R v Secretary of State for the Home Department, Ex parte Hargreaves (Hargreaves, Ex parte)

A statutory discretion to regulate prison temporary release is not converted into a fixed entitlement by a former policy, notice or compact. On a lawful change of policy, a prisoner’s legitimate expectation ordinarily extends only to individual consideration under the policy in force, including a changed eligibility date. For a substantive policy decision, review remains confined to Wednesbury unreasonableness; the court must not substitute an overall fairness or proportionality balance. A representation must be clear and unambiguous, judged through the eyes of an ordinary prisoner. Article 8 does not prevent proportionate restrictions justified by public safety and public confidence.

Three category C prisoners sought judicial review of the Secretary of State’s introduction of a new temporary-release scheme and the Governor’s application of it to them. Under the former arrangements they could apply for home leave after serving one third of their sentences. The new scheme deferred eligibility until one half had been served. Each prisoner relied on a notice issued on admission and an inmate compact referring to consideration for home leave when eligible.

The Divisional Court dismissed the applications. The appeal concerned the meaning of the documents, the scope of legitimate expectation after a policy change, the proper standard of review for the Secretary of State’s substantive decision, and whether Article 8 was infringed.

The appeal was unanimously dismissed. Hirst LJ gave the leading judgment. Peter Gibson LJ agreed entirely, and Pill LJ agreed with the reasoning and outcome, adding observations on the compact.

1. Legitimate expectation. The principle in Re Findlay [1985] 1 AC 318 applied to changes in the timing of eligibility as well as to the grant of parole itself. A prisoner’s legitimate expectation was limited to individual consideration under whatever lawful policy the Secretary of State adopted. The principle was reinforced by Hughes v Department and Social Security [1985] AC 776.
2. Standard of review. On matters of substantive policy, Wednesbury unreasonableness remained the correct test. The court could not conduct its own overall balancing exercise based on fairness. The balancing approach proposed in R v Ministry of Agriculture Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd [1995] 2 AER 714 was overruled to that extent. The distinction between substantive review and procedural fairness was supported by R v Panel on Take-Overs and Mergers, ex parte Guinness plc [1990] 1 QB 146.
3. Article 8 and application. The restrictions pursued public safety and public confidence, amounted to a pressing social response, and were proportionate. There was no infringement of Article 8. The Secretary of State had considered public safety, public confidence, the effect on existing prisoners, transitional arrangements, distress and the benefits of home leave. His decision was neither irrational nor based on irrelevant considerations. Rules 6(4) and 6(5) of the Prison (Amendment) Rules 1995 expressly supported the relevance of risk and public confidence.
4. Notice and compact. A representation founding legitimate expectation had to be clear and unambiguous, interpreted through the eyes of an ordinary prisoner. The notice described home leave as a privilege and referred to information applying from a specified date. The compact promised consideration when the prisoner became eligible, without fixing the timing. Neither document therefore created the claimed expectation. The court nevertheless stressed the need for future prison documents to state the position plainly and precisely.

Order: appeal dismissed; legal aid taxation.

1. Court of Appeal (Civil Division). The appeal was dismissed unanimously.
2. Divisional Court of the Queen’s Bench Division. Kennedy LJ and McCullough J dismissed the applications for judicial review of the Secretary of State’s policy and the Governor’s decisions.