MP, R (on the application of) v Secretary of State for Home Department

In both these applications for judicial review, the Claimants, who are serving prisoners, challenge the refusal by their respective Prison Governors to allow them to take Childcare Resettlement Leave (‘CRL’). Because of the overlap of issues, the claims were consolidated and heard together.

CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim is whether the Defendants are acting lawfully in restricting CRL to female prisoners who are within 2 years of their earliest release date. Although male prisoners are also eligible for CRL, these claims, and hence this judgment, focus exclusively on the position of female prisoners.

On 2 September 2009, MP was sentenced to 10 years’ imprisonment for conspiracy to import cocaine. This was her first offence. Her conditional release date is 2 September 2014, when she will have served half her sentence. She will be eligible for transfer to an open prison two years prior to that date i.e. 2 September 2012.

MP is the sole carer for three children, who are interested parties in this application. Her ex-partner’s daughter, A, was born on 27 March 1998, and is now aged 13. Her son, B, was born on 12 April 2002 and is now aged 9. Her daughter, C, was born on 27 November 2007 and is now aged 4.

Following her imprisonment, MP’s elderly mother moved into her family home in order to care for the children. She is now also caring for her terminally ill partner (MP’s stepfather).

The two older children are suffering significant emotional disturbance because of their prolonged separation from their mother and primary carer. A is particularly vulnerable because she was neglected and then abandoned by her birth mother, and so experiences separation from MP as a further loss. B has exhibited signs of disturbed behaviour and anxiety. The concern with the youngest child, C, is that there may be long-term negative effects on her because she has missed the opportunity to form a close bond with her mother.

The children visit MP in prison weekly, for about 2 hours. The children find these occasions forbidding and restrictive. They also attend family days three times a year, which last for 5 hours and are more informal.

Turning to MP’s prison history, in September 2009, she was categorised as closed and allocated to HMP Downview. She was transferred to HMP Send on 8 April 2010, where she has remained ever since.

At her routine re-categorisation review on 20 August 2010, the Board decided that her current level remained closed for the following reasons:

“The board notes your good behaviour and enhanced status, however you are still more than 2 years from release and therefore not yet suitable for open conditions”.

On 8 September 2010, her OASys assessment assessed her as ‘low risk’ of re-offending, with low predictor scores. There were ‘no concerns’ in relation to ‘escape/abscond; control issues/disruptive behaviour; concerns in breach of trust’.

On 6 December 2010, in response to a request for details of her last re-categorisation, HMP Send responded saying:

“At this time the primary reason for your category is that prisoners cannot be considered for open conditions until they are in their final 2 years and you are not eligible for ROTL until 02/03/12. Your current situation is very straightforward.”

On 12 January 2011, in response to an application for CRL made by MP’s solicitor, Mr Charalambous, Head of Reducing Reoffending at HMP Send, said:

“The Release on Temporary Licence board noted your client’s good custodial behaviour and enhanced status however [she] is not eligible to apply for Child Resettlement Leave as per PSO 6300. Your client can reapply for re-consideration when she is within 2 years of her release date”

On 15 March 2011, MP’s application for transfer to East Sutton Park prison was refused on the ground that she “was not eligible to be considered for open conditions until you are in the final 2 years of your sentence”.

On 24 March 2011, MP’s solicitor applied for her to be re-categorised as an open prisoner, on the grounds of exceptional circumstances, including her and her children’s need for CRL. She also relied on the fact that MP was an enhanced prisoner on the IEP scheme; she was employed in a position of trust, unsupervised, in the library; she had completed 12 courses, to develop her skills, and all targets on her sentence plan.

On 12 April 2011, Mr Charalambous wrote to MP’s solicitor saying:

“your client is not eligible for consideration until she is within two years of her conditional release date, in addition she must be assessed as suitable for open conditions, and be of enhanced status on the incentive and earned privileges scheme.”

On 23 May 2011, the Treasury Solicitor wrote to MP’s solicitor in response to the issue of an application for judicial review, filed on 12 May 2001. In respect of the refusal to categorise her as suitable for open conditions, the Treasury Solicitor agreed to re-take the re-categorisation review. The letter explained its reasons as follows:

“my client has reviewed your client’s most recent categorisation decision, dated 20 August 2010, and subsequent correspondence with her (notably the responses to her application to be transferred to an open establishment in February 2011) and accepts that these communications give the impression that your client was categorised as closed solely on the basis that she has more than two years of her sentence left to serve. While my client does not accept that their decision was in fact taken on that basis, it is accepted that the wording of the decision does not sufficiently record their reasoning.”

In respect of her application for CRL, the Treasury Solicitor said:

“my client considers that your client is currently ineligible as she is categorised as closed and [is] therefore not eligible for consideration for CRL in accordance with PSO 6300. However, my client appreciates that its communication with you and your client in respect of this position has inaccurately stated that she is not eligible to be considered for CRL until she is within two years of her conditional release date.”

On 13 June 2011, Ms Charles, Head of OMU, Resettlement and Drug Strategy wrote to inform MP that her request for re-categorisation had again been refused. The Board considered representations from MP, her children, children’s grandmother, the Prisoners Advice Service and Dr Sarang. The Board decided that she should remain in closed conditions because:

“[MP] was sentenced to 10 years, and has yet to reach the 2 year stage of that sentence.

In September 2010, [MP’s] appeal against conviction was refused.

[MP] continues to maintain her innocence and as a result has not yet demonstrated responsibility for her offence which is an indicator of heightened risk of escape or abscond, and of harm to the public should she do so.”

The Board did not consider that there were exceptional circumstances to justify a re-categorisation to open conditions.

On 17 June 2011, the Treasury Solicitor wrote to MP’s solicitors enclosing a copy of the letter of 13 June 2011 refusing to re-categorise MP as suitable for open conditions and concluding:

“You will note that my client has concluded that your client remains appropriately categorised as closed. Accordingly, your client remains ineligible for childcare resettlement leave in accordance with PSO 6300, paragraph 2.5.1.”

On 15 August 2011, an OAsys assessment was completed. MP was assessed as ‘low risk’ of re-offending, with very low predictor scores. In response to the question whether there were ‘any concerns’ in relation to ‘escape/abscond; control issues/disruptive behaviour; concerns in respect of breach of trust’, the answer was ‘no’.

On 19 September 2011, HMP Send refused to carry out her annual review of re-categorisation, due to take place in August 2011, on the basis that it was not necessary in the light of the recent review in June 2011.

On 6 October 2008, P was sentenced to 14 years’ imprisonment for importation of cocaine, with her mother. This was her first offence. Her conditional release date was 21 March 2015. She would have been eligible to transfer to an open prison 2 years earlier i.e. 21 March 2013.

However, she has been sentenced to serve a further 120 days as a default sentence in respect of an unpaid confiscation order. So her conditional release date is now 17 July 2015. The eligibility date 2 years prior to that is 17 July 2013.

P is the sole carer for her daughter, R, who is an interested party in this application. R was born on 25 July 1996 and is now 15 years old. P also has two older children, aged 19 and 20.

R is particularly close to her mother and as a result of their separation she is suffering from depression. She has trouble sleeping and often feels low and tearful. She finds prison visits awkward and does not feel able to speak freely with her mother.

P was initially allocated to HMP Bronzefield. She was awarded enhanced privilege status at an early stage in her sentence. On 31 October 2008, she was categorised as semi-open, and she was transferred to HMP Drake Hall (a semi-open prison) on 3 November 2008. On 19 December 2008 she applied for CRL.

On 9 February 2009 her request was refused. The letter said “you will not be approved until 6 months prior to your CRD date in 2013”. Following her complaint, she was told that the Governor would not approve CRL because of the length of time she still had left to serve.

On 2 March 2009, HMP Drake Hall was re-designated as a closed prison. On 15 June 2009 P was re-categorised as closed. On 10 July 2009 she transferred to HMP Downview.

On 16 July 2009 she applied for CRL. Her application form was returned with a written reply; “Not yet reached R.O.T.L. eligibility date 03-2013.”

On 3 May 2010, she applied for CRL again. Her application form was returned with a written reply; “you must be within 2 years of your release date and suitable for open conditions to be eligible for CRL. Please reapply 21/3/13.”

The Governor wrote to her on 2 June 2010 informing her that she was not eligible for CRL as she did not meet the criteria which were either that a prisoner was in the last 2 years of her sentence, or deemed suitable for open conditions. This evidence comes from the Prison Ombudsman’s report dated 5 August 2010, at paragraph 6. The Ombudsman subsequently dismissed her complaint, holding that the semi-open category no longer applied and concluding that PSI 02/2009 was “very clear in stating that prisoners should not be allocated to open conditions until within two years at the end of their sentence”.

On 19 May 2010, at a review, she was re-categorised as suitable for open conditions, but allocated to closed conditions because of her release date.

On 30 June 2010, Mr Gosden, DPSM Resettlement and Planning at HM Prison Downview wrote to P’s solicitors stating:

“In consideration of Ms Chambers and her ROTL request (CRL) the board maintain that in order for Ms Chambers to be assessed as suitable for “open” conditions she must be within her last two years prior to release.”

On 22 July 2010, Mr Gosden wrote again to P’s solicitors saying:

“To be eligible for CRL – PSI 03/2009 clearly states that offenders need to be within 2 years of their release date or have reached their RDR/ROR date to be eligible for open conditions. [P] is not eligible to apply until at least 21/3/13.”

On 25 October 2010, Mr Godsen responded to a letter from P’s solicitors saying:

“As the status of “Suitable for semi-open conditions does not exist we are not in a position to apply it for any offender regardless of previous circumstances....

As [P]’s current classification is “Closed” conditions, in order to be assessed as suitable for “open” conditions she must be within her last two years prior to release... 21/03/13.

Any application for CRL would have to be on or after 21/03/13 in line with policy that states that an offender must be assessed as suitable for open conditions in order to be eligible for CRL (and in order to be assessed for open conditions an offender must be within the last two years of their sentence).....”

On 16 March 2011, at her categorisation review, P was re-categorised as closed but assessed as “suitable for open conditions”.

On 12 April 2011, P applied for CRL. Her application was refused by the Governor, Mr French, in a letter dated 26 May 2011. He said that she should not have been assessed as suitable for open conditions when she was categorised as closed. Therefore she was technically ineligible for CRL. However, because of the erroneous assessment as suitable for open conditions, he was willing to consider her application for CRL on the merits. He refused her application, stating:

“You are serving a very long sentence of 14 years for a serious offence, there is still almost four years until your conditional release date .. I am not satisfied that your release on temporary licence at this point of your sentence would not attract reasonable public concern, in that the release may undermine public confidence in the administration of justice, having regard to the stage of the custodial period reached.

This in no way reflects upon your custodial behaviour, which indeed has been recognised as behaviour befitting someone suitable for open conditions.......

I have also considered the welfare of your younger daughter and the impact that your time in custody is having on her. ROTL is not the sole means by which prisoners can maintain contact with their families and at Downview, there are a number of support interventions aimed at supporting families.”

The Claimants’ case was that it was clear from the terms of PSO 6300 that CRL was intended to be available throughout a prisoner’s sentence, subject to suitability and the assessment of risk.

The Claimants contended that the Defendants acted unlawfully in restricting CRL to prisoners who met the criteria for transfer to open conditions, since these now include a general requirement that the prisoner is within 2 years of her earliest release date. Although the 2 year requirement could be dis-applied in exceptional circumstances, such circumstances would relate to security issues, not the needs of children. Following the re-designation of semi-open prisons to closed prisons, a suitability assessment should have been adopted for the purposes of CRL, for women who were not eligible for open conditions.

The Claimants contended that, in restricting eligibility in this manner, the Defendants:

In the case of P, she had been assessed as suitable to transfer to open conditions but her application for CRL was rejected under Rule 9(5) of the Prison Rules on the ground that to grant her CRL might undermine public confidence in the administration of justice because of the length of sentence still to be served. In all other respects, she was suitable for CRL. P challenged the lawfulness of this decision, which appeared to be based exclusively on the length of her sentence.

In the case of MP, she also challenged the decision to refuse to transfer her to open conditions.

The Defendants’ response was that, at all times, the Secretary of State and the Governors were acting in accordance with existing law and policy, as set out in Rule 9 of the Prison Rules and PSO 6300. CRL was only ever intended to be available to prisoners towards the end of their sentences, at the stage when they were preparing for release. The fact that CRL was described as ‘resettlement’ leave was the clearest indication that it was intended to facilitate resettlement in the community after release, as opposed to providing a general means of facilitating contact between parent and child throughout the entire sentence.

Although PSO 6300 stated in paragraph 2.5.4 that there was no minimum eligibility date for CRL, the very next sentence contained the mandatory requirement that Governors should bear in mind Prison Rule 9.5 which explicitly required Governors not to release a prisoner on temporary licence if they thought that public confidence in the administration of justice will thereby be eroded, because of the length of sentence which remained to be served.

After the re-designation of semi-open prisons for women in 2009, only prisoners eligible for open conditions could be eligible for CRL. Eligibility criteria for open conditions were set out in PSO 0900. However, this now had to be read subject to PSI 03/2009, which established a general rule that prisoners should not be allocated to open prison with more than 2 years to serve before their earliest release date, save in exceptional circumstances. The prison service could not continue to assess prisoners for semi-open conditions, to make them eligible for CRL, when that security category no longer existed. A comparable suitability assessment could not be read into PSO 6300.

The Secretary of State was entitled to adopt a policy which set fixed eligibility criteria for CRL. The Claimant’s submission that the policy must have some flexibility and allow for exceptions was misconceived, and only applied once a prisoner met the eligibility criteria and her application was considered on the merits. Eligibility criteria did not engage Art. 8 at all and Art. 8 was only weakly engaged in a case where the Claimants were lawfully in detention.

P was in an exceptional position because prison service staff had erroneously assessed her as suitable for open conditions when she should have been in closed conditions, because of the length of her sentence, and the period of time still to be served. Out of fairness to P, the Governor agreed to deem her eligible and assess her application on the merits. However, he correctly rejected her application, because of the length of her sentence and the period of time still to be served.

The refusal to re-categorise MP as suitable for open conditions was a legitimate exercise of discretion by the Prison Service.

Section 47(1) Prison Act 1952 confers power on the Secretary of State to make rules for the regulation and management of prisons and for the classification, treatment, employment, discipline and control of prisoners.

Subsection (5) provides that rules may provide for the temporary release of persons detained in prison.

Pursuant to his powers in s.47(1), the Secretary of State for the Home Department made the Prison Rules 1999, in the form of a statutory instrument, subject to the negative resolution procedure. (Responsibility for prisons was transferred to the Secretary of State for Justice in 2007).

Under rule 9, the Secretary of State has a discretionary power to release a prisoner temporarily:

However, by rule 9(4), the Secretary of State must not release a prisoner temporarily unless he is satisfied that there would not be an unacceptable risk of his:

Rule 9(5) provides that the Secretary of State shall not release a prisoner temporarily if, having regard to:

(a)

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

(b)

the frequency with which the prisoner has been granted temporary release under this rule,

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

The Secretary of State has power to recall a prisoner from temporary release at any time (rule 9(8)).

Ms Macdonald, who is a co-author of Prison Law: Livingstone, Owen and Macdonald (4^th ed. 2008), took me to a helpful passage at p.24:

“1.47

The broad canvas created by the Prison Act 1952 and the Prison Rules is ‘filled in’ by a plethora of administrative guidance and directions which, since January 1997, is contained in Prison Service Orders and Instructions. These are supplemented by a series of Prison Service Standards, which purport to ensure ‘a consistent and high quality of service’. The new system results from the Woodcock Report, which recommended that the Prison Service must provide a clear framework within which governors are expected to operate. This required that ‘levels of autonomy, responsibility and accountability should be clearly published, making it plain which aspects of existing manuals and national instructions are mandatory, advisory or purely informative’.

1.48

The old system of Standing Orders, Circular Instructions and Instructions and Advices to governors has thus been gradually replaced by a new one which is intended to ensure that current policy and practice are easily accessible to staff and, where relevant and appropriate for security reasons, to prisoners alike. Prison Service Instructions are short term documents intended to last no more that one year. Prison Service Orders, intended to last more that one year, together with their supporting guidance, are contained in separate Manuals according to subject matter. Prison Service Standards are contained in their own Manual, arranged by subject matter. They aim to provide a concise, detailed statement of key details of the ‘services’ which should be provided. The system is managed by an Instructions Unit based in the Secretariat at Prison Service headquarters. Most PSOs and PSIs are now available on the Prison Service Website.”

The relevant non-statutory guidance in these claims was as follows:

On 29 November 2005, the Secretary of State issued PSO 6300 on ‘Release on Temporary Release’ (‘ROTL’).

Paragraph 2.5 made provision for CRL:

“2.5

Childcare resettlement leave

2.5.1

Eligibility

Where it is established that prisoners have sole caring responsibility for a child under 16 and are

•

resident in open or semi-open conditions; or

•

categorised as suitable for such conditions; or

•

resident in a mother and baby unit and have other children being cared for outside the prison; and

•

not in the excluded groups (see Para vii)

they are eligible to be considered for overnight childcare resettlement release. This is to encourage the maintenance of the parent/child tie and to help prepare the prisoner for the resumption of their parental duties on release. If the child attains the age of 16 whilst the prisoner remains in custody, the offender becomes ineligible for childcare resettlement leave because once a person is 16, they are eligible to visit a prisoner unaccompanied, in their own right, to maintain the parent/child ties.

2.5.2

Regular assessment of sole carer status must be undertaken.

2.5.3

It will be for the prisoner to satisfy the governor that the definition of a sole carer is met in each case, at an early stage of the sentence. The interests and safety of the child must be taken into account in all decisions about granting childcare resettlement leave. For further information see IG54/94 and PSI 22/2005 (to be replaced by the Public Protection Manual).

2.5.4

There is no minimum eligibility date for childcare resettlement leave. However, governors must bear in mind the requirements of Rule 9(5)/YOI Rule 5 (6). Prisoners, who are not yet eligible to undertake resettlement day/overnight release, may be granted childcare resettlement leave, if they meet all the criteria above and pass the usual risk assessment process.

2.5.5

Frequency

Childcare resettlement leave may be taken no more that once every two months.

2.5.6

Duration

The maximum duration of each period of childcare resettlement leave must not exceed three nights away from the prison. It would be good practice to build up to this gradually with a careful review of progress between each occasion. Travel time must be built into the terms of the licence.

2.5.7

Where children are in local Authority care, governors must obtain the approval of the Local Authority before allowing the release (or series of releases).

2.5.8

Release is subject to risk assessment in the normal manner. When commissioning the home circumstances report, governors must ask specifically for advice on any risk of harm posed to the prisoner’s children in granting the release. If the release is to be to the address of a person caring temporarily for the children during the period of imprisonment, release is conditional on that person giving permission for the prisoner to be released to that address.”

The passages in italics are mandatory instructions which have to be strictly enforced by Governors (p.2, PSO 6300).

Mr Potter, who is responsible for ROTL policy in the Ministry of Justice, said in his witness statement that CRL was only ever intended to be available at the point in a sentence when the prisoner was planning for release, to assist in the handover of care of the child to the parent. Therefore it should never be granted at an earlier stage in the custodial term.

A different view was experienced by the leading textbook Prison Law: Livingstone, Owen and Macdonald (4^th ed. 2008), which states at paragraph 7.82:

“Childcare Resettlement Release can be sought at any point in a sentence, but it is advisable to apply early otherwise the delay may cast doubt on the prisoner being the sole carer”

In my judgment, Mr Potter’s view was not consistent with the terms of PSO 6300, for the reasons set out below.

Paragraph 2.5.4 expressly states that there is no minimum eligibility date for CRL.

This is in clear contrast to the provisions in PSO 6300 for resettlement day and night release which provide that prisoners will only be eligible:

“either 24 months before the release date, or once they have served ½ the custodial period less half the relevant remand time, whichever gives the later date.”

The distinction between eligibility for CRL and for resettlement day/night release was also highlighted by the statement, in paragraph 2.5.4, that:

“prisoners, who are not yet eligible to undertake resettlement day/overnight release, may be granted childcare resettlement leave, if they meet all the criteria above and pass the usual risk assessment process.”

The Prison Act 1952, s.47(5), and the Prison Rules, rule 9, confer a wide discretion on the Secretary of State to grant temporary leave, and do not restrict it to the period leading up to release. Therefore it is open to the Secretary of State, in the exercise of his discretion, to adopt different eligibility criteria in respect of different types of temporary leave. For example, special purpose licences, which give prisoners temporary leave to respond to exceptional personal circumstances, such as bereavements or emergencies relating to children or elderly relatives, are available at any time during a prisoner’s sentence.

When PSO 6300 was first issued, a female prisoner would be able to meet the eligibility criteria in paragraph 2.5.1 even if she was not in the latter stages of her custodial term because:

The position in relation to semi-open and open conditions changed in 2009 and I address that issue below.

According to evidence from the Prisoners’ Advice Service (a charity specialising in prison law which represents the Claimants in these proceedings), prior to the changes in 2009, prisoners with more than 2 years until their earliest release date were, in practice, granted CRL, when they had been categorised as suitable for semi-open conditions.

Paragraph 2.5.3 of PSO 6300 requires a prisoner “to satisfy the governor that the definition of a sole carer is met in each case, at an early stage of the sentence”. This suggests that the governor might have to consider an application for CRL at any stage of the sentence, and therefore needs to obtain the necessary proof of sole carer status of a child under 16 as soon as possible.

Although it is generally considered that prisoners who still have long periods of imprisonment to serve are more likely to abscond than prisoners who are nearing release, the temporary release scheme incorporates a range of safeguards to address the risk of absconding, namely:

Furthermore, certain high risk categories of prisoners, such as Category A prisoners and prisoners who are on the escape list, are excluded from release on temporary licence altogether (PSO 6300, Introduction, paragraph vii).

The stated purpose of CRL, in paragraph 2.5.1, is:

“to encourage the maintenance of the parent/child tie and to help prepare the prisoner for the resumption of their parental duties on release.” (emphasis added)

Mr Potter said in his witness statement that both purposes were intended to be met at the same time, namely, during the final stage of the prisoner’s sentence of imprisonment, relying upon the use of the preposition ‘and’ instead of ‘or’.

However, this interpretation appeared to be contrary to rule 9(3)(f) of the Prison Rules, which provides for two alternative bases for temporary leave:

“to assist him in maintaining family ties or in his transition from prison life to freedom” (emphasis added)

Since the Prison Rules are secondary legislation, it can be assumed that the Secretary of State would have intended to issue policy which was consistent with the Rules.

Indeed, the introduction to PSO 6300 recognises the distinction between “maintaining, or re-establishing, family and community ties”, when considering the purposes of temporary leave (paragraph 1.4).

I accept the Claimants’ submission that the twin purposes in paragraph 2.5.1 are separate (though related), and can arise at different stages of the prisoner’s term of imprisonment. The maintenance of the mother/child bond is clearly not something that could be picked up in the last two years of a long sentence, as for instance employment skills could be. A mother’s relationship with her child will require continual nurturing throughout their separation if family ties are to be maintained. Unlike housing or employment, a child’s needs do not only arise during the last part of a sentence of imprisonment.

In my judgment, this analysis is consistent with the express purpose of maintaining family relationships set out in rule 4 of the Prison Rules:

“4.

Outside contacts.

(1)

Special attention shall be paid to the maintenance of such relationship between a prisoner and his family as are desirable in the best interests of both.

(2)

A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”

The Claimants also correctly observed that the stipulation, at paragraph 2.5.1, that the offender became ineligible for CRL once the child attained the age of 16 “because [the child is] eligible to visit a prisoner unaccompanied, in their own right, to maintain the parent/child ties” demonstrated that CRL was there to “maintain the parent/child tie” in itself and not simply in preparation for the prisoner’s resumption of their responsibilities on release.

If the Defendant’s interpretation was correct that the prisoner had to be in the final stages of their sentence to be eligible for CRL, then the prisoner would, in most cases, be eligible for resettlement day or night release in order to visit her children when her children turned 16 and not be dependent on visits from them. One of the specific purposes of resettlement day release was “maintaining family ties”, and “re-establishing links with family” was one of the specific purposes of resettlement night release. I was informed during the hearing that prisoners in open conditions do not usually receive family visits, because they are able to go home to visit their families.

The fact that a child over 16 could visit a prisoner unaccompanied would not be relevant if the prisoner in any event could apply for day or night release in order to maintain family ties. The only prisoner for whom it was relevant was one who was eligible for CRL while her child was under 16 (because she was assessed as suitable for semi-open conditions) but who was not yet eligible for day or night release to visit her children because she had more than 24 months of her sentence to serve.

The Defendant contended that the provision of visits, family days and telephone contact was the way in which the parent/child relationship was intended to be maintained prior to the final two years of sentence, not by CRL.

However, in my judgment, the very existence of CRL indicates recognition by the Secretary of State that visits and telephone calls were not as effective in maintaining parent/child relationships as home leave.

There was evidence before me (no doubt familiar to those who work in the prison service), that children often find the prison environment forbidding and upsetting. Visits are restrictive. They are brief in duration; infrequent; often involve long journeys and delays; personal one to one discussions between parent and child are not usually possible because the child is accompanied by another adult and often by siblings; the rule that the mother must remain seated means that normal interaction with young children is not possible. Opportunities for telephone calls are limited and no substitute for face-to-face contact, especially with young children.

These difficulties have been recognised by the prison service, which has responded constructively by introducing family days which are intended to improve the quality of prison visits for families. However, these only take place occasionally, about three times a year in MP’s prison.

It appears from the totality of paragraph 2.5 of PSO 6300 that the Secretary of State has decided that prisoners with sole care of children may need home leave in addition to visits and telephone calls. It is reasonable to assume that, in so deciding, he was taking into account the interests of the children, along with other relevant considerations.

In support of this assumption, it is relevant that paragraph 2.5.3 of PSO 6300 imposes a mandatory requirement that “the interests and the safety of the child must be taken into account in all decisions about granting childcare resettlement leave”.

This is consistent with the obligation under Art. 8 ECHR to respect the family life of children, and to treat the best interests of the child as a primary consideration, as required by the UNCRC Article 3(1). I consider these obligations in more detail below.

A prisoner who is resident in, or has been categorised as suitable for, semi-open or open conditions will have undergone a risk assessment for that purpose.

However, Paragraph 2.5.8 provides for additional risk assessment prior to a grant of CRL. It provides that release on CRL is subject to risk assessment ‘in the normal manner’ i.e. as in other types of ROTL.

Appendix A to PSO 6300, at paragraph 10, identifies the main considerations to be borne in mind when assessing applications, namely:

Paragraphs 13 – 25 set out an elaborate risk assessment procedure incorporating OASys, and include reports on:

For the purposes of the risk assessment, information is also obtained from outside agencies, as shown by the pro forma temporary release forms in Appendix B:

The reports are formally considered by a Board, constituted in accordance with paragraph 43 of Appendix A. The Board has power to ask for further information and the prisoner may be invited to attend. A recommendation as to whether a licence should be granted, and if so, on what conditions, will then be made to the Governor. Any conditions may be imposed, typically, there will be a condition that the offender remains at a particular address at certain times, and on occasion, remains in the company of a specified individual. The prisoner is likely to have to sign on at a local police station or with a probation officer on a daily basis. There is usually a prohibition on consumption of alcohol or gambling, and a ban on entering licensed premises.

The Governor makes the final decision, on behalf of the Secretary of State. According to the note to ROTL Form 4:

“Where the balance of assessment is in the prisoner’s favour, Governors must, before making the final decision, consider the reaction of the public, if the release on temporary licence was given publicity; if it is judged that reasonable public opinion would find the release unacceptable, Governors must consider whether or not to approve the application even if all other factors are positive.”

In my judgment, the thorough risk assessment and decision-making process in PSO 6300 is capable of meeting the requirements of release on CRL at any stage of the sentence, as it has done in the past, and continues to do in the case of special purpose licences.

The Detailed Grounds of Resistance filed by the Defendant in MP’s case stated, at paragraph 55:

“The mere fact that this form of leave is described as ‘resettlement’ leave ought to be conclusive as to its being resettlement leave as opposed to a general form of leave”

Counsel for the Defendant submitted in her skeleton argument:

“taken alone, the fact that Childhood Resettlement Leave is described as resettlement leave is, of itself, the clearest indication that it is intended to facilitate resettlement as opposed to providing a general means of facilitating contact between parent and child throughout the entire sentence.”

These legal submissions were based upon Mr Potter’s evidence, where he said:

“it is .. resettlement leave and therefore not intended to be taken early in a sentence”

Upon closer investigation of the evidence, it became apparent that the term ‘resettlement’ does not merely refer to the process of preparing a prisoner for release in the final stages of her sentence. It is used as a term of art in the prison and probation services, to refer to the steps taken to rehabilitate offenders and thereby reduce re-offending, throughout the custodial term, and following release on licence.

PSO 2300 on Resettlement, issued in 2001, provides:

“1.1

Resettlement is a core function of the Prison Service, directly related to the Prison Service’s Aim: ‘to reduce reoffending and protect the public’. It involves work to secure the release of prisoners back to the community without further offending. Helping prisoners maintain and develop appropriate community ties and prepare for their release, including by securing future employment and accommodation, is particularly important. But, as reflected in this PSO, a great deal of what happens to a prisoner while in custody will be relevant to his or her resettlement. This involves action taken to deliver Prison Service Objective 2: ‘to reduce crime by providing constructive regimes which address offending behaviour, improve educational and work skills and promote law-abiding behaviour in custody and after release.’

1.8

The following are central to the resettlement function:

•

probation and youth offending team services.

•

induction, assessment, allocation and sentence management.

•

bail information (local prisons and remand centres only).

•

accredited offending behaviour programmes.

•

drug treatment services (including CARATs).

•

education and training, including basic and key skills, PE, social and life skills and work-related skills and training.

•

work, particularly where it provides experience that relates to opportunities available after release.

•

preparation for release and pre-release courses.

•

liaison with outside agencies (such as those providing specialist advice, information and help prisoners in relation to employment and accommodation).

•

Home Detention Curfew, Release on Temporary Licence and parole.

•

health care.

•

victim issues.”

The broad range of resettlement functions described above plainly includes those carried out throughout the custodial term, not just at the final stages. This is further confirmed by the chapter headings of PSO 2300 which describe resettlement functions during the following stages of the custodial term:

“Starting custody”

“Throughout custody”

“Preparation for release”

“The resettlement estate”

Paragraph 2 of the Introduction states:

“”Resettlement” is a preferred term to “throughcare” because it has a clearer focus on outcomes rather than processes – on the release of prisoners back to the community without further offending.”

This passage echoes observations made a few months earlier in the foreword to ‘Through the Prison Gate – A Joint Thematic Review by HM Inspectorates of Prisons and Probation’ (2001):

“we use the word “resettlement” to refer to a long tradition of work whose essential aim is the effective reintegration of imprisoned offenders back into the community beyond the period of any licence to which they may be subject. There will be those who look to older terminology – such as aftercare and throughcare . Others may feel that resettlement is as much open to objection as rehabilitation and reintegration on the grounds that it implies restoration of a condition that never was: many imprisoned offenders were not habilitated, integrated or settled prior to their incarceration. We understand these doubts. But we nevertheless favour the use of resettlement. It focuses attention on the desired outcome as well as the processes which allegedly promote the outcome.”

The inspectors went on to define ‘resettlement’ at paragraph 1.7 of their report:

“ The definition of resettlement agreed by the Association of Chief Officers of Probation was adopted for the purposes of the thematic review:

‘A systematic and evidence-based process by which actions are taken to work with the offender in custody and on release, so that communities are better protected from harm and reoffending is significantly reduced. It encompasses the totality of work with prisoners, their families and significant others in partnership with statutory and voluntary organisations.’ ”

These passages explain how the term ‘resettlement’ came to be adopted and provide further confirmation for the view that resettlement work is not limited to the final stages of the custodial term.

In light of the above, I conclude that the use of the word ‘resettlement’ in CRL does not have the significance which Mr Potter attributed to it.

During the period of time relevant to these claims, the Secretary of State (and those making decisions on his behalf) have misinterpreted PSO 6300, and the policy on the grant of CRL, by taking the view that CRL was only ever intended to be available to prisoners who were in the final stages of their custodial term, and thus close to release. In my judgment, the terms of PSO 6300 reflect a policy that CRL could, in principle, be available at any stage of a prisoner’s sentence, provided other eligibility criteria were met.

PSO 0900: Categorisation and Allocation was issued in 2000. It sets out, in paragraph 6.1, four security categories for women prisoners:

“Category A

Prisoners whose escape would be highly dangerous to the public or the police or the security of the state, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible.

Closed Conditions

Prisoners for whom the very highest conditions of security are not necessary but who present too high a risk for open conditions; cannot be trusted in open conditions or for whom open conditions are not appropriate.

Semi-Open Conditions

Prisoners who present a low risk to the public but who require a level of physical perimeter security to deter abscond (sic)

Open Conditions

Prisoners who present a low risk; can reasonably be trusted in open conditions and for whom open conditions are appropriate.”

Under PSO 0900 a prisoner serving more than 3 years cannot be categorised for open or semi-open conditions at the commencement of her sentence (paragraphs 6.2.3 – 6.2.6).

However, on re-categorisation, this restriction does not apply, and a prisoner can be categorised for open or semi-open conditions “irrespective of the time length to serve” (paragraph 7.4.6).

Length of sentence is relevant to the assessment in that staff have to consider whether the prisoner has spent a period in closed conditions sufficient to enable her to come to terms with her sentence and to establish sentence planning priorities. The risk of absconding has to be weighed carefully if the prisoner has a long time left to serve (paragraph 7.4.6).

PSO 0900 distinguishes between three types of decisions:

Case law has confirmed that categorisation and allocation are ‘different things’: per Goldring J in R (Bryant) v SSHD [2005] EWHC 1663 (Admin) [27],[57].

PS1 03/2009, issued on 14 May 2009, introduced a general policy that prisoners should not be allocated to open conditions more than 2 years from their earliest release date.

“14.5

When assessing long sentence prisoners for open conditions it is vital to balance the risks involved if the prisoner were to abscond against the likely benefits to the prisoner of going to open conditions at this stage. Governors will need to consider whether the prisoner has made sufficient positive and successful efforts to reduce risk levels and that the benefits he or she would gain from allocation to open prison are worthwhile at this particular stage in sentence….”

“14.6

In addition, prisoners should generally not be allocated to open prison: -

•

with more than 2 years to serve before their earliest release date…

Where prisoners are more than 2 years away from earliest release date they must still have their categorisation reviewed in line with the normal process and consideration given to whether there are exceptional circumstances to justify allocation to open prison at this stage…”

In R (Smith and Mullally) v The Governor of HMP Lindholme [2010] EWHC 1356 (Admin) it was held that, on a proper interpretation of the wording of paragraph 14.6, the 2 year rule only applied to allocation, not to categorisation. H.H. Judge Kaye (sitting as a Deputy High Court Judge) said:

“55.

What is envisaged, in my judgment, is that the normal process of categorisation or re-categorisation is to be undertaken, but when it comes to allocation, bearing in mind that it is the normal rule that prisoners do not spend longer than 2 years in open conditions before their release date it is not surprising, when it comes to allocation, that “at this stage” consideration must be given as to whether there are “exceptional circumstances” justifying allocation to open conditions when a prisoner is not in his or her last two years….

“The guidance however, is just that. I have already stated that there is flexibility built into the policy. This means that each case must be carefully and appropriately considered.”

He concluded that, in the cases before him, the prison service had adopted “an inflexible approach to a flexible policy” [57] and “without thought, without consideration of the individual merits and parrot fashion” [59].

I accept that the effect of the change in general eligibility for open conditions is to make it more difficult for a women prisoner to become eligible for CRL. Generally, she has to be within 2 years of her earliest release date to be ‘resident in open conditions’ (the first limb of paragraph 2.5.1), unless there are exceptional circumstances.

According to Ms Linda Charles, Head of the Offender Management Unit at HMP Send, exceptional circumstances justifying CRL cannot be taken into account when considering whether there are exceptional circumstances justifying a move to open conditions earlier than 2 years before the earliest release date:

“22.

… the Board is not able to consider the needs of the Claimant’s children or any potential impact on their and the Claimant’s article 8 rights. Re-categorisation is a decision based solely on risk in terms of escape/abscond, and risk of harm to the public should there be an escape or abscond.”

Thus, when eligibility for open conditions is considered as the criterion for eligibility for CRL, it is now an inflexible rule that the prisoner must be within 2 years of her earliest release date.

I accept that, when the change in eligibility for open conditions was introduced by the Secretary of State, consideration was not given to the potential adverse impact on eligibility for CRL.

PSI 39/2011 superseded PSO 0900, with effect from 1 September 2011. It alters the approach taken in PSI 03/2009, providing that, “in the majority of cases it will be inappropriate to re-categorise a prisoner to open conditions more than 2 years before her earliest release date” (paragraph 8).

Ms Barbara Treen, of the National Offenders Management Service, gave evidence that prior to 2001, all women’s prisons were designated as either open or closed.

Over the winter of 2001/2 two open prisons, HMP Morton Hall and HMP Drake Hall were re-designated as semi-open prisons. Ms Treen said that Drake Hall and Morton Hall were re-designated as closed prisons with effect from 2 March 2009. She explained that the reasons for this change were:

I was also shown a House of Commons Written Answer given by the Secretary of State for Justice, Maria Eagle MP, on 5 March 2010 which said:

“On 11 February 2009 the National Offender Management Service (NOMS) announced the re-designation of both HMP Morton Hall and HMP/YOI Drake Hall from semi-open to closed prisons. There are no plans to change this decision. The re-designation, which took effect on 2 March 2009, allowed NOMS to more effectively provide for the needs of all women prisoners through greater flexibility in the use of the estate. It has also improved closeness to home for some women, supported the placement of indeterminate sentenced women in accordance with their needs, and in general enabled more women to access the resettlement regimes available at these two prisons. There was no requirement to move any of the women out of either prison as a result of the change. Both establishments retained their levels of internal and perimeter security and their resettlement regimes, including their roles as specialist foreign national centres. Women suitable for open conditions are able to go to these prisons if such a move meets their resettlement needs.”

It appears from the evidence that the purpose of the re-designation was to improve provision for women prisoners, not to impose a more restrictive regime. In my judgment, it is clear that the reasons for re-designation of the semi-open prisons had nothing to do CRL.

More importantly, there is no evidence that any consideration was given to the potential impact on the availability of CRL at the time when the decision to re-designate was made. Indeed, counsel for the Secretary of State has not sought to submit that any such consideration was given at the time the decision was made. I accept the Claimant’s submission that any change to the eligibility for CRL as a result of the re-designation of semi-open prisons was an unintended consequence.

I also accept that the effect of the abolition of semi-open prisons was to restrict access to CRL. Prisoners were eligible for categorisation and allocation to semi-open conditions at any stage of their sentences. Semi-open was an intermediate category, between closed and open, and therefore more easily attained than open. I have already referred to the evidence from the Prisoners Advice Service that, in practice, women prisoners with more than 2 years to serve before release were categorised as semi-open and granted CRL.

The Claimants submitted that, after the re-designation of the semi-open prisons in 2009, the Defendant should have continued to categorise prisoners as semi-open, or assess them as suitable for semi-open, to enable them to apply for CRL. PSO 6300, at paragraph 2.5.1, provides that a prisoner may be eligible if:

The Defendants submitted that it was not possible to assess the Claimants for semi -open conditions because the category no longer existed. In paragraph 6 of her statement, Ms Treen stated that the semi-open category was abolished in 2009.

Curiously, PSO 0900 was never amended to remove the provisions relating to the semi-open category, despite being regularly reviewed and amended in other respects. It was superseded on 1 September 2011 by PSI 39/2011. Paragraph 1 of PSI 39/2011 stated that its purpose was (inter alia) to remove the category of semi-open. So technically the category of semi-open appears to have continued until 1 September 2011, despite the fact that no allocation to a semi-open prison could be made after March 2009.

Therefore, it would have been possible for the prison service to categorise the Claimants as semi-open, and assess them as suitable for semi-open, but allocate them to closed conditions, under the terms of PSO 0900, at any time up to the implementation of PSI 39/2011. The Claimants would then have been eligible for CRL. This could have been a temporary solution pending a proper re-consideration of CRL policy.

However, in my judgment, once semi-open prisons ceased to exist, the Secretary of State had a discretion as to how to re-formulate prison service policy in respect of CRL. He was not obliged to follow the route suggested by the Claimants of utilising the obsolete categorisation of semi-open, as a means of assessing prisoners for CRL.

PSO 6300 has never been amended to reflect the change in the prison estate in 2009 and the reference to semi-open conditions, in paragraph 2.5, setting out the criteria for CRL, still remains. The Order has been amended in other respects, but this issue has apparently been overlooked.

As long ago as 5 August 2010, the Prison Ombudsman alerted the Ministry of Justice to the need to revise PSO 6300 to address the fact that semi-open conditions no longer existed.

The Secretary of State (through Mr Potter’s predecessor) had sent a letter to all Governors on 29 October 2009 informing them that a review of CRL policy had begun. I was told that the review had been triggered by a specific case in which a long term prisoner who was at an early stage of his/her sentence, and who had been categorised and allocated to secure conditions, had been granted CRL in error. The letter reminded Governors that “whilst there was no minimum eligibility date for release on CRL”, rule 9(5) of the Prison Rules had to be considered. It added:

“All cases must be considered on the individual circumstances. Cases involving prisoners serving sentences for serious violent or sexual offences, and any offence involving the death or serious injury of the victim, must be considered with particular sensitivity to public confidence. Depending on the individual circumstances of the case, the earlier the proposed period of CRL falls following conviction the higher the risk that granting CRL might undermine public confidence. The review of CRL will consider whether to set a minimum custodial period to be served before a prisoner becomes eligible for CRL.”

Mr Potter joined the unit responsible for temporary leave in early 2010. In paragraph 13 of his witness statement in P’s case, he said that there had been an internal review on whether there was a need to add a minimum eligibility date, in addition to a requirement to be categorised as suitable for open conditions, in order better to ensure consistency and avoid prisoners getting the leave unacceptably early in their sentence. He said:

“The conclusion of the review, which was an internal review canvassing the views of staff at women’s prisons, was that this extra criterion was unnecessary on balance because (once the reference to semi-open conditions is disregarded as it now should be) the eligibility criteria include a requirement to be in or assessed as suitable for open conditions. This meets the aim of ensuring consistency of practice across prisons so that CRL is generally only available where the prisoner has reached a point in their sentence where they can both be trusted in open conditions and can generally be said to have reached a point where they have served a proportion of their sentence when release would not be likely to undermine public confidence in the administration of justice.”

During the hearing, I was informed that the review commenced in late 2009 and concluded in early 2010. I asked to see a copy of this review, or at least a file note or letter to Governors summarising its conclusions. I was told that there was no written record of it; Mr Potter was simply relying on his memory.

In my experience, it is unusual for civil servants not to make any written record of the outcome of a policy review. If this was indeed what happened, it was a departure from good standards of public administration.

I was told that the results of the review had not been communicated to Governors or the prison service generally, nor to prisoners. The reason given to me was that it was not thought necessary to do so, because no change was being made to the existing policy. If this was what happened, this would have been a departure from good practice, particularly as the existence of a review was widely known. The Governors had been notified of the forthcoming review, and the fact that a review was forthcoming was a factor taken into account in the decision of the Prison Ombudsman’s report in P’s case.

On the evidence before me, I was not satisfied that the review on the grant of CRL had taken into account all relevant considerations. In particular, there was no indication that the civil servants responsible for the review had considered whether the changes to categorisation and allocation policies, which had the effect of preventing women from being granted CRL prior to 2 years before their earliest release date, was compatible with Art. 8 ECHR and the UNCRC. If the Secretary of State had consulted outside the prison service, no doubt these matters would have been drawn to his attention.

In my judgment, the review had also proceeded on the mistaken assumption that, under PSO 6300, CRL was only ever intended to be available to prisoners in the final stages of their sentence. As I have already held, this was a misinterpretation of the Order and the policy.

By section 6(1) of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Art. 8 provides:

“1.

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

2.

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

Thus, an interference can only be justified under Art. 8(2) if:

It is well-established that a prisoner does not forfeit his Convention rights in their entirety, including his right to family life, merely because of his status as a person detained following conviction: Dickson v United Kingdom (2008) 46 E.H.H.R. 41, at [68]; Hirst v United Kingdom (2006) 42 E.H.H.R. 41, at [69], [70].

The initial sentence of imprisonment necessarily interferes with her Art. 8 rights, as it entails a prolonged separation from her family. The interference will be justified under Art. 8(2), as necessary in a democratic society, in the interests of public safety and for the prevention of disorder and crime.

However, this does not preclude a subsequent breach of Art. 8 arising from refusal of temporary leave from prison in an appropriate case. In Ploski v Poland (App. No. 26761/95), the ECtHR held that there was a breach of Art. 8 in refusing to allow a prisoner temporary leave to attend his parents’ funerals. The Court accepted that the interference was in accordance with the law, and in pursuit of a legitimate aim under Article 8(2), namely, ‘public safety’ and ‘for the prevention of disorder and crime’. However, it found that the interference was not justified on the facts of the case.

“35.

The Court emphasises that, even if a detainee by the very nature of his situation must be subjected to various limitations of his rights and freedoms, every such limitation must be nevertheless justifiable as necessary in a democratic society. It is the duty of the State to demonstrate the existence of a pressing social need…

37.

.. taking into account the seriousness of what is at stake, namely refusing an individual the right to attend the funerals of his parents, the Court is of the view that the respondent State could have refused attendance only if there had been compelling reasons and if no alternative solution – like escorted leaves – could have been found. ”

In R (P and Q) v Secretary of State for the Home Department [2001] 1 WLR 2002, the Court of Appeal reviewed the ECHR cases on prisoners. Lord Phillips MR said at [78]:

“It is possible to draw some general conclusions from these authorities: (i) the right to respect for family life is not a right which the prisoner necessarily loses by reason of his/her incarceration; (ii), on the other hand, when a court considers whether the state’s reasons for interfering with that right are relevant and sufficient, it is entitled to take into account (a) the reasonable requirements of prison organisation and security and (b) the desirability of maintaining a uniform regime in prison which avoids any appearance of arbitrariness or discrimination; (iii) whatever the justification for a general rule, Convention law requires the court to consider the application of that rule to the particular case, and to determine whether in that case the interference is proportionate to the particular legitimate aim being pursued; (iv) the more serious the intervention in any given case … the more compelling must be the justification.”

Cases concerning temporary leave from prison have identified additional factors which will be in play under Art. 8(2), such as the risk of absconding and re-offending, and the fact that mother and child are already separated, by virtue of the sentence of imprisonment:

The Claimants and the interested parties submitted that the decision makers’ reliance on Rule 9(5) of the Prison Rules, without weighing other relevant factors in the balance, was contrary to Art. 8 case law. Rule 9(5) provides that a prisoner should not be granted temporary leave if, having regard to the proportion of sentence served and the frequency of leave granted, the Secretary of State “is of the opinion that the release of the prisoner would be likely to undermine public confidence in the administration of justice”.

In Dickson v United Kingdom the ECtHR cited the following passage from Hirst v. UK:

“70.

Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.”

The Court concluded at [68]:

“Accordingly, a person retains his or her Convention rights on imprisonment, so that any restrictions on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or … an adequate link between the restriction and the circumstances of the prisoner in question. However, it cannot be based solely on what would offend public opinion.”

I agree with the Claimants’ submission that the phrase ‘offending public opinion’ in Dickson and Hirst is a shorthand expression which is intended to cover concerns such as those encapsulated in rule 9(5). In my view, that conclusion cannot be avoided merely because the phrase ‘offending public opinion’ is not used in rule 9(5). It is significant that the advice to Governors in ROTL 4, Appendix B, PSO 6300, summarising the effect of rule 9(5), states “if it is judged that reasonable public opinion would find the release unacceptable, Governors must consider whether or not to approve the application even if all other factors are positive.” As I read the judgments of the ECtHR, offending public opinion can be a relevant factor but it cannot be the sole factor justifying interference with Art. 8 rights.

Counsel for the Secretary of State submitted that Art. 8 was not engaged at all in respect of the eligibility criteria for CRL. The Secretary of State was entitled to adopt any eligibility criteria he chose, without regard to Art. 8. She argued that Art. 8 was only engaged once the eligibility criteria were satisfied and a decision was being taken on the merits of an application for CRL.

I do not accept this submission. Art. 8 is engaged whenever a public authority interferes with a citizen’s right to respect for his private and family life. Cases on temporary leave, such as Ploski, demonstrate that the denial of temporary leave engages Art. 8, even though detention is generally justified.

In principle, such ‘interference’ may occur as a result of a policy, which restricts benefits to a particular class. The case law demonstrates that the Court will consider whether there has been a breach of Art. 8 in respect of policy criteria, as well as a decision in an individual case: e.g. P and Q (policy not allowing babies to remain in mother and baby units after they attain the age of 18 months); Dickson v UK (policy refusing prisoners’ access to artificial insemination, save in exceptional cases).

In my judgment, exclusion of eligibility criteria from the scope of Art. 8 would enable policy makers to evade the protection afforded to citizens by s.6(1) HRA 1998, which renders it unlawful for a public authority to act in a way which is incompatible with a Convention right. The ‘act’ of making policy on CRL, pursuant to Rule 9 of the Prison Rules is, in my view, subject to s.6(1) HRA 1998.

In the alternative, the Defendants submitted that Article 8 was only ‘weakly in play’, citing Robert Jay QC (sitting as a Deputy High Court Judge) in R (Adelana) v Secretary of State for Justice [2008] EWHC 2612 (Admin), in which he declared unlawful a policy restricting temporary leave for prisoners in default of confiscation orders. I was not shown any ECtHR authority in which the concept of a ‘weak’ application of Art. 8 was discussed. If it means that the Art. 8 rights of prisoners are lawfully curtailed to a considerable degree, by virtue of their sentence, this is uncontroversial. However, in my judgment, this does not obviate the requirement for a proper consideration of Art. 8 rights, in accordance with Convention law.

The Defendants also submitted that consideration had been given to the Claimants’ human rights when they were sentenced, thus discharging the Secretary of State’s obligations. In P and Q, Lord Phillips MR acknowledged, at [79], that when sentencing a mother to be separated from her child, the court is bound to carry out a balancing exercise under s.6(1) HRA 1998 to justify the separation of mother and child. Counsel correctly submitted that this principle must apply to these two Claimants, and so in their cases, the separation from their children has already been sanctioned by the court.

However, in my judgment, it was not the responsibility of the sentencing judge to consider whether or not the Claimants should be granted CRL, whilst serving their sentences of imprisonment. The sentencing judge would not have had CRL in mind. The responsibility for this decision rests with the Secretary of State for Justice, at a later stage once the Claimants are serving their sentences.

In ZH (Tanzania)v Secretary of State for the Home Department [2011] 2 AC 166, Baroness Hale said:

Counsel for the Interested Parties made detailed submissions on the benefits for the children if MP and P were granted CRL. Mr Straw also relied on wider policy considerations relevant to the best interests of the children:

The Defendants submitted that the principles in ZH were of limited effect in the context of adult prisoners’ temporary leave. Unlike the immigration context, there was no primary legislation enshrining the primacy of the best interests of the child. The principles to be applied were those established in the extradition case of Norris v Government of United States of America [2010] 2 AC 487, where the Supreme Court held :

“52.

It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs.. It is instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a suspect, (ii) his detention, where necessary, pending trial, and (iii) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under article 8(2). In practice it is only in the most exceptional circumstances that a defendant would even consider asserting his article 8 rights by way of challenge to remand in custody or imprisonment..Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate.

53.

Massey v United Kingdom (App. No. 14399/02)... illustrates this proposition..”

In R (HH) v Westminster City Magistrates Court [2011] EWHC 1145 (Admin), Laws LJ said it was impossible to suppose that the court in ZH intended to depart from any of its reasoning in Norris which was determinative of the law relating to Article 8 claims by those seeking to resist extradition. He went on to analyse the way in which UNCRC Article 3(1) should be taken into account in extradition cases:

“59.

That is not to say, however, that ZH has no impact upon the application of the principles in Norris. The proposition that “the best interests of the child shall be a primary consideration” (UNCRC Article 3(1)) is of general application. But the indefinite article – “a primary consideration” – is significant. As Lady Hale stated in ZH (paragraph 25), “’a primary consideration’ is not the same as ‘the primary consideration’, still less as ‘the paramount consideration’”.

60.

Accordingly, while the best interests of affected children are “a primary consideration” in extradition cases, they cannot generally override the public interest in effective extradition procedures. There has to be an “exceptionally compelling feature” (Norris paragraphs 56, 91), giving rise to “the gravest effects of interference with family life” (paragraph 82). That is not ipso facto supplied by an extradition’s adverse consequence for the extraditee’s children.”

I accept that the principles set out in the extradition cases might well be applicable at the earlier stage when the Claimants were being sentenced for their crimes, when the issue was whether or not they should be imprisoned. But different considerations arise when the Secretary of State is considering the grant of CRL. First, by this stage, the Claimants are already serving sentences of imprisonment, in accordance with the legitimate aim of preventing crime. CRL does not alter that; it does not shorten their sentences. Secondly, the purpose of extradition is not the same as CRL. The purpose of CRL is to maintain parent/child contact and the policy states that the best interests of the child must be taken into account.

Furthermore, even before ZH was decided, in P and Q the Court of Appeal considered it was appropriate to apply Article 3(1) UNCRC, as reflected by the ECtHR case law in the application of Art. 8, to the issue of separating women prisoners and their babies: per Lord Phillips at [81] – [88]. He said, at [88]:

“We are here confronted with a situation in which the authorities chose not to interfere when the mother was imprisoned. The situation is not now the same as it was then. What might have been a proportionate interference then may not be proportionate now. A more complex dilemma has been created, in which there are a number of interests to be balanced: those of the state in the proper management of prisons, of the mothers in their family life, and of the children in the protection, not only of their family life but also their best interests. Before considering how this balance should be struck either in general or in any particular case, we must consider the domestic law.....”

P and Q lends support to the Claimants’ submission that the principles in ZH should be applied to issues arising out of the separation of women prisoners and their children.

I do not consider that the absence of primary legislation enshrining Article 3(1) UNCRC, in the context of temporary leave, means that the Secretary of State intended it to be disregarded when exercising his powers under the Prison Act and Prison Rules. As Lord Browne Wilkinson said in R v Home Secretary ex parte Venables [1998] AC 407, at 499F, it is legitimate to assume that Parliament has not maintained on the statute book a power capable of being exercising in a manner inconsistent with the UK’s treaty obligations, under Article 3(1) UNCRC, to treat the best interests of the child as a primary consideration.

Moreover, the Secretary of State explicitly acknowledges the relevance of Article 3(1) in PSO 4800 on Women Prisoners, under the heading ‘day to day living’ (p.17):

“..losing a parent to imprisonment is often an extremely damaging life event for a child and it is one of the international rights of the child that they are able to keep contact with their parent unless it is not in the child’s best interest”

“The 1989 UN Convention on the Rights of the Child states that “Children should not be separated from their parent except in their best interest; that both parents should have responsibility for their child; and that the best interests of the child ‘shall be a primary consideration’.”

In ZH, Baroness Hale stated that an important part of giving primary consideration to the best interests of the child is ascertaining the views of the child, and giving effect to the obligation in Article 12(2) UNCHR to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”.

In my judgment, those making individual decisions in respect of CRL are required to give effect to this principle, when considering Art. 8.

In P and Q, at [82], Lord Phillips said the Court ‘cannot avoid giving separate consideration’ to the rights of the children. In these claims, the Claimants’ children have been joined as interested parties, and separately represented. In my judgment, it is appropriate that separate consideration should be given to the rights of these children under Art. 8, and the UNCRC in these proceedings.

I conclude, therefore, that Art. 8 was engaged when the Secretary of State reviewed his policy on CRL, in 2009/2010 and when individual decisions were made to refuse CRL to P and MP. Article 3(1) UNCRC has to be considered as part of the application of Art. 8. On the evidence before me, little or no consideration was given to Art. 8 or Article 3(1) UNCRC when the policy was reviewed, or when individual decisions were made.

The Claimants submitted that the Secretary of State, and those charged with making decisions on his behalf, had unlawfully fettered their discretion in determining applications for CRL. After the re-designation of semi-open prisons in 2009, and the introduction of more stringent criteria for allocation to open conditions in PSI 03/2009, they applied an inflexible policy that a prisoner could only be eligible for CRL if she was either resident in, or categorised as suitable for open conditions, which generally occurred no earlier than 2 years prior to her earliest release date. This was a departure from the policy as originally promulgated which expressly provided that there was “no minimum eligibility date for CRL”.

Although PSI 03/2009 provides that a prisoner may be allocated to open conditions sooner than 2 years before her earliest release date “in exceptional circumstances”, there is no equivalent provision for CRL to be justified in “exceptional circumstances”. According to Ms Linda Charles, Head of the Offender Management Unit at HMP Send, exceptional circumstances justifying CRL cannot be taken into account when considering whether there are exceptional circumstances justifying a move to open conditions earlier than 2 years before the earliest release date because re-categorisation decisions are based solely on the risk of absconding and consequent harm to the public.

The Claimants submitted that the policy considerations which led to the introduction of the 2 year rule in respect of open conditions were not the same as those which were in play when considering CRL. Temporary leave from closed conditions, for the purpose of childcare, was very different to permanent allocation to open conditions. A prisoner might be suitable for CRL even if she was not suitable for open conditions. They submitted that applications for CRL required independent assessment of suitability, including a comprehensive risk assessment, and consideration of appropriate conditions.

De Smith’s Judicial Review 6^th ed. (2007) explains, at paragraph 9-005:

“The underlying rationale of the principle against fettering discretion is to ensure that two perfectly legitimate values of public law, those of legal certainty and consistency (qualities at the heart of the principle of the rule of law) may be balanced by another equally legitimate public law value, namely, that of responsiveness. While allowing rules and policies to promote the former values, it insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case.”

The principles to be applied when considering the lawful exercise of a discretionary power were set out by Lord Browne-Wilkinson in R v Home Secretary ex parte Venables [1998] AC 407, at 496H:

“When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.

These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd [1919] 1 KB 176; British Oxygen Co. Ltd. v Board of Trade [1971] AC 610. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5^th ed. (1995), pp 506 et seq., paras 11-004 et seq.

The position is well illustrated by your lordships’ decision in In re Findlay [1985] AC 318 which was itself concerned with the legality of the tariff policy announced in 1983 by Mr Leon Brittan. Your lordships held that the policy was lawful because it provided for a departure from the policy in exceptional circumstances. Lord Scarman said, at p.336:

“The question, therefore, is simply: did the new policy constitute a refusal to consider the cases of prisoners within the specified classes? The answer is clearly ‘no’.... I see nothing wrong in classifying offenders according to the character and gravity of their offences and to the length of sentences imposed provided always that the classification does not preclude consideration of other relevant factors such as prison record, personal or family circumstances and the element of risk (or its absence) in the event of early release.”

In my judgment this passage demonstrates that what saved Mr Brittan’s 1983 policy from being unlawful was that it contained within it the flexibility, in exceptional circumstances, to have regard to relevant circumstances and such circumstances included not only those factors relevant to the culpability of the offence but also ‘other relevant factors such as prison record, personal or family circumstances’.”

The Defendant submitted that the Secretary of State was entitled to fetter his discretion in respect of eligibility criteria. In my judgment, the principles set out above apply to any exercise of a discretionary power, including setting eligibility criteria which permit of no exception.

An example of a case where eligibility criteria were held to be an unlawful fetter is R (Adelana) v Secretary of State for Justice [2008] EWHC 2612 (Admin) where it was held that the Secretary of State had unlawfully fettered his discretion in PSO 6300 by imposing a blanket rule that prisoners serving a default term in respect of a confiscation order were only eligible for temporary release during the second period of imprisonment.

Where Art. 8 is engaged, the policy must admit of sufficient flexibility to enable the decision maker to strike a fair balance and determine whether, in the particular case, the interference is proportionate to the legitimate aim: see P and Q per Lord Phillips at [78], [100 - 102].

The danger in not spelling out that a policy is to be applied flexibly was explained in Cannan v The Governor of HMP Sutton [2003] EWCA Civ 1480, Sedley LJ said, at [4]

“a policy is a legal and practical necessity in order to ensure that the powers of control are applied lawfully and consistently as between prisoners but with due regard for particular circumstances. In the prison system, however, policies are typically, and understandably, promulgated in the form of orders. This makes it important that the flexibility which every lawyer knows is built into a policy should be spelt out so that officers and prisoners understand it, and should not be left to implication or mere ad hoc discretion.”

The guidance in Cannan is particularly apt in the case of CRL where the evidence revealed that a 2 year restriction was applied unthinkingly:

On an analysis of the decisions made in respect of P and MP over a number of years, (as set out earlier in my judgment), I am satisfied that an inflexible policy in relation to CRL was routinely applied, which did not involve consideration of the merits of individual cases and did not permit of any exceptions. This was unlawful.

I accept the Claimants’ submission that temporary leave from closed conditions, for the purpose of childcare, raises different considerations to those in play when considering permanent allocation to open conditions. Applications for CRL require an independent assessment of suitability for CRL, including a comprehensive risk assessment, and consideration of appropriate conditions.

In my judgment, the Secretary of State acted unlawfully when reviewing and applying his policy on CRL because he: