Neutral Citation Number: [2013] EWHC 803 (Admin)
Case Nos. CO/ 414/2012, CO/4543/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/04/2013

Before :

THE HONOURABLE MRS JUSTICE LANG DBE
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Between:

	THE QUEEN 
on the application of 
KEITH HANEY	

Claimant	
			
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SECRETARY OF STATE FOR JUSTICE
	
Defendant	

	
THE QUEEN 
on the application of
PETER JARVIS

Claimant	
	- and -		
	
SECRETARY OF STATE FOR JUSTICE	
Defendant	
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Hugh Southey QC and Jude Bunting (instructed by Michael Purdon Solicitor) for Keith Haney
Philip Rule (instructed by Carringtons Solicitors) for Peter Jarvis
Ben Collins (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 18th and 19th March 2013
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Judgment
Mrs Justice Lang DBE : 

1.	The Claimants in both these claims are indeterminate sentence prisoners (“ISPs”) who seek judicial review of the Defendant’s policy and decisions, implemented by the National Offender Management Service (“NOMS”), concerning their transfer from Category C ‘closed’ conditions to Category D ‘open’ prison conditions.  
2.	The claims were issued separately but were ordered to be heard together as test cases, raising issues which affect the outcome of other claims.  The Defendant did not oppose the grant of permission in either claim.  
The Facts
3.	Prior to July 2010, NOMS, through its Population Management Section (“PMS”), held a central waiting list for ISPs waiting to transfer between establishments, including to open conditions.   
4.	Following the introduction of the “dangerousness” provisions in the Criminal Justice Act 2003, there was a significant increase in the number of ISPs.   The Defendant failed to anticipate the increase, and did not make adequate provision for the increase in numbers. Some open prisons operated informal restrictions on the ISPs they were willing to take, as ISPs were considered to be a more demanding category of prisoner, whose parole reviews required extensive input from prison staff.  
5.	Under revised arrangements announced in July 2010 in Prison Service Instruction (“PSI”) 36/2010, each prison establishment was made responsible for managing the intake of ISPs.  Prisons were expressly forbidden to apply allocation criteria which excluded ISPs or limited the number of ISPs they would hold, except where such criteria were exceptionally authorised.   
6.	During late 2010 and early 2011, Mr Read, Head of the Operational Services and Interventions Group in NOMS, became aware that there remained difficulties in effecting moves for ISPs into open conditions.  He identified a number of reasons for this, including the increasing number of ISPs, the number of places available in open prisons, and some open prisons still operating restrictive allocation criteria for ISPs.  
7.	As a result of ongoing concerns raised by prisons, as well as judicial review challenges by prisoners, a position paper on ISP movement was prepared for a meeting in February 2011 which highlighted concerns that prisons were not complying with PSI 36/2010. Anecdotal evidence indicated that open prisons were reluctant to increase the number of ISPs, in part due to their concerns that they were not adequately resourced to manage them.  ISPs required a high level of Offender Management input, in particular relating to the parole process. 
8.	Following consideration of the issues by the Deputy Directors of Custody and the Director of Public Sector Prisons, the NOMS Executive Management Committee (“NEMC”) approved the following recommendations on 21 June 2011:
a)	a return to centrally managed lists combined with the prohibition of caps;
b)	the introduction of a national prioritisation policy which would lead to transparently prioritised waiting lists that could be managed centrally by PMS;
c)	NOMS Public Protection and Mental Health Group (“PPMHG”) to co-ordinate ISPs who needed to be moved into open conditions and to pass their names to PMS;
d)	introducing a minimum ISP capacity requirement for all open establishments;
e)	consideration of an increase in the total number of open prison places. 
9.	Mr Read was tasked with implementing the new procedures. On 27th September 2011, he wrote to the Director of Public Sector Prisons setting out the following proposals:
a)	central management of waiting lists by PMS;
b)	priority of moves to be determined by PPMHG;
c)	a commitment to clear the existing backlog of moves over a 9 month period;
d)	a requirement for each open prison to increase its ISP complement by a minimum of 10% of operational capacity;
e)	increase in the number of open estate places, by reconfiguration or expansion;
f)	consideration of extending Release on Temporary Licence (“ROTL”) to ISPs in closed conditions. 
10.	The new arrangements commenced in October 2011.  Mr Mercer, senior manager in the Offender Assessment and Management Section (“OAMS”), Offender Management and Public Protection group (“OMPPG”), had responsibility, in consultation with others in NOMS, for determining the criteria introduced to prioritise the transfer of ISPs to open prisons.  After considering various options, it was decided that prisoners whose tariff had expired should be prioritised over pre-tariff prisoners, because they had served the punitive part of their sentences, and would be eligible for release once the Parole Board was satisfied that they could be safely released. In contrast, pre-tariff prisoners could not be released prior to tariff expiry. 
11.	Prior to the implementation of the new arrangements in October 2011, the average waiting time for a move from closed to open conditions for a post-tariff prisoner was 8 to 9 months. Now it is only about 2 months, accounted for by the collation of the waiting list and the time needed to identify an appropriate open establishment.  
12.	In October 2011, there were around 300 post-tariff ISPs in closed conditions awaiting transfer to open.  By the beginning of December 2011, the number had risen to 405, as more post-tariff ISPs became eligible for transfer. By June 2012, the number had fallen to 243. The backlog was cleared by the end of August 2012. 
13.	As at 30th June 2012, there were 154 pre-tariff ISPs awaiting transfer to open prisons. They were fewer in number because far fewer pre-tariff prisoners are approved for transfer.  Pre-tariff prisoners began to be transferred in July 2012, together with post-tariff prisoners.  They were prioritised in order of proximity to tariff expiry date.  The backlog was cleared by the end of August 2012.   Pre-tariff ISPs now achieve transfer (once approved) at the same rate as post-tariff i.e. approximately 2 months. 
14.	No increase in the number of open prison places was achieved.  The figures show that in June 2011 there were 5,475 open prison places, only 22.5 % were occupied by ISPs, and the rest by determinate sentence prisoners. By December 2012, there were only 5,457 open prison places but 30.5% were occupied by ISPs, and the rest by determinate sentence prisoners. So the increase in transfers to open prisons was achieved by increasing the proportion of ISPs, at the expense of determinate sentence prisoners. 
15.	On 25th June 2012, the Defendant introduced a new policy (PSI 21/2012), which permitted ISPs who had been approved for transfer to open conditions, but remained in closed conditions, to undertake ROTL, if risk-assessed as suitable. 
Keith Haney
16.	On 13th November 2003, Mr Haney was convicted of robbery. He was sentenced to an automatic life sentence, pursuant to section 109 Powers of Criminal Courts (Sentencing) Act 2000, which required the court to impose a life sentence following conviction of a second serious violent or sexual offence unless there were exceptional circumstances relating to the offence or the offender which justified not doing so.  Mr Haney’s minimum term or tariff expired on 13th November 2012.   
17.	Mr Haney made very good progress in prison and consequently, in 2011, the Defendant agreed to re-categorise him as a Category D prisoner, without the need for a Parole Board review. The Defendant’s letter dated 9th June 2011 stated: 
“I am writing to inform you that the Secretary of State has decided to grant your transfer to open conditions without the need for a full Parole Board review.
Having reviewed your dossier we are content that you are suitable for a move to a Category D establishment. Please note that the arrangements for the transfer remain the responsibility of the holding establishment.
In the circumstances your Parole Board hearing that was scheduled for 29 July 2011 will not now take place and your current establishment can begin arranging your transfer immediately. Your next review will take place on tariff expiry and you will receive a separate letter confirming the date.” 

18.	The Defendant sent a further letter, also dated 9th June 2011, which stated that his case would next be referred to the Parole Board on the expiry of his tariff in September 2012, commencing the review process six months earlier in March 2012.  The letter stated:

“This review will allow you:
To be tested on all areas of risk.
To consolidate and continue to put into practice the skills and strategies learned from the offending behaviour work completed to date.
To undertake further work if necessary to address risk in the areas of:  Accommodation, Financial management, Relationships, Lifestyle & associates, Thinking & behaviour, and Attitudes”. 
To maintain family ties.
To demonstrate your ability to comply with ROTL conditions.  
To continue with vocational training and education to increase the possibility of securing employment on release.
To develop and test a robust release plan, which should include suitable employment, accommodation, and developing his vocational skills.”
19.	In my view, the terms of these letters indicate that the Defendant intended Mr Haney to be transferred to an open prison in the near future, to enable him to be reviewed for possible release following the expiry of his minimum term. The first letter stated “your current establishment can begin arranging your transfer immediately” (emphasis added).   The review, which was scheduled to commence in under a year’s time, was intended to “test him on all areas of risk”. It would only be possible to test him on all areas of risk in open prison conditions.  He was to “demonstrate his ability to comply with ROTL” (Release on Temporary Licence), for which an ISP was only eligible after transfer to an open prison. The final target “to develop and test a robust release plan”, to include employment, accommodation and vocational skills, would typically be addressed in an open prison, in the case of an ISP.  
20.	The Claimant was accepted by HMP Kirklevington Grange, an open prison, initially in June 2011.  However, the acceptance was subsequently revoked on medical grounds, and he was finally accepted on 15th September 2011.  This history is alluded to in the offender manager’s report quoted at paragraph 23(b) below. It was supplemented by specific details provided by the Defendant at the hearing, on which Mr Southey was not able to take instructions.  However, I take the view that, if the Claimant disputed the accuracy of the offender manager’s report, he would have instructed his legal advisers accordingly, in the course of the preparation of his judicial review claim.
21.	In a letter dated 17th October 2011, the Offender Management Unit at HMP Kirklevington Grange, explained that:
“Mr Haney is awaiting a transfer date which is controlled by a central resource.
Once we are notified we will contact his current establishment to arrange the transfer. Hopefully in the next few weeks.”
22.	In October 2011, NOMS introduced its new scheme for the transfer of ISPs, which I have described above. The effect was that post-tariff ISPs took priority over Mr Haney, as did any pre-tariff prisoners who were closer to their tariff expiry date. 
23.	In March 2012, the Defendant referred the Claimant’s case to the Parole Board for consideration of his release at tariff expiry.  The reports in the Claimant’s Parole Board dossier did not recommend release, primarily because he had not yet had an opportunity to demonstrate a reduction in his risk in open conditions. For example:
a)	In a report dated 20th April 2012, the Claimant’s offender supervisor commented:
“It is unfortunate that Mr Haney has not had the opportunity to fulfil the requirements of the Secretary of State in open conditions, and to demonstrate his positive behaviour and thinking in the less restrictive conditions of an open prison.  Certainly his behaviour at HMP Blundeston has caused no concerns in recent months and he has managed his frustration about the lack of progress appropriately and without incident.  It is my view, though, that it remains important for Mr Haney to go through the process of a staged return to the community, particularly as he is making very significant changes to an established historical lifestyle of criminality, including violence and the use of weapons.  I would not, therefore, recommend his release at this time, but would hope that he is given the opportunity as soon as possible to move into open conditions.”
b)	The Claimant’s offender manager commented in a report dated 10th May 2012:
“Mr Haney now accepts responsibility for his involvement in this offence and has done his utmost to address the issues surrounding it by attending relevant courses in prison.  Reports from those in prison who have worked with him are positive.  Mr Haney is currently assessed as posing a medium risk of re-offending and a medium risk of serious harm upon release. … In June 2011 Mr Haney was granted a transfer to open conditions by the Secretary of State without the requirement of an Oral Hearing.  I understand that he was provisionally accepted by HMP Kirklevington Grange but due to the nature of the medication he was prescribed at that time the transfer was postponed.  A change in the management of Lifer prisoners has resulted in a further delay.  Mr Haney is very disheartened by the delay.  However, to his credit he has shown considerable patience and hopes to be transferred as soon as possible.
At the present time I would not recommend Mr Haney’s release as he has not been provided with the opportunity to demonstrate his positive behaviour in a less restrictive environment.”
24.	In a report dated 18th April 2012, the Claimant’s keyworker at HMP Blundeston explained that the Claimant’s only sentence planning targets at that stage were (a) to work hard in the gymnasium, (b) to keep his enhanced status on the Incentives and Earned Privileges scheme, (c) to be CDT compliant.  I accept Mr Southey’s submission that none of these sentence planning targets would have a meaningful impact on risk reduction.
25.	On 18th May 2012, the Claimant’s solicitors wrote to the Defendant’s legal representatives to request that the Defendant urgently expedite the Claimant’s transfer to open conditions as an exception to the usual policy that pre-tariff prisoners would be prioritised behind post-tariff prisoners.  The bases for this application were (i) the length of time that the Claimant had been waiting for a transfer to open conditions; (ii) the anxiety and distress this has caused him; (iii) the fact that the authors of reports in a dossier of documents prepared for the Claimant pending Parole Board review were unable to recommend release primarily on the basis that he had not yet transferred to open conditions; and (iv) the proximity of the Claimant’s next Parole Board hearing.
26.	On 22nd May 2012, the Defendant indicated that the Claimant’s position was not so exceptional as to justify an expedited transfer to open conditions as an exception to the Defendant’s policy.
27.	On 29th June 2012, a judicial member of the Parole Board considered the Claimant’s case at an intensive case management paper sift review.  The Parole Board considered that, on the basis of the evidence in the dossier prepared for the Claimant’s review, there was no reasonable prospect of Mr Haney obtaining a direction for release if his case was considered at an oral hearing.  
28.	On 2nd July 2012, the Court sealed a consent order granting permission to the Claimant and requiring the claim to be listed for the first available date.
29.	On or around 16th July 2012, the Defendant transferred the Claimant to open conditions at HMP Kirklevington Grange.
30.	It was common ground that the date of transfer had been delayed for administrative reasons, although no one was able to say precisely when the Claimant would have been transferred if (a) a backlog had not developed and (b) priority had not been given to post-tariff ISPs when clearing the backlog.   
Peter Jarvis
31.	On 24th April 2006, Mr Jarvis was convicted of three counts of rape and one count of robbery, arising out of an attack on a woman at her home.  He was sentenced to discretionary life imprisonment.  His minimum term expires on 8th July 2013. 
32.	After an oral hearing and review, the Parole Board recommended he be transferred to open conditions on 8th June 2011.  In its decision, the panel referred to the offending behaviour programmes already completed and that “there is no further outstanding offending behaviour work that you need to undertake”.  The panel identified the benefits of a move to open conditions as “an opportunity to be tested over an extensive period and to advance your employment prospects, develop a good relationship with your Offender Manager and work on family support”.   
33.	On 13th June 2011, the Defendant accepted the Parole Board’s recommendation and directed that he be transferred to open conditions.  The Defendant formally notified the Claimant by letter dated 4th July 2011 that he agreed to his transfer to open conditions, and that he would be referred to the Parole Board for a tariff expired provisional hearing in July 2013.   The letter stated:
“Areas of concern to be addressed prior to the next review are:
•	To undertake further relapse prevention and risk reduction consolidation work as may be recommended for you with motivation and commitment.
•	To develop fully formed strategies to prevent a return to your former alcohol misuse behaviour.
•	Use the opportunity to advance your employment prospects.
•	To undertake ROTL.
•	To consolidate skills learned from offending behaviour programmes completed to date.
•	To be carefully monitored in all areas of risk to ensure that you are equipped to deal with the requirements of everyday life in the community.
•	To build a constructive relationship with you Offender Manager and with his/her help develop and test a robust release plan.
Mr Jarvis’ review has been set to conclude on tariff expiry i.e. July 2013 and take account of the following: -
•	Transfer period
•	Relapse prevention and risk reduction consolidation work including testing, and the following ROTLS (will take place after 4 – 6 months)
•	Robust release plan.”
34.	In my view, the terms of this letter indicate that the Defendant intended Mr Jarvis to be transferred to an open prison in order to address areas of concern before his next Parole Board review in July 2013.  Many of the areas of concern referred to could only be addressed in open conditions, e.g. ROTL, advancing his employment prospects, being monitored and tested in all areas of risk, and developing a robust release plan.  The review process formally begins 6 months in advance of the review date under the Generic Parole Process (formerly PSO 6010, now contained in PSI 36/2012).  The preparation of reports by responsible officers typically begins months earlier. To have a realistic chance of securing positive recommendations, he would need to undertake ROTL and demonstrate that he could be trusted in open conditions before the reports were prepared in the latter part of 2012. 
35.	On 16th September 2011, he was informed that he was 87th on the waiting list for HMP Leyhill, one of the three open prisons which accept sex offenders.
36.	In November 2011, NOMS wrote to HMP Channings Wood (referenced in the letter from Mr Jenkins dated 11th January 2012) stating:
“As Mr Jarvis’ tariffs are yet to expire, they will not be considered for transfer under this exercise at this time. We are expecting to begin prioritising pre tariff ISPs at a later date, which will be agreed once the level of post-tariff prisoners awaiting transfer to open conditions has been reduced to a more manageable level”. 
37.	On 27th January 2012, Mr Jarvis’s solicitor wrote to the Defendant asking that he should be transferred to open conditions as a priority. On 31st January 2012, the Defendant replied, explaining the new policy in operation since October 2011. The letter concluded:
“As Mr Jarvis’ tariff will not expire until 8 July 2013, he will not be prioritised for transfer yet. We will begin the process of transferring pre-tariff prisoners once the backlog of post tariff prisoners has been dealt with; we expect this should be within 9 months. Prioritisation of pre-tariff prisoners will also be determined by the date of SofS approval; the longer the period of time the prisoner has been waiting to transfer the higher will be the priority to transfer the prisoner. However, with a view to beginning the process of moving pre-tariff prisoners as soon as possible, we will review the approach we are planning to take with pre-tariff prisoners early in 2012 in light of progress with transferring post tariff prisoners.”
38.	Mr Jarvis issued this claim on 30th April 2012.
39.	He was transferred to HMP Leyhill on 19th July 2012.   
40.	The reports which were prepared in August, November and December 2012 for his forthcoming Parole Board review in July 2013 indicate that his release has not been recommended, at least in part because he had not yet been adequately tested in the community through employment, voluntary work and overnight resettlement leave. Earlier transfer would have enabled him to undertake these activities, and be assessed on them, for the purposes of his Parole Board review.   
41.	As with Mr Haney, it was common ground that the date of transfer had been delayed for administrative reasons, although no one was able to say precisely when Mr Jarvis would have been transferred if (a) a backlog had not developed and (b) priority had not been given to post-tariff ISPs when clearing the backlog.     
Grounds of challenge, other than under the Human Rights Act 1998
	  (1) Statutory and policy framework
42.	The Prison Act 1952, section 12, provides as follows:
“(1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.
(2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of imprisonment from the prison in which they are confined to any other prison.”
43.	The Prison Rules 1999 (S.I 1999/728), rule 7, headed “Classification of Prisoners” , reads as follows:
“(1) Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3.”
44.	Prison Service Order 2300 “Resettlement” details the published resettlement process which will normally be applied to prisoners in the open prison estate, and focuses on the progress of the individual in his sentence, and at paragraph 22 includes:
“Life sentence prisoners will be allocated to a resettlement estate place as a result of progress in meeting sentence planning targets and reducing risk of harm…”
At paragraph 7.24
“It will be the norm for male life sentence prisoners to undergo both Stage 1 and Stage 2 of the resettlement estate process in an open establishment or one of the three resettlement prisons.”
45.	Decisions to transfer to open conditions by the Parole Board are guided by the Defendant’s directions to the Parole Board, issued pursuant to the powers in section 32(6) of the Criminal Justice Act 1991. The Directions, in part, read as follows:
“1. A period in open conditions is essential for most life sentence prisoners, ‘lifers’. It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons. Lifers have the opportunity to take home leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.
2. In considering whether a lifer should be transferred to open conditions, the Parole Board should balance the risks against the benefits to be gained from such a move. Such considerations is, thus, somewhat different from the judgment to be made when deciding if a lifer should be released: in those cases, the Parole Board is asked only to consider risk.
3. The principal factors which the Parole Board should take into account when evaluating the risks of transfer against the benefits are:
(a) whether the lifer has made sufficient progress towards tackling offending behaviour to minimise the risk and gravity of reoffending and whether the benefits suggest that a transfer to open conditions is worthwhile at that stage; and,
(b) whether the lifer is trustworthy enough not to abscond or commit further offences (either inside or outside the prison).
4. Each case should be considered on its individual merits.
5. Before recommending transfer to open conditions, the Parole Board should consider whether:
(a) the extent to which the risk that the lifer will abscond or commit further offence while in prison is minimal;
(b) the lifer has shown by his performance in closed conditions that he has made positive efforts to address his attitudes and behavioural problems and the extent to which significant progress has been made in doing so;
(c) the lifer is likely to derive benefit from being able to continue to address areas of concern in an open prison and to be tested in a more realistic environment.”
46.	It was common ground before me that re-categorisation to Category D, followed by a period in an open prison, is almost always required before an ISP is recommended for release.  As Keith J. said in R (Yusuf) v Parole Board [2011] 1 WLR 63, at [7]:
“The transfer of a prisoner from closed to open conditions is – at first blush, at any rate – no more than a re-categorisation of a prisoner’s security classification and on the face of it has nothing to do with the prisoner’s early release from prison. In fact that is not right. A change in the prisoner’s security classification is the consequence of any decision to transfer the prisoner to open conditions, not the cause of it …  a lifer is very unlikely to be released without having spent some time in open conditions. That was what Irwin J. found in R (Hill) v Secretary of State for the Home Department [2007] EWHC 2164 (Admin) at [5] – [7]. It is therefore common ground that for such prisoners their transfer from closed to open conditions is “to do with [their] early release”, since the earlier they are transferred to open conditions, the sooner they are likely to be released.”
47.	This is confirmed in PSO 4700 “Serving the Indeterminate Sentence”:
“4.8.1 In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence. A similar approach will apply to many other indeterminate sentence cases, but decisions will need to be taken on a case by case basis. In general terms, the longer the time in custody served by an ISP, the more likely they are to require a period in open conditions as part of a phased release.”
“4.8.2 The intention is that the ISP will undergo final assessment in conditions as near as possible to those in the community, as long as appropriate risk management plans are in place. S/he will be encouraged to gain work experience in preparation for release back into the community. Whilst the emphasis will be preparing the ISP for their release back in to the community on licence, the risk assessment process must continue. It is important, therefore, a thorough ROTL risk assessment is conducted upon their arrival to ensure all areas of risk have been identified and addressed, before they are considered for ROTL. The risk assessment must be completed within 14 days of the ISP’s arrival. ROTL is covered by PSO 6300.”
48.	Section 28 of the Crime Sentences Act 1997 entitles each life sentence prisoner to have his case referred to the Parole Board by the Defendant at any time after he has served the minimum term or tariff fixed by the trial judge.  If the Parole Board directs release, the Defendant must follow that direction.   
49.	The Parole Board may only direct release if “it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined” (section 28(6)(b)).  
50.	The underlying rationale behind these provisions is that an indeterminate life sentence comprises a fixed punitive element, referable to a notional determinate prison sentence, followed by an indefinite protective element where release can be ordered if the prisoner no longer poses a danger to the public.  In Thynne, Wilson & Gunnell v. UK (1990) 13 EHRR 666, the ECtHR held, at [76]:
“… the detention of the applicants after the expiry of the punitive periods of their sentences is comparable to that at issue in the Van Droogenbroeck and Weeks cases: the factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of detention. It follows that at this phase in the execution of their sentences, the applicants are entitled under article 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court.”  
51.	All life sentence prisoners are entitled to a Parole Board review which is able, in principle, to direct their release on or shortly after the tariff expiry date. In R (Noorkoiv) v Home Secretary and Parole Board [2002] 1 WLR 3284, the Court of Appeal held that a Parole Board hearing held two months after the expiry of the tariff was not a sufficiently prompt review of detention, as “review of the lawfulness of detention after the tariff period means review of whether the prisoner should be detained after that period, and not that the review itself can only take place once that period has expired” (per Buxton LJ at [40]).  Upon analysing the principles which could be drawn from the article 5(4) authorities in the ECtHR, Buxton LJ concluded that:
a)	it is the obligation of the state to organise its legal system to enable it to comply with Convention requirements (at [24]); and
b)	there is no general principle that “administrative necessity”, including lack of resources, excuses delay on the part of the State (at [26]);
c)	the fact that the state is dealing with people who are at least presumptively detained unlawfully and the legality of whose detention is controlled by article 5(4), imposes a more intense obligation than the prompt hearing obligation under article 6(1) (at [25]).
52.	The Generic Parole Process, set out in PSO 6010, commences six months prior to the Parole Board review date. As is apparent from the fact of the Claimants’ cases, a transfer to open conditions prior to the Parole Board review, and indeed prior to the commencement of the Generic Parole Process, is of critical importance to a prisoner’s progression to release, as it gives him the opportunity to demonstrate, by temporary release into the community and open prison conditions, that he no longer represents a risk to the public. 
(2) Ground 1: breach of the Defendant’s public law duty 
53.	The Claimants’ first ground was that the delay in transferring them to open conditions was a breach of the Defendant’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.
54.	The Defendant conceded that a prompt transfer of an ISP to open conditions, following approval, fell within the scope of his “public law duty to provide the systems and resources that prisoners serving indeterminate sentences need to demonstrate to the Parole Board that it is no longer necessary for the protection of the public that they should remain in detention”.   
55.	The Defendant also conceded that there had been excessive delay in transferring these Claimants to open conditions because of a systemic failure in the arrangements for transfer of ISP prisoners.  
56.	In my view, these concessions were properly made.  Similar concessions have been made by the Defendant in consent orders in other judicial review claims (R (Smith and Talbot) v Secretary of State for Justice (CO/9109/2011 and CO/1468/2011) and it would have been inconsistent to take a different approach in these claims.  
57.	Moreover, the Defendant’s breach of duty in failing to provide for ISPs has already been established in a case raising similar, though not identical, issues. In R (James, Lee & Wells) v Secretary of State for Justice [2010] 1 AC 553, the House of Lords held that the Defendant must make available to ISPs “ a fair opportunity for their rehabilitation and the opportunity to demonstrate that the risk they presented at the date of sentence has diminished to levels consistent with release into the community” (per Lord Judge CJ at [105]). The Defendant had “failed deplorably” to perform his public law duty to provide the system and resources that prisoners serving indeterminate sentences needed to demonstrate to the Parole Board, at or soon after the expiry of their tariffs, that it was no longer necessary for the protection of the public that they should remain in detention (per Lord Hope at [3]).   
58.	Those appeals concerned prisoners sentenced under the “dangerousness” provisions in the Criminal Justice Act 2003.  They were short tariff prisoners for whom there were inadequate systems and resources available (i) to draw up sentence plans identifying relevant risk factors and how to address them; (ii) to provide the necessary courses; and (iii) to move them from local to training prisons where appropriate courses could be taken.  In consequence, they were unable to demonstrate to the Parole Board that they were safe to release, even if indeed they were.  
59.	Although the factual basis of those claims was somewhat different to these cases, the conclusions of the House of Lords in relation to the Defendant’s public law duty to ISPs, and the failure to provide for the increased number of ISPs after the Criminal Justice Act 2003 came into force, meant that the Defendant’s concession in the claims before me was properly made.  
60.	However, the Defendant went on to submit that the only issue for the court was whether the Defendant had acted rationally within the limits of the available resources (R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522, [2004] UKHRR 101).  The Defendant did not owe a legal duty to any individual prisoner to transfer him to open conditions, and no such duty was established in Wells & Ors.   
61.	In my judgment, the Defendant’s submission confused several different issues. In Cawser, where the issue was delay in providing a Sex Offender Treatment Programme for the Claimant, the Court of Appeal did not find any breach of public law duty by the Defendant. In contrast in these cases, the Defendant has conceded that there has been a breach of his public law duty. Where there has been a breach of a public law duty, a person who is adversely affected is entitled to seek a remedy from the court. He does not need to establish a separate legal duty owed to him personally, like a statutory tort.  This is confirmed by the decision of Bean J. in R (Mehmet) v Secretary of State for Justice [2009] EWHC 1202 (Admin), who applying Wells, held that the failure to provide a report on the claimant to the Parole Board was a breach of the Secretary of State’s public law obligations and accordingly unlawful. Bean J. held the claimant was entitled to a declaration to that effect. 
62.	In judicial review, the mere fact that there has been a breach of a public law duty does not necessarily mean that an individual will be granted a remedy. For example, the House of Lords in Wells & Ors did not grant the remedies, in the form of mandatory orders and damages, which the claimants sought.  The court could not order their release because their detention remained valid under the statutory scheme until the Parole Board directed that they could be released. The breach of the public law duty did not give rise to any entitlement to damages, in accordance with the general principle that a private law right to damages must be established to entitle a claimant to an award of damages in a judicial review claim.   
63.	In this case, if the Defendant had not already taken steps to address the backlog of ISPs awaiting transfer to open conditions, the Claimants would have been entitled to apply to the court for a mandatory order requiring the Defendant to perform his public law duty to take the necessary steps to provide the systems and resources required to enable ISPs, including the Claimants, to demonstrate to the Parole Board that they did not represent a risk to the public. 
64.	Since the Defendant has successfully addressed the backlog and transferred these Claimants to open conditions, no mandatory order is sought by the Claimants. The Claimants now only seek a declaration.
65.	The Defendant also submitted that the Claimants could not establish that they had lost the opportunity to demonstrate the required reduction of risk to the Parole Board. Both were transferred to open conditions before their tariffs expired and there is no set time which a prisoner needs to spend in open conditions.   In my view, this factor would be relevant if I had to decide a claim for damages, but there is no claim for damages (other than under the Human Rights Act 1998, which I consider separately below).  
66.	For the purposes of this judicial review claim, it is sufficient that each Claimant  has established (1) that the Defendant was in breach of his public law duty to provide the systems and resources that prisoners serving indeterminate sentences need to demonstrate to the Parole Board that it is no longer necessary for the public that they should remain in detention; and (2) in consequence there was excessive delay in implementing the transfer of the Claimant to open conditions, to enable him to undertake the work required to meet the objectives for his Parole Board review on expiry of his tariff, as set out in the Defendant’s letter to the Claimant [dated 9th June 2011 in the case of Mr Haney and 4th July 2011 in the case of Mr Jarvis].    
67.	As the Defendant has disputed the Claimants’ rights to bring this claim and to seek relief, and as this claim may proceed to a higher court on the ECHR grounds, I consider it is appropriate to make a declaration in each claim in the terms set out in paragraph 66 above.  
(3) Ground 2: the October 2011 policy or ‘new arrangements’
68.	The Claimants’ second ground was that the new arrangements  introduced in October 2011 were unlawful on the following grounds:
a)	it was irrational and unfair to prioritise all post-tariff prisoners ahead of pre-tariff prisoners, regardless of their position on the waiting list prior to October 2011;
b)	it was irrational and unfair not to make space for ISPs by pausing the transfer of determinate prisoners, who are released automatically and for whom transfer to open conditions is not a pre-requisite for release;
c)	the Defendant failed to have regard to material considerations, including the length of time spent waiting for transfer and the length of tariff (submitted only on behalf of Mr Jarvis);
d)	the Defendant adopted an inflexible policy and thereby fettered his discretion;
e)	the Defendant applied an unpublished policy which conflicted with the published policy (submitted only on behalf of Mr Jarvis).
69.	The Defendant’s response was that he considered the various options for clearing the backlog and made a rational decision to prioritise the post-tariff prisoners, because they were eligible for release and continued detention could only be justified if they represented a risk to the public. It was not feasible to transfer all the ISPs at one go, because of the need to ensure that sufficient resources were in place to manage and support ISPs at open prisons.  The Defendant denied that he was applying an inflexible policy; there was provision for exceptional cases.  The Defendant also denied that he was operating an unpublished policy which conflicted with published policy.  The published policy related to categorisation and allocation, whereas these were merely arrangements for clearing the backlog of transfers.  
Rationality, fairness and taking into account relevant considerations
70.	In my judgment, the Defendant’s evidence was cogent and convincing.  Mr Mercer said in his first witness statement:  
“Prioritisation criteria
2. A system of prioritisation was required to address the backlog, because it would not be possible or safe, to transfer all the ISPs awaiting transfer at the same time. Whilst NOMS aims to transfer prisoners who are identified as being part of the backlog into open conditions as soon as possible, it is extremely important, given the numbers involved, together with the complexity of individual cases and the risks and needs which offenders concerned present, that transfers are managed with care. Thus it is necessary to consider both the needs of the prisoners and the pace at which transfers are operationally manageable for individual establishments. For these reasons, the process of identifying and allocating suitable establishments and effecting transfers is being phased, with prisoners’ cases being dealt with by PMS in tranches, initially of 50 at a time, since increased to 100, and potentially increasing still further.
3. For purposes of clearing the backlog, prisoners whose tariff has expired were considered to be a higher priority than pre-tariff prisoners because they have served the punitive part of their sentence and progression through their sentences is now entirely focused on reducing their risk to the point where the Parole Board determines that they may be safety released. The decision was taken to prioritise post tariff prisoners over pre tariff prisoners because the earliest pre tariff prisoners can be released is at tariff expiry. The view was taken that the further away from tariff expiry a prisoners is, the less likely it is that they would be prejudiced by a non-immediate transfer to open conditions after the Secretary of State’s approval.
4. When considering how to prioritise pre-tariff prisoners, considerations included:
i. the need to ensure fair treatment between prisoners, including that prisoners who were often difficult to place (such as sex offenders) were not disadvantaged compared to those with less complex needs;
ii. to take account of the length of time for which prisoners had waited for transfer;
iii. to take account of the amount of time remaining prior to tariff expiry;
iv. to provide a transparent system so that prisoners could be given reasonable estimate as to when they were likely to move;
v. to set up a system that was straightforward and would avoid complex and resource intensive administration; and
vi. to permit exceptional circumstances
 to be considered on request in individual cases.
5. Among pre tariff prisoners, it was decided, after considering various alternative means of prioritisation, that the fairest solution was to prioritise prisoners in orders of proximity to tariff expiry. This solution also had the benefit of being transparent, straightforward and practical. There were a number of prisoners approaching tariff expiry and we considered these prisoners to be of the highest priority and wanted to ensure that the criteria did not allow them to be leapfrogged by other prisoners. Prisoners who had a year or two to go until their tariff expiry would have plenty of time to utilise open conditions to demonstrate to the Parole Board a reduction in risk even if there was a delay in transferring them.
6. Consideration was given to other way of prioritising pre tariff prisoners, such as proximity to next parole review; individual circumstances; length of tariff; and date of Secretary of State approval; but these options would disadvantage many prisoners who were approaching their tariff expiry date, leading to anomalous and unfair treatment:
i. Proximity to parole review date: Once a pre tariff prisoner is approved for open conditions by the Secretary of State their parole review will take place on tariff expiry. Therefore there is not much difference between prioritisation using next parole review or tariff expiry date. However, parole reviews can be subject to delay for a number of reasons including late submission of reports; awaiting completion of offending behaviour work; or availability of panel members or witnesses. Parole reviews may also be deferred whereas tariff expiry dates remain the same. In cases where there is a delay or a deferral, prisoners placement on the list would have to be revised to take account of the new timetable. As parole review dates vary from one prisoner to the next in this manner, a waiting list organised by reference to this would be extremely fluid and the result of this would be that prisoner’s positions on the waiting list would be subject to continual change. Re-consideration and prioritisation of each case would have to be repeated on an unacceptably frequent basis as ISPs were added to, or removed from the list, or otherwise reprioritised following deferral or delay. It would, therefore, be impossible to give a meaningful estimate of the likely period a prisoner would have to wait for transfer. We therefore believe that this solution would be unfair, as well as lacking in transparency and being difficult to manage.
ii. Length of tariff was considered to be irrelevant to the prioritisation process as it has no bearing on the Secretary of State’s approval for a transfer to open conditions, which is based on risk pertaining at the time rather than either of these factors. The Secretary of State’s decision to allow an ISP to transfer to open conditions is the earliest point at which this progressive move can take place.
iii. Considering each case individually on its merits: Consideration was also given to prioritising each prisoner’s position on a case by case basis rather than using specific criteria. It was decided that this would have been extremely time consuming and resource intensive, as well as making it hard to ensure fairness. It would have involved very difficult judgments about the relative merits of each case against all other case. In addition, fresh judgments would have been required about each case in the backlog every time a new case came through where a prisoner had been approved for transfer to open prison by the Secretary of State. Having said that, notwithstanding the prioritisation criterion outlined above, exceptional circumstances are considered upon request, and are reviewed on an individual basis.
iv. Date of Secretary of State approval: Prioritising pre tariff prisoners in this way would mean that prisoners who were approaching tariff expiry could be leapfrogged by other prisoners who were not approaching tariff expiry but who had been approved by the Secretary of State for transfer earlier. This was considered to be unfair to those prisoners approaching tariff expiry who could potentially be released on tariff. ISPs who had been approved for their transfers earlier but whose tariff expiry date was further away had not yet reached the point where they could be considered for release and would not be disadvantaged by waiting longer for a move.
7. Therefore, although NOMS accepts that the criterion of proximity to tariff expiry is not sensitive to some individual factors it was considered to be the fairest, most transparent and most practical means of establishing an order in which to transfer pre tariff ISPs to open conditions.
Implementation of the October 2011 policy
		     …
9. We reviewed the approach we were planning to take with pre-tariff prisoners early in 2012 in light of progress made with transferring post tariff prisoners and began the process of referring pre tariff prisoners to PMS for transfer on 3 July. Prioritisation of pre-tariff prisoners is determined by proximity to tariff expiry date; the closer to tariff expiry a prisoners is the higher will be the priority to transfer them. We have increased the amount of referrals made to PMS each month and will continue to monitor progress.
10. At the beginning of the new process, there were around 300 post tariff ISPs located in closed conditions awaiting transfer to open. At the beginning of December 2011 this figure had risen to 405 however as at 30 June this figure had fallen to 243. The current list of post tariff prisoners contains those who have been approved by the Secretary of State for a move to open conditions from late May 2012 onwards. The average waiting time for post tariff prisoners was, prior to the implementation of the central process in October 2011, around 8 to 9 months; this has been reduced to around 3 to 4 months now. The original backlog of post tariff prisoners has been virtually cleared and the majority have either now transferred to open conditions or are unable to transfer due to medical reasons, imminent parole hearings, courses or re-categorisation to category C. The Secretary of State has approved 927 ISPs (both pre and post tariff) for open conditions between the months of October 2011 and June 2012. The number of ISPs being released continues to rise with 173 releases in the first quarter of 2012. This is in comparison with 543 releases during the whole of 2011, 258 in 2010 and 195 in 2009.
11. Turning to the rate at which ISPs are transferred under this exercise, at present the policy remains to refer a minimum of one tranche per month to PMS for action. The estimate of the rate at which the backlog will be reduced was based on the assumption that PMS would be able to organise a transfer for all prisoners in the tranche within a month of submission. We have been monitoring progress carefully and have reviewed this arrangement on a regular basis; if more that 50 prisoners could be safely transferred per month then more would be referred. That has now been reviewed and, beginning in March 2012, we increased the number of referrals to PMS each month to 100 prisoners; in May 2012, over 200 prisoners were transferred. As at 20 June, 914 post tariff prisoners had transferred under the central process. We will continue to monitor progress carefully and review this arrangement on a regular basis; if more than 100 prisoners can be safely transferred per month, as was the case in May 2012, then more be referred.
71.	Mr Read added, at paragraphs 28 and 29 of his statement:
“28. In respect of individual prisoners, it is important to progress at the right pace. This means ensuring that any ISP sent to open conditions can be managed safely and given appropriate support to help make the progression from restrictive, closed conditions to relaxed, open conditions, often after a long time in custody. In respect of the overall prison population, our primary responsibility is to protect the public. Any measures which resulted in large waves of ISPs being moved into open conditions in an unmanaged way could result in an increase in prisoners absconding and seriously undermine what we are looking to achieve. In addition, NOMS must be mindful of the needs of determinate sentence prisoners, some of whom benefit from a period in an open prison before release, even though their release is not contingent on the direction of the Parole Board.
29. I believe that NOMS made a good response to the problems associated with the lack of movement for ISPs into the open estate. We have taken back central control of the management for ISPs so that they are moved in a transparent and fair way; we have increased the rate of transfers from approximately 50 per month to approximately 150 per month over the past 5 months and will continue at this rate for the immediate future; and we are increasing capacity significantly to allow more opportunity for ISPs to move.”
72.	Mr Hay, Head of PMS, said in his second witness statement, at paragraphs 3 and 4:
“3. It became clear to us in early 2012 that the initial rate of transfer was not having the desired effect as the rate of movement was not keeping pace with the number of new ISPs being approved for Category D conditions. From February 2012, PMS therefore increased the transfer rate to a target of 100 per month and this was maintained or surpassed through to the end of April 2012. With a view to clearing the backlog as rapidly as could safely be achieved, PMS decided to establish whether there was a tipping point beyond which open establishments found it difficult to manage. We moved a total of 211 prisoners during the course of May 2012. When we did so, however, we began to receive telephone calls from a number of open establishments raising concerns about the increased number of ISPs that they were being required to receive. In particular, concern was raised at the increase in initial Offender Management (OM) work on reception into open prisoners and whether these prisons were able to provide reassurance that all relevant OM work was being undertaken.
4. As a result, we decided to reduce the rate of moves to a target of 150 per month from June onwards. This decision was reached on the basis of the anecdotal evidence available to PMS which indicated that this was the maximum rate at which establishments could safely manage prisoners without putting the public at risk. This rate was maintained through November with the effect that the backlog was cleared by the end of August 2012.”
73.	I am satisfied, on this evidence, that the Defendant carefully considered all available options, took into account all relevant considerations, and reached a rational conclusion. I consider it is important to bear in mind that this was a temporary arrangement, which lasted for only about 10 months.  From the end of August 2012, when the backlog was cleared, the transfers of post-tariff and pre-tariff prisoners were being processed at the same rate. The strategy achieved the desired result within a reasonable timescale.  Prioritisation of post-tariff prisoners was rational and fair because they were already eligible for release, and administrative delay might result in a prisoner being detained when he should be free, in breach of both Article 5 and arguably his Article 8 rights (considered in more detail below). As Buxton LJ said in Noorkoiv, at [25], the post-tariff prisoners were at least presumptively detained unlawfully and the legality of their detention was subject to article 5(4) ECHR. In my view, there was a pressing need for the Defendant to address their position. The way in which the Defendant prioritised pre-tariff prisoners, according to their tariff expiry date, was also rational and fair, bearing in mind the significance of the tariff expiry for prisoners.  
74.	The only other alternative immediately available, namely, ceasing the transfer of determinate prisoners and thus increasing the number of ISPs transferred, would have resulted in unacceptable pressures on the management of the prisoners in open prisons, as described in the evidence.  
75.	It may well have been desirable for the Defendant to have changed the policy in relation to ROTL at an earlier date, so as to make ISPs eligible for ROTL from closed conditions, but I cannot find any basis upon which to hold that he acted unlawfully in not doing so sooner.   The Defendant’s decision, and the timescale within which the change of policy was implemented, was a lawful exercise of his discretion. 
Fettering of discretion
76.	The Claimants contended that the Defendant was unlawfully operating an inflexible policy by prioritising post-tariff prisoners. Leaving to one side the dispute as to whether this was a policy or a set of arrangements, I consider that the Claimants’ submission is incorrect.  The Defendant adopted his policy in the exercise of a wide discretionary power to place prisoners, under section 12 of the Prison Act 1952. His powers were sufficiently wide to entitle him to adopt a policy on the prioritisation of certain categories of prisoners when deciding how to clear the backlog.   Having adopted a policy, he was required to apply it, in the interests of consistency and fairness, whilst retaining an open mind to the need to make exceptions in appropriate cases.  
77.	De Smith’s Judicial Review 6th ed. (2007) explains, at paragraph 9-005:
“The underlying rationale of the principle against fettering discretion is to ensure that two perfectly legitimate values of public law, those of legal certainty and consistency (qualities at the heart of the principle of the rule of law) may be balanced by another equally legitimate public law value, namely, that of responsiveness.  While allowing rules and policies to promote the former values, it insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case.”
78.	The principles to be applied when considering the lawful exercise of a discretionary power were set out by Lord Browne-Wilkinson in R v Home Secretary ex parte Venables [1998] AC 407, at 496H:
“When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time.  In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future.  He cannot exercise the power nunc pro tunc.  By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise. 
These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd [1919] 1 KB 176; British Oxygen Co. Ltd. v Board of Trade  [1971] AC 610.  But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised.  If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), pp 506 et seq., paras 11-004 et seq.”
79.	As Mr Mercer described in paragraph 4 of his first witness statement, the policy included an express provision providing for exceptional circumstances to be considered upon request in individual cases.  An example might be pressing psychiatric or medical needs requiring speedier transfer. The Claimants were not able to point to anything exceptional about their cases. The length of time they had been awaiting transfer, and the potential detriment to their progress towards release, were factors shared by many prisoners caught up in the backlog.  These factors had already been taken into account when the Secretary of State was deciding how best to prioritise the prisoners awaiting transfer. 
Unpublished policy
80.	Mr Rule submitted, on behalf of Mr Jarvis, that the policy was unlawful because it was unpublished, and because it was inconsistent with published policy. He relied upon the decision of the Supreme Court in Lumba (WL) v Secretary of State for the Home Department [2012] 1 AC 245, holding that the application of an unpublished policy, in place of the published policy, was unlawful. 
81.	In Lumba, Lord Dyson reviewed the authorities on the existence of a public law duty to publish policies, and concluded:
“34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised….
35.  The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is lawful exercise of the discretion conferred by the statute … There is a correlative right to know what that currently existing policy is, so that the individual can make representations in relation to it …
38. … It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decision made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”
82.	On perusal of the published policies, in the relevant PSIs and PSOs, there is simply no mention of any policy or arrangements for prioritising some categories of prisoners over others when implementing transfers to open conditions.  I accept that the October 2011 arrangements were not inconsistent with existing policy, which is silent on the matter, but they constituted a significant addition to it. I do not accept Mr Collins’ submission that it was not appropriate or necessary for it to be published because it related to transfers, whereas the PSIs and PSOs only deal with categorisation and allocation. Transfer is part of the allocation process. Of course, there are routine administrative procedures relating to transfer which need not be published, but the October 2011 new arrangements went far beyond routine administrative procedures.  I consider that they were properly characterised as a “policy”, albeit a temporary one, as they set out the Defendant’s instructions on how the discretionary powers under section 12 of the Prison Act 1952 were to be applied to prisoners awaiting transfer. 
83.	Applying the principles set out in Lumba, I have come to the conclusion that the Defendant was under a public law duty to publish the October 2011 arrangements for the transfer of prisoners to open conditions. Prisoners had already been informed that they were going to be transferred. There had been considerable delay, which was unexplained. The prioritisation scheme did affect the likely timing of their transfer.  This in turn could affect the likely outcome of a Parole Board review and thus release.  Perhaps most importantly of all, under the October 2011 arrangements, they could make an individual request for their cases to be treated as exceptional.  Prisoners could not exercise that right if they were not aware of the existence of the arrangements or the right to claim exceptional circumstances.  Even though the policy was only temporary, it should still have been published.  I note that the recommendation approved by the NOMS Executive Management Committee on 21st June 2011 was that the prioritisation should be “transparent” (statement of Mr Read, at paragraph 15). Regrettably, it was only transparent to those who were operating it, not to those affected by it.
84.	However, this case is distinguishable from Lumba because I have not found the unpublished policy to be unlawful on the grounds of inconsistency with published policy, nor for any of the other reasons relied upon by Mr Jarvis. Nor has Mr Jarvis suffered any detriment as a result of the failure to publish. His legal representatives were aware of the policy and applied for him to be given priority transfer in their letter of 27th January 2012. I have already found that the Defendant was entitled to refuse to treat him as an exceptional case, and so it would not have made any difference if he had been aware of the policy at an earlier date. Mr Rules’ submission that, if the policy had been published, Mr Jarvis could have challenged the policy sooner, does not assist him since the challenge to the lawfulness of the policy has been unsuccessful.  He would not have gained any benefit from an earlier challenge. In the exercise of my discretion, I do not consider it would be appropriate to quash the policy, merely because of a failure to publish, when the policy has been upheld as lawful and the Claimant has not suffered any detriment. 
85.	The appropriate public law remedy for an unlawful failure to publish is a mandatory order requiring publication within a specified time period.  If, and in so far as, sections of the policy have now been superseded, this should be made clear upon publication.  However, those affected are entitled to know the terms of the policy which was previously in operation, as well as current policy.   After my draft judgment was circulated, the Defendant drew my attention to PSI 36/2012, issued on 3rd December 2012, setting out policy on “Transfer to open conditions for adult male indeterminate sentence prisoners”.  In my view, its published terms do not reflect fully the policy introduced in October 2011, which was the subject of this judicial review challenge.  In particular, it does not make it sufficiently clear that priority will be given to post-tariff prisoners, over pre-tariff prisoners, and it makes no provision for the consideration of exceptional circumstances on request in individual cases.  The Defendant has agreed to undertake to amend PSI 26/2012 to reflect more fully the policy introduced in October 2011.
Reasons
86.	On behalf of Mr Jarvis it was also submitted that the Defendant had failed to give adequate reasons “of the decision to reverse the previous decision and actions that had already been taken to apply for his allocation and transfer to selected open prisons [for example his place on the HMP Leyhill waiting list as at 16th September 2011]”. I accept the Defendant’s submission that Mr Jarvis was given an adequate explanation for the delay in transferring him, including the prioritisation of post-tariff prisoners, in the letter to his solicitors dated 11th January 2012.  A more detailed explanation was given in the pre-action protocol letter dated 31st January 2012.  Therefore this ground of challenge fails.
Grounds under the Human Rights Act 1998
87.	By section 6(1) of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.  Mr Haney submitted that the Defendant had acted in breach of Articles 5 and 14 ECHR. Mr Jarvis submitted that there had been a breach of Article 8, and a breach of Article 14, read together with Articles 5 and 8. 
(1)  Article 5
88.	Article 5(1) ECHR provides (so far as is material):
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court…”
89.	The ECtHR in James, Wells and Lee v United Kingdom (2013) 56 EHRR 12, reversed the decision of the House of Lords and found that the detention of the three applicants had become arbitrary, and in breach of Article 5(1).  
90.	The Court held that, in circumstances where a Government seeks to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders. In the applicants’ cases, this meant that they were required to be provided with reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour and the risks they posed. While Article 5(1) does not impose any absolute requirement for prisoners to have immediate access to all courses they may require, any restrictions or delays encountered as a result of resource considerations must be reasonable in all the circumstances of the case, bearing in mind that whether a particular course is made available to a particular prisoner depends entirely on the actions of the authorities (at [218]).
91.	The Court noted that substantial periods of time passed in respect of each of the applicants before they even began to make any progress in their sentences. It was clear that the delays were the result of a lack of resources and while resource implications were relevant, it was nonetheless significant that the inadequate resources at issue in that case appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures. Further, the length of the delays in the applicants’ cases was considerable: for around two and a half years, they were simply left in local prisons where there were few, if any, offending behaviour programmes (at [220]).  It was important to note that some of these delays occurred at a pre-tariff stage.
92.	The Court concluded that, following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of Article 5(1) ECHR (at [221]). 
93.	Mr Haney submitted that, on the facts of his case, and in the light of the ECtHR’s judgment, his detention in closed conditions during the period of excessive delay awaiting transfer was “arbitrary” for the purposes of Article 5(1) and that he should, therefore, be entitled to damages, pursuant to s.7 of the Human Rights Act 1998.
94.	All parties submitted to me that the judgment of the ECtHR was inconsistent with the earlier decision of the House of Lords but that I was bound to follow the decision in the House of Lords, applying the doctrine of precedent as explained in Kay and Others v Lambeth LBC [2006] 2 AC 465.  This is not such an exceptional case so as to justify a departure from that rule. 
95.	Therefore I dismiss the claims under Article 5. I do, however, consider that Mr Haney has established grounds upon which permission to appeal should be granted. 

(2)   Article 8
96.	Article 8 ECHR provides:
“1.	Everyone has the right to respect for his private and family life, his home and his correspondence.
2.		There shall be no interference by a public authority with the exercise of this right except such as 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.”
97.	It is well-established that a prisoner does not forfeit his Convention rights in their entirety merely because of his status as a person detained following conviction: Dickson v United Kingdom (2008) 46 E.H.H.R. 41, at [68]; Hirst v United Kingdom (2006) 42 E.H.H.R. 41, at [69], [70].  
98.	The initial sentence of imprisonment necessarily interferes with his Article 8 rights, but the interference will be justified under Article 8(2), as necessary in a democratic society, in the interests of public safety and for the prevention of disorder and crime. 
99.	However, this does not preclude a subsequent breach of Article 8 arising from decisions made during the prison term.  In R (P and Q) v Secretary of State for the Home Department [2001] 1 WLR 2002, the Court of Appeal reviewed the ECHR cases on prisoners.  Lord Phillips MR said at [78]: 
“It is possible to draw some general conclusions from these authorities: (i) the right to respect for family life is not a right which the prisoner necessarily loses by reason of his/her incarceration; (ii), on the other hand, when a court considers whether the state’s reasons for interfering with that right are relevant and sufficient, it is entitled to take into account (a) the reasonable requirements of prison organisation and security and (b) the desirability of maintaining a uniform regime in prison which avoids any appearance of arbitrariness or discrimination; (iii) whatever the justification for a general rule, Convention law requires the court to consider the application of that rule to the particular case, and to determine whether in that case the interference is proportionate to the particular legitimate aim being pursued; (iv) the more serious the intervention in any given case … the more compelling must be the justification.”
100.	Article 8 has been relied upon in a series of cases concerning the availability of temporary leave from prison: e.g. R (Walker) v Secretary of State for Justice  CO/12455/2009; R (X) v Secretary of State for the Home Department & Ors  CO/1662/1995; R (MP) v Secretary of State for Justice [2012] EWHC 214 (Admin).
101.	In principle, an interference with Article 8 rights may occur as a result of a policy, which restricts benefits to a particular class.  The case law demonstrates that the Court will consider whether there has been a breach of Article 8 in respect of policy criteria, as well as a decision in an individual case: e.g. P and Q (policy not allowing babies to remain in mother and baby units after they attain the age of 18 months); Dickson v UK (policy refusing prisoners’ access to artificial insemination, save in exceptional cases).
102.	However, in this case, I accept Mr Collins’s submission that Mr Jarvis’s Article 8 rights were not interfered with by the delay in the transfer from closed conditions to open conditions. The transfer, of itself, did not bestow upon Mr Jarvis temporary leave in the community, to visit his family or to pursue employment decisions.  The decision whether or not to grant him such leave would be made separately from the transfer decision, and would depend upon a specific assessment of risk.  Therefore, the claim under Article 8 is dismissed.
(3) Article 14 
103.	Article 14 ECHR provides: 
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
104.	The Claimants submitted that pre-tariff prisoners had been treated less favourably than post-tariff prisoners in the enjoyment of their Article 5 rights, on the grounds of their status, contrary to Article 14. Mr Collins conceded that the claims came within the ambit of the rights protected by Article 5.  Mr Jarvis also relied upon discrimination in the exercise of his Article 8 rights, and Mr Collins conceded that the claim came within the ambit of the rights protected by Article 8.  I am not convinced that the concession in relation to Article 8 was properly made, in the light of his submissions on Article 8 itself.
105.	In R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 (HL) the House of Lords held that a prisoner’s status acquired by virtue of the length of his sentence was not a status protected by Article 14. 
106.	The ECtHR reversed the House of Lords’ decision in Clift v United Kingdom (App. No. 7205/07), holding:
a)	applying differential release arrangements in the case of a prisoner serving a determinate sentence to those applied when a prisoner is serving a sentence of life imprisonment was potentially discrimination on the basis of “other status” so that Article 14 could be engaged (at [63]). 
b)	long-term determinate prisoners and prisoners serving an indeterminate sentence were in an analogous position (at [67]);
c)	there was no justification for any difference in treatment between long-term determinate prisoners and prisoners serving an indeterminate sentence (at [75]);
d)	Article 14 had been violated by an early release scheme that imposed requirements upon a determinate prisoner that were not imposed in the case of a prisoner serving a life sentence (at [78]).
107.	In R (Minter) [2012] 1 WLR 1157 at [46], the Divisional Court held that the decision of the House of Lords in Clift remained binding despite the decision in Clift in the ECtHR.  
108.	Mr Rule submitted on behalf of Mr Jarvis that the decision of the House of Lords in Clift could be distinguished from his case. In my judgment, the rationale underlying the conclusion on status in Clift – that Article 14 is limited to differences in status based upon personal characteristics – applies equally to this claim.  I consider that I am bound by Clift in the House of Lords on this point.
109.	Therefore I dismiss the claims under Article 14.  However, in the light of the judgment of the ECtHR, and the facts of these cases, I consider it is appropriate to grant the Claimants permission to appeal.