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

A public authority may adopt a policy with undefined exceptions. The policy is not an unlawful fetter merely because the exceptions are narrow or unspecified. The question is whether the practical operation of the policy shows that no person could sensibly qualify for an exception.

A general change of policy does not ordinarily create a legitimate expectation of individual consultation merely because persons affected had hoped to benefit from the former policy. The relevant expectation is ordinarily that applications will be considered under the policy in force when they are made, subject to any specific promise, established practice or statutory obligation.

The claimants were transferred life sentence prisoners detained in special hospitals. They sought renewed permission to apply for judicial review of the Secretary of State’s decision to end new applications for technical lifer status from 2 April 2005.

The claimants argued that the revised policy unlawfully fettered the Secretary of State’s discretion because its exceptional circumstances qualification had no practical content. They also argued that they had a substantive legitimate expectation of being able to apply under the former policy and of receiving individual notification and consultation before the change.

1. Renewed permission refused. The claimants did not establish an arguable case that the revised technical lifer policy unlawfully fettered the Secretary of State’s discretion.
2. The existence of undefined exceptions is not itself unlawful. Following the approach in R v North West Lancashire Health Authority ex parte A [2000] 1 WLR 977, the practical operation of the policy must be examined. An unlawful fetter would arise if the asserted exception were shown to be illusory and devoid of practical application.
3. That stage had not been reached. The Secretary of State had accepted that exceptional cases could be considered through the mental health route. The exceptions might be narrower than before, but their validity could not be rejected without evidence that nobody could sensibly qualify. The extent to which an applicant had prepared an application was a potentially relevant circumstance.
4. The claimants’ legitimate-expectation argument also failed. The proper starting point, described by reference to Findlay, was that any application would be considered under the policy applicable when made. No general right to consultation arose merely because persons affected by a policy change had hoped for a favourable decision.
5. Fisher v Minister of Public Safety (No 2) [2000] 1 AC 434 was materially different because it concerned a specific promise to an individual. Here there was no statutory obligation, promise or established practice requiring individual notification, consultation or preservation of the former policy.
6. The application for renewed permission was rejected. An order for detailed assessment of the public funding certificate was made.

First-instance judicial review permission decision. No prior appellate decision is stated in the judgment.