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

Childcare Resettlement Leave may, in principle, be available at any stage of a prisoner’s sentence. Eligibility cannot lawfully be restricted by an inflexible rule requiring the prisoner to be within two years of release or suitable for open conditions.

The decision-maker must interpret the governing policy consistently with the Prison Rules, consider the individual circumstances and conduct a proper risk assessment. Where refusal interferes with family life, Article 8 is engaged. The best interests of affected children must be treated as a primary consideration. Public confidence may be relevant, but cannot be the sole justification for interference with Article 8 rights, and the threshold in rule 9(5) requires an opinion that release would undermine public confidence.

Two serving female prisoners challenged refusals of Childcare Resettlement Leave (“CRL”). MP was refused leave because she was not categorised as suitable for open conditions and was more than two years from her earliest release date. P had been assessed as suitable for open conditions, but her application was refused because of the length of her sentence and the period remaining to serve.

The claims concerned the interpretation and application of Prison Service Order 6300 following the abolition of semi-open prisons and the introduction of a general two-year allocation policy for open conditions. The central issues were whether the policy unlawfully restricted eligibility, fettered discretion, and breached Article 8 and the requirement to treat children’s best interests as a primary consideration.

1. CRL policy. The claims concerning the CRL policy succeeded. Prison Service Order 6300 expressly provided that there was no minimum eligibility date. Its purposes of maintaining the parent-child relationship and preparing the prisoner for parental duties were separate and could arise at different stages of imprisonment. The term “resettlement” was not confined to the final part of a sentence.
2. The Prison Act 1952 and the Prison Rules conferred a wide discretion to grant temporary release. The detailed risk-assessment process in PSO 6300 was capable of addressing risks at any stage of sentence. The abolition of semi-open prisons and the two-year policy for allocation to open conditions had unintentionally restricted CRL and did not justify treating that restriction as an absolute eligibility rule.
3. The policy review failed to consider relevant matters, including Article 8 and Article 3(1) of the UNCRC. Article 8 was engaged both by the policy criteria and by individual refusals. The best interests of affected children had to be considered as a primary consideration, with the children’s views given appropriate weight.
4. The Secretary of State unlawfully fettered his discretion by applying a blanket rule without allowing exceptions or considering individual circumstances. CRL required an independent assessment of suitability, risk and appropriate conditions. The two-year rule for open-prison allocation could not simply be transposed into CRL eligibility.
5. MP’s CRL decision was quashed and remitted to a different decision-maker. P’s decision was also quashed. The Governor had correctly considered P’s application on the merits, but had relied on an erroneous interpretation of the policy, failed to apply the Article 8 proportionality test, and misapplied rule 9(5) by asking whether release may, rather than would, undermine public confidence.
6. MP’s separate challenge to the June 2011 refusal to re-categorise her for open conditions was dismissed. The Board had considered her individual circumstances and was entitled to take her continued denial of guilt and the risk associated with a long period still to serve into account. Categorisation and allocation were distinct decisions, and family needs were not relevant to the objective categorisation assessment under PSO 0900.

These were consolidated first-instance judicial review claims in the Administrative Court. The judgment itself records earlier prison, Ombudsman and internal review decisions, but no appeal from a lower court.