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
		04/05/2016

Mr Justice King:

1. Under section 12 of the Prison Act 1952 a prisoner may be lawfully confined to such prison as the Defendant Secretary of State directs. Under section 47 of the Prison Act 1952, the Secretary of State may make rules for the classification of prisoners. In other words the Secretary of State has a discretion as to the categorisation of a prisoner and the transfer of a prisoner between types of prisons, in particular a transfer from closed conditions to open conditions. In the case of a prisoner serving an indeterminate sentence of imprisonment, and prior to a change of policy in May 2014 concerning prisoners with a history of absconding, and in recognition of the then position that a phased release from closed to open conditions was normally necessary to test a prisoner's readiness for release into the community before any decision to release on licence could properly be made, the practice of the Secretary of State has been to seek, pursuant to section 239 of the Criminal justice Act 2003, the advice of the Parole Board on whether to transfer a prisoner from closed to open conditions.
2. The Secretary of State is not however bound to accept any recommendation for transfer which the Board might make. This is to be contrasted with the position regarding release on licence itself. Under section 28 of the Crime (Sentences) Act 1997 as soon as such a prisoner has served his minimum term, it is for the Parole Board to decide whether to direct his release and if such a direction is made the Secretary of State has no discretion but is under a duty to release the prisoner on licence. The Parole Board however cannot make such a direction unless the Secretary of State has referred the prisoner's case to the Board and the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. See section 28(6).
3. These proceedings for judicial review were issued on the 8^th of October 2014. At the time the Claimant was a prisoner detained in closed conditions at HMP Forest Bank. The Claimant was an indeterminate sentence prisoner (an 'ISP') serving a sentence of imprisonment for public protection. That sentence had been imposed in 2006 following his conviction for theft, possession of a pointed weapon (a syringe) and wounding with intent to cause grievous bodily harm. The Claimant in the knowledge he had Hepatitis C had with the syringe stabbed a police officer trying to apprehend him.
4. The minimum term to be served under that sentence had long since expired in May 2008. In other words in 2014 the Claimant was a post- tariff prisoner and had been so for some 6 years or so.
5. The claim was heard over two separate days, namely the 19^th of December 2014 and the 23^rd of January 2015.
6. The primary challenge in these proceedings has been to a decision of the Defendant of 9^th July 2014 without any prior warning, to transfer the Claimant that day from open conditions back to closed conditions following a change in policy (the 'new absconder policy') by the Defendant as to who would be eligible for transfer from closed to open conditions and which also introduced new restricted conditions and procedures for the grant of Release on Temporary Licence ('ROTL').
7. At the date of his transfer back, the Claimant had been in open conditions at HMP North Sea Camp for some three months. He had been transferred there on the 4^th of April 2014 from closed conditions at HMP Forest Bank. This was the result of the Defendant accepting by a letter on the 7^th of March 2014 a written recommendation of the Parole Board that the Claimant be transferred to open conditions, set out in a decision letter of the 6^th of February 2014 following an oral hearing of the 28^th of January 2014.

The new absconder policy

8. The new 'absconder policy' was introduced on the 21^st of May 2014 with immediate effect and by its terms (announced by way of an internal memorandum to Governing Governors and Directors of Contracted Prisons and augmented by further details in Interim Instructions sent by a memorandum dated the 28^th of May 2014) any prisoner in closed conditions who had a history of absconding as defined ('the 'absconding criteria') on their current sentence would in the future be ineligible for a transfer to open conditions save in exceptional circumstances. As regards the absconding criteria, paragraph 3 of that internal memorandum provided that (with immediate effect) any prisoner irrespective of security category in a closed prison who on their current sentence has:

a) 'Absconded or attempted to abscond from open conditions; and/or

b) Failed to return from a period of ROTL…and/or

c) Been convicted of a criminal offence which took place when the

prisoner was on ROTL; and/or

d) Escaped or attempted to escape from a prison or escort

Will, in future, be ineligible for a transfer to open conditions and will

not be eligible for any ROTL, save in exceptional circumstances.

Guidance will be issued in the coming days about what will constitute

exceptional circumstances'

9. As far as 'exceptional circumstances' are concerned although they were referred to in the further memorandum of the 28^th of May, they were ultimately crystallised in Consolidated Interim Instructions published on the 11^th of August 2014 amending Prison Service Order 6300 Release on Temporary Licence, and which replaced the initial instructions. These provided under the heading 'Exceptional circumstances…Transfer to open conditions' as regards a prisoner such as the Claimant serving an indeterminate sentence (an 'ISP'):

'There is a very strong presumption that an ISP who has absconded from open conditions as part of their current sentence will not be eligible to return to open conditions. However, exceptionally, the prisoner might be assessed as to their suitability for open conditions once they have completed their tariff at the next, and each successive, parole review but only if the Secretary of State considers that the case meets the following criteria:

the prisoner has made significant progress in reducing their risk of harm and risk of abscond such that a further abscond is judged very unlikely to occur;

AND they meet one or more of the following exceptions

there are compelling circumstances beyond their control which make a placement in open conditions necessary; or

a placement in open conditions is absolutely necessary, in that their need to provide evidence of reduced risk for his parole reviews and their need for resettlement work cannot be met in a progressive regime in closed conditions; or

preventing the offender returning to open conditions would in all the circumstances be manifestly unjust/unfair.

10. Those Consolidated Interim Instructions made clear that for the future the Defendant would ask the Parole Board for advice on transfer to open conditions as part of an ISP's next parole review only where the Defendant (through the Defendant's National Offender Management service ('NOMS')) had decided that the test of exceptional circumstances had been met. Where a case was being referred to the Board only for the purpose of determining whether the offender should be released this would be made clear in the reference.

'Progressive regime'.

11. The Instructions made reference to a planned introduction of 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 and which would provide an alternative means to open conditions whereby an ISP might provide evidence of his suitability for release. The reference was in these terms:

'The progressive regime in closed conditions referred to above will be specifically designed for ISPs with an abscond history who are unable to satisfy the test of exceptional circumstances, in order for the Secretary of State to seek the advice of the Parole Board on their suitability for open conditions. NOMS is planning for it to be up and running by the autumn of 2014.The regime is being designed so as to encourage prisoners to take more personal responsibility to produce evidence which they need to secure release from custody on completion of tariff with which they will be supported by relevant interventions and by appropriately trained staff. There will be a secure perimeter fence, in accordance with Category C conditions. There will be no entitlement to ROTL other than in exceptional circumstances'

12. I will return to the circumstances in which this policy was introduced and its impact on the initiation of a review, carried out by the Defendant in June 2014 through a Central Review Panel, of whether any prisoner currently in open conditions who would have been ineligible for transfer to open conditions under the new policy, should be transferred back. That review included a review of the Claimant's position and led to the decision now under challenge.
13. I should stress however at the outset that the Defendant has not sought to justify the transfer back to closed conditions on the basis of the application of the new criteria for eligibility for transfer from closed to open conditions set out in these interim instructions. The review which led to the decision to return the Claimant from open to closed conditions applied, as will be seen, more nuanced criteria albeit in the context of a decision by the Secretary of State that in assessing risk to the public of a prisoner being in open conditions, greater weight than had hitherto had been given, should be given to the prisoner's abscond history.

The Grounds of Challenge to the Decision to transfer back to Closed Conditions

14. There has been no public law challenge in the proceedings before me to the introduction of, or the contents of this new absconder policy restricting eligibility for transfer to open conditions from closed conditions or the grant of ROTL. In the light of the post hearing decision of the Court of Appeal in Gilbert [2015] EWCA Civ 802 it is difficult to see how any such challenge could have succeeded in any event.
15. Nor did Mr Southey QC in submissions on behalf of the Claimant seek to challenge on any public law ground the lawfulness of the criteria in fact applied in the making of the decision to transfer back. The evidence as to this criteria emerged more fully in the second witness statement of Mr Davison, Deputy Director of the Defendant's National Offender Management Service, dated the 21^st of January 2015 prepared for the second hearing.

Ground 1

16. Rather the challenge to the decision to transfer back has been put first on the basis that the decision was contrary to published policies being a reference (according to the pleaded grounds) to the Interim Instructions which contained a provision that those currently in open conditions on the 21^st of May who satisfied the absconding criteria would be allowed to remain in open conditions (although in fact the evidence is and is now contended to be so by the Claimant in submission, that these initial interim instructions were never published); or alternatively being a reference (according to the submissions developed by Mr Southey) to the criteria and procedure for transfer back from open to closed conditions set out in the then current chapter 4 to PSO 4700.

The pleaded case under this ground

17. When the claim form was issued, the Grounds of Claim highlighted that in the Interim Instructions of the 28^th of May 2014 at section C headed 'Transitional Measures', under paragraph 14 headed 'Prisoners currently in open conditions who meet the criteria at A1 above, (that is prisoners such as the Claimant who had a history of abscond, escape or serious ROTL failure during the current sentence which satisfied the absconding criteria) the following appeared:

'Prisoners currently in open conditions will be allowed to remain in open conditions (emphasis of the court) and any who are already having it may continue to have ROTL. But, when the prisoner applies for a different type of ROTL, the ROTL Board must be conducted under the new Restricted ROTL procedures stipulated….above…

Any prisoner currently in open conditions who has not yet had ROTL approved may apply for ROTL in due course when eligible (after a period of 3 months), and their applications must be considered under the new Restricted ROTL procedures'

18. The grounds might equally have highlighted that the initial Interim Memorandum to Governors of the 21 of May 2014 had contained similar provisions ('prisoners currently in open conditions who are subject to 3a,b,c,or d above will be allowed to remain in open conditions…').
19. The Grounds then, amongst other things, submitted (at para. 38) that there 'is no suggestion in the 'Consolidated Interim Instructions' that a prisoner who was in open conditions on 21 May 2014 could be lawfully removed from open conditions without a material change in circumstances'.
20. The Consolidated Interim Instructions in fact did not replicate under their equivalent section C 'Transitional Measure' any reference to prisoners currently in open conditions who met the absconding criteria being allowed to remain in open conditions, and concentrated solely on their position as regards the grant of ROTL.
21. It became clear in the course of these proceedings that this was because the Defendant's Central Review of every prisoner who met the defined absconding criteria but who was in open conditions on the 21^st of May, had by August 2014 been completed, and decisions made as to who should be allowed to remain or be transferred back to closed conditions.

Mr Southey's reliance in submission on PSO 4700 as the 'published policies' for the purposes of this ground.

22. Mr Southey took me to the detail in the current PSO 4700 but in particular to paragraphs 4.2.3 and 4.2.4 which make clear that although an ISP will normally be recategorised to Cat D/open conditions after a positive recommendation by the Parole Board has been accepted by the Secretary of State (4.2.3), the responsibility for deciding all other categorisations changes rests with a prison governor or competent senior manager (4.2.4). I was then taken to paragraph 4.2.6 headed 'Re-categorisation to a higher security category' which is in these terms:

'where there are concerns abut an ISP's security risk (e.g. they now pose a greater risk of escape/abscond, their behaviour makes them unsuitable for their current security conditions, the risk of harm they now pose means it is considered they require closer supervision etc.) their security category must be reviewed. Consideration for raising a male ISP's security category …should normally trigger an OASys review. Where time allows before a transfer, a sentence planning and review meeting must be convened and as a minimum reports from the Offender Supervisor and Security department must be provided highlighting the concerns and reason for considering the higher security category/condition. In the case of an IPP prisoner, the OM should be chairing the board or at least consulted over the decision. Where for operational reasons, it is not possible to hold a sentencing planning board first, a board must be held, by the prison making the decision , as soon as possible afterwards with the same reports (including OM's view for an IPP) provided as a minimum'

And to 4.2.8:

'The ISP must be notified in writing of the reasons and evidence (but see below) for raising their security category. If being transferred they must receive this information prior to the transfer. Evidence can only be withheld on security grounds or to protect the safety of a third party'

And further in the section headed 'Removal from Open Conditions' to paragraph 4.8.4 stating that 'in some circumstances the risk assessment carried out upon transfer to the Open prison and/or the change of security conditions may discover the degree of potential risk to the public is higher than was thought to be the case, or an ISP's behaviour in open conditions may give rise to doubts about his/her continued suitability for open conditions or ROTL. Examples of situations which may give cause for concern include but are not restricted to:

doubts about the extent to which relevant risk factors have been adequately addressed;

reports of criminal behaviour...

behaviour which indicates the ISP is an abscond risk or is no longer able to cope or be trusted with the pressures and responsibilities of living in open prison and undertaking ROTL;

…problems associated with alcohol drugs money or relationships…and

previous behaviour warning/indicators being identified'

23. The point which was developed under this first ground was that the Claimant had been denied the procedural fairnesses enshrined in the PSO 4700 processes. To summarise Mr Southey's submissions in this regard in his skeleton argument at paragraph 5.1. onwards with references to particular paragraphs of the PSO:

there is no provision in the Defendant's published policy for a security category review to be undertaken centrally in the manner which occurred in this case; Rather, an indeterminate sentence prisoner (ISP) can only (emphasis of the court) be removed from open conditions following the procedure set out in PSO 4700;

a decision to remove an ISP from open conditions could normally only occur following 'the recommendation of a sentence planning and review meeting' and the preparation of 'full SPR reports for the Governor/Director to base this decision upon (para 4.2.6); No such meeting took place in this case;

re -categorisation to a higher security category can only occur where there are concerns about an ISP's security risk (e.g. they now pose a greater risk/abscond, their behaviour, makes them unsuitable for their current security conditions, the risk of harm they now pose means it is considered they require closer supervision etc (para 4.2.6); There is no suggestion on the facts of this case that the Claimant's risk had increased between March 2014, the date of transfer to open conditions) and his removal from open conditions in July 2014;

- minimum standards of procedural fairness applicable to the consideration demanded the convening of a sentencing planning and review meeting; and a review of the prisoner's Offender Assessment System report, reports from those responsible for the prisoner and the Security department. Such steps should be taken in advance of any transfer (para.4.2.6). None of these steps were taken in this case;

An ISP must be notified in writing of the reasons and evidence for raising their security status 'prior to the transfer' (para. 4.2.8) unless it could be withheld on security grounds or to protect the safety of a third party. This did not occur in this case.

- An opportunity should then be given to the prisoner to make representations in writing about the decision to recategorise them (para. 4.2.10). It is said that no such opportunity was given here as distinct from an invitation in September 2014 to make representations on whether the Claimant's case fell within the exceptional circumstances criteria of the abscond policy.

Ground 2

24. A second wide ranging ground of challenge to the decision is based on well known public law principles of procedural fairness: that it was made according to an unpublished policy, was unreasoned, and was inconsistent with the Defendant's previous decision of the 7^th of March 2014 and the Parole Board's recommendation of 6^th of February 2014 as well as the terms of the Interim Instructions purportedly allowing prisoners currently in open conditions to remain in open conditions notwithstanding any prior history of abscond.

The Public law / Article 5 Challenge: grounds 3/4

25. There is a further claim to relief on the grounds of an alleged breach by the Defendant of (i) the public law ('James' – James [2010] 1 AC 553) duty to make reasonable provision of systems and resources to allow prisoners serving indeterminate sentences a reasonable opportunity, by the time of the expiry of their tariff periods or reasonably soon thereafter, to demonstrate to the Parole Board they are safe to be released and/or (ii) the Article 5 ancillary duty (see now R (Haney) v Secretary of Sate for Justice [2015] 1 AC 1344 following on from the European Court of Human Rights decision in James v UK with (2013) 56 EHRR 12)) owed to any individual ISP to provide him with a reasonable opportunity (reasonable in the circumstances) to rehabilitate himself and demonstrate he no longer represents an unacceptable danger to the public (by reason of a sufficient reduction in risk to the public) and is therefore safe to be released.
26. This challenge has not however been made by reference to any alleged inadequacy in the 'progression regime' which at the time of the hearings before me had very recently been put in place as an alternative means to open conditions whereby an ISP might provide evidence of his suitability for release. Rather it focussed on the delay between the date of the transfer back to closed conditions (9^th July) and the introduction of or the likely availability to the Claimant of the progression regime.
27. As it was put in the Grounds (dated 7^th October 2014) at paragraph 52:

'…d) There is no means for the Claimant to demonstrate a reduction in risk in closed conditions;

e) The Claimant has not introduced any adequate systems to enable prisoners such as the Claimant who are being held in closed conditions solely because of a history of abscond, to demonstrate a reduction in risk. There is currently no available system in place;'

28. In his skeleton argument dated the 8^th of December 2014, Mr Southey put the argument this way. He referred to the first witness statement of the Defendant's officer Mr Davison of 3^rd December 2014 which at paragraphs 42 to 47 set out the detail of the progression regime. At paragraph 47 it was explained that the assessment process for suitability for the progression regime did not involve the Parole Board and said that 'ISP cases not eligible for open conditions, either where the individual has decided not to plead exceptional circumstances, or NOMS does not consider that the exceptional circumstance test is met, may be considered for the Progression Regime' which would be managed administratively within NOMS'. At paragraph 48 then this appeared:

'prisoners who had already received approval from the Secretary of State to be transferred to open conditions or a Parole Board recommendation at the time of the policy change in May are currently being assessed for the 'Progression Regime' as a priority. A request for prisons to assess 69 offenders was sent to Governors on 21 November, with a 14 day deadline for completion. It is anticipated that the first group of offenders will transfer to the regime by the week commencing 1 December 2014. It is expected that there will be 20 offenders in the progression regime by Christmas with movements into the regime once a fortnight beginning in February and until all spaces are occupied'

29. Mr Southey's argument was that no date was given as to when or if the Claimant would be transferred to the 'progression regime' and on the basis of the evidence as at the date of the skeleton argument, the Claimant could lay claim to a continuing breach by the Defendant of both the public law James duty and the Haney ancillary Article 5 duty of at least five months to date and another two months until February 2015 at the earliest and even then there was no guarantee he would be transferred to the 'progression regime'. This argument had to be modified when the first hearing began on the 19^th of December because by that date the Defendant by a letter of the 12^th of December had informed the Claimant that, the Secretary of State having concluded that the Claimant did not meet the exceptional circumstances criteria, the prison Governor had been asked to assess the Claimant for a transfer to a progression regime. This Progression regime would have been at HMP Warren Hill.
30. At the date of that first hearing on 19^th December 2014 the court was informed by Mr Weisselberg QC on behalf the Defendant that the Claimant had declined the opportunity to be admitted to the 'progression regime' although those representing the Claimant indicated that they had not had had any opportunity to take instructions from the Claimant on the matter. At the resumed hearing on 23^rd January 2015 the Claimant's position put forward on instructions was that he had not refused such an opportunity but rather he had reserved his position to seek advice. This position had been made known to the Defendant in an exchange of correspondence between the two hearings which was placed before me, in which the Claimant's solicitors formally reserved the Claimant's position, seeking clarification of certain aspects of the proposed regime and expressing concerns that any immediate transfer to the regime would interfere with the timely conclusion of the current parole review in respect whose oral hearing, expedition was sought. In the event, as will be seen below, expedition was obtained and the Claimant, given the positive outcome, was never further assessed for the progression regime.
31. Further details of the progression regime were nonetheless set out in the Defendant's letter of the 16^th of January 2015 and Mr Davison, in his second witness statement of the 21^st of January, gave an update on the introduction of the progression regime in these terms (at paragraph 5):
    

'The details of how this regime was intended to operate were set out in my first statement. In order to update the court. I can confirm there are currently 26 inmates at Warren Hill on the Progression Regime and 11 more are expected by the end of January. Forty-five is the current capacity of the unit. By the end of 2015 the regime will hold 197 prisoners at capacity at different establishments…'

Two factual developments since the hearings before this court

32. As an added complication to the factual background to this claim, following the hearings before me the Claimant was in fact released on the direction of the Parole Board in a decision letter of the 4^th of March 2015 following the scheduled Parole Board Review hearing which had been brought forward to the 23^rd of February 2015. The opening paragraph of the decision letter stated:

'The previous panel had recommended your transfer to open conditions and you moved to HMP North Sea Camp on 3 April 2014. The Secretary of State changed the policy on open conditions in May 2014 and following a risk assessment you were returned to closed conditions in July 2014. You are no longer eligible for recommendation for open conditions, so the panel only gave consideration to the question of release'

The fact of this release has raised the issue whether this claim is now entirely academic.

33. Further the court has been informed that since his release the Claimant in or about September 2015 was recalled to custody following an allegation that he was involved in a further offence of attempted robbery. The Claimant on 14^th of September 2015 entered guilty a plea to this offence and received a determinate sentence of 18 months imprisonment.
34. I turn to set out the background facts in a little more detail.

Claimant's history of absconding

35. To understand the circumstances in which the transfer back to closed conditions came about, it is necessary to set out the history of the Claimant's absconding and failure, in the past, to return from Release On Temporary Licence when in open conditions, and his misuse of alcohol and illicit drugs on those occasions. Prior to 2014 there had been two such events in 2011 and 2013. The facts relating to this history set out in the next paragraph come from the Parole Board's decision of February 2014.
36. In August 2011 the Claimant had been transferred to open conditions at HMP Kirkham. Two months later he had made an unauthorised trip to his family home in Bolton and did not return to prison. It is said that the Claimant had been finding it difficult to cope with the death of his father. After 2 days the Claimant surrendered himself to the police and received a concurrent four month sentence for absconding from custody. In January 2012 the Defendant returned the Claimant to open conditions at HMP Kirkham where initially and for a significant period he responded well, including 12 successful day visits to Preston and periods of overnight release at his mother's home. However in August 2012 he had relapsed and used non-prescribed Subutex. This it is said was around the time of the anniversary of his father's death, his son falling ill, and the build up to a Parole Board Review. The Claimant was however permitted to remain in open conditions and in October 2012 the Parole Board reviewed the Claimant's case and decided that a further period of testing in open conditions was required. In due course his temporary releases were re-instated but in January 2013 the Claimant returned from a period of temporary release having consumed alcohol. Then in March 2013 the Claimant decided that if he remained in open conditions he would 'self –destruct'. He absconded while on temporary release and to compound matters used heroin bought from a dealer. Soon afterwards he handed himself in and was returned to closed conditions at HMP Forest Bank where he disclosed his heroin use.

The history of the Claimant's transfer from Forest Bank to open conditions in April 2014

37. The Parole Board by their Decision of February 2014 had not directed release. Their conclusion as to this contained the following:

'…The panel concluded that the risk of your relapsing and causing further serious harm is not, at present, safely manageable in the community, and that you need to continue to be detained in prison to protect the public from a further violent offence. Accordingly it did not direct your release'.

38. The conclusion to recommend transfer was in these terms:

'The panel did however consider that the risks you pose are manageable in open conditions. All core risk-reduction work has been completed, but you still need to demonstrate that you can cope with life's upsets in an appropriate way, without resorting to substances, and also fully comply with the terms of temporary release. The panel acknowledges that there is a serious risk of your absconding from open conditions but observes that on your last two absconds you surrendered yourself, and other than drug use, you were not known to have committed any other offences. The panel consequently recommends your transfer back to open conditions. The testing period need not be a long one'

The highlighting is that of the court.

39. The decision letter of the Defendant of 7^th of March accepting the recommendation of the Parole Board for transfer to open conditions in terms expressly referred to a number of identified risk factors, the fact the Parole Board had noted that since the Claimant had returned to closed conditions he had undertaken further offending behaviour work to reduce risk and 'key report writers considered that you have completed all core reduction work required of you in closed conditions'. The letter then explained that the Defendant had 'identified the following further interventions in open conditions to help you address these factors'. There were then set out what Mr Southey QC in his skeleton argument on the part of the Claimant fairly describes as a series of targets that would enable the Claimant to demonstrate a reduction in risk, each of which, as described by the Defendant, would appear to require that the Claimant be transferred to an open prison, for example:

to consolidate and continue to put in practice the skills and strategies learned from the offending behaviour work completed to date;

a transfer to open prison will allow crucial testing of your ability to avoid relapse into substance misuse;

demonstrate over a period of time that you can avoid risky situations. Comply with open prison regime, and demonstrate insight into the roots of you risk factors;

to be carefully monitored in all area of risk to ensure that you are equipped to deal with the requirements of everyday life in the community;

- to develop and test a robust release plan;

40. The Defendant in that letter further explained that the Claimant's parole review period had been set at 14 months. This meant that the Claimant's next Parole Board Review would commence in October 2014 leading to an oral hearing before the Parole Board in April 2015. As I have already indicated this review was in the event brought forward to February 2015 and led to a direction from the Parole Board for the Claimant's release which in turn led to the Claimant's release on licence. As indicated, such a direction was binding on the Secretary of State: See again section 28(6) of the Crime (Sentences) Act 1997.

The Claimant's transfer back to closed conditions

41. I deal with the history of the transfer back in July 2014 first from the standpoint of the Claimant based on what was communicated to him at the time.
42. That transfer back will have come as a complete surprise to him.
43. In so far as can be gleaned from the material, before the court the Claimant had been making progress in the short time he had been in open conditions.
44. It is known from material exhibited by Mr Davison as being material before the Review Panel in June 2014 that the Claimant gained enhanced prisoner status on 8^th of May 2014 (GD1 97) and that he received a number of positive entries on his prisoner record (GD1 95-98).
45. It is known from the material exhibited by Mr Davison as being documentation prepared for the pending Parole Board Review which commenced in October 2014, that no issues were raised regarding the Claimant's discipline or progress (GD1 168); that he had successfully completed an escorted town visit during which he had remained un cuffed and following which he received positive feed back (GD1 168): that he was assessed as suitable for home leaves which were scheduled to begin in September 2014; and that he was close to completing a vocational qualification in painting and decoration (GD1 173).
46. On the 9^th of July 2014 the Claimant was transferred back to a closed prison, HMP Lincoln.
47. No explanation was given for the move at the time.
48. The next day he did receive a letter from the Defendant (in terms it was from the Governor at HMP North Sea Camp) dated the 10^th of July 2014 in which he was told that his suitability to remain in open conditions 'had been reviewed' and that the review had 'considered afresh' the previous incidents of non-compliance in open conditions including the two previous failures to return from ROTL as well as the failed drug test and breach of ROTL conditions (alcohol use). The precise terms of the letter were as follows:

'Your suitability to remain in open conditions has been reviewed, taking into account all information relevant to the current sentence you are serving. The review has considered afresh previous incidents of non-compliance in open conditions including two previous failures to return as well as a failed drug test and breach of ROTL conditions (alcohol use). (emphasis of the court).

In order for an offender to be suitable for open conditions prison authorities must be sure that the offender's risk of harm and risk of absconding are capable of being managed effectively in lower security conditions, more akin to life in the community than any closed prison can be . Following the review it has been decided that you should return to open conditions. Your offender manager will be in touch with you shortly to discuss the next steps in your sentence plan. If you wish to make representations about your return to closed conditions, you should do so to the Public Protection Casework Section via your solicitor or your offender manager/supervisor within 28 days of receiving this letter'

49. As can be seen, the Claimant by that letter was invited to make representations about 'your return to closed conditions' within 28 days. No representations were made and on the 5^th of August the Claimant was transferred from HMP Lincoln to closed conditions at HMP Forest Bank.
50. As to the reason no representations were made, the following has been put forward on the Claimant's behalf. At the time of his transfer back the Claimant had been represented by a firm of solicitors different from his current solicitors who were first instructed in early September 2014 consequent upon a referral by his previous solicitor, who had left her employment to become an assistant coroner. The new solicitors first met with the Claimant on 12^th of September 2014. A witness statement from current solicitor Mr Pemberton dated 8^th of December 2014 explains at paragraph 5 that under the amended Prison Law Advice and Assistance Scheme, no legal aid funding would have been available to the Claimant to obtain legal assistance in making representations against the return to closed conditions. In any event it is said that the Claimant was extremely confused as to why he had been returned to closed conditions. Mr Pemberton prays in aid of this confusion, the submission that this was shared by his Offender Manager, Toni Marland as expressed, for example, in a letter to the Claimant of the 24^th July 2014 which said amongst other things that

'I am sorry and shocked to hear that you have shipped (sic) out of HMP North Sea Camp. I was aware as I stated in one of my previous letters that changes were happening regarding ROTLs, however was not aware that this would be part of them. It is my understanding from probation sources that those offenders who were already located in Open conditions as of 21 May 2014 would remain where they were and the ROTL process would continue albeit more stringently and with more assessments necessary…I have requested more clarity from my managers regarding this and will keep you updated if I hear anything...'

51. The Claimant having made no representations on the question of his transfer back, the next stage in the history from his standpoint was a letter written to him dated the 25^th of September 2014 from the Defendant's NOMS Public Protection Casework section in which the new absconder policy on eligibility for transfer to open conditions was explained to the him by reference to the Consolidated Interim Instruction now published. The detail of the policy was spelt out to Claimant setting out the 'absconding criteria' which if applicable to any ISP would mean that any ISP would be considered unsuitable for transfer, save in exceptional circumstances. The criteria for finding exceptional circumstances were set out. It was made clear that it would be for the Secretary of State to be satisfied as to whether those criteria had been met. The Claimant was informed in effect that in the light of the facts of his absconding history, namely his failure to return from his ROTL on the 22^nd of October 2011 and the 10^th of March 2013, the Secretary of State was minded to find that he was no longer suitable for transfer to open conditions in line with the revised policy and therefore he would remain in closed conditions.
52. However by that letter the Claimant was invited to say whether he disputed the facts of his absconding history relied on by the Defendant. Further he was invited to make representations on whether the exceptional circumstances criteria were met in his case. He was given 28 days to make such representations.
53. In other words by the 25^th of September, absent any representations as regards the July decision to move back to closed conditions, the Defendant had moved on from that decision and was now applying to the Claimant the new absconder policy as regards eligibility for transfer the other way, that is from closed to open conditions, and was seeking representations by reference to that policy.
54. The Claimant made no representations in response. What his solicitor did do by an email of the 1^st of October was to seek reasons for the return to closed conditions.
55. This email was in the context that shortly before the Defendant's letter of the 25^th of September, pre-action protocol letters had sent on the 23^rd of September 2014 alleging that the decision to return the Claimant to closed conditions had been unlawful, given in particular that there had been no material change in circumstances since the transfer to open conditions ('we are instructed that no untoward incidents occurred whilst our client was located at North Sea Camp and indeed he had not commenced resettlement day release or resettlement over-night release'). It was alleged, amongst other things, that the new absconder policy had been applied retrospectively and in error of law ('it applied to prisoners in closed conditions not those who have already achieved open conditions'). By this date the Interim Instructions on the new abscond policy had been replaced by Consolidated Interim Instructions issued on 11 August 2014 to which I have already referred, and these had been published on the MoJ website. The evidence is that prison staff were asked via a notification on the intranet to ensure that details of the main changes were displayed where all prisoners could read them so that they would be aware of the changes and how to access a copy of the detailed instructions if they wished.
56. Replies to the letters before claim were sent respectively on the 2^nd of October 2014 (from Ms Chamber, an ISP policy support manger at the Defendant's NOMS and on the 3^rd of October 2014 from the head of the Defendant's offender management unit at HMP North Sea Camp.
57. The letter of the 3rd of October was in these terms:

'Response to the proposed claim

In response to the significant public concerns about absconds from open prison, and the impact of those absconds on public safety, the Secretary of State decided that the policy on transfer to open conditions needed to be reviewed as a matter of urgency. In addition, and in response to that same concern, the Secretary of State decided to review the position of those offenders in open conditions who had during their current (i.e. not any previous) sentence, either escaped or attempted to escape or absconded or failed to return from ROTL. In accordance with those reviews, which are now complete, the Secretary of State reviewed Mr Paul McAtee's suitability to remain in open conditions. In the light of the new policy the Secretary of State decided that Mr Paul McAtee presented an unacceptable risk to remain in open conditions. Mr Paul McAtee had failed to return from ROTL's in 2011 and 2013, interspersed by drug and alcohol test failures. The decision took into account multiple failures to deal with the responsibilities of ROTL and open conditions, particularly in relation to substance misuse. Substance misuse is a feature of Mr Paul McAtee's index offending and therefore a key risk factor. As instructed by the Secretary of State, Mr Paul McAtee was transferred back to closed conditions on 9^th of July 2014'.

'Mr Paul McAtee had been invited to make representations against his removal, upon receipt of which the Secretary of State would have decided whether he should stay on closed conditions and be re-categorised as category C'.

58. As already indicated these proceedings were then issued on the 8^th of October.

The letter of the 12^th of December 2014


59. The final stage in the chronology from the Claimant's standpoint immediately before the first of the hearings was that very shortly before, the Defendant had sent the Claimant the letter of the 12^th of December 2014 to which I have already referred at paragraph 29 above. As indicated, this letter communicated two matters, both of which were an application of the new absconder policy and flowed from the Defendant's letter of the 25^th of September in which the Claimant had been asked whether he disputed the facts which the Defendant considered met the absconding criteria of the new policy, and to make representations on whether he met the exceptional circumstances criteria.
60. The letter informed him first that the Secretary of State had considered carefully whether the Claimant might meet the exceptional circumstances criteria for open conditions 'without having received any representations from you' and that the Secretary of State had concluded that the Claimant did not meet exceptional circumstances criteria as 'you have not made significant progress in reducing your risk of harm and risk of abscond such that a further abscond is judged very unlikely' and that he would remain in closed conditions. Reasons were given why the Secretary of State had reached this conclusion.
61. It is unnecessary to set out these in full since there has been no challenge in these proceedings to this particular decision, save to record that reference was made to the fact that the Parole Board which had last considered the Claimant's case in January 2014 had recommended a move to open conditions but had said that there was 'a significant risk of you absconding from open conditions'
62. Secondly the Claimant was informed that the Governor had been asked to assess his suitability for transfer to a Progression Regime. I have already at paragraph 30 above set out what subsequently has occurred in the Claimant's case in this regard.
63. In other words, the letter of the 12^th of December reflected the stepped process intended by the Defendant to be adopted in application of the new abscond policy. First to determine whether the exceptional circumstances criteria would be met and secondly if they were not, to determine suitability for the progression regime. As Mr Weisselberg put it in his skeleton argument for the hearing of the 19^th December, written before the letter the 12^th of December was sent, at para 42.4:

'the decision on whether the Claimant meets the exceptional circumstances criteria is pending. If the decision is that the Claimant meets the...criteria, the Secretary of State will then ask the Parole Board to consider whether the Claimant should be transferred to open conditions. If the decision is that the Claimant does not meet...the criteria, the Claimant will be considered for the progression regime, and once that consideration is completed, the Claimant will be transferred if appropriate; there is no basis for the suggestion that this would not be until February 2015'

History of transfer back from standpoint of the Defendant

64. As I have indicated there has been no public law challenge in these proceedings to the introduction on the 21^st of May 2014 of the Defendant's new absconder policy excluding, without any input from the Parole Board, eligibility or suitability for transfer to open conditions of an ISP with an abscond history save in exceptional circumstances, or to the associated new mechanism now recently introduced to provide prisoners with an abscond history with the opportunity to demonstrate from within a closed prison environment that they are suitable to be released - that is the new progression regime.
65. However it is necessary to rehearse to a degree why the new policy was introduced so as to understand the Defendant's approach upon its introduction to the position of prisoners such as the Claimant who satisfied the absconding criteria but were currently in open conditions.
66. The background to the introduction of the new policy is set out in Mr Davison's first witness statement. It was a response to a number of high profile cases in which prisoners with a previous history of absconding had been placed in open conditions and then absconded again and re-offended in serious ways which led the Defendant to decide that the immediate interim measures were necessary in order to preserve pubic confidence in the administration of justice, in particular the system of temporary release (ROTL) and transfers to open conditions. As Mr Weisselberg put it, the common theme to both policies was the concept of a very strong presumption against either transfer to open conditions or ROTL for any prisoner with a history of escape, abscond or serious ROTL failure during the current sentence so as to ensure that the public was protected (by the presumption acting as a deterrent to further incidents) and to maintain confidence in the arrangements more generally.
67. Another way of putting it is that in exercise of his statutory discretion on the allocation of prisoners to open conditions, and in assessing risk posed by a prisoner being in open conditions, the Defendant had re-assessed the weight which should be given to a history of absconding when considering suitability for open conditions. A greater weight was to be given than had been placed by the Defendant in the past, on abscond history, that is the link between past absconding and future risk. Again there has been no public challenge in these proceedings to the adoption of such a policy whatever the debate before me on whether there was any proper evidential basis for such a link.

The review of prisoners already in open condition whose cases were caught the new policy on eligibility for transfer: the process of Central Review

68. The evidence before me (through the first Davison witness statement) was that in early June 2014 the Defendant determined it would also be appropriate for prisoners who were then currently in open conditions but who had a history of absconding or otherwise satisfied the defined criteria under the Interim Instructions, to be reviewed in order to assess their continued suitability to remain in open conditions. This was for the same reason, namely to ensure that the public were protected and to maintain public confidence.
69. Mr Davison in that evidence (in a reference to that set out above from PSO 4700) referred to the fact that open prisons as part of their standard practice make decisions to return offenders to closed conditions if they have reason to believe that an offender's risk has increased or that an offender's degree of risk properly assessed means that they are no longer suitable for open conditions. In other words the Defendant through Mr Davison was in effect saying to the court that the exercise undertaken in June 2014 was an exercise in reviewing the assessment of risk posed by these prisoners in open conditions and their continuing suitability to remain in open conditions, having regard to the greater weight which the Defendant had now determined should be given to a history of abscond.
70. Again there was no direct public law challenge before me to a re-assessment of risk posed by a prisoner in open conditions on this basis. As I have indicated the challenge in grounds 1 and 2 has been a procedural one focussing on what is alleged to have been a lack of procedural fairness in the different ways set out in those grounds.
71. As indicated however, there is an issue as to the adoption of a Central Review Panel in carrying out the individual reviews, including that of the Claimant, as distinct from using the PSO 4700 process, and without any forward notice to the prisoners concerned, and as to the criteria adopted on the review, given the Interim Instructions to Governors were that prisoners currently in open conditions who satisfied the absconding criteria would nonetheless be allowed to remain. The Defendant's explanation through Mr Davison's first witness statement (at paragraph 31) was in these terms:

'However rather than following the process set out in PSI 36/2010, it was decided following the policy announcement that the cases of offenders with a relevant history would be reviewed by a central panel. As a result, it was not necessary for further interim instructions to be issued to prison Governors to this effect. The use of a central panel not only ensured consistency and speed of decision making but avoided the risk which would otherwise have arisen had individual establishments been asked to conduct such assessments; that prisoners would have learned of the review and as a result their potential risk of abscond increased still further'.

72. This therefore was a concession by the Defendant that there had been a considered decision not to use the PSO process but to use a central review panel for reasons of consistency, speed of decision making and considerations of security.
73. Mr Weisselberg made the further point in submission that there was nothing in the Interim Instructions to prison governors which precluded the Defendant from arranging a review of the status of prisoners who had an abscond history and who were in open conditions in the light of the greater significance now to be given between the link between past and future absconding, and that this process was entirely lawful. The Defendant it was submitted was entitled to consider that the risk posed by a prisoner in the position of the Claimant with an abscond history, might be greater than previously believed or assessed simply because of the greater weight now to be given to abscond history.

The review criteria: not a retrospective application of the absconder policy

74. The evidence is that the panel on the review did not simply apply the criteria in the new absconder policy and automatically return to closed conditions those who fell within it; as I have indicated a more nuanced approach was taken. Mr Davison in his first statement explained that the panel began its reviews in mid-June 2014 and the reviews were completed by mid-July 2014. The panel was comprised of NOMS senior managers including representation from both prisons and probation, and cases were reviewed considering evidence from the prison and probation service in relation to each individual ISP. A blank copy of the panel's template for considerations of these cases was exhibited to the first statement. These reflected the criteria adopted which were more fully explained in Mr Davison's second witness statement which was to the effect that matters to be considered were: length of time since the most recent breach; sanction for breach; manner on return to custody; length of time in open conditions since breach; risk of harm/re-offending; time spent unlawfully at large; adjudications indicating at risk behaviour; high profile/media interest; serious further offences; and recall. These were turned into a list of positive and negative indicators on the panel's template known as 'breach audit form'.
75. Negative indicators were those indicating that a prisoner was unsuitable to remain in open conditions if all or a majority of the factors were applied. They were (i) multiple breaches; (ii) last breach within 2 years; (iii) minimal sanctions applied – no custodial sentence, minimal time in closed conditions following breach etc; (iv) short period spent in closed conditions after breach (less than 12 months); (v) involuntary return to custody – captured by police etc; (vi) time spent unlawfully at large which was over a day; (vii) back in open conditions for less than 12 months following last breach (viii) no successful ROTL since to date; (ix) further offences committed unlawfully at large or upon failing to return from ROTL.
76. Positive factors indicating a prisoner was suitable to remain in open conditions were: (i) single; breach (ii) breach more than 2 years previously; (iii) higher sanctions applied; (iii) manner of return to custody – self return; (iv) has spent more than 12 months in custody in closed conditions following a breach; (v) return from UAL same day; (vi) has now been in open conditions for more than 2 years since breach; (vii) has current successful ROTL.
77. The documents considered by the panel for each prisoner included the most recent version of the Parole Board recommendation letter; the SSJ letter post parole hearing; the PAROM1 report for the Offender managed in the community; SPR L from the prison based Offender Supervisor; case notes from Prison – NOMSIS; Overall Prison – NOMIS summary print out including prisoner movements; LISP4 failure in open conditions reports; reportable incidents distribution reports – detailing the relevant incidents; plus any other relevant sentencing planning reports which may include security.

The review of the Claimant's case

78. The material breach audit form as completed in the Claimant's case was exhibited to Mr Davison first statement. It had not been disclosed to the Claimant prior to these proceedings.
79. The material before the panel in the Claimant's case included the Parole Board's recommendation on the 28^th of January 2014; the Defendant's letter accepting that recommendation of 7^th of March 2014; the Case Notes History on the Claimant from the open prison at North Sea Camp between the 11^th of March 2014 and 11^th of June 2014 (these notes included the promotion to enhanced status on the 8^th of May to which have already referred); and the failure in open conditions reports of March 2013 and October 2011.
80. The completed form shows that a majority of the negative indicators were considered to apply to the Claimant, namely multiple breaches; last breach within 2 years; less than 12 months return to closed conditions; UAL over 1 day; back in open for less than 12 months; and no successful ROTL since. The only identified positive indicator was that of 'self return'.
81. The Recommendation was in these terms:

'Mr McAtee has absconded from custody on 2 occasions. There have been further breaches of ROTL as a result of consuming alcohol and testing positive for drug use. By the Parole Boards own admission Mr McAtee presents a high risk of absconding. I agree with this assessment and given all the factors in this case including absconding 15 months ago, struggling with the lack of structure in open conditions, and the significant proportion of negative indicators, Mr McAtee should be returned to closed conditions'.

82. A hand written final script headed 'Action' dated the 7^th of July 2014 (23 days before the Claimant's removal back) states as follows:

'ACTION: Return to Closed Conditions.

Mr McAtee was at Kirkham earlier in his sentence, when he failed to return from his first ROTL (Oct 2011), failed a drug test (Aug 2012), returned from ROTL having consumed alcohol (Jan 13) and finally FTR and was UAL for 4 days in March 13. Less than a year later, the decision was made to return him to open conditions, and he has been at NSC since April. He has not yet had further ROTL. The Parole Board acknowledged that he was a significant risk of abscond, but noted on his previous UAL periods he was not known to have committed further offences (other than drug use). Mr McAtee is convicted of a violence offence and has demonstrated multiple failures to deal with the responsibilities of ROTL and open conditions, potentially in relation to risky substance misuse. I am not satisfied he is safe to remain in open conditions, and the decision to return him earlier this tear must be questionable.'

83. Although as indicated procedural objections have been taken to the whole central panel process, no substantive public law challenge has been taken either to the use of these criteria or to the way they were applied to the Claimant as such.

The overall outcome of the review

84. Although the review of the Claimant's particular case led to his being transferred back on the 9^th July 2014, this was not the result in the majority of the cases reviewed. Of a total of 115 cases reviewed, only 9 were returned as a result of the panel's recommendations. There was, Mr Davison told the court, no automatic policy to return those offenders with an abscond history to closed conditions. In fact a clear majority were adjudged by the panel to remain in open conditions. Nor was there any retrospective application of the Interim Instructions to this group, as this would have meant the entire group of offenders would have been removed to closed conditions and assumed unsuitable to return to open conditions, absent 'exceptional circumstances'. Instead the Secretary of State left those who would have fallen under the Interim Instructions in open if they were doing well and were not deemed a high risk of further abscond given the greater significance given to abscond history.

Non - publication of the criteria

85. It is common ground that these criteria were not disclosed to the Claimant or any of the prisoners concerned in advance of the review or afterwards. The Defendant's explanation is given in the final paragraph of Mr Davison's second statement which also addresses the fact that no forward notice of the review was given to any of the prisoners concerned, including

the claimant:

'The reason is that it was essential for the central review process to be conducted confidentially at NOMS Headquarters without alerting either the prisoners who were subject to review or even prison staff dealing with these prisoners that their cases were being reviewed. In my view there was a risk that if the central review process became public, this could have precipitated additional absconds'

The Court's Conclusions

86. I turn first to the challenge to the decision of 9^th of July to move the Claimant back from open conditions.

Ground 1: inconsistency with published policies;

Ground 2: procedural unfairness: made pursuant to an unpublished policy; unreasoned; inconsistent with the Defendant's previous decision of 7^th of March and the Parole Board's recommendation of the 6^th of January 2014.

87. I deal with these grounds together given the overlap between them.
88. Save for matters relating to the publication of the applicable criteria and the giving of reasons, I can find no substance in any of these grounds.
89. As to ground 1, the internal Interim Instructions to Prison Governors were never published so ground 1 cannot succeed as pleaded even if they were to be interpreted as binding on the Secretary of State as regards the position of prisoners with an abscond history who were already in open conditions. However in any event I agree with Mr Weisselberg that there was nothing in those instructions which precluded the Secretary of State from arranging a review of the status of such prisoners in light of his decision to give greater weight to abscond history when assessing risk.
90. Such a review of the risk posed by those in open conditions was part of standard practice of the Defendant in any event as explained by Mr Davison. The use of the Central Panel review procedure for the purposes of such review may have been a departure from the terms of the then current PSO 4700 (the unpleaded basis of ground 1 developed in submission) but again I accept the Defendant's submission that there was nothing in law to prevent the Defendant from so departing so long as there was good reason to do so. In this context I was reminded of R (Lumba) v Secretary of State for the Home Department [2012] AC 245 at paragraphs 26 and 202. PSO 4700 was not a statue. At most it was an expression of procedural policy.
91. That good reason in my judgment has been supplied by the Defendant through the evidence of Mr Davison quoted above at paragraph 71 (all in the context of the adoption by the Defendant of a new absconder policy as regards assessment of suitability for open condition), namely consistency, speed of decision making and security risks. I repeat moreover that there has been no public law challenge made in these proceedings either to the adoption of the absconder policy as such or to the Defendant's decision in exercise of the discretion conferred by statue, that in assessment of risk, greater weight than hitherto was to be given abscond history, that is a greater weight on the link between past absconding and future risk.
92. As to the more broad sweep of 'unfairness' complaints under ground 2, I can find nothing in the complaint that the decision to move back to open conditions was inconsistent with the previous decision of the Defendant to accept the recommendation of the Parole Board that the Claimant was suitable for open conditions. Notwithstanding his earlier decision, the Defendant was entitled to review the status of the Claimant in open conditions and the assessment of risk previously made, in light of his adoption of new policy that in assessment of risk greater weight should be given to abscond history than had hitherto been the case. No authority was cited to me in support of the proposition that the Defendant was not entitled to revisit such an earlier decision in the light of such a new policy so long of course he did so in a procedurally fair way (as to which see R (Adetoro) v Secretary of State for Justice [2012] EWHC 2576 (Admin) and below). It is well established that the most the Claimant upon such as review could legitimately expect was to be treated according to the current policy (In re Findlay [1958] AC 318). The historical Parole Board recommendation was not binding upon the Defendant even at the time it was made and in any event, and significantly in the light of the Defendant's new approach to assessment of risk, the Board itself acknowledged a serious risk of the Claimant absconding from open conditions.
93. I will come in a moment to such of the Claimant's submissions of procedural unfairness as have a degree of force, but any conclusions as to these have to be seen in the context that there was before me no public law challenge to the criteria in fact employed by the Central Panel when reviewing the Claimant's case or in their application to the Claimant. Unlike other cases cited to me (for example SP v Secretary of State [2004] EWCA Civ 17), no submission was made to me that that Defendant's decision based on the Central Panel Review, was based on an incorrect factual basis or that there were gaps in the material in fact provided to the panel which undermined the conclusion reached. I have already set out the extent that material was which was before the panel. It included the Parole Board recommendation of February 2014 and the case notes from the Open prison.
94. Although a complaint was made before me of the lack of any opportunity given to the Claimant to make any meaningful representations against the transfer back to closed conditions absent adequate reasons for the move, or publication of the precise criteria employed in making the decision, it remained the case before me when the full background to that decision was by then known, including the greater weight then put on abscond history and the criteria applied and the outcome of that application including the reasons given both on the audit form and in the letter of 3^rd October as well those in the letter of the 10^th of July, that even by then the Claimant had not sought to make any representations to the Defendant as to his return to closed conditions. Nothing was laid before me as to what the Claimant's representations would have been had he been better informed than he claims he was, when by the letter of the 10^th of July the Defendant invited him to make representations about his return to open conditions, giving him 28 days to do so.

Procedural unfairness

95. Looked at in isolation there was however in my judgment force in the Claimant's submission that there was an element of procedural unfairness in the way that he was not given enough information in order to make meaningful submissions about his return to open conditions. Mr Weisselberg himself explained the duty to publish policies as being parasitic upon the duty to enable those affected by a policy to make informed and meaningful representations to the decision maker (see Lumba at paragraphs 35 and 38). There was in my judgment no procedural requirement in the present circumstances that the Claimant be told of his proposed return to closed conditions in advance of his return. Whether fairness demands such a course must depend on the particular circumstances (see ex parte Peries [1997] EWHC 712). Even PSO 4700 did not suggest such a course in all cases. I accept the Defendant's evidence that there was here good reason – to avoid the risk of further abscond - for keeping the central review confidential without alerting prisoners who subject of the review. However what fairness did demand was that after his return, the prisoner should be given sufficient reasons for the decision and be given an opportunity to make meaningful representations.
96. Mr Weisselberg submitted this duty of fairness was satisfied by the contents of the letter of the 10^th of July in which he submits proper reasons were given and the clamant was invited to make representations within 28 days. That letter certainly informed the Claimant that the Defendant had reviewed his 'suitability' to remain in open conditions and had for this purpose considered afresh the previous incidents of non compliance in open conditions as well as the failed drug test and breach of ROTL conditions. What it did not expressly tell him was that the review had given greater weight to this abscond history in assessment of his risk than had hitherto been the case when his risk had previously been assessed. Nor did it inform him of the criteria or at least the gist of the criteria which the review had applied when determining whether given his particular abscond history, he was safe to remain in open conditions. Mr Davison has told the court that the new absconder policy on suitability for transfer from closed to open conditions was not applied retrospectively on the review but rather that the Defendant left those in open conditions who would have fallen under the Interim Instructions 'if they were doing well and were not deemed a high risk of further abscond given the greater significance given to abscond history'. What the letter of 10^th of July failed to inform the Claimant were the criteria applied in determining that the Claimant did not fall into this characterisation. He was not informed why he was deemed 'a high risk of further abscond' compared to others who like him fell under the new absconder policy. It is known that the Defendant found in the Claimant's case a majority of 'negative factors' but at no stage prior to his being invited to make representations was he informed of what those negative factors were.
97. At the very least the Claimant should in my judgment have been informed in addition to that contained in the 10^th of July letter, that the Defendant in assessing suitability and risk, was now giving greater weight to abscond history, and what in his case had been the negative factors material to the decision to order his return to closed conditions. He would then have been in a position to make representations either to challenge the factual basis of any of those indicators or to make representations why notwithstanding those factors he was safe to be in open conditions and did not represent a high risk of abscond.
98. Had the letter of the 10^th of July contained the same as the letter of 3^rd of October (see paragraph 57 above) it may well be that I would not have reached the same conclusion.
99. I should record that I could see force in Mr Weisselberg's argument that the process undertaken here did not fall foul of the 'unpublished new policy' line of authority. His submission was that what was meant by 'new policy' in this context was 'new criteria' being used to reach a particular decision (see for example the decision of Lang J. in R (Haney) v Secretary of State for Justice [2013] EWHC 803 (Admin) concerning the failure to publish the new priority being given to post tariff prisoners when implementing transfers to open conditions), whereas here – so the submission went - the same criteria were being used as before for the purpose of assessing suitability for open conditions, that is in the assessment of risk of harm to the public posed by a prisoner in open conditions. It was just that the Defendant had decided to attach particular weight to particular elements when assessing that risk, namely the abscond history and the risk of future abscond, but this did not amount to the application of new criteria since abscond history and risk of future abscond had always been applicable factors. The Claimant knew from the letter of the 10^th of July that he had been transferred back because of an assessment of risk which paid particular regard to his history of absconding the detail of which was spelt out. Hence adequate reasons were given and there was no breach of procedural fairness in that regard.
100. Ultimately however I have been unable to accept that the decision of the Defendant in June 2014 to review the continued suitability of prisoners with an abscond history to remain in open conditions by giving greater weight than hitherto to abscond history, that is the link between past absconding and future risk, was not a decision at the very least involving the application of a newly defined approach to the weight being given to existing criteria.
101. However in deference to Mr Weisselberg's submissions, my judgment is that the demands of procedural fairness were not met in this case as regards the decision to transfer back to closed conditions not because it was based upon the application of an unpublished new policy but because of the failure to give the Claimant adequate reasons for the decision to enable him to make meaningful representations. Those reasons should have informed the Claimant of the greater weight now being given by the Defendant to the history of abscond when assessing future risk and the criteria which were applied in determining that he was a high risk of abscond. I repeat my conclusions at paragraphs 96 and 97 above.

Relief

102. However whether any relief should be given in the light of these conclusions under ground 2, is a very different question. I refer to the history set out in paragraphs 93 and 94 above. Even if the Claimant had not been released on licence in March 2015 it was always difficult to identify what relief the Claimant could have obtained as regards the return to closed conditions. He never sought to make any representations to the Defendant as to that return even after receipt of the letter of the 3^rd of October. Further as I have indicated there were no submissions made to me as to what those representations would have been had the Claimant known the full background to the decision which he did by the time of the hearings before me. There was no challenge to the factual basis to the decision. By the time of the hearings before me the Claimant was, as Mr Weisselberg put it, now in the new system in closed conditions governed by new absconder policy and was to be progressed accordingly. The Claimant had chosen not to make any representations as to whether he could lay claim to exceptional circumstances under the new policy to enable him to move to open conditions, and the position had been reached that he had been informed that he was to be assessed for the new progression regime in closed conditions but he had reserved his position and was anxious to await the outcome of the expedited Parole Board hearing of February 2015. See again paragraph 30 above.
103. Then the Claimant was released by the Defendant in March 2015 consequent upon the direction of the Parole Board rendered this aspect of his claim challenging the lawfulness of the decision to move him back to open conditions arguably academic.
104. In these circumstances I am not minded to grant any relief under these grounds but will nonetheless give the parties the opportunity on the handing down of the judgment to make submissions as to relief.

Grounds 3 and 4: breach of the James public law duty: breach of the Haney Article 5 ancillary duty.

105. I have already set out the nature of the duty under both heads. The public law duty is a general duty to provide systems and resources necessary to afford prisoners a reasonable opportunity to demonstrate they are no longer dangerous (see R (Kaiyam) v Secretary of Sate for Justice [2014] 1 WLR 1208; [2013] EWCA 1587 at paragraphs 28 to 30). The article 5 ancillary duty is the duty owed by the Defendant to a prisoner in the position of the Claimant personally, to provide him with a reasonable opportunity, that is reasonable in the circumstances, to rehabilitate himself and demonstrate to the Parole Board that he no longer represents an unacceptable danger to the public and is safe to be released: See Haney at paragraph 36.
106. I have already set out above at paragraphs 24 to 30 how the claim is put under these two heads. There is a claim to declaratory relief under both heads. The Claimant maintains a specific claim to damages for the breach of the article 5 ancillary duty. It is accepted however in the light of the judgments of the House of Lords in James and the Supreme Court in Haney that any breach which might be established would not render any underlying detention unlawful either at common law or under Article 5.
107. The Claimant moreover maintains these claims notwithstanding that after the hearings before me and following the Parole Board hearing of 23^rd of February 2015 as part of the review commencing in October 2014 and the Parole Board direction for release given by its decision letter of 4^th of March 2015, the Defendant did release the Claimant on licence.
108. The Claimant's approach to this part of his claim has an attractive simplicity, namely that as a matter of fact immediately upon his return to closed conditions in July 2014 there were in those closed conditions no systems then in place necessary to afford prisoners who had been returned solely because of their history of abscond, a reasonable opportunity to demonstrate they were no longer dangerous. The previous decisions of both the Parole Board and the Defendant in February and March 2014 respectively, had been premised on an identified need for the Claimant to be tested in open conditions. And at that date in July, so the submission goes, the Defendant was no longer providing the Claimant, given he was longer in open conditions, with the opportunity to rehabilitate himself and to demonstrate to the Parole Board that he no longer represented an unacceptable danger to the public and was safe to be released. And this position, so it is submitted, was continuing notwithstanding the measures being taken by the Defendant to introduce into closed conditions the progression regime which had yet to be made available to the Claimant.
109. I regard this approach however as far too simplistic. As regards the ancillary Article 5 duty, the obligation is to provide the Claimant with a reasonable opportunity, reasonable in the circumstances, to rehabilitate himself and to demonstrate to the Parole Board that he was safe to be released. Not every delay between opportunities or access to courses will amount to a breach of duty. The matter has to be looked at in an overall way. (Haney paragraphs 42; 60; 90; 93). Moreover every individual case is fact sensitive (although I was referred by Mr Weisselberg both at and since the hearings to a number of decisions of the Strasbourg court demonstrating, he would say, the narrowness of any claim for breach of Article 5(1) on grounds of lack of progress leading to arbitrariness, in particular Hall v UK App 24712/12, 12 November 2013; Dillon v UK App No 32621/11, 4 November 2014; Thomas v UK App No 55863/11, 4 November 2014; Taylor v UK App. No 2963/12, 3 March 2015; Hill v UK App No 22853/09, 7 April 2015.)
110. Standing back and looking at the facts material to the Claimant's particular case in the round, the most the Claimant can complain of in my judgment is a very limited delay during which he was not progressed in the manner he would have liked, that is between the date of his transfer back to closed conditions (9^th July 2014) and 19^th of December 2014 when he was offered the opportunity to be assessed for the progression regime on which he reserved his position. That progression regime on the evidence has been designed and at that date had been introduced by the Defendant to operate in parallel with an open conditions regime, to provide an alternative means to open conditions whereby someone in the position of the Claimant (an ISP with abscond history who was unable to satisfy the test of exceptional circumstances) might provide evidence to the Parole Board of his suitability for release without the need to be tested in open conditions. As I have already stated, there has been no public law challenge made to me as to the adequacy of this progression regime for this purpose. And indeed since the Court of Appeal decision in Gilbert (see paragraph 14 above) it would be difficult to maintain that the absconder policy in conjunction with the progression regime does not provide a prisoner falling within the scope of that policy with reasonable steps to demonstrate his safety. Hence on any view in my judgment any claim to breach of the ancillary duty must at most be limited to the period of delay I have identified.
111. Moreover, when assessing whether the opportunity given to the Claimant to rehabilitate himself has been reasonable in the circumstances, the court is bound to have regard to the evidence of the Defendant that the limited period of time between the decision to remove the Claimant from open conditions and the planned introduction of the progression regime was necessary to protect the public on an urgent interim basis, in the light of evidence that the current approach to ROTL and transfers to open conditions was insufficient to protect the public and to maintain confidence in the system.
112. Further given there has been no public law challenge to the absconder policy as such, any assessment of reasonableness of the delay referred to has to take into account that on 25^th of September 2015 the Claimant was offered the opportunity to make representations as to whether he fell within the exceptional circumstances criteria provided for in that policy to allow a person with an abscond history to be considered for open conditions. As I have already indicated, this was part of the Defendant's stepped approach to the application of the absconder policy (see paragraphs 53 and 63 above) which in my judgment was entirely reasonable.
113. Taking all these matters into account and without having regard to the fact that the Claimant, subsequent to the hearings before me but on the next scheduled review by the Parole Board, was able successfully to demonstrate he was safe to be released, to the critical question on the claim for breach of the ancillary duty 'was the Claimant afforded a reasonable opportunity to reform himself and to demonstrate he no longer presented an unacceptable risk to the public' (Haney at paragraph 48) in my judgment, notwithstanding the limited period delay I have identified between July and December 2014, the answer has to be 'yes'. Both before and after tariff expiry the Claimant had made significant progress through the prison system and following his return to closed conditions in July, the newly introduced absconder policy was applied to him in an entirely reasonable, in my judgment, 'stepped' fashion, so that he was offered in September 2014 the opportunity – which he did not take - to make representations on whether his case fell within the policy's 'exceptional circumstances' criteria to allow him to be considered for open conditions, and then in the December offered the opportunity to be assessed for the progression regime which was then in place, which again he chose not to take preferring to await the outcome of the scheduled Parole Board review which was expedited at his request. He was of course entitled to take this stance but this does not in my judgment affect my finding that looking at matters overall he was afforded a reasonable opportunity to access measures to demonstrate his safety for release.
114. It follows in my judgment that the claim for breach of the Article 5 ancillary duty (ground 4) must fail.
115. Equally in my judgment the claim under ground 3 must fail. Here the court is not considering any duty to an individual prisoner but rather whether the Defendant has failed in his general duty to provide the systems and resources necessary to afford prisoners a reasonable opportunity to demonstrate they are no longer dangerous. In the context of those prisoners who by reason of their abscond history are being held in closed conditions having been deemed unsuitable for open conditions, this duty has been fulfilled by the introduction of the progression regime. There has in my judgment been no unreasonable delay in the introduction of this regime. This is not a case of wholesale failure of provision of necessary systems and resources over a protracted period.

The significance of the Parole Board direction for release in March 2015 and the subsequent release of the Claimant by the Defendant

116. The direction for release given by the Parole Board can only have been on the basis that the Board was satisfied that it was no longer necessary for the protection of the public that the Claimant be confined (see again section 28(6) of the 1997 Act), in other words that there was a sufficient reduction in risk for him to be safely released. Mr Weisselberg (in a post hearing note) has submitted in the context of this case that the suggestion of the Claimant (in a post hearing note) that it does not follow that the Defendant provided the Claimant with a reasonable opportunity to demonstrate a reasonable opportunity a reduction in risk, is absurd. To quote Mr Weisselberg:

'If the Defendant had not provided such opportunity, in whatever manner, the Claimant would not have been able to satisfy the Board that they could release him consistently with their statutory powers'

117. Mr Southey has submitted to the contrary, that the wording of the Parole Board decision letter suggests the Claimant demonstrated a reduction in risk because of how well he responded to the Defendant's decision to remove him from open conditions not because of any risk – reduction work provided by the Defendant.
118. I find it unnecessary to resolve this particular dispute. As I have set out I have preferred to decide the claim under grounds 3 and 4 without regard to the fact of the post hearing release.

The return to custody in September 2015

119. I accept that the fact of the Claimant being recalled to custody in September 2015 is not relevant to the factual and legal issues I have had to resolve in this judgment.

Final conclusion

120. For all these reasons I find the grounds of claim under grounds 3 and 4 fail. The ground advanced under ground 1 fails. The ground advanced under ground 2 challenging the decision to remove back to closed conditions has succeeded to the limited extent set out at paragraphs 97 and 101 above but for the reasons already given I am minded to grant no relief. However I will nonetheless give the parties the opportunity to make submissions on relief on hand down of this judgement before any final decision is made.