England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2014

Mr. Justice William DAVIS:

1. Although I am considering simply an oral renewed application for permission to apply for judicial review, it is appropriate to set out my reasoning in slightly more detail than usually would be the case. I heard submissions of some length from Mr Southey Q.C. on behalf of the claimant and Mr Weisselberg Q.C. on behalf of the defendant. The issues in the case are of more than passing interest.
2. In June 1979 the claimant was convicted of murder. He was then aged 17. The sentence was that he was to be detained at Her Majesty's Pleasure. The minimum term he was required to serve before he could be considered for parole was 12 years. At the expiry of that period the Parole Board recommended that he should be transferred to an open prison. Such a transfer was effected. The claimant then absconded from HMP Sudbury. It is not clear for how long he was at large on this occasion. In due course he was returned to custody and to a closed prison. By May 1997 the claimant was again in an open prison. He failed to return from an unescorted town visit. He was at large until July 1998. In February 2000 the Parole Board again recommended a transfer to open conditions. In March 2001 the claimant absconded again. On this occasion he remained at large until June 2010.
3. This unhappy history goes a long way to explain why the claimant was still in custody in 2014 when his tariff period had expired in 1991. On the 7th April 2014 his case was considered at an oral hearing by the Parole Board. On the 11th April 2014 the Parole Board issued a decision letter. It advised the defendant that the claimant's risks could now be managed in open conditions to which there should be a progressive move. The defendant (via the National Offender Management Service) agreed with the Parole Board. In a letter dated the 8th May 2014 a review period of 15 months was set during which the claimant was to be tested in an open prison environment with the 26 week parole review process set to commence in January 2015. The month in which the Parole Board were to consider release on life licence was identified as July 2015.
4. On the 21st May 2014 the defendant issued an interim memorandum in which he made changes to the system previously in place in relation to transfer of prisoners to open conditions. It specified that any prisoner who had absconded from open conditions in the course of his current sentence was to be ineligible for transfer to open conditions save in exceptional circumstances. Shortly thereafter the claimant was informed that he would not now be transferred to open conditions.
5. On the 7th July 2014 the claimant's solicitors wrote a lengthy pre-action protocol letter. It argued that the decision of the 8th May 2014 created a legitimate expectation that the defendant would transfer the claimant to open conditions, that there had been procedural unfairness in the failure to invite the claimant to make representations prior to the rescission of the earlier decision and that the policy set out in the interim memorandum of the 21st May 2014 was irrational and Wednesbury unreasonable. These proceedings were issued on the 31st July 2014. The grounds of claim against the defendant were as follows: breach of his duty to progress indeterminate prisoners towards release; unlawfulness on his part by his application of an inflexible policy; failure to identify good reason for departing from his earlier decision.
6. On the 11th August 2014 the defendant issued what were termed Consolidated Interim Instructions which were to replace the interim memorandum issued in May 2014. This document set out in more detail what was meant by exceptional circumstances, it set out the manner in which the existence (or otherwise) of such circumstances were to be assessed and it identified a system for a progressive regime in closed conditions designed for those serving indeterminate sentences with a history of absconding who could not satisfy the test for exceptional circumstances. This new regime was intended to allow release on life licence for those prisoners who had not been allowed access to open conditions.
7. Following service of the Acknowledgment of Service and Summary Grounds of Defence on the 3rd September 2014 the application for permission was considered by Mrs Justice Carr DBE on the papers. Her order is dated the 4th September 2014. It is not clear on the face of the order whether she saw a brief Response to the Summary Grounds of Defence served on that day by the claimant. There is no indication on the face of the order that she did not see that Response. Indeed, her reasons refer specifically to the likely consequence for the claimant and his parole review if he remained in closed conditions in January 2015 which was the principal issue raised in the Response. In any event the Response did not identify any new authority or legal principle.
8. Mrs Justice Carr DBE found that the claim for judicial review was not properly arguable. She reasoned as follows:

The public law duty to progress the detention of prisoners subject to an indeterminate sentence was satisfied by the defendant with the regime he introduced in the Consolidated Interim Instructions. Either an IDP would satisfy the exceptional circumstances test or, if not, he would be considered for the new progressive regime within a closed environment.

There was no "blanket" policy as alleged by the claimant in his grounds. The defendant's instructions expressly permitted those with an absconding history to move to open conditions albeit only in exceptional circumstances.

By reason of the decision in R (James) v Secretary of State for Justice [2010] 1 AC 553 no argument based on an alleged breach of Article 5 of the ECHR could possibly succeed. (The claimant's grounds appeared to accept this where it was said that "this Court is bound to reject (the Article 5) argument in light of the House of Lords in James.")

The allegation of unlawful inflexibility was bound to fail given the provision for transfer in exceptional circumstances and for representation to be made on behalf of those in the position of the claimant.

Whilst the defendant initially had accepted the recommendation of the Parole Board to move the claimant to open conditions, his decision not to do so having adopted a new policy could not be described as irrational or unlawful in the absence of any legitimate challenge to the policy itself.

9. When the application was argued before me, proposed amended grounds were lodged by the claimant. The amended grounds deleted any reference to allegation that the defendant had acted unlawfully by applying an inflexible policy. That ground is no longer relied on as part of the claimant's case. The consequence of that is that, for the purposes of these proceedings, the new policy must be regarded as lawful. However, application was made to amend the grounds by adding a new ground, namely that the defendant acted unlawfully in deciding that he did not satisfy the "exceptional circumstances" requirement for transfer to open conditions. The unlawfulness alleged is a breach of Article 5 of the Convention i.e. the claimant was left with no means of progressing in his sentence towards rehabilitation and subsequent release.
10. The proposed additional ground (which in effect replaces the allegation of unlawfulness by reason of imposition of an inflexible policy) arises from the fact that on the 4th December 2014 the defendant made the decision that the claimant did not meet the "exceptional circumstances" test. I have no hesitation in finding that this ground is unarguable. The fact that the claimant did not meet the relevant criteria does not mean that he had no means of progressing in his sentence. The point at which that issue has to be judged in the context of the new policy is prior to the decision being made in relation to exceptional circumstances. At that point the claimant did have a mechanism to progress his sentence, namely the prospect of moving to open conditions if he fulfilled the necessary criteria. The public law and/or Article 5 requirement relied on by the claimant did not require the defendant to provide a particular outcome for the claimant irrespective of the particular circumstances of the case. Rather, it required the defendant to provide a lawful mechanism.
11. Moreover, the defendant now is considering whether the claimant is suitable for transfer to the new progression regime. The amended grounds on this issue say as follows:

"The decision letter (identifying that the claimant was being considered for the new regime) does not state that the claimant is suitable for such a transfer. Therefore, at the present time he is not progressing in his sentence and this is a breach of his rights under Article 5…."

This element is equally unarguable. Progression in a sentence does not require the defendant to progress a prisoner's sentence forthwith irrespective of the merits of the individual prisoner's case. The defendant has introduced a new policy. It is not unreasonable for the defendant in relation to any given prisoner to take the stepped approach envisaged by the policy i.e. consideration of whether exceptional circumstances exist followed by assessment of suitability for the new progression regime. It may well be the case that the claimant, on the facts of his particular case, has suffered some delay by the introduction of the new policy. That does not mean in the circumstances of this case that the defendant can arguably be said to be in breach of his public law duty and/or acting in breach of Article 5 of the Convention. In any event, no-one currently can say whether the claimant will be accepted in the near future as suitable for the new progression regime and, if so, what effect that will have on his sentence progression.

12. Finally in relation to the proposed amended grounds it is to be noted that there is no suggestion that the defendant's decision in relation to exceptional circumstances is irrational or Wednesbury unreasonable. Given the evidence available in relation to the claimant in respect of his general progress on his sentence (which has been patchy at best) and irrespective of his repeated absconding, the defendant's decision could not conceivably be impugned.
13. Mr Southey Q.C. on behalf of the claimant placed very considerable reliance on the decision of the Supreme Court in R (Haney and others) v Secretary of State for Justice [2014] UKSC 66 handed down on the same day as the hearing of this renewed application for permission. Haney considered the position of prisoners serving indeterminate sentences in the light of the decision of the ECHR in the case of James v UK (2012) 56 EHRR 399. The EHCR had disagreed with the conclusions of the House of Lords in Jones (supra). He referred in particular to the following passages commencing at paragraph 35 of the judgment of Lord Hughes and Lord Mance:


"35. For the reasons which we have given, we do not think that it is possible to follow the reasoning of the Fourth Section of the ECtHR in James v UK. It appears to us to be based on an over-expanded and inappropriate reading of the word "unlawful" in article 5(1)(a), which would not give rise to a sensible scheme. That does not however mean that we would revert to the House's decision in R (James). The Fourth Section has underlined the link which should be recognised between preventive detention and rehabilitation, and has also concluded that there should be an individual remedy in damages under the ECHR for failure to provide prisoners serving indeterminate sentences with proper means of progression towards release. The House's refusal of a Convention remedy in R (James) was based on a contrary conclusion that the aim of a life or IPP sentence does not include rehabilitation, at least for the purposes of the ECHR, as well as upon the House's view that the continuing causal link between sentence and detention prevented any breach of article 5.

36. We consider that the Supreme Court should now accept the Fourth Section's conclusion, that the purpose of the sentence includes rehabilitation, in relation to prisoners subject to life and IPP sentences in respect of whom shorter tariff periods have been set. We also consider that the Supreme Court can and should accept as implicit in the scheme of article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public. But we do not consider that this duty can be found in the express language of article 5(1). Treating it as an aspect of the duty to avoid "arbitrariness" under article 5(1)(a) has unacceptable and implausible consequences which we have already identified. The Grand Chamber decision in Saadi also remains important authority that arbitrariness has a confined meaning, when used as a test of lawfulness in the context of article 5(1)(a).

37. Article 5(4) would be a more satisfactory home for any duty of the nature identified in the previous paragraph, if its language covered it (which it does not). Article 5(4) gives rise to an ancillary duty on the state, breach of which does not directly impact on the lawfulness of detention. The duty is to make available access to judicial review by a court or here the Parole Board, which will consider whether the information put before it justifies continued detention or release. Speedy access to the Parole Board like reasonable access to proper courses and facilities represents an important aspect of a prisoner's progression towards release. But the language of article 5(4) is in terms confined to access to judicial review by the Parole Board on the basis of the information available from time to time. It does not cover the prior stage of provision of courses and facilities in prison, which gives rise to the information necessary on any Parole Board review.

…………….


41. On that basis the question arises in what precise terms and in particular at what precise level the duty should be put. As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness or any failure to apply established policy. The question is whether liability for breach of article 5 is similarly limited. In our opinion, it is not. The express rights conferred by article 5 are individual rights. The ancillary right which we identify as existing under article 5 is also a right in favour of each individual prisoner and its satisfaction or otherwise depends upon the particular circumstances of the individual case. Although the ECtHR was concerned in James v UK with circumstances in which there had been systemic failures in the United Kingdom, the ECtHR's decision was based on a careful individual analysis of each applicant's prison history: see e.g. paras 218-222.

14. Mr Southey Q.C. argues that these passages establish that consideration needs to be given to the individual prisoner and that, if one does so in this case, the delay caused to the claimant's progression by the application of the new defendant's new policy arguably should be subject to judicial review. He submits that Haney has changed the position since Mrs Justice Carr considered the case.
15. I do not agree that the effect of Haney on the case of this claimant is as proposed by Mr Southey Q.C. First, he complains as to the arbitrary way in which the new policy has affected the claimant. Leaving aside the fact that the policy of itself is not arbitrary, Haney confirms that the defendant's duty to provide progression in a prisoner's sentence is not a matter of avoiding arbitrariness. Second, reliance on Haney does not meet the defendant's argument that the policy he introduced in May 2014 and refined in August 2014 provides the claimant with the potential opportunity for progression. If it could be shown that the exceptional circumstances test was impossible to meet or that the new progression regime did not exist or was so deficient that significant numbers of prisoners could not engage with it even if they were suitable, the claimant might have an arguable case. That is not the position. I ignore the matters put before me in the defendant's skeleton argument, namely that the new progression regime is up and running and prisoners already are taking part in it. I have no proper evidence on the topic either way. But I cannot find that the claimant has an arguable case on a purely speculative basis as to the availability (or otherwise) of spaces in the new regime. I proceed on the basis that the claimant's position had to be considered individually. I find no arguable basis for finding that the defendant did not give the claimant such individual and proper consideration.
16. The passage in paragraph 36 of Haney refers in terms to indeterminate sentences "in respect of whom shorter tariff periods have been set". In argument I asked Mr Southey Q.C. what that phrase was intended to convey since both James and Haney concerned prisoners with relatively short tariff periods. Indeed, only one prisoner in either case was serving a life sentence in the strict sense and that sentence was not a mandatory life sentence. He argued that the rationale of Haney applies to all indeterminate sentences. I am not clear that this is correct given the context of Haney (and James). This factor cannot be determinative in any consideration of the arguability of the claimant's case but equally it cannot assist his argument.
17. The claimant also argues that he had a legitimate expectation that he would be transferred to an open prison as at the 8th May 2014, a legitimate expectation that was specific to him. That he had an expectation is not in doubt. Legitimate expectation (whether procedural or substantive – in this case the expectation must be regarded as substantive) can arise when a public decision maker changes an existing policy. It will arise if the change of policy is unfair or an abuse of power. It is not arguable that either position applies in this case. The claimant is in a very similar position to the appellants in Findlay [1985] AC 318. The facts of that case show that the defendant is not the first government minister who has changed release policy to the detriment of prisoners serving life sentences. Precisely the same happened in 1983, the Secretary of State for the Home Department then being the responsible minister. The House of Lords found that the most that someone in the claimant's position could legitimately expect was that his case would be examined individually in the light of whatever policy the minister saw fit to adopt provided that the policy amounted to a lawful exercise of his discretion. The claimant's case has been so examined and continues to be considered in the light of the new policy. It is not argued that the policy is unlawful. Therefore, the claimant has no arguable case in relation to legitimate expectation.
18. It is argued on behalf of the claimant that, had the policy not been changed, he would by now be in open conditions with a sensible prospect of achieving release on life licence in July 2015 whereas he now is not in a position to show the Parole Board that he is suitable for release. That may or may not be true. It does not provide any arguable grounds for judicial review of the decision of the defendant in relation to the claimant in his lawful application of the new policy.
19. In the circumstances I am satisfied that the claimant has no arguable grounds for seeking judicial review of the defendant's decision. The renewed application for permission is refused.