lower decision of the House of Lords in that case that a prisoner’s status acquired by virtue of the length of his sentence was not a status protected by art.14, R. (on the application of Clift) v Secretary of State for the Home Department  UKHL 54,  1 A.C. 484 followed and Clift v UK considered. H and J’s art.14 rights had not been breached (para.108).
R (on the application of KEITH HANEY) v SECRETARY OF STATE FOR JUSTICE : R (on the application of PETER JARVIS) v SECRETARY OF STATE FOR JUSTICE (2013)  EWHC 803 (Admin)
QBD (Admin) (Lang J) 11/04/2013