Gilbert, R (On the Application Of) v The Secretary of State for Justice

This is an appeal by the Secretary of State for Justice in relation to a judgment of the Divisional Court (Bean LJ and Mitting J) in which it held unlawful a new policy announced by the Secretary of State in May 2014 to restrict the circumstances in which prisoners who had absconded or failed to comply with the terms of return to prison on which a release on temporary licence (“ROTL”) had been granted would be eligible to progress to placement in open conditions, and might instead be assigned to a new progression regime in closed conditions (“the absconder policy”). In addition, the Divisional Court held that the individual prisoner in this case (Mr Gilbert) had been treated unfairly in the context of a referral by the Secretary of State of Mr Gilbert’s case to the Parole Board for advice regarding transfer to open conditions, where although the Board recommended that he should be transferred to open conditions the Secretary of State applied the absconder policy and decided instead to transfer Mr Gilbert into the Progression Regime at a closed prison.

Hitherto, a period in open conditions with periods of ROTL has been the principal way in which a prisoner is provided with an opportunity to demonstrate to the Board that he is reliable and could safely be trusted to be granted parole and released on licence. However, after a number of high profile cases in which prisoners with a previous background of absconding had been placed in open conditions and then absconded again and re-offended in serious ways, the Secretary of State decided to promulgate the absconder policy. By that policy the criteria for allocation to open conditions were made considerably more restrictive in relation to any prisoner with a history of absconding and an alternative regime in closed conditions would be established, designed to provide a different way in which a prisoner could seek to demonstrate his reliability and readiness for release on licence (the so-called Progression Regime).

The Parole Board (“the Board”) has two functions in relation to indeterminate sentence prisoners such as Mr Gilbert which are relevant in the present case: a power to direct release on licence and a power to advise the Secretary of State about various matters, if asked by the Secretary of State to do so.

Section 28 of the Crime (Sentences) Act 1997 (“the 1997 Act”), in Chapter 2 of Part 2 of the Act, provides that where an indeterminate sentence prisoner has completed the “tariff” part of his sentence it shall be the duty of the Secretary of State to release him on licence if the Board directs his release. Section 28(6) provides that the Board may only so direct if (a) the Secretary of State has referred the prisoner’s case to the Board and “(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

In order to ensure compliance with the requirements of Article 5 of the European Convention on Human Rights indeterminate sentence prisoners periodically have their cases referred by the Secretary of State to the Board, pursuant to section 28, for the Board to determine whether they should be released on licence. In making its decision, the Board has regard to all material relevant to determining any risk posed by the prisoner.

Section 239 of the Criminal Justice Act 2003 (“the 2003 Act”) provides in relevant part as follows:

“…

(2)

It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.

…

(6)

The Secretary of State may … give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, and in giving any such directions the Secretary of State must have regard to -

(a)

the need to protect the public from serious harm from offenders, and

(b)

the desirability of preventing the commission by them of further offences and of securing their rehabilitation.”

Since a transfer to open conditions is a matter which is relevant to the question of early release of a prisoner, section 239(2) confers on the Secretary of State a discretionary power to ask the Board for advice on whether a prisoner is suitable for transfer to open conditions. Unlike where the Board directs release under section 28 of the 1997 Act, the Secretary of State is not obliged to accept a recommendation by the Board that a prisoner be transferred to open conditions.

In August 2004, the Secretary of State issued directions to the Board under section 239(6) of the 2003 Act (“the Directions”). The Directions included the following:

“Introduction

1.

In most (but not all) indeterminate sentenced prisoner (ISP) cases, a phased release from closed to open prison is necessary in order to test the prisoner's readiness for release into the community. It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons. ISP's have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.

2.

The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed ISP estate. In this context, the focus in open conditions is to test the efficacy of such core risk reduction work and to address, where possible, any residual aspects of risk.

3.

A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Boards emphasis should be on the risk reduction aspect and, in particular, on the need for the ISP to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered.

Directions

4.

Before recommending the transfer of an ISP to open conditions, the Parole Board must consider:-

* all information before it, including any written or oral evidence obtained by the Board;

* each case on its individual merits without discrimination on any grounds.

5.

The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:-

a)

the extent to which the ISP has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the ISP in open conditions would be in the community, unsupervised, under licensed temporary release ;

b)

the extent to which the ISP is likely to comply with the conditions of any such form of temporary release;

c)

the extent to which the ISP is considered trustworthy enough not to abscond.

d)

the extent to which the ISP is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage.…” (emphasis supplied)

The basis for the Divisional Court’s finding that the absconder policy is unlawful is its view that the absconder policy is in conflict with the text in italics in paragraph 1 of the Directions, as set out above. I address the arguments in relation to this below.

If on a reference under section 28 of the 1997 Act the Board makes a recommendation for a move to open conditions, then in accordance with guidance for officials issued by the Secretary of State in the form of Prison Service Instruction 36/2012, Generic Parole Process (“PSI 36/2012”), at para. 3.46, it is for the Secretary of State, acting by the Public Protection Casework Section (“PPCS”) of the National Offender Management Service (“NOMS”), to make the final decision on whether to accept or reject this recommendation within 28 days of the recommendation being issued.

Section 5 of PSI 36/2012 makes provision for “Consideration of exceptional transfer to open conditions by the Secretary of State without referral to the Parole Board”. Section 6 is headed “Moving to open conditions following on from a Parole Board recommendation” and sets out the approach to be followed by the PPCS in determining whether to accept or reject a Parole Board recommendation for transfer to open conditions. Paragraphs 6.2 and 6.5 state:

"6.2

In those cases where the Parole Board has made a positive recommendation, the process is as follows:

* The Parole Board, having considered the prisoner's dossier containing all relevant reports, makes a recommendation for transfer to open conditions.

* The respective PPCS Team Manager considers the Parole Board's recommendation and decides (on behalf of the Secretary of State) whether to accept or reject that recommendation, taking into account [the Directions] and the guidance to PPCS Team Managers at Annex J. The Team Manager must ensure that all of the papers considered by the panel when reaching its decision, including any reports submitted on the day of the hearing and any post-programme reports are considered.

* The OMU [Offender Management Unit] Manager (or equivalent) must then arrange for the prisoner to be informed of the Parole Board's recommendation, reasons, including their advice on outstanding risk areas and to also inform them of the Secretary of State's decision for accepting or rejecting the Parole Board recommendation…

6.5

If the Team Manager is considering rejecting a recommendation to transfer a prisoner to open conditions, the case should be discussed with the Head/Deputy of Casework immediately and if necessary advice sought from legal advisors. A case can only be rejected with the approval of the Head of OMPPG. The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are:

* the panel's decision is inaccurate

* the panel have acted irrationally, for example by recommending transfer to open conditions when most of the reports and especially the offender manager’s report and psychologist report favour retention in closed conditions."

Section 7 of PSI 36/2012 is headed “Adverse developments, warning letters, advice cases and re-referrals”. The adverse developments identified include “Abscond from open conditions” and “Failure on ROTL”. Paragraph 7.4 provides that in such a case:

“PPCS must consider the history of the case, the adverse developments/temporary removal from open conditions, and representations submitted and whether to:

* issue a warning letter to the ISP;

* Refer new information to the Parole Board for consideration in the context of an ongoing Parole Board review;

* Refer a case to the Parole Board for its advice about the prisoner’s continued suitability for open conditions.”

Prison Service Order 6300 states the purpose of ROTL under Rule 9 of the Prison Rules 1999 (consolidated version 2013), as follows:

"Release on temporary licence is the mechanism that enables prisoners to participate in necessary activities, outside of the prison establishment, that directly contribute to their resettlement into the community and their development of a purposeful, law-abiding life. The decision to allow temporary release must always be balanced by an active consideration, by means of rigorous risk assessment for maintaining public safety and the public's confidence in the judicial system."

The Parole Board policy on open conditions, set out in Annex I of The Oral Hearings Guide dated March 2012 (“the Board’s Guidance”), states as follows:

“Background

The Home Secretary's Directions…state that most lifers should spend a period in open conditions prior to release.

The point of open conditions is not simply one of rehabilitation or curing possible institutionalism. It offers the only chance to observe a prisoner putting into practice that which he/she has learned in theory. In other words, a prisoner may well make all the right noises on an accredited programme, but the structured and sheltered nature of closed conditions, where all decisions and responsibilities are taken by others, means that prisoners cannot demonstrate that they can fend for themselves in conditions more akin to those they will face on the outside. Open conditions offers this opportunity as far as possible. It is the only true testing ground.

Policy

The overriding factor is risk to the public. The Parole Board confirms that those serving indeterminate sentences may potentially remain in prison for their natural life. It is not the role of the Parole Board to seek to help prisoners to progress towards release because of perceived shortcomings by other agencies. The Board's role is to advise the Secretary of State in line with the Directions he has imposed.

A.

RELEASE FROM CLOSED CONDITIONS

The Board may not direct the release of any prisoner serving a sentence of life imprisonment or indeterminate sentence for public protection, unless it is satisfied that it is no longer necessary in the interests of public protection that they continue to be detained.

In the majority of cases, the Board cannot ultimately be satisfied about risk until and unless a successful period of testing has been completed. Regardless of the length of tariff, where offending behaviour has been addressed in closed conditions, the prisoner has had no opportunity to demonstrate by his behaviour in conditions similar to those existing in the community that he/she can apply lessons learned in closed conditions.

It will be unusual for an indeterminate prisoner to be released direct from closed conditions. Circumstances where that may be appropriate could include:

1.

Where the Board is considering representations against recall;

2.

Where the prisoner has already successfully completed a sufficient period of testing in open conditions; AND the Board considers that the reason for removing the prisoner from open conditions was unrelated to risk;

3.

Where the case is considered on compassionate grounds.

4.

Where there are other grounds that dictate that any or further testing in open conditions is not required to satisfy the Board about the prisoner's level of risk.

In determining whether the prisoner may be released from closed conditions, the Board will take into account:

Whether a previous period of testing in open conditions was cut short. If so, the expectation will be that the Board will recommend a return to open conditions for the prisoner to complete testing and monitoring;

That testing should not take place in the community. Accordingly it is not appropriate to balance risk against benefits when release is considered. Panels must acknowledge that testing, where the Board is not satisfied that risk is acceptable, may only take place in a prison environment;

Where a prisoner is in closed conditions and has successfully completed all the offending behaviour work thought necessary, it is nevertheless required in the majority of cases for a testing period in open conditions to be completed before the Board can ultimately be satisfied that risk is acceptable. Panels should not be swayed by a legal representative's argument that those who have completed offending behaviour work in closed conditions must be released, unless the case falls within the "exceptional" category.

Reasons

Where the Board directs release from closed conditions in 2 and 4 above, the reasons must state why release without a period of testing in open conditions is appropriate.

Every case shall be considered on its merits and nothing above detracts from the principle that if the Board is satisfied in any case that the risk to the public is acceptable, then it must direct the prisoner's release".

The absconder policy was introduced with immediate effect on 21 May 2014 by a letter sent on behalf of the Secretary of State to relevant officials. The letter stated that any prisoner in a closed prison who on their current sentence had, among other things, failed to return from a period of ROTL would be ineligible for a transfer to open conditions and would not be eligible for any ROTL, save in exceptional circumstances. The letter stated that guidance would be issued as to what would constitute exceptional circumstances. The letter said that these changes were being introduced in response to concerns about serious offending by prisoners who were unlawfully at large after failing to return from ROTL.

A further statement of the policy, with more detailed guidance regarding what would constitute exceptional circumstances, was issued in a circular to relevant officials dated 28 May 2014. Affected prisoners and their representatives were given notice of the policy. Work was carried out to develop the Progression Regime as an alternative to transfer to open conditions for prisoners affected by the absconder policy.

The final statement of the absconder policy was contained in a set of Consolidated Interim Instructions posted on the Home Office website on 11 August 2014. These stated as follows:

"Exclusion from transfer to open conditions and from ROTL for any prisoner with a history of abscond, escape or serious ROTL failure during the current sentence.

In the absence of exceptional circumstances, prisoners who are in closed conditions are ineligible for a transfer to open conditions; or to be afforded category D or "suitable for open conditions" status; or to take ROTL, if they have, during the current sentence:

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 that took place when they were on ROTL; and/or

d.

Escaped or attempted to escape from a prison or escort

* The definition of a failure to return is as follows – where a prisoner has failed to return to an establishment from ROTL and Unlawfully at Large (UAL) contingency plans have been activated, including notification to the police, unless the prisoner surrenders to prison custody later the same day, or other exceptional circumstances apply (e.g. where following further enquiries, the Governor/Director is satisfied that the prisoner was unable to return as required due to circumstances beyond their control).

Exceptional circumstances

Transfer to open conditions:

No exception will be made in relation to any prisoner serving a determinate sentence of any description.

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 their 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.

It will be for NOMS to make the assessment as to whether the test of exceptional circumstances is met in each given case of an ISP with an abscond history, so that the Secretary of State will ask the Parole Board for advice on transfer as part of the ISP's next parole review only where NOMS decides that the test is met. Thus, Public Protection Casework Section (PPCS) will make it very clear where a case is being referred to the Board only for the purposes of holding an Article 5-compliant review to determine whether the offender should be released - and not for advice on transfer to open conditions.

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 tests 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 the 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.

NOMS will ensure that report writers draw from evidence in the progressive regime when providing Parole Board Panels with their assessment and recommendations for the offender's post-tariff parole review. Again, it will be for NOMS to assess whether an offender is suitable for a place in the progressive regime in Category C conditions, and NOMS will produce guidance for report writers to ensure that they understand that the progressive regime operates in parallel to an open conditions regime from which an ISP with an abscond history is excluded."

The Divisional Court described Mr Gilbert’s circumstances at paras. [1]-[3] as follows:

“1.

On 25 April 2008 the Claimant pleaded guilty to wounding with intent to cause grievous bodily harm. He was sentenced under section 225 of the Criminal Justice Act 2003 to imprisonment for public protection ("IPP") with a minimum term of 4 years 6 months less 291 days spent on remand, giving a "tariff" of 3 years 265 days. The tariff expired on 9 January 2012, that is to say over three years ago.

2.

At a parole review in November 2012, the Parole Board recommended the Claimant's transfer to open conditions, which the Defendant accepted. The Claimant was transferred on 18 January 2013 to HMP Stanford Hill, an open prison. His sentence plan included provision for town visits with progression to home leave on 'release on temporary licence' (ROTL).

3.

For about five months the Claimant successfully complied with open conditions and had three separate days of ROTL without incident. On 2 June 2013, however, the Claimant missed the last train that would have returned him to prison by his due time of 7pm. His account of the events which followed was this: as it was his understanding that the prison would not accept late returns on a Sunday, in accordance with the prescribed procedure, he called the number the prison had provided for him to ring in the event of a problem while on ROTL. The first two times he rang the number the line was engaged, and on the third occasion there was no answer. He also tried to call a telephone number given in his licence booklet, but again there was no reply. There is no police station in Lewes; he surrendered to custody at Eastbourne police station, 20 miles away from Lewes, the next morning. He was returned to closed conditions on 14 June 2013.”

In July 2013 Mr Gilbert’s case was referred to the Board under section 28 of the 1997 Act for the Board to consider whether to direct his release and, if not, to advise the Secretary of State on Mr Gilbert’s suitability for placement in open conditions (and if so recommended, to comment on the degree of risk involved) and on “the continuing areas of risk that need to be addressed.” Although the referral document did not refer to section 239(2) of the 2003 Act, presumably the request for advice was made by virtue of that provision.

A further reference to the Board dated 10 September 2013 was made under section 239(2) of the 2003 Act for advice in relation to Mr Gilbert’s suitability for open conditions, “any continuing areas of risk that need to be addressed” and “any areas of concern to be tackled and/or issues to be resolved before the next review.” It is unclear why this further referral document was issued; presumably, it was to make clear that the request for advice (which duplicated that in the referral of July 2013) was indeed being made under that statutory provision. At all events, the referrals were treated as consolidated and proceeded for consideration together by the Board at an oral hearing scheduled to take place on 9 July 2014.

After the introduction of the absconder policy in May 2014, the Board issued a memo to its members on 29 May 2014 (“PBM 10/2014”) to provide guidance to Board panel members on how they should approach cases of prisoners affected by the policy.

On 4 June 2014, the Board issued directions for the oral hearing in Mr Gilbert’s case. These directions noted that in view of PBM 10/2014 the Secretary of State might be considering amending the referral to the Board (i.e. to withdraw the request for advice regarding transfer to open conditions) and sought “the urgent clarification of the full terms of the referral for this review from the Secretary of State”, after he had reviewed the representations in the case.

On 2 July 2014 Mr Gilbert’s representatives made representations to the Secretary of State to the effect that the absconder policy should not be applied to Mr Gilbert and pressing the Secretary of State to comply with the direction to clarify the scope of the referral to the Board. The Secretary of State did not respond to those representations, but did comply with the direction by sending an email the same day to the Board to say:

“The new SS [Secretary of State] referral note has not been finalised yet. Please advise the Panel Chair that the Parole Board should consider Mr Gilbert’s case in accordance with the existing referral note.”

At the hearing on 9 July 2014, therefore, the Board was obliged to consider whether to direct Mr Gilbert’s release under section 28 of the 1997 Act and to advise on the other matters set out in the referral notes, including whether it considered that Mr Gilbert was suitable for transfer back to open conditions.

The reports and evidence from Mr Gilbert’s Offender Manager and his Offender Supervisor supported his return to open conditions and the grant of further periods of ROTL to test his behaviour and suitability for eventual release. The Secretary of State was not represented at the hearing and made no submission regarding transfer to open conditions or ROTL.

At the time of the hearing the Progression Regime was still in the process of being developed by the Secretary of State. Details of it were not available for consideration by the Board.

On 14 July 2014 the Board issued its decision letter. It declined to direct Mr Gilbert’s release under section 28 of the 1997 Act but recommended that he be moved back to open conditions. The decision letter referred to the evidence heard by the panel which conducted the hearing (section 2); analysed the history of offending by Mr Gilbert (section 3); set out relevant risk factors, including previous drug and alcohol abuse (section 4); and assessed evidence regarding the change in Mr Gilbert’s circumstances since his last review and leading to his recall and regarding his progress in custody (section 5). In section 5, the Board noted that it had recommended that Mr Gilbert should undertake TSP (Thinking Skills Programme) coursework to boost his thinking skills and observed in relation to the breach of the terms of his ROTL on 2 June 2013 that he accepted with hindsight that he may not have fully considered all the possibilities and that any booster work he did would be of benefit.

The letter then set out the panel’s assessment of current risk in section 6, as follows:

"You are assessed as a high risk of serious harm to the public and this is unlikely to be reduced until you have been tested in the community. It is also noted that on any progression to Approved Premises would require you to have a single room due to the nature of your index offence.

You are assessed as posing medium risk of general offending, medium risk of violent offending and high risk of harm to the public. Given the serious nature of your index offences and your entrenched history of offending linked to substance abuse, the panel considered that the assessments were a fair reflection of your risks. The panel considered that a return to the abuse of either alcohol or drugs would escalate your risk assessment.

You do present a risk of abscond, based on your past history of bail breaches in the community and the circumstances that led to your return to closed conditions. However, both your offender supervisor and your offender manager did not think you were at significant risk of future abscond and had learned from the recent experience. The panel accept that the latest episode was a minor error of judgement which does not raise your risk of future absconding and that previous poor compliance was at a time when your judgement was impaired through substance abuse.

The panel also thought that being in [a] stable relationship with access to appropriate accommodation would be protective factors for you in the future and that is further explored below.

You have never worked in a structured manner due to your previous chaotic lifestyle and have never had a stable address in the community. These factors will be important when ensuring that your risks are suitably managed in the community.”

Section 7 contained the panel’s evaluation of the effectiveness of plans to manage the risk presented by Mr Gilbert, as follows:

“Your relationship with your wife has been under strain with the uncertainty of your release date and return to closed conditions and you have started the process of a legal separation, with the possibility of future divorce depending on how your sentence progresses. However, there appears to be no firm plans as yet due to the uncertainty of your progression…

You will be allocated a new offender manager immediately after the oral hearing, whom you have yet to meet. Your offender manager thought you would cope with this change well but it will be another possible de-stabiliser for you to cope with.

The plans for your release have been significantly adapted in recent times. Your offender manager had only learned on the morning of the hearing that you would be seeking release. When in open prison you had been expecting to begin resettlement leave to an Approved Premises in Sussex with a long term aim of settling with your wife in Sussex. Now that your relationship future is less certain, the release plan now includes Approved Premises in Staffordshire, where you have no current connections and no long term plans to settle. The Approved Premises placement is also complicated by the risk assessment concerning your index offence having been committed whilst you were in a hostel, and special arrangements would be in place.

You felt that direct release would give you the same opportunities for testing and resettlement that would be offered through the open prison route. Your risk management plans would benefit from further testing before they could be considered, as robust. The short period that you spent in open prison had not afforded you the opportunity to fully plan for a safe release. The proposed licence conditions were accepted by you and appeared fair and proportionate to the risks you presented.”

Section 8 set out the panel’s conclusion and decision:

“You are given credit for your progress as a result of the offending behaviour work you have undertaken to address thinking skills, drug use and anger management. You progressed to open prison in 2013 and were reportedly doing very well, but were only at the start of planning for your resettlement. Unfortunately you failed to return to the prison following a town visit one evening and were returned to closed conditions.

In view of the Secretary of State's current interim policy on prisoners who have previously absconded from open prison, this panel makes a finding that the circumstances surrounding your abscond, although avoidable, were not an attempt to escape, but represent a minor error of judgement on your part, which you fully accept, and your risk of future abscond does not appear to be increased as a result.

The panel carefully considered whether your risks could be safely managed in the community at the current time. It balanced your evidence, with that of other witnesses. It was, however, concerned that the current instability of your relationship and the plan to release you to an area where you have no desire to settle, under the supervision of a new offender manager who you have yet to meet, did not offer a robust support package that would be able to safely monitor and manage your high risk of causing serious harm. Failure to cope with stress together with an unstable relationship and uncertain accommodation plans were, in the opinion of the panel, the most likely scenarios where you could relapse into drug and alcohol misuse, which would raise the imminence of further serious offending.

However, the benefits for you in a return to open conditions were to allow you the opportunity to resolve the position regarding your long term plans and relationship, establish a job or voluntary work and enable further testing of your resolve to avoid both drugs and alcohol in the community.

The panel concluded that the risk of harm you present to the public remains too high for release to be directed.

However, the benefits to you of a move to open conditions are clear and obvious to the panel. You have made sufficient progress during your sentence to address your core risk areas to a level where unsupervised periods in the community under temporary licence can be considered. You have a risk of abscond, based on past behaviour, but are now considered trustworthy enough for further testing and therefore it is recommended that you be moved back to open prison. …

The panel concludes that there are clear and identifiable factors that need to be further tested and developed before you could be safely managed on release …"

It should be noted that the decision letter contained a considerable amount of information and discussion regarding risk factors in relation to Mr Gilbert and areas where something further would be required from him to provide assurance to the Parole Board that he was ready for release. Also, the letter indicates that the panel was aware of the absconder policy (even though it was not being asked to advise directly on it) and sought to make findings which might assist the Secretary of State in coming to a decision about how to treat Mr Gilbert under that policy: see in particular the passage in section 8 of the letter set out in italics above.

In a letter from the Secretary of State provided to Mr Gilbert on 15 August 2014, the Secretary of State noted the recommendation of the Board that Mr Gilbert be transferred to open conditions, set out the absconder policy, referred to the new Progression Regime, gave details in line with the finding of the panel of Mr Gilbert’s failure to return to prison from ROTL on 2 June 2013 and stated that in light of the absconder policy the Secretary of State was “minded not to agree to [Mr Gilbert’s] transfer to open conditions”. The letter said that what is now called the Progression Regime was planned “to be up and running by the autumn of 2014” and was designed “to encourage prisoners to take more personal responsibility to produce the evidence which they need to secure release from custody on completion of tariff”, with support through relevant interventions and trained staff; it would be operated in accordance with (closed) Category C conditions, with a secure perimeter fence. The letter asked for representations from Mr Gilbert as to whether he disputed the factual accuracy of the account of his failure to return to prison from ROTL and as to whether he met the criteria for exceptional consideration as set out in the policy, as set out above.

By letter dated 1 September 2014 to the PPCS, Mr Gilbert’s representatives made representations to reiterate his contention that the absconder policy should not apply in his case and why, if it did, his case met the criteria for exceptional consideration for transfer to open conditions. The account given by the Secretary of State of Mr Gilbert’s failure to return to prison from ROTL was accepted, but Mr Gilbert provided further explanations about the circumstances in which this happened in an effort to exculpate himself as far as possible: he had lost track of time and missed the last train which could have returned him to prison by the due time; being a Sunday, he understood that the prison would not accept late returns; there is no local police station at Lewes at which he could hand himself in; he tried to telephone the prison, but on the first two occasions the number was engaged and on the third occasion there was no answer; his wife’s mobile telephone number had been given for contact whilst he was on ROTL, and the telephone was on silent mode as his wife had to get up early for work the following day.

In this letter Mr Gilbert maintained that he had made significant progress in reducing his risk of harm and of absconding; there were compelling circumstances beyond his control which made a placement in open conditions necessary (namely, that in line with the Board’s view he required further testing through time in open conditions before he could be considered for release); a placement in open conditions was absolutely necessary, in that his need to provide evidence of reduced risk for his parole reviews, in particular to show that he could be trusted not to relapse into drug or alcohol abuse, could not be met in the Progression Regime in closed conditions (reference was also made to the report of Mr Gilbert’s Offender Manager that the further successful completion of ROTL was in his view the sole remaining barrier to Mr Gilbert’s release); and preventing his return to open conditions would in all the circumstances be manifestly unjust/unfair. The letter asked for a response by 15 September 2014, failing which an application for judicial review might follow.

The Secretary of State did not respond to Mr Gilbert’s representations by that deadline, so on 2 October 2014 a Pre-Action Protocol Letter was sent. Still no decision was taken by the Secretary of State, so on 19 November 2014 Mr Gilbert issued his claim for judicial review.

On 3 December 2014 Mr Gilbert was transferred into the Progression Regime in the Category C closed conditions at HMP Warren Hill.

On 5 December 2014 the Secretary of State issued his decision letter regarding the application of the absconder policy to Mr Gilbert. The Secretary of State was unimpressed by Mr Gilbert’s explanations as to why he had failed to return to prison, hand himself in at a police station or make contact with the prison on 2 June 2013: Mr Gilbert was responsible for ensuring that he caught the appropriate train; he had not provided material to support his claim that he believed that the prison would not accept a late return on a Sunday; he could have boarded a later train to Sittingbourne and contacted the prison or the police from there; he had waited to the following day to travel to Eastbourne and hand himself in at the police station there, but even on Sundays trains run frequently between Lewes and Eastbourne or Brighton until late at night, so he could have handed himself in at a police station in either town on the Sunday rather than waiting until the Monday; he had a responsibility to keep trying the prison telephone number until he managed to get through to explain the situation; and he should have ensured that he could be contacted on the contact number which he had given to the prison.

Turning to Mr Gilbert’s representations regarding the application of the absconder policy in his case, the Secretary of State said this:

“… Your representations state that you need to be tested in open conditions before the Parole Board will direct your release. Historically a period in open conditions has been an important factor in a Parole Board decision to release an indeterminate sentenced offender. However, significant numbers of such prisoners have been released from closed conditions. Moreover, you will be eligible to be considered for the Progression Regime, which is designed to operate in parallel to the open regime and to provide an alternative for prisoners such as you to demonstrate suitability for release.”

The Secretary of State noted that although the Board’s decision letter said that the circumstances surrounding Mr Gilbert’s abscond on 2 June 2013 constituted a minor error of judgment on his part and did not increase his risk of abscond, the letter also said that he did present a risk of abscond based on his past history (i.e. “of bail breaches in the community”). The Secretary of State accepted the Board’s assessment in its letter that Mr Gilbert may not have considered all possibilities when considering the options when he missed his train on 2 June 2013; noted the Board’s recommendation in its letter that any booster work he might do in a Thinking Skills Programme would be of benefit; but noted that he had done not further work to reduce his risk since the Board hearing. The Secretary of State concluded that he did not accept that Mr Gilbert met the exceptional circumstances criteria in the absconder policy, and so would not be transferred to open conditions.

There is evidence regarding the statistics relating to release of indeterminate sentence prisoners which was analysed by the Divisional Court as follows at [36]-[38]:

“36.

Before the introduction of IPP sentences under the Criminal Justice Act 2003 ISPs were those who had been sentenced to life imprisonment (mandatory in cases of murder, discretionary in almost all other cases). The IPP legislation came into force in April 2005; it was amended to restrict the circumstances in which it could be imposed in 2009, and IPP sentences were abolished with effect from December 2012.

37.

Only a small proportion of ISPs are released in any one year. From July 2005 to June 2010 the figures were between 1.5% and 2%; then 3.9%, 5.3%, 5.8% and 3.1% for the four years up to June 2014. The sharp fluctuations are no doubt largely attributable to the changes in the IPP legislation; but it should be noted that the figure has never exceeded 6%.

38.

On the other hand, the Defendant's evidence tells us that 38% of the 444 prisoners serving IPPs and 17% of the 289 "lifers" released in 2012 were released from closed conditions; the equivalent figures in 2013 were 38% of the 431 IPP prisoners and 14% of the 329 "lifers" released. Mr Weisselberg QC for the Defendant submits that this is proof that release from closed conditions is not impossible. There is no evidence before us as to the characteristics (for example, the nature of the index offence) which distinguish those prisoners serving indeterminate sentences who are released direct from closed conditions from those who are not.”

In addition to the evidence available at the hearing in the Divisional Court, Ms Hirst, who presented the case for Mr Gilbert on the appeal, took us to the Secretary of State’s response dated 16 June 2015 to a Freedom of Information Act request asking for details of the number of prisoners who since May 2014 have been deemed to come under the absconder policy and, out of those, how many have made a successful application for transfer to open conditions on the basis that there are exceptional circumstances in their case. The response stated that as of 15 June 2015 there were 542 indeterminate sentence prisoners identified as needing to be assessed under the absconder policy; and that of those who had been assessed (the number in this category was not stated), “five or fewer prisoners” had met the exceptional circumstances criteria for a return to open conditions. The response said nothing about the numbers who had been transferred to the Progression Regime, nor about the numbers who may have been released directly from the Progression Regime. Mr Weisselberg QC, for the Secretary of State, did not object to this court seeing this new evidence. However, it is not very informative and, as explained below, does not assist Mr Gilbert in making out any part of his case.

The Divisional Court also helpfully summarises the evidence in relation to the Progression Regime and Mr Gilbert’s successful adaptation to it at [44]-[51]:

“44.

The Secretary of State has recently introduced a Progression Regime. It has been designed for ISPs [indeterminate sentence prisoners] with an abscond history who are ineligible for transfer to an open prison and who will not be eligible for temporary release.

45.

The Defendant states that "the regime does not seek to operate as a pre-cursor to open conditions but as an alternative to open conditions. The regime will not seek to test risk of abscond as the majority of prisoners will be released directly from the regime. The design of the Progression Regime has been informed by an analysis of recent cases where the decision of the Parole Board has been to release ISPs from closed conditions. The regime therefore seeks to reintroduce some of the freedoms, responsibilities, and obligations of daily life to both support offenders and test their readiness for release, with the aim of providing the offender with the opportunity to demonstrate new behaviours and to recognise and avoid behaviours associated with offending."

46.

For each ISP, the regime is staged and structured around an individual progression compact and development plan based on the Enhanced Behaviour Monitoring ("EBM") Framework (an approach usually used within the open estate), with prisoners only progressing to the next stage when it is agreed at a regime board linked to the EBM Framework.

47.

The institutional regime is based on an enhanced Category C 'core' day which provides a level of freedom 'out of cell' and within the establishment not usually enjoyed by Category C prisoners, in which ISPs are encouraged to become less reliant on staff prompting them to take part in the routine.

48.

The regime will include the following features:

* Prisoners are to be responsible for getting up on time, washing, dressing, food preparation and going to work without escort. Evenings will be structured for meetings, Night School, Open University work, charity work, studying, chaplaincy meetings/groups and completion of the evidence for their portfolios, whether this is for forthcoming parole or in relation to the enabling environment.

* Work is a core feature of this regime in order for prisoners to develop the necessary skills to take up employment upon release. All prisoners will work and all jobs will be performance managed on their delivery and they will receive bonuses linked to a structured performance model including attendance and work ethic.

* A 'Resettlement Campus' will provide tailored activities to address the factors which will make their release more successful, including 'through the gate' services linked to accommodation, or other identified needs. At HMP Warren Hill, prisoners will buy goods from a shop rather than being ordered and delivered by staff as in other prisons. A Café which will provide training for prisoners will also provide refreshments during visits, the frequency and duration of which will increase as prisoners progress through the three stages of the regime.

* The community will be allocated a budget to manage for cleaning materials and consumables and will have peer-led prisoner information points to provide advice. There will be a Community Council chaired by prisoners who will produce action plans and minutes and propose events that are linked to charitable and reparation activity.

* Prisoners will be expected to take responsibility for maintaining, identifying, and re-building protective relationships, which may involve family members or other supportive individuals. This will involve prisoners planning how the relationships important to their resettlement will be re-established and/or maintained.

49.

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, were assessed for the Progression Regime as a priority. The assessment process for suitability is managed administratively within NOMS and does not involve the Parole Board.

50.

In December 2014, there were 26 offenders at HMP Warren Hill prior to its re-designation as the establishment for the Progression Regime. 27 offenders have been transferred since the Progression Regime started. The current capacity of the unit is 45. It is estimated that by the end of 2015 the regime will hold 197 prisoners at capacity at different establishments.

51.

Evidence recently adduced in this claim indicates that the Claimant is doing very well indeed under the Progression Regime. It is rare, in judicial review cases brought by prisoners, for counsel for the Secretary of State to argue that the evidence indicates release on licence from closed conditions to be a real possibility: but that is what occurred at the hearing before us.”

We also were told by counsel for both parties that Mr Gilbert is doing well on the Progression Regime. On the basis of what we were told, Mr Gilbert appears to have a real prospect of being able to demonstrate his reliability and trustworthiness on that regime so as to persuade the Board that he should be released.

The Divisional Court held that the absconder policy is unlawful because it is inconsistent with the Directions which the Secretary of State had previously issued to the Board: [53]-[59]. I refer to this as “the inconsistency with Directions ground.”

In view of that decision, the Divisional Court found it unnecessary to determine two other grounds of challenge to the absconder policy presented on behalf of Mr Gilbert, summarised by the Divisional Court at [52] as follows:

“(a)

The absconder policy is in any event unlawful and irrational on wider grounds. It is for the Parole Board, not the Secretary of State, to be satisfied as to the risk to the public posed by a particular prisoner. The policy, and/or the Defendant's manner of applying it, is irrational in so far as it fails to require the Defendant to have regard to any views which the Parole Board may have expressed in a particular case as to the suitability of transfer and/or potential risk to the public arising from such a transfer.

(b)

By applying the absconder policy to prevent the Claimant's transfer to open conditions the Defendant is in breach of his duties imposed by public law and/or ECHR Article 5 to provide a reasonable opportunity for the Claimant to demonstrate to the Parole Board that he no longer presents an unacceptable danger to the public (see R(Kaiyam) v Secretary of State for Justice [2015] 2 WLR 76, a decision of the Supreme Court given on 10 December 2014)” (I refer to this as “the Kaiyam ground”).

On this appeal, these further grounds of challenge have been relied upon by Ms Hirst under a respondent’s notice as further reasons to support of the conclusion of the Divisional Court that the absconder policy is unlawful. Ms Hirst divided the first into two parts: (i) the Secretary of State acted irrationally and improperly undermined the intended role of the Board by introducing a policy which would disable it from assessing risk in relation to prisoners (“the undermining the Parole Board ground”) and (ii) the absconder policy is an impermissibly rigid blanket policy, since in practice no indeterminate sentence prisoner can succeed in progressing to open conditions under it (“the blanket policy ground”).

I found some of Ms Hirst’s submissions on the appeal rather diffuse. They appeared at times to range beyond the particular grounds which were in issue on the appeal. One additional argument in relation to the challenge to the absconder policy took up a significant part of Ms Hirst’s time in addressing us and for that reason deserves mention. She suggested that the absconder policy was inconsistent not only with the Directions but also with provisions in PSI 36/2012, referred to above. Mr Weisselberg was in a position to make submissions in response to this. Since the point was capable of being dealt with as a further point of law without need for additional evidence and was debated on both sides in argument before us, I am prepared to treat this as an additional submission advanced on the appeal with the permission of the court and to consider it accordingly. I refer to this as “the inconsistency with PSI 36/2012 ground.”

The Divisional Court also held that even if the absconder policy was a lawful policy, the application of it in Mr Gilbert’s case was unfair. Its reasoning on this is set out at [62]:

“Even if we had upheld the lawfulness of the policy generally, we would have held that its application in the Claimant's case was unfair. His case was referred to the Parole Board to consider both whether to direct release and whether to recommend re-transfer to open conditions. Following the introduction of the interim absconder policy on 21 May 2014 the Board gave directions enquiring of the Secretary of State, in effect, whether the latter referral was withdrawn. The answer was that the case should be considered in accordance with the existing referral note, and the Secretary of State made no submissions to the Board at or before the oral hearing. In those circumstances the Board's recommendation should have been considered by the Secretary of State on its merits, rather than being rejected on the grounds that the Claimant was no longer eligible for transfer.”

Ms Hirst supports this reasoning on this appeal. I refer to this as “the unfairness ground.”

In addition, she submitted that the Secretary of State’s decision of 5 December 2014 that Mr Gilbert did not qualify for transfer to open conditions under the absconder policy was irrational. Although this was not an argument covered by the respondent’s notice, it had been advanced below (see, in particular, para. 37 of Mr Gilbert’s skeleton argument in the Divisional Court) and Mr Weisselberg was in a position to make submissions in response; accordingly, we allowed Ms Hirst to develop this argument as well. I refer to this argument as “the irrationality ground.”

The Divisional Court’s judgment was handed down on 1 April 2015. The Divisional Court granted permission to appeal in relation to the challenge to the absconder policy (and subsequently this court granted permission to appeal on the unfairness issue). On 17 April 2015, and without prejudice to his arguments on the appeal, the Secretary of State issued a revised set of Directions which are intended to be more clearly in line with the absconder policy, against the possibility that he might lose on the appeal. At the hearing, Mr Weisselberg informed us about the revised Directions but confirmed that he based no argument on them. The fact that the revised Directions have been issued does not make the questions on this appeal in relation to the absconder policy academic, since they continue to affect a significant number of prisoners whose cases are already in the process of being dealt with under the policy and the Directions in their original form.

The inconsistency with the Directions ground

As Mr Weisselberg emphasised for the Secretary of State, it is the Secretary of State who has the relevant discretion under statute to decide whether to transfer prisoners to open conditions and it is in principle lawful for the Secretary of State to promulgate a policy regarding the circumstances in which he will do so. In such circumstances the only legitimate expectation of a prisoner is that “his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute”: see In re Findlay [1985] AC 318, in particular at 338D-G per Lord Scarman. That case concerned a policy regarding the exercise of a discretion which the Secretary of State then had regarding release on licence, but as Mr Weisselberg contends and Ms Hirst accepts the same principles govern the promulgation of policy in relation to the exercise of the Secretary of State’s discretion in the present case. As in Findlay, the factors to which the Secretary of State may have regard in relation to the exercise of his discretion (and hence in formulating his policy regarding the exercise of that discretion) include matters such as considerations of deterrence, retribution, public confidence in the system and consistency of treatment between one prisoner and another: p. 335C.

Despite all this, I consider that if the absconder policy is properly to be regarded as inconsistent with the Directions that would be a basis on which the policy could be found to be unlawful. The Directions are issued under section 239(6) of the 2003 Act and have statutory legal effect for certain purposes. If they created a binding legitimate expectation as against the Secretary of State and binding obligations for the Board which conflicted with any policy of his own which arose simply from a new statement of policy made by him without any statutory underpinning, I think that the Directions would have to be given priority and treated as having superior legal effect. Therefore I consider that the Divisional Court was correct, as a matter of principle, to consider whether there is an inconsistency between the Directions and the absconder policy.

A finding that the absconder policy is inconsistent with the Directions was the foundation for the Divisional Court’s ruling that the absconder policy is unlawful, and it may be for that reason that Ms Hirst did not take up much time in her submissions on the point. However, I found Mr Weisselberg’s submissions that the Divisional Court fell into error on this issue persuasive. I would allow the appeal.

Mr Weisselberg made two principal submissions. First, he submits that purely as a matter of interpretation of the Directions and of the absconder policy in their relevant context there is no inconsistency between them. I agree.

The relevant part of the Directions relied on by Ms Hirst and the Divisional Court is the first sentence of paragraph 1 (“In most (but not all) indeterminate sentence prisoner … cases, a phased release from closed to open prison is necessary …”: set out above). But this does not say that a prisoner can only be eligible for release if he has served a period of his sentence in open conditions. It expressly contemplates that some prisoners may be found to be eligible for release from closed conditions. The absconder policy, taken with the Progression Regime which is an aspect of it, simply creates a new avenue (and a specially adapted enhanced opportunity) by which that can be achieved, targeted on that group of prisoners covered by the policy. The general position, taking the prison population as a whole, remains as stated in the highlighted sentence. In my judgment, there is no inconsistency.

This conclusion is reinforced by the fact that paragraph 1 of the Directions is not in mandatory directive form. It is part of the preamble to the Directions, to explain them and put them in context for the reader, rather than a direct instruction to the Board. The mandatory instructions to the Board are at paragraphs 4 and following. Paragraph 1 does not impose an obligation on the Board to refuse to treat a prisoner as eligible for release unless he has served a period in open conditions, nor an obligation to try to adjust its treatment of cases to achieve a result in which most prisoners coming before it do serve a period in open conditions before they are released. Indeed, it is highly unlikely that the Board itself (still less the separate panels which actually consider individual cases) will have the system-wide information which would even enable them to be sure what the overall position is at any given time. In any event, the Board has an overriding statutory duty under Article 5 and section 28 of the 1997 Act to direct release of a prisoner if satisfied that the risk criterion set out in that provision has been satisfied, and nothing in paragraph 1 of the Directions could detract from that. The Progression Regime is designed to provide a new improved opportunity for a prisoner to be able to achieve that result from closed conditions.

Secondly, Mr Weisselberg submits that even if there were an inconsistency between the absconder policy and the Directions as a matter of textual interpretation, there would not be any relevant inconsistency as a matter of legal analysis because the Directions and the policy are directed to different persons and operate at different points in the process of management of prisoners moving through their sentences and the parole system. I agree with this submission as well.

The absconder policy is directed to the Secretary of State’s officials. It explains how the Secretary of State’s discretion in relation to the treatment of prisoners will be exercised. As such it is, of course, capable of creating legitimate expectations for prisoners covered by it as to how they will be treated by the Secretary of State.

By contrast the Directions are directed to the Board, explaining how it should conduct itself within the overall framework set by the relevant statutory provisions. The Directions cannot detract from the obligation of the Board to apply the statutory test in section 28 of the 1997 Act in relation to risk in respect of any case before it. Subject to section 28, the Board has a statutory duty to comply with the Directions. Accordingly, as against the Board a prisoner is entitled to require the Board to comply with the Directions.

But the Directions do not themselves say anything about what the Secretary of State might do at the end of a process of consideration by the Board. They do not create any legitimate expectation regarding how he will exercise his discretion. If the Board recommends a transfer to open conditions, that only has the status of advice which the Secretary of State may – subject to his general public law obligation to act rationally – accept or decline to accept. The decision regarding transfer to open conditions is for the Secretary of State.

Mr Weisselberg accepted that it might be better if the Directions and any relevant policy of the Secretary of State as to the exercise of his own discretion “marched together” without significant dissonance between them. However, in light of the different functions each instrument fulfils, he disputed that such dissonance as might exist between them was such as to make the absconder policy unlawful.

I agree with this submission. As a general matter, it is not irrational or unfair to expect the Board to comply with Directions issued to it while at the same time the Secretary of State promulgates and follows his own distinct policy as to how he will exercise his own statutory discretion whether to transfer a prisoner to open conditions, taking due account of whatever the Board might say. Nor in the circumstances of Mr Gilbert’s individual case does any irrationality or unfairness arise: see below.

For these reasons, I respectfully consider that the Divisional Court’s reasoning in support of its conclusion in relation to the absconder policy cannot be sustained. It is therefore necessary to address the alternative arguments deployed by Ms Hirst at the hearing.

The undermining the Parole Board ground.

There are a number of ways in which the absconder policy may affect a prisoner who is covered by it which Ms Hirst suggests, taken individually or cumulatively, impermissibly undermine the statutory role of the Board. For example, with the absconder policy in place, the Secretary of State will consider whether there is any value to be gained in a reference of a particular case to the Board for consideration; since the policy considerably tightens the criteria according to which the Secretary of State will consider transferring a prisoner falling within its scope to open conditions, it is likely that in relation to such prisoners he will exercise his discretion to seek advice from the Board under section 239 of the 2003 Act more sparingly than before. If the Secretary of State does refer the case of a prisoner covered by the absconder policy to the Board, he may rely on his new policy to decline to comply with any recommendation of the Board that the prisoner should be transferred to open conditions (that is, indeed, what has happened in Mr Gilbert’s case). Ms Hirst says that this is impermissible, because the Board is the expert body regarding the risk presented by a prisoner. Further, if a prisoner who is covered by the policy is not transferred to open conditions, which Ms Hirst says will always or almost always be the result of application of the policy, then he will find himself unable to demonstrate his reliability through time spent in open conditions with periods of ROTL and this will have the effect that he can never persuade the Board to release him pursuant to section 28 of the 1997 Act, which will again mean that the role of the Board has been improperly subverted.

I do not accept that this is a valid ground of challenge to the absconder policy. The promulgation of the absconder policy does not improperly undermine the statutory role of the Board.

As regards consideration of release of prisoners by the Board under section 28 of the 1997 Act, that is conducted according to an established regular timetable which is not affected by the absconder policy. The absconder policy may affect the type of evidence available to the Board when considering an application for release on licence, because evidence from placement in open conditions will be available on a more restrictive basis and there may instead be evidence arising from placement on the Progression Regime. However, this does not mean that the Board is disabled from performing its statutory function under section 28. It will still be able to consider relevant evidence which is capable of persuading it that it should direct that a prisoner should be released, even though it may be more difficult than previously for a prisoner to achieve that result: the absconder policy allows for transfer to open conditions in some cases and evidence put together in the course of time spent in the Progression Regime may well be capable of persuading the Board when it considers cases under section 28. The exercise is not rendered meaningless by the introduction of the absconder policy: see the discussion of the blanket policy ground and the Kaiyam ground below.

So far as concerns seeking advice from the Board under section 239(2) of the 2003 Act, it is a matter of discretion for the Secretary of State to do so or not. If the Secretary of State rationally considers that the assistance which the Board might be able to provide in any particular case is limited and that it is not worth the additional expenditure of resources and effort (on the part of the Secretary of State, the Board and the prisoner) to seek such limited assistance, it is lawful for him to decline to refer a matter to the Board to seek advice. The absconder policy may well have the effect that it will be more likely that the Secretary of State will think it not productive to refer the question of transfer of a prisoner covered by the policy to the Board for advice (although in some cases he may seek advice about the application of the exceptional circumstances test in the policy in an individual case). But since the Secretary of State has a discretion and it is lawful for him to decide not to seek the advice of the Board, it cannot be said that the introduction of the policy impermissibly undermines the role of the Board which is contemplated by the statute.

Ms Hirst submitted that the Board is an expert body in relation to prisoner risk, which is better placed than the Secretary of State to make judgments about such risk; and that since the Secretary of State is obliged to have regard to all relevant factors when deciding how to exercise his discretion, he is obliged to refer any case where prisoner risk may be in issue to the Board for its advice in relation to whether it should give a general recommendation for transfer to open conditions (or at the very least in respect of whether exceptional circumstances exist for the purposes of the absconder policy).

I do not agree with this analysis. There is no authority which supports it. The discretion enjoyed by the Secretary of State in relation to seeking advice from the Board under section 239(2) of the 2003 Act is to be contrasted with the obligation he has to refer cases to it periodically to consider applications for release on licence under section 28 of the 1997 Act. The 2003 Act confers a discretion on the Secretary of State whether to seek advice or not, and the fact that it refers to advice rather than mandatory directions (as in section 28) also underlines the discretion enjoyed by the Secretary of State in this regard: he is not bound to follow advice. Moreover, the Act does not even refer expressly to advice about transfer to open conditions, but only to advice about matters referred to the Board by the Secretary of State “with respect to any matter … which is to do with the early release or recall of prisoners.” The statute does not confer on the Board any express function to advise on the question of transfer to open conditions.

The Secretary of State and his department and its agencies are also experts in management of prisoners in the prison estate, including assessing prisoner risk when it is relevant to the wide range of decisions which such management may involve. The statutory regime recognises this. They do not require input from the Board for every decision they have to make, including those in relation to which prisoner risk may be a significant factor. If, in light of the Secretary of State’s policy regarding transfer to open conditions, he does not consider it helpful to refer individual cases to the Board for advice under section 239(2), that is lawful and does not deprive the Board of any function which the statute contemplates it must fulfil (as distinct from a function which it might fulfil, if the Secretary of State thinks it appropriate to ask it to do so).

The most far-reaching aspect of Ms Hirst’s argument under this ground, as I understood it, was that in the case of every prisoner covered by the absconder policy where the question of transfer to open conditions arises the Secretary of State ought to be asking the Board in general terms whether it would recommend such a transfer and then ought to abide by such recommendation (at any rate, absent very good reason not to).

However, this submission ignores the distribution of responsibility between the Secretary of State and the Board as contemplated by statute. The Secretary of State has the relevant discretion whether to transfer a prisoner to open conditions; he can therefore promulgate his own policy as to how that discretion should be exercised (and has done so, so far as is relevant here, by way of the absconder policy); he has a discretion whether to seek advice from the Board; and even if he seeks its advice, he is not bound to follow that advice provided there is sufficient good reason not to (see, e.g., R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin) at [22] and [28]). The Secretary of State is not obliged to seek the advice of the Board. Further, if the advice given by the Board fails for whatever reason to take into account the relevant policy of the Secretary of State governing the question of transfer to open conditions, that is likely to constitute a good reason for the Secretary of State to decline to follow the advice.

In my view, that is indeed the position that has been arrived at on the facts of this case. I consider below the circumstances in which the Secretary of State sought the advice of the Board on the question whether Mr Gilbert should be transferred to open conditions. The advice of the Board was not given by reference to the absconder policy, which is a lawful policy governing the exercise of the Secretary of State’s discretion regarding transfer. The Secretary of State considered the implications of the advice given by the Board in light of the absconder policy, as he was entitled to do. Applying that policy, the Secretary of State concluded that Mr Gilbert should be transferred to the Progression Regime rather than to open conditions. There was nothing unlawful about the Secretary of State’s approach. It does not show that the absconder policy has improperly subverted the role of the Board.

The blanket policy ground

It is clear from the text of the absconder policy that it is not a blanket policy in the sense in which Ms Hirst used the term, under which a prisoner who in the particular circumstances of his case could only demonstrate his suitability for release by a transfer to open conditions is disabled from having such an opportunity. The criteria set out in the policy make it clear that in an appropriate case, where a placement in open conditions is absolutely necessary because placement in the Progression Regime cannot meet the need for appropriate resettlement work to be done, a transfer to open conditions will be possible.

However, Ms Hirst sought to suggest that as a matter of practice no such transfer will ever take place for a prisoner covered by the absconder policy. Therefore, in practice, though not according to its text, the absconder policy is in reality an unlawful blanket policy.

This submission runs into the difficulty that there is no good evidential basis to support it. This way of putting the case for Mr Gilbert was not identified at first instance, so the Secretary of State did not have a fair opportunity to meet a case based not on the text of the policy but on an alleged practice of disregarding its terms at the point of application. There was a dearth of evidence on the point on Mr Gilbert’s side. The new material from the Freedom of Information Act request (para. [41] above) does not establish the factual position which Ms Hirst asserted. It does not distinctly address the number of prisoners who have been assessed up to now under the absconder policy (so it does not tell us what proportion of those assessed have been transferred to open conditions under the exceptional circumstances criteria), and it indicates that at least some prisoners have been so transferred. This is so even though the Progression Regime is in the first few months of its operation.

Since the express terms of the absconder policy indicate that it is not a blanket policy and since such evidence as is available tends to support the conclusion that it is operated in accordance with its terms (as one would expect), in my judgment this ground of challenge to the absconder policy should also be dismissed.

The Kaiyam ground

It is common ground, in relation to a prisoner held under an indeterminate sentence in the period post-tariff, that the Secretary of State has a duty to provide sufficient systems and resources to ensure that review by the Board whether the continued detention of the prisoner under such sentence is justified is an effective and meaningful one: Kaiyam [2014] UKSC 66; [2015] 2 WLR 76, [36] (it is 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”). The difference between the parties under this ground is whether the absconder policy in conjunction with the Progression Regime affords a prisoner covered by the policy a sufficient opportunity to rehabilitate himself and demonstrate that he no longer presents an unacceptable danger to the public.

The majority in the Supreme Court in Kaiyam gave important guidance regarding the extent of the opportunity to be provided, in the part of the judgment of Lord Hughes JSC (with whom Lord Neuberger PSC and Lords Toulson and Hodge JJSC agreed) which deals with the case of Mr Robinson, which was also before the court: [85]-[93]. Mr Robinson was serving an indeterminate prison sentence in the post tariff period. His psychological report included a recommendation that he should undertake an Extended Sex Offender Therapy Programme (ESOTP) course. Lord Hughes explained that the obligation under Article 5 did not include an obligation to make an ESOTP course available for Mr Robinson; the obligation was only to meet a standard of “a reasonable opportunity to him to demonstrate his safety”: [90]-[91]. The obligation inherent in Article 5 does not extend to a duty to provide any specific coursework for which the prisoner has been judged eligible: [92].

Adapting this reasoning for the present context, in my judgment the absconder policy in conjunction with the Progression Regime does provide a prisoner falling within the scope of that policy with a reasonable opportunity to take steps to demonstrate his safety. A prisoner who is placed on the Progression Regime is afforded a reasonable opportunity via participation in the various stages of that regime to demonstrate his safety. In a case where being placed in open conditions is absolutely necessary to demonstrate his safety, the absconder policy affords a reasonable opportunity to be placed in such conditions. This possibility is conditional on the prisoner showing progress to demonstrate an absence of a risk of absconding. This is something which is reasonable to expect him to do, given his failures in the past, and in relation to which he is afforded a reasonable opportunity to show that such risk is within the bounds set out in the policy (through participation in coursework, as was suggested by the Board in Mr Gilbert’s case, and through general good and trustworthy behaviour in prison, as Mr Gilbert appears to be demonstrating by his current conduct in the Progression Regime). Similarly to the position in Kaiyam, as explained at [92], I do not consider that it can be said that the obligation inherent in Article 5 extends to a duty on the Secretary of State to place a prisoner in open conditions, outside due application of the absconder policy, even if that is recommended by the Board.

The inconsistency with PSI 36/2012 ground

This ground of challenge appears not to have been developed before the Divisional Court and can be dealt with shortly. As In re Findlay makes clear, the Secretary of State is entitled to have a policy in relation to how he will exercise any discretion he has regarding treatment of prisoners and is entitled to change the policy from time to time. Provided always that the relevant policy is a lawful one, the legitimate expectation of a prisoner is to be treated in accordance with the policy which the Secretary of State has in place at the time when he comes to exercise his discretion. PSI 36/2012 is a policy document issued by the Secretary of State. It does not have the statutory status which the Directions have. The absconder policy has the same status as policy of the kind set out in PSI 36/2012.

In my view it is clear that when the Secretary of State announced the absconder policy it was intended to modify PSI 36/2012 in relation to the prisoners covered by the absconder policy with respect to the matters covered by it. For present purposes, therefore, within the scope of its application the absconder policy replaces PSI 36/2012 and is the Secretary of State’s relevant current policy which he is entitled to apply to prisoners falling within it, in accordance with the principles explained in In re Findlay. There is no relevant inconsistency which affects the lawfulness of the absconder policy. Accordingly, this further ground of challenge to the policy should be dismissed as well.

In this context I should also mention the Board’s own Guidance, set out above, which contemplates that in most cases a prisoner will be expected to complete a period in open conditions before the Board is likely to direct that he be released on licence. Ms Hirst did not base any challenge to the policy on the Board’s Guidance. The Board’s Guidance is not promulgated by the Secretary of State and so does not provide any basis for suggesting that the Secretary of State contradicted himself when issuing the absconder policy. The Board’s Guidance is subordinate to the Board’s statutory obligation in section 28 of the 1997 Act to consider release against the criterion set out there, which also provides the relevant legal context in which the lawfulness of the absconder policy is to be judged. If the absconder policy is lawful in the context of section 28 (which in my view it is), the Board’s Guidance cannot make it unlawful. The Board’s Guidance is only a policy statement, and so may be overridden in appropriate cases. In any event, it expressly recognises that it is possible for the Board to direct release of a prisoner from closed conditions and contemplates that it will do so in appropriate cases. Also, it was promulgated before the Progression Regime came into existence, which is designed to provide an enhanced opportunity for a prisoner in closed conditions to put together persuasive evidence to support an application to the Board for release and hence is designed to expand the number of cases in which release from closed conditions may be directed by the Board by overriding or in accordance with the Board’s Guidance.

My conclusion in relation to the various challenges to the lawfulness of the absconder policy is that they fail. Accordingly, I would allow the appeal in relation to the main ruling of the Divisional Court. I now turn to consider the two grounds of challenge in relation to the decision in Mr Gilbert’s individual case.

The unfairness ground

In my judgment, there was no unfairness in the way in which Mr Gilbert was treated.

I do not think that the fact that the Secretary of State confirmed to the Board that it should proceed to consider Mr Gilbert’s case on the basis of the two referral notes, despite the promulgation of the absconder policy in the meantime, has the effect that it could be said that it was unfair for the Secretary of State to apply the absconder policy in Mr Gilbert’s case when the Secretary of State decided what to do in his case having received the advice of the Board. When the absconder policy was promulgated, Mr Gilbert and his advisers appreciated that the Secretary of State would proceed to apply it to him (hence their letter of 2 July 2014 to try to dissuade him from doing that). It could not be said (and Ms Hirst did not seek to contend) that by the Secretary of State’s request to the Board to proceed to consider Mr Gilbert’s case the Secretary of State had created any legitimate expectation on Mr Gilbert’s part that, notwithstanding the promulgation of the new absconder policy and the notice to Mr Gilbert that it would be applied to him, when the Secretary of State came to decide how to proceed he would not in fact apply the policy to Mr Gilbert: there was no express assurance, which was clear, unambiguous and devoid of relevant qualification, to that effect, as would have been required for such a case to be made out (see e.g. R (Davies) v Revenue and Customs Commissioners [2011] UKSC 47; [2011] 1 WLR 2625, [27]-[29] and [39]). In that regard, it should be noted that the Board itself, which had asked for the clarification of the scope of the referral to it, still understood very well after it received the response from the Secretary of State that it remained the case that he proposed to apply the absconder policy to Mr Gilbert when he came to make his decision (hence the Board’s reference to the absconder policy in its decision letter, set out above). Mr Gilbert and his representatives appreciated this. Since the Secretary of State did not waive his right to rely on the absconder policy when he eventually came to decide what to do in Mr Gilbert’s case, there was no departure from the usual position that the Secretary of State was entitled to apply his current policy (i.e. the absconder policy) in his case.

It was not inconsistent with this position, nor irrational, for the Secretary of State to ask the Board to proceed to consider the referrals already before it. The Board had to examine Mr Gilbert’s case in any event, since it needed to consider whether to accede to his request for release, and the requests for advice in the referrals included matters which could well be of assistance whatever form the exceptional circumstances guidance in the new policy might take. It was also less disruptive of a process which was already in train and well-advanced to proceed with the original referrals rather than try to re-formulate the requests, particularly since the criteria for the exceptional circumstances category were still in a state of development at the time. In the event, as was reasonably to be expected, the findings and expressions of view by the Board in its decision included matters which were relevant to the consideration eventually given to Mr Gilbert’s case by the Secretary of State under the absconder policy and were taken into account by him.

Before the Secretary of State took his decision, by his letter of 15 August 2014 he informed Mr Gilbert that in light of the absconder policy he was not minded to accept the recommendation of the Board that Mr Gilbert be transferred to open conditions and invited him to make representations whether he met the criteria for exceptional consideration as set out in that policy. The Divisional Court referred to this letter as containing the Secretary of State’s decision refusing a transfer to open conditions, but Mr Weisselberg correctly submits that this mischaracterises the letter, which only set out a “minded to” decision of the Secretary of State and afforded Mr Gilbert the opportunity to make representations regarding the application of the absconder policy in his case. In my view, this was a fair approach for the Secretary of State to adopt.

The irrationality ground

In my judgment, the ultimate decision of the Secretary of State in December 2014 to the effect that Mr Gilbert did not meet the exceptional circumstances criteria in the absconder policy and so should be transferred into the Progression Regime rather than to open conditions cannot be said to be irrational. The main point made in the decision letter of 5 December 2014 regarding the exceptional circumstances criteria was that, contrary to the suggestion made on behalf of Mr Gilbert, the Board had not said he did not represent any risk of absconding and had positively suggested work he could do in prison to reduce that risk, which he had not yet undertaken (i.e. it could not be said that he had reduced his risk of abscond such that a further abscond was very unlikely to occur, so Mr Gilbert did not satisfy the first limb of the exceptional circumstances test). The Secretary of State was correct in his evaluation of what the Board had actually said in its decision and his own decision regarding application of the absconder policy in the light of that was a rational one.

This reason is sufficient in itself to provide an answer to the irrationality ground of challenge. However, in addition, the decision letter indicated that the Secretary of State’s view was that the Progression Regime offered Mr Gilbert a reasonable opportunity to put together persuasive evidence in support of an application to the Board for release such that it was not necessary for him to be transferred to open conditions. The reasoning in this part of the letter is thin. Nonetheless, I do not consider that in the particular circumstances of Mr Gilbert’s case the Secretary of State’s view can be described as irrational. As regards evidence in relation to whether Mr Gilbert had successfully addressed his previous problems with alcohol and drugs, he had already completed a number of periods of ROTL which provided some evidence of that; further short periods of ROTL would only provide limited additional evidence whether he had successfully made and would be able to sustain into the future the thorough-going life-style changes he maintained he had made; psychologist and other reports on his conduct and approach while in prison were likely to be of greater importance in judging that issue; and it was reasonable to think that his participation in courses on the Progression Regime would offer the possibility of bolstering that part of the evidence base on this issue. So for this reason also, I consider the irrationality ground should be dismissed.

In so far as Ms Hirst sought to suggest that it was irrational for the Secretary of State to decline to accept the recommendation of the Board that Mr Gilbert be transferred to open conditions, I do not regard that as a sustainable contention. The Secretary of State is entitled not to accept such a recommendation, provided he acts rationally in doing so: see Banfield, above, at [22] and [28] and R (Wilmot) v Secretary of State for Justice [2012] EWHC 3139 (Admin), [47]. In some cases where the Parole Board has reached a view on some point which is the same as a point which the Secretary of State has to consider and the Board is better placed to make an assessment (e.g. it finds a relevant fact after hearing oral evidence from witnesses), it might well be difficult for the Secretary of State to show that it is rational for him to take a different view; and para. 6.5 of PSI 36/2012 appears to reflect the Secretary of State’s recognition of this. But that is not this case. Here, the Board did not consider the application of the exceptional circumstances criteria in the absconder policy; the Secretary of State lawfully considered that the absconder policy should be applied; and so he was rationally entitled to assess that the recommendation of the Board for a transfer to open conditions made without reference to that policy carried little weight and could be overridden by his own judgment about how that policy should be applied in Mr Gilbert’s case.

For the reasons given above, I would allow the appeal both in relation to the challenge to the absconder policy and in relation to the challenge to the Secretary of State’s decision in Mr Gilbert’s case.

I agree.

I also agree.