Guittard, R (on the application of) v Secretary of State for Justice

A public authority may adopt a precise policy for dealing with recurrent applications, but it must retain a genuine discretion to depart from that policy and consider individual circumstances. The discretion must be real in practice and apparent to those responsible for exercising it. A policy requiring Parole Board involvement in transfers of IPP prisoners to open conditions is lawful only if exceptional cases can be considered independently. Where the authority has failed to consider whether an exception applies, the court may grant declaratory and mandatory relief.

The claimant was an IPP prisoner held in category C conditions. He sought judicial review of the Secretary of State’s refusal to consider his suitability for transfer to open conditions outside the forthcoming Parole Board review.

He alleged that the Secretary of State had unlawfully fettered his discretion, acted inconsistently with PSI 07/2008, and acted irrationally by treating IPP prisoners differently from determinate sentence prisoners for transfers to open conditions. Permission was granted, and the Secretary of State resisted the claim.

1. Ground I succeeded. The Secretary of State had wide statutory powers under sections 12 and 47 of the Prison Act 1952 and Rule 7 of the Prison Rules (SI 1999/728), but those powers had to be exercised lawfully.
2. A policy may guide the generality of cases, as explained in British Oxygen Co. Ltd. v Board of Trade [1971] AC 610 and R v Secretary of State for the Home Department ex parte Venables and Thompson [1998] AC 407. It must not prevent consideration of relevant circumstances or make departure from the policy impossible in practice.
3. The wording of paragraph 2.2.1 of PSO 6010 was ambiguous. Although the general policy of obtaining a positive Parole Board recommendation was sensible, the Secretary of State had not demonstrated a genuine discretion to consider an exceptional transfer without such a review. The absence of any response to the claimant’s request, reasons, or evidence of file review reinforced that conclusion. The discretion had therefore been unlawfully fettered, alternatively it had not been properly exercised.
4. Grounds II and III failed. PSI 07/2008 had expired and concerned initial categorisation and allocation within the closed estate. It did not govern later transfers to open conditions, which involved different risk considerations. There was consequently no relevant inconsistency with PSO 6010.
5. The court declined to decide whether a prescribed procedure for exceptional cases was legally required. A declaration and mandatory order were granted requiring the Secretary of State to consider the claimant’s suitability for transfer to open conditions forthwith.