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

A public authority responsible for indeterminate sentence prisoners must provide systems and resources giving them a fair and reasonable opportunity to demonstrate to the Parole Board that continued detention remains necessary. Excessive systemic delay in transferring an approved prisoner to open conditions may breach that public law duty, even without a separate private law duty owed to the individual.

A temporary prioritisation policy may lawfully give priority to post-tariff prisoners where it is rational, fair, transparent in operation and allows exceptions. However, a policy materially affecting transfer timing and the opportunity to seek exceptional treatment must be published. An unlawful failure to publish does not necessarily justify quashing a lawful policy where the claimant suffered no detriment.

These conjoined judicial review claims concerned two indeterminate sentence prisoners, Keith Haney and Peter Jarvis, who had been approved for transfer from closed to open prison conditions but experienced substantial administrative delay. Open conditions were important to their rehabilitation, risk assessment, temporary release and preparation for Parole Board reviews.

The Secretary of State accepted that the transfer system had suffered a systemic failure and that the delay was excessive. The claimants challenged the October 2011 arrangements, which prioritised post-tariff prisoners over pre-tariff prisoners, and relied on public law, procedural fairness and Convention rights. The issues included whether the delay breached a public law duty, whether the prioritisation arrangements were rational and lawful, whether the policy unlawfully fettered discretion or required publication, and whether Articles 5, 8 or 14 of the Convention were engaged.

1. Public law duty. The Secretary of State owed a public law duty to provide the systems and resources necessary to give indeterminate sentence prisoners a fair opportunity for rehabilitation and to demonstrate to the Parole Board that continued detention was no longer required for public protection. The excessive delay in transferring both claimants to open conditions breached that duty. A separate private law duty owed personally to each prisoner was unnecessary.
2. The claimants were entitled to declarations recording the breach and the resulting excessive delay. A mandatory order was unnecessary because the backlog had been cleared and both prisoners had been transferred.
3. Prioritisation arrangements. The October 2011 arrangements were rational and fair. It was legitimate to prioritise post-tariff prisoners because they were eligible for release and continued detention might become unlawful. Prioritising pre-tariff prisoners by proximity to tariff expiry was transparent, practical and rational. The Secretary of State had considered relevant alternatives and retained power to consider exceptional cases.
4. The arrangements did not unlawfully fetter discretion. A public authority may adopt and apply a general policy to promote consistency, provided it remains willing to consider exceptions and relevant individual circumstances. The claimants had not shown exceptional circumstances beyond the common effects of the backlog.
5. The arrangements constituted a policy under Prison Act 1952, section 12, and should have been published. The failure to publish was unlawful, but the policy itself was lawful and Mr Jarvis suffered no detriment. The appropriate remedy was publication or amendment of the published policy, not quashing.
6. The claims under Articles 5, 8 and 14 were dismissed. The court was bound by the House of Lords decisions in R (James, Lee & Wells) v Secretary of State for Justice and R (Clift) v Secretary of State for the Home Department, notwithstanding later contrary Strasbourg decisions. Permission to appeal was granted on the Convention issues.

These were conjoined first-instance judicial review claims. The judgment does not state any prior appellate decision in the same litigation.