England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE 96/0341/D

Royal Courts of Justice

Wednesday, 20th November 1996

B e f o r e:

LORD JUSTICE HIRST

LORD JUSTICE PETER GIBSON

LORD JUSTICE PILL

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THE QUEEN

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SECRETARY OF STATE FOR THE HOME DEPARTMENT

(2) THE GOVERNOR OF HER MAJESTY'S PRISON RISLEY

ex parte CRAIG HARGREAVES, KEVIN BRIGGS AND BRENDAN GREEN

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(Handed Down Judgment of Smith Bernal

Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR. T. GALLIVAN (Instructed by Messrs Reece Davis Wood Wild & Co., Birmingham) appeared on behalf of the Appellants/Applicants.

MR. M. BELOFF Q.C. and MR. S. KOVATS (Instructed by the Treasury Solicitor) appeared on behalf of the Respondents/Respondents.

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J U D G M E N T

(As approved by the Court )

Crown Copyright

This is an appeal against the decision of the Divisional Court (Kennedy L.J. and McCullough J.) to dismiss the applications by the appellants Craig Hargreaves, Kevin Briggs and Brendan Green for judicial review of two related decisions namely (i) a decision by the Secretary of State of the Home Department to implement a new scheme governing the eligibility of prisoners to apply for home leave and (ii) the order of the Governor of Her Majesty's Prison Risley which applied the new scheme to each of the appellants.

At all material times the three appellants were category C prisoners serving their sentences at Risley.

Prior to the implementation of the new system, they would have been entitled to apply for home leave after serving one third of their sentence. Under the new scheme they were entitled to apply only after having served half their sentence. Each appellant's case in a nutshell is that as a result of the new policy, which deferred his earliest date for eligibility by a substantial period, he was adversely affected in that he had been deprived of the legitimate expectation that he would be considered eligible for home leave after he had served one third of his sentence; each relied on the terms of a notice received form the prison authorities at the time when he began to serve his sentence and also on the terms of the compact which he entered into with the prison governor at the same time. The new rules did contain some transitional provisions, but the applicants did not benefit from these: essentially their case is that if these changes were to have been made they should have been implemented in such a way as to protect their legitimate expectations, and honour the terms of the compact.

Section 47(1) and (5) of The Prison Act 1952, under the heading "Rules for the management of prisons ....", provide as follows:-

"(1) The Secretary of State may make rules for the regulation and management of prisons, remand centres, detention centres and [youth custody centres] respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.

(5) Rules made under this section may provide for the temporary release of persons [detained in a prison, [remand centre, youth custody centre], or detention centre, not being persons committed in custody for trial [before the Crown Court] or recommitted to be sentenced or otherwise dealt with by [the Crown Court] or remanded in custody by any court]."

The Prison Rules 1964, rule 6, under the heading "Temporary Release", provided as follows.

"6.(1) A prisoner to whom this Rule applies may be temporarily released for any period or periods and subject to any conditions.

(2) A prisoner may be temporarily released under this Rule for any special purpose or to enable him to engage in employment, to receive instruction or training or to assist him in his transition from prison life to freedom.

(3) A prisoner released under this Rule may be recalled to prison at any time whether the conditions of his release have been broken or not.

(4) This Rule applies to prisoners other than persons committed in custody for trial or to be sentenced or otherwise dealt with before or by the Crown Court or remanded in custody by any court."

The change was introduced by the Prison (Amendment) Rules 1995 SI 983, which substituted for the previous rule the following under the same heading "Temporary Release":-

"6. (1) The Secretary of State may, in accordance with the other provisions of this rule, release temporarily a prisoner to whom this rule applies.

(2) A prisoner may be released under this rule for any period or periods and subject to any conditions.

(3) A prisoner may only be released under this rule:

.....

(h) to assist him in maintaining family ties or in his transition from prison life to freedom; or

....

(4) A prisoner shall not be released under this rule unless the Secretary of State is satisfied that there would not be an unacceptable risk of his committing offences whilst released or otherwise of his failing to comply with any condition upon which he is released.

(5) The Secretary of State shall not release under this rule a prisoner serving a sentence of imprisonment if, having regard to:

(a) the period or proportion of his sentence which the prisoner has served; and

(b) the frequency with which the prisoner has been granted temporary release under this rule

the Secretary of State is of the opinion that the release of the prisoner would be likely to undermine public confidence in the administration of justice. ......"

These changes were introduced as a result of the recommendations of a Prison Service Working Group which was set up by the Secretary of State as a result of problems which had come to his attention arising out of the operation of home leave, namely absconding and the commission of offences by some prisoners while on home leave, which had attracted considerable publicity, to the detriment of public confidence in the criminal justice system.

On 18th February 1994 Hargreaves was sentenced to imprisonment for six years for assault with intent to rob and motoring offences; on 17th June 1994 Briggs was sentenced to seven years imprisonment for conspiracy to supply cannabis, and on 14th July 1994 Green was sentenced to eight years imprisonment for a like offence.

As a result of the new rules, Hargreaves' earliest date for application was deferred from 12 April 1995 to 12 April 1996, Briggs' from 7 July 1995 to 2 September 1996 and Green's from 26 November 1995 to 26 February 1997.

On admission to HMP Risley each applicant was issued with a Notice to Prisoners (the notice) entitled "Home Leave" which provided as follows:-

" You may be eligible to ask for home leave. The following information applies from 1 October 1992:

Short home leave is 2 days excluding travel time. Long home leave is 5 days excluding travel time.

You can ask for home leave only if you are in one of these groups ......

Category C (or equivalent) sentenced to 2 years of more.

You can apply for short home leave after serving one-third of the total term of sentenced imprisonment, and at 6-monthly intervals after that.

You can apply for long home leave 2-months before your release date. ...

REMEMBER:

Home leave is a privilege for sentenced prisoners under Prison Rule 6. Its purpose is to help restore self-confidence by placing trust in you under conditions of freedom, and to help you to re-adjust to life outside prison by giving you the opportunity to maintain links with family and friends. Long home leave offers in addition the chance to contact prospective employers and make firm plans for release."

At the same time each applicant was invited to sign and did sign a compact. Such compacts were the subject matter of a recommendation of Lord Woolf's 1991 Report, and were current in 61 prison institutions by mid 1994.

The inmate compact offered by HMP Risley, and signed by each applicant and by a representative of the Governor provided inter alia as follows (the compact):-

"THE PRISON PROMISES TO PROVIDE

A. STANDARD REQUIREMENTS

...... Throughcare, and its involvement of your family in your resettlement plans if you wish, including consideration for Home Leave when you become eligible. ...

B. OPTIONAL ENHANCEMENTS

..... The opportunity to apply for temporary release or for home leave over and above the minimum facility (e.g. CJA Home Leave as stated in Notice to Prisoners 37/93). ...."

There followed a number of matters to which the prisoner was expected to commit himself, such as treating staff with respect, and never using violence.

On 18th November 1994 the Home Secretary announced in Parliament the proposed changes relating to temporary release of prisoners as follows so far as relevant:-

" I have been conducting a thorough review of the system of leave from prisons. In too many cases, the system has been abused. I have come to the conclusion that it needs to be tightened up. I can announce to the House today changes in the system that are likely to lead to a reduction of about 40 per cent in the amount of leave granted. I have placed full details of the new arrangements in the Library.

The new system will have a number of important features. First, with immediate effect, a much more rigorous risk assessment will be carried out before any temporary release is permitted. The safety of the public must be paramount. Secondly, there will be no automatic right to temporary release, which will be permitted only in certain carefully prescribed circumstances: first, leave on specified compassionate grounds; secondly, leave towards the end of a sentence to assist prisoners in reintegrating into the community; and finally leave for training, education or work experience designed to help in prisoner rehabilitation. That form of leave will not be available to the most dangerous prisoners - those in category A or B prisons - and will be considered only when suitable courses are not available within the prison. My long-term objective will be to restrict releases in that category to an absolute minimum by providing more facilities inside prison.

Thirdly, I am very disturbed by the number of occasions on which prisoners abscond when on temporary release. I have therefore decided to introduce a new offence designed to make breaches of licence while on temporary prison leave a criminal offence for the first time.

Prison governors will have an overriding duty, in considering any release, not only to ensure the safety of the public but to maintain public confidence in the prison system. The necessary training for the full introduction of the new arrangements will be completed early next year. I intend to review the new system by the end of next year to see whether any further changes are needed."

A similar statement was made by Baroness Blatch the Minister of State, Home Office in the House of Lords as follows:-

" A working group was established in June 1993 to review the operation of the home leave and temporary release schemes. It included representatives from the police and probation services, as well as from a broad range of penal affairs groups. Those groups included Victim Support, the Prison Reform Trust and the Federation of Prisoner Family Support Groups.

The working group recognised that, since the report of Lord Justice Woolf some two years earlier, the profile of home leave and temporary release had changed significantly. There had been public concern about the operation of both schemes following a number of serious failures where prisoners had committed serious and violent offences, including murder and armed robbery, while released temporarily. In addition, the working group recognised the concerns of victims that prisoners were being granted temporary release only a short time after being sentenced.

The noble Lord, Lord Rodgers of Quarry Bank, asked whether the Government had abandoned the principles of the Woolf Report. Again, I say to the noble Lord that the Government recognise - as, indeed, did Lord Justice Woolf in his report - the benefits that the temporary release of prisoners can provide. However, it is important that it should be within a clear framework, with the necessary safeguards in place to ensure public safety. The working group established in response to the Woolf Report recommended just such a scheme, which we have now implemented.

The report of the working group was presented to my right honourable friend the Home Secretary in October last year. The report included four recommendations. They took full account of the needs of both the public and prisoners and their families and the need to maintain good order and security in prisons and most importantly, public safety. It was in the light of that report that my right honourable friend made his announcement last November about the new system of release on temporary licence. That came into effect on 25th April.

The Government believe that there are important benefits to be gained in releasing suitable prisoners for short periods as part of the process of preparing for their eventual return to the community. Evidence shows that prisoners who have a job to go to, a secure family environment and skills developed by training or education are less likely to re-offend than those released ´cold' into the community. Testing prisoners in controlled and monitored circumstances therefore contributes to public safety.

The benefits of releasing prisoners for short periods in that way must, however, be weighed against any potential threat that prisoners who have been temporarily released may pose to the public and against the need to preserve public confidence that prisoners who have been sentenced to a term of imprisonment will not be released back on to the streets shortly after they have been sentenced.

The new scheme of release on temporary licence is more sharply focused than its predecessors. Prisoners will in future be released only for precisely defined and specific purposes. Prisoners will continue to be eligible to be temporarily released for justifiable purposes such as education and training leading to a recognised qualification where that cannot be provided in prison. Any such release would be allowed only where programmed into a prisoner's sentence plan and specifically designed to help the prisoner to lead a law-abiding and useful life upon release. It is unacceptable, however, for prisoners to be released for purposes which are purely social or recreational. That will no longer be allowed.

The new system will also continue to allow prisoners to be considered for temporary release in urgent and compelling compassionate circumstances or towards the end of their time in custody to maintain their family ties or re-establish links with the community in preparation for their return to the community.

One of the primary purposes of the new scheme must be to ensure that the public are not placed at any risk by the unacceptable release of prisoners who pose a threat to public safety. The new scheme includes a mandatory and stringent risk assessment carried out in collaboration with the Police and Probation Services.

Prison governors have a duty, in considering any release, not only to ensure the safety of the public but also to maintain public confidence in the administration of justice. Prisoners should not be released too early after sentencing, nor too frequently. To do so would undermine the purpose of imprisonment. Under the new scheme therefore, prisoners will have to serve longer in prison before applications for release on licence will be considered."

Affidavits were sworn on behalf of the Secretary of State by Irving Noyes Jones, who is a Higher Executive Officer in the Directorate of Programmes Policy Group, Prison Service Headquarters, and by Audrey Wickington a Grade 7 Administrator in the same Directorate. Mr. Jones testified as follows:-

"The Secretary of State became concerned that the system was being abused and that it needed to be tightened up. He considered that steps needed to be taken to restore public confidence in the penal system. .....

The Secretary of State was aware that his proposed changes would lead to deferment of the date at which some serving prisoners became eligible for consideration for resettlement licence. The Secretary of State considered what, if any, transitional provision should be made. He decided that prisoners who had already successfully completed a period of home leave and who were within 12 months of their parole eligibility date should continue to be eligible to apply for temporary release on resettlement licence. However, bearing in mind the reasons which had prompted the changes, he decided that other existing prisoners sentenced on or after 1 October 1992 who were serving determinate sentences of four years or more should be fully subject to the new criteria. ..."

Audrey Wickington testified as follows:

"As part of its remit, the Working Group considered the eligibility criteria for prisoners being granted home leave. The Working Group noted that eligibility was based on sentence length and the personal security classification of prisoners. They also noted that for certain classes of prisoners who had been sentenced before the implementation of the Criminal Justice Act 1991, their eligibility to be considered for home leave was linked to their parole eligibility date. They concluded that this was an important goal for prisoners serving long sentences and a fundamental aspect of sentence planning.

The Working Group also noted that following the implementation of the Criminal Justice Act 1991 there had been introduced new Home Leave Eligibility Dates ("HLEDs") for those prisoners sentenced on or after 1 October 1992. The Working Group recognised that this had led to the system becoming increasingly complicated to operate and that there had been a number of serious home leave failures which had given rise to public concern.

The Working Group concluded that it was imperative to devise a simple set of fair but firm criteria covering release on temporary licence which would lead to better decision making and more confidence that issues of public safety were properly addressed. Recognising the principles introduced by the Criminal Justice Act 1991 for the sentencing of offenders, the Working Group concluded that the criteria for determining the eligibility for the grant of resettlement licence needed to differ for determinate offenders sentenced to four years or more from those given shorter sentences of imprisonment. The Working Group also concluded that release on resettlement licence should remain linked to the prisoner's parole eligibility date and for prisoners serving four years or more should not take place before one-half of a prisoner's sentence expiry date.

The unanimous recommendations of the Working Group were submitted in a Report to the Secretary of State for the Home Department in October 1994. On the basis of the considerations set out in that Report, the Home Secretary accepted the Working Group's recommendation that for determinate sentence prisoners serving four years or more any period of release on resettlement licence should be not earlier than one half of the sentence expiry date. This coincides with the parole eligibility date set by the Criminal Justice Act 1991.

In November 1994 the Home Secretary announced to Parliament new arrangements, based on the recommendations made in the Working Group's report, for the release of prisoners on temporary licence to replace the existing home leave and temporary release schemes. The purpose of the new arrangements was to improve public safety and increase public confidence in the administration of justice by ensuring that prisoners were released on temporary licence for precisely defined and specific purposes, justifiable as part of their rehabilitative process. .....

The Home Secretary also considered the effect which the new arrangements would have on the eligibility of existing prisoners to be granted release on temporary licence. He concluded that it would be appropriate to make transitional arrangements for certain classes and categories of prisoners where this would not compromise public safety and the need to maintain public confidence in the administration of justice.

Accordingly, the Home Secretary concluded that those prisoners sentenced to four years or more before the implementation of the Criminal Justice Act 1991 should be allowed to retain their eligibility for resettlement licence at the point at which they would become eligible for release on parole licence. Similarly, the Home Secretary concluded that any prisoners sentenced on or after 1 October 1992 who had been through a risk assessment and had successfully completed a period of home leave should continue to remain eligible for resettlement licence if they were within 12 months of their parole eligibility date.

However, the Home Secretary though mindful of the expectations of other existing prisoners, concluded that the public interest which prompted the change of policy outweighed extending the transitional arrangements to them. The Home Secretary also took the view that it would be inconsistent with the purpose of the new policy to require the new tighter arrangements to apply to only those prisoners sentenced after the new system had come into effect. The public disquiet about the number of serious home leave failures and the release of prisoners too early and too frequently in sentence had been in relation to the existing prison population. There were no grounds for believing that only those prisoners sentenced after the implementation of the new system posed a greater degree of risk to public safety."

On behalf of the appellants, affidavits were sworn by Mr. Paul Francis Cavadino, Chairman of the Penal Affairs Consortium and Mr. Stephen Shaw, Director of the Prison Reform Trust.

Mr. Cavadino testified as follows:-

The respondents argue that there was ´an overriding public interest' which required the reduction in home leave opportunities to be applied retrospectively to existing prisoners. Two specific arguments are advanced in this connection.

Public safety .

"First, the respondents argue that: ´There had been a number of serious home leave failures which had given rise to public concern'. (This is true, and is a reference to a small number of cases in which serious offences of violence or sexual offences were committed by prisoners on home leave). It is therefore argued that there was a need for criteria which would produce ´more confidence that issues of public safety were being addressed'. However, before April 1995 this concern had already been specifically addressed by rigorous ´risk assessment' procedures which had been developed in response to concern about home leave failures. Circular instruction 43/92 contained detailed guidance for governors on risk assessment for prisoners being considered for home leave. This advised governors on specific issues which they should consider when assessing the level of risk, relating to the prisoner's criminal history, home circumstances, the attitude of the local community, behaviour on any previous home leaves and temporary releases, behaviour in prison, and other specific areas of concern. A subsequent instruction issued in November 1994 (70/1994) set out revised criteria which governors should consider before granting temporary release. This tightened up the risk assessment procedure by more explicit and rigorous criteria (eg requiring governors to assess whether the prisoner has ´tackled his offending behaviour in a positive and successful way', for example by participating in programmes designed to change offending behaviour); by instructing governors to contact the relevant police force well in advance and to take into account any views they expressed; by specifying that the probation service should also be involved in the assessment; and by providing that the views of known victims should be sought in the case of violent or sexual offenders.

Tight risk assessment is the most logical response to concern about the commission of serious offences against the person by prisoners on home leave: this would not normally involve restricting home leave opportunities for non-violent offenders. The further restrictions of April 1995, which excluded the applicants from consideration for home leave, were changes in the point in the sentence at which they would become eligible for consideration. These latter changes rule out the possibility of home leave for the applicants until a later point in the sentence whether or not they would have passed the risk assessment and have been judged safe for release. Unlike the earlier changes in risk assessment, therefore, the changes of April 1995 do not directly relate to public safety.

Public disquiet about too early or too frequent home leave.

Secondly, the respondents argue that the changes were needed because of ´public disquiet about ... the release of prisoners too early and too frequently in sentence'. This is an additional and separate point, as it refers to a suggested public feeling that prisoners should not receive temporary release early or frequently even if they do not threaten public safety. However, this particular concern had not normally been expressed in relation to home leave for long term prisoners serving sentences of four years or more, who under the previous rules had to serve one-third of their sentences before becoming eligible for home leave. It arose in most cases in connection with media publicity for a small number of high profile cases in which the use of temporary release other than home leave, at an earlier point in the sentence than home leave as such could be used, had resulted in prisoners being temporarily released after very short periods of weeks or months in custody. I personally favour opportunities for family contact by means of temporary release from an early stage in the sentence. However, this issue has no direct bearing on the separate issue of whether the home leave eligibility of longer term prisoners should arise after one-third or one-half of the sentence.

Therefore, neither of the two specific arguments advanced for ´an overriding public interest' are valid arguments for altering the point of eligibility for home leave retrospectively from one-third to one-half of the sentence in the case of the applicants or other prisoners in their position.

Moreover, any argument for an ´overriding public interest' is even weaker when the respondents' arguments are set against the following countervailing considerations which also relate to the public interest:

(i) The reduction of opportunities for family contact increases the risk of break-up of families during a sentence. This is relevant to the public interest in two respects. The first is society's interest in promoting the stability of families. The second is that family break-up can increase the likelihood of reoffending: the report of the Prison Service working group on home leave referred to research in the USA which has suggested that a prisoner without family support is six times more likely to reoffend in the first year after release than one who has maintained close family ties.

(ii) The longer the period of time without home leave, the greater the likelihood of institutionalisation of the prisoner.

(iii) More frequent opportunities for home leave and family contact reduce tension in prisons and provide a powerful incentive for good behaviour by prisoners.

(iv) The applicants and others in their position had signed prison compacts promising to provide inter alia consideration for home leave at the then applicable date of eligibility. It is in the public interest that a service which seeks to alter offenders' attitudes and behaviour in the direction of probity, honesty and honourable dealing should itself be seen to honour its promises.

In my view, therefore, the respondents' arguments of ´overriding public interest' are weak, and certainly insufficient to outweigh the legitimate expectations of the prisoners concerned."

Mr. Stephen Shaw, Director of the Prison Reform Trust, testified to like effect.

There was also a considerable body of evidence, not only from the appellants themselves, but also from others in the form of letters, which demonstrated (as is not in any way in dispute) the severely traumatic effect upon the appellants and upon other prisoners in the same predicament of the change of policy, which was promulgated in a notice to prisoners dated 20th April 1995.

The Divisional Court decided that the appellants had failed to establish any clear and unambiguous representation that they would be eligible for home leave after having served one third of their sentence, and that their legitimate expectation was no more than that their applications would be decided by reference to the criteria current at the time the application was made. In reaching this conclusion they placed strong reliance on the principles laid down by the House of Lords in Re Findlay [1985] 1 AC 318. They rejected a submission that, while giving a margin of appreciation to the Secretary of State, the court should conduct a balancing exercise based on considerations of fairness and proportionality, and that the proper test is not one based upon the Wednesbury principle but upon whether the Secretary of State had succeeded in showing sufficient countervailing considerations of public interest to justify his failure to give the appellants the benefit of the transitional provisions. Finally they held that there was no reason to conclude that what had been done in the present case was in breach of the principles contained in Article 8 of the European Convention on Human Rights.

The questions we have to decide are therefore:-

(1) What is the meaning of the notice and of the compact?

(2) What as a matter of principle in the light of Findlay's case is the general scope of a legitimate expectation when, in circumstances like the present, there is a change of policy?

(3) What approach should the court adopt as a matter of principle to a decision by the Secretary of State on a matter of substance such as the present one? Should it be by reference to the Wednesbury test, or by means of the proposed balancing exercise?

(4) Was there any departure here from the principles contained in Article 8?

Since questions (2), (3) and (4) all raise matters of general principle, while question (1) relates simply and solely to the facts of the present case, I shall deal with the former first.

The General Scope of Legitimate Expectation when there has been a Change of Policy .

In Re Findlay (supra) the Home Secretary had decided in 1983 to change the policy for release of prisoners on parole in relation to certain classes of serious offenders viz: for drug traffickers and violent offenders sentenced to more than five years imprisonment by deferment of parole until the final months of their sentence, and for certain categories of murderers by deferment until they had served at least twenty years of their life sentence. Four prisoners, two of whom were serving long determinate sentences, and two of whom were lifers, sought judicial review of the decision on a number of grounds, the relevant one for present purposes being that they had been deprived of their legitimate expectations. They were represented by Mr. Stephen Sedley QC (as he then was). Their applications failed, and Lord Scarman (with whom the other members of the Appellate Committee agreed) stated as follows at page 337:-

"Legitimate expectation. In the cases of Findlay and Matthews both of whom received determinate sentences, Mr. Sedley did not suggest that the statute gave rise to any greater expectation than that their cases would be considered on their becoming eligible for parole. Their cases have been considered and will continue to be considered under the new policy. Unless, therefore, the policy is unlawful (which I have held it is not), this argument avails them nothing. The cases, however, of Hogben and Honeyman, each of whom is serving a life sentence, raise issues other than the lawfulness of the policy and I defer my consideration of them until a later stage.

.............

I turn now to the special point taken on behalf of Hogben and Honeyman, namely that it was unlawful to apply the new policy to them.

The post-sentence history of these two appellants, each of whom is serving a life sentence, I have already summarised. They had good reason under the practice which prevailed before the adoption of the new policy to expect release much earlier than became likely after its adoption. The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. These two appellants obtained leave. But their submission goes further. It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent, changes of policy. Bearing in mind the complexity of the issues which the Secretary of State has to consider and the importance of the public interest in the administration of parole I cannot think that Parliament intended the discretion to be restricted in this way."

Mr. Elias submitted that Findlay's case is distinguishable on the footing that it was concerned not with when but with whether the prisoners should be granted parole, in other words that it dealt with eligibility for parole and not with timing; and that in any event the second passage quoted above was referable only to the two lifers and not of general application.

I am unable to accept these submissions for a number of reasons. First it is clear that timing, and the very severe impact of the deferment of parole on the prisoners' morale, was in the forefront of Mr. Sedley's argument (see page 324 C - E and 324 H - 325 A). Secondly, when considering eligibility for parole, timing is inevitably one of the main criteria, and was in fact the very criterion which was changed under the new policy adopted in 1983. Thirdly, the second passage in Lord Scarman's speech with its reference to "the most a convicted prisoner can legitimately expect ..." is clearly of general application to all the prisoners affected by the 1983 change of policy including of course a number on determinate sentences.

On this interpretation the present case (deferment of the earliest date of eligibility for making an application for home leave) and Findlay's case (deferment of the earliest date of eligibility for parole) are in my judgment indistinguishable, and consequently I think that Mr. Beloff was right in his submission that Findlay is dispositive of the present appeal, irrespective of the answer to the question of the construction of the notice and the compact.

This conclusion is strongly reinforced by the following passage from the leading speech of Lord Diplock in Hughes v. Department and Social Security [1985] AC 776, which concerned a change of policy as to the retirement dates of certain classes of civil servant:-

"But this remains the case only so long as the departmental circular announcing that administrative policy to the employees affected by it remains in force. Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government. When a change in administrative policy takes place and is communicated in a departmental circular to, among others, those employees in the category whose age at which they would be compulsorily retired was stated in a previous circular to be a higher age than 60 years, any reasonable expectations that may have been aroused in them by any previous circular are destroyed and are replaced by such other reasonable expectations as to the earliest date at which they can be compelled to retire if the administrative policy announced in the new circular is applied to them."

The Proper Approach for the Court to the Secretary of State's Decision .

Mr. Elias's argument in support of the balancing exercise to be conducted by the court was based entirely on the decision of Sedley J. in R. v. Ministry of Agriculture Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd. [1995] 2 AER 714. The case concerned the judicial review of a decision of the Minister (whereby he declared a moratorium on the permitted transfer of certain fishing licences), and was eventually resolved in the Minister's favour. However in the course of his judgment Sedley J. propounded a test which Mr. Elias submits was correct, viz:-

"These considerations, I think, bring one closer to some conceptual understanding of what makes an expectation legitimate. Legitimacy in this sense is not an absolute. It is a function of expectations induced by government and of policy considerations which militate against their fulfilment. The balance must in the first instance be for the policy-maker to strike; but if the outcome is challenged by way of judicial review, I do not consider that the court's criterion is the bare rationality of the policy-maker's conclusion. While policy is for the policy-maker alone, the fairness of his or her decision not to accommodate reasonable expectations which the policy will thwart remains the court's concern (as of course does the lawfulness of the policy). To postulate this is not to place the judge in the seat of the minister. As the foregoing citations explain, it is the court's task to recognise the constitutional importance of ministerial freedom to formulate and to reformulate policy; but it is equally the court's duty to protect the interests of those individuals whose expectation of different treatment has a legitimacy which in fairness outtops the policy choice which threatens to frustrate it."

Later at page 735 he asked the rhetorical question whether the Minister's decision was fair, and proceeded:-

"This, as I have held, while initially a question for the minister is ultimately a question for the court. But, in answering the question, the minister's policy objectives and reasoning form as important an element of the forensic exercise as do the potency and reasonableness of the applicant's expectations."

Sedley J. cited a number of authorities, but they all dealt with alleged procedural irregularities on the part of a Minister, on which, as is common ground, it is appropriate for the court to conduct an inquiry into the fairness of the procedure followed. But in no previous case has this been extended to decisions on matters of substance such as the present case, and indeed a distinction has frequently been drawn between the two, as for example in R. v. Panel on Take-Overs and Mergers, ex parte Guinness plc [1990] 1 QB 146, which concerned the judicial review of a procedural ruling by the Takeover Panel not to adjourn certain proceedings affecting Guinness.

Lloyd L.J. stated at page 183:-

"In the first place the question whether we are entitled to intervene at all is not to be answered, as Mr. Buckley argued, by reference to Wednesbury unreasonableness: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223. It is not a question whether, in the language of Lord Diplock, quoted by Watkins L.J. in the Divisional Court, the decision to hold the hearing on 2 September was

´so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it': see Council of Civil Services Unions v. Minister for the Civil Service [1985] AC 374, 410.

Rather, the question has to be decided in accordance with the principles of fair procedure which have been developed over the years, and of which the courts are the author and sole judge. These principles, which apply as well to administrative as judicial tribunals, are known compendiously,if misleadingly, as the rules of natural justice.

Mr. Buckley argued that the correct test is Wednesbury unreasonableness, because there could, he said, be no criticism of the way in which the panel reached its decision on 25 August. It is the substance of that decision, viz., the decision not to adjourn the hearing fixed for 2 September, which is in issue. I cannot accept that argument. It confuses substance and procedure. If a tribunal adopts a procedure which is unfair, then the court may, in the exercise of its discretion, seldom withheld, quash the resulting decision by applying the rules of natural justice."

The importance of preserving this distinction is demonstrated by another passage in Lord Scarman's speech in Findlay at page 333:-

"But the Secretary of State has clearly to consider other aspects of the early release of a prisoner serving a sentence of imprisonment. Deterrence, retribution, and public confidence in the system are factors of importance. The Parole Board, through its judicial and other members, can offer advice on these aspects of the question. But neither the board nor the judiciary can be as close, or as sensitive, to public opinion as a minister responsible to Parliament and to the electorate. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice. This must be why Parliament saw as necessary the duality of the parole system: without the advice and recommendation of a body capable of assessing the risk of early release the Secretary of State was not to act: but, having received such advice and recommendation, he was to authorise early release only if he himself was satisfied that it was in the public interest that he should."

Mr. Beloff characterised Sedley J's approach as heresy, and in my judgment he was right to do so. On matters of substance (as contrasted with procedure) Wednesbury provides the correct test. If follows that while Sedley J's actual decision in the Hamble case stands, his ratio in so far as he propounds a balancing exercise to be undertaken by the Court should in my judgment be overruled.

I am prepared to accept, as did the Divisional Court, that although not part of English domestic law the provisions of the Convention can assist in the elucidation of common law or in the interpretation of a statute ( R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696.)

Article 8 provides as follows:-

" Everyone has the right to respect for his private and family life, home and correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Mr. Gallivan submitted that a serving prisoner has a right to respect for his family and private life, albeit one necessarily circumscribed by the fact of confinement and the limitations necessarily inherent therein.

He cited two decisions of the European Commission X v. U.K. No. 9054/80 30 DR 113 (1982) and McCotter v. U.K. No. 18632/91 15 EHRR CD 98 (1993). However, although both those cases concerned prisoners in detention, neither throws any light on the present case, and in both the Commission ruled that the application was manifestly ill-founded.

In my judgment the fundamental interference with respect to family life in the present case is brought about by the lawful sentences of the court. Of course home visits are an important feature, but it must be borne in mind that there is no suggestion that any appellant was cut off from his family altogether, since prison visits continued as usual.

Moreover in applying the exceptions which Article 8 stipulates, it is to my mind quite clear that the considerations of public confidence and public safety, which are advanced by the Secretary of State, fall within their scope, and are properly to be regarded as meeting the criteria laid down by Lord Keith of Kinkel that a pressing social need must be shown, and that the restrictions should be no more than the is proportionate to the legitimate aim pursued ( Derbyshire C.C. v. Times Newspapers Ltd. [1993] AC 534 at page 550).

There was thus in my view no infringement of the principles contained in Article 8.

It is common ground that a representation can only be relied upon as the basis for a legitimate expectation if it is clear and unambiguous ( R. v. Inland Revenue Commissioners, ex parte MFK Underwriting Agents [1990] 1 WLR 1545 and R. v. Devon County Council, ex parte Baker [1995] 1 AER 73). It is also not in dispute that the document must be interpreted through the eyes of an ordinary prisoner.

The heading to the notice made it clear that the information which followed applied from "1st October 1992". This to my mind indicated that there had been a change at that date, which would certainly, at the very least, leave open the possibility that the ensuing information as to entitlement to apply for home leave might change again. It is also made clear under the word "REMEMBER" that home leave is a privilege.

The compact, in its first relevant passage, makes it clear that consideration for home leave is available "when you become eligible", and contains no representation as to timing. The reference to temporary release or home leave in the ´Optional Enhancements' refers back to the notice, to which I have already referred.

Taken as a whole, these two documents in my judgment do not contain a clear and unambiguous representation as to timing, and therefore are not a proper foundation for the legitimate expectation for which the appellants contend. It is, nevertheless, most unsatisfactory that documents of such importance to prisoners should be other than completely clear and unambiguous, and I trust that in future great care will be taken to ensure that all references to home leave (and indeed to any other privilege) in such documents state unequivocally and in plain language that eligibility for such privileges will be subject to the regime currently in force at the time of the application.

I proceed finally to evaluate the decision of the Secretary of State in accordance with the correct test. It is not suggested that his decision was in any way tainted with illegality. Nor could it be reasonably be suggested that it was irrational, let alone perverse, seeing that the Prison (Amendment) Rules 1995 expressly provided in rule 6(4) and (5) that a prisoner shall not be released unless the Secretary of State is satisfied that there would not be an unacceptable risk of his committing offences while released, or if the Secretary of State is of the opinion that the release of the prisoner would be likely to undermine public confidence in the administration of justice, i.e. the two main considerations advanced both by the Secretary of State in the House of Commons and Baroness Blatch in the House of Lords, and confirmed by the affidavit evidence of the Home Office witnesses.

The appellants' witnesses suggest that the first reason is unsound, seeing that public safety is already secured by the new risk assessment system; I reject this criticism, since, while of course that system is very important, the deferment of the earliest date for home leave is a further safeguard, in that it extends the period during which the prisoner is not at large with the opportunity to commit further offences and may also tend to reassure the public. The appellants' witnesses also contend that the public anxiety about prisoners re-offending while on home leave (to which Baroness Blatch expressly referred) was not directed against this particular class of prisoner, but to my mind that is far too fine a distinction.

Finally it is necessary to assess whether the Secretary of State took account of the relevant considerations, or omitted any. In my judgment he cannot be faulted on this account. I have already considered the two main factors behind his decision, namely public safety and the restoration the public confidence in the administration of justice. It is also plain from the evidence that he took into account the specific factors affecting the present appellants,( namely the deferment of their earliest possible date for home leave during the currency of their sentences, the precise terms of the appropriate transitional arrangements, and the inevitable distress which the change in policy would cause), together with the general benefits provided by home leave.

Mr. Elias submitted that he disregarded the compact, and it is true to say that there is no specific mention of the compact either in the Parliamentary statements or in the evidence. However, as the Divisional Court held, such arrangements were widespread in the prison service, and must have been very well known to the Secretary of State when he was considering the position of those already sentenced, so that it goes without saying that he must have had the compact in mind.

It follows that his decision is invulnerable under the Wednesbury test.

For all these reasons I would dismiss this appeal.

I have had the advantage of seeing in draft the judgments of Hirst and Pill L.JJ. I am in entire agreement with them and there is nothing which I would wish to add.

Central to the submissions of Mr Elias on behalf of the appellants is the submission that the Secretary of State’s (the respondent) change of policy as to home leave was unlawful because it frustrated a legitimate expectation which had arisen under the former rules of eligibility. A legitimate expectation was created when the appellants entered into a compact with the Prison Governor of HMP Risley under the former rules. It cannot be the law, Mr Elias submits, that a legitimate expectation can never stand against a change of policy. The question, he submits, is whether the respondent has justified to the Court his view that there is a public policy consideration which takes priority over the legitimate expectation created by the compact.

Mr Elias makes the further submission that, in answering that question, the Court, analysing the situation as a whole, must decide whether the respondent has acted fairly. Is it fair that the claimed public interest takes priority?

Hirst LJ has referred to the compact. It was signed by the appellants and on behalf of the Governor under the words “We agree to the terms and conditions of this compact”. Under the heading “The prison promises to provide”, it is stated inter alia, “Consideration for home leave when you become eligible”. The compact was signed after service on the appellants of a “Notice to prisoners” which stated that “You can apply for short home leave after serving one third of the total term of sentenced imprisonment”. The effect of the subsequent change of policy was that the appellants could apply for home leave only when they had served one half of their sentences.

In the compact under the heading “The prison expects you to commit yourself” was a list of nineteen requirements. These included aspects of good behaviour, general exhortations to “offer support to other prisoners” and “be an example to others” and requirements:

“To refrain from the use of threats or threats of violence and to fully support the declared aim of the establishment to provide a “violence free environment”

To treat the whole prison environment with care, including the maintenance of your cell to a high level of cleanliness and tidiness”

I mention these requirements as examples of the comprehensive code of good behaviour contemplated.

Under the heading “If the prison breaches the compact”, opportunities are provided to make complaints to authorities within and without the prison service. It is also stated that the prisoner may “Seek judicial review of administrative action if your legitimate expectations under this compact have unreasonably been denied”. I agree with Mr Elias that having regard to its form and substance, the document is not one to be treated lightly in the context of the present application.

I also agree with Mr Elias to the extent that the Court must analyse the situation as a whole. There must first be a fact-finding exercise as to the representations made to the promisee on behalf of the respondent and their impact on the promisee. It must then be considered whether an expectation was created and, if so, whether it is one which the law regards as a legitimate expectation which cannot be defeated by the change of policy. That will depend on all the circumstances, including the nature of the expectation, the change of policy involved and any justification given for that change in the light of the expectation claimed to exist.

Where I cannot agree with Mr Elias is in his submission that the Court can take and act upon an overall view of the fairness of the respondent’s decision of substance. The Court can quash the decision only if, in relation to the expectation and in all the circumstances, the decision to apply the new policy in the particular case was unreasonable in the Wednesbury sense. ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The claim to a broader power to judge the fairness of a decision of substance, which I understand Sedley J to be making in R v Ministry of Agriculture, Fisheries and Food ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, is in my view wrong in principle.

As well as the Governor’s notice and the compact, the Court must bear in mind the context of the respondent’s decision, a decision which was of importance in an area where he bears grave responsibilities and which is a matter of great public concern, namely penal policy. I agree with Hirst LJ that, notwithstanding the notice and compact, these appeals must fail. The underlying reason was stated by Lord Scarman in Re Findlay [1985] AC 318:

“But what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute.”

In this context, even if the appellants established that, when they signed the compact, they were misled by the contents of the notice and compact they could have no legitimate expectation which defeats the respondent’s new policy upon home leave and its application to them.

Hirst LJ has set out the circumstances in which the respondent took the decisions complained of and the evidence before the Court. In my judgment, and I apply the Wednesbury tests, the respondent did not take into account matters he ought not to have taken into account or neglect to take into account matters which he ought to have taken into account. He has not come to a conclusion so unreasonable that no reasonable Secretary of State could have come to it. He was entitled to treat the Governor’s notice and the compact as being of insufficient weight to deter him from taking the relevant decisions affecting the appellants.

I also wish to state my agreement with the view expressed by Hirst LJ as to the care which should be taken in the drafting of a document such as the compact. The issue of charters, whether for patients or passengers or others, has become commonplace as an activity of public bodies. This compact was different from most charters in that it stated not only what the prison promised to provide but what the prison expected from the prisoner in return. Mr Beloff confined his submission to one that the compact was adequate in point of law and he has succeeded. I would however express the hope that care is taken to state what will be provided for the prisoner in “as precise terms as possible”, to quote the words in paragraph 12.120 of the report of Lord Justice Woolf and Judge Tumin on Prisons (Jan 1991 Cm 1456). Section 12 of the Report, paragraphs 120 to 129, recommends that prisoners should be offered the opportunity to enter into a compact such as that now under consideration. In the respect identified by Hirst LJ, this compact falls short of the aspirations there expressed.

I would dismiss this appeal.

Order: Appeal dismissed; legal aid taxation.

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