Bewley, R (On the Application Of) v Secretary of State for Justice

A public law and European Convention on Human Rights duty to progress an indeterminate prisoner towards rehabilitation and release requires a lawful mechanism offering a reasonable opportunity for progression. It does not require a particular outcome, immediate progression, or transfer to open conditions regardless of the prisoner’s circumstances. A policy allowing transfer in exceptional circumstances, followed by consideration for a progressive closed-prison regime, may satisfy that duty. A prisoner cannot establish a substantive legitimate expectation of transfer where the decision-maker lawfully changes policy, provided the individual case continues to be considered under the new policy.

The claimant, detained at Her Majesty’s pleasure after a murder conviction, challenged the defendant’s decision not to transfer him to open conditions following a policy change concerning prisoners who had absconded from open conditions. He alleged breaches of the duty to progress indeterminate prisoners, European Convention on Human Rights article 5, and legitimate expectation.

Mrs Justice Carr refused permission on the papers. The claimant renewed the application and sought to amend his grounds after the defendant applied the exceptional-circumstances test. The central issue was whether the new policy and its application to the claimant disclosed an arguable public law or Convention breach.

1. Renewed application refused. The claimant had no arguable grounds for judicial review.
2. The public law and article 5 duty required the defendant to provide a lawful mechanism giving the claimant a reasonable opportunity to progress towards rehabilitation and release. It did not require a particular outcome, immediate progression, or transfer to open conditions irrespective of the individual circumstances.
3. The new policy was capable of satisfying that duty. It allowed prisoners with a history of absconding to transfer to open conditions in exceptional circumstances and provided a progressive regime in closed conditions for prisoners who did not satisfy that test. The claimant’s argument that his failure to satisfy the exceptional-circumstances test itself left him without progression was therefore unarguable.
4. The claimant’s position had been considered individually. A speculative argument about whether places were available in the new regime could not establish arguability. The staged process of considering exceptional circumstances and then assessing suitability for the alternative regime was not inherently unlawful.
5. The reasoning in R (Haney and others) v Secretary of State for Justice [2014] UKSC 66 did not make the duty one of avoiding arbitrariness. Nor did the claimant show that the policy was impossible to satisfy or materially deficient. His decision under the policy was not alleged to be irrational or Wednesbury unreasonable.
6. The claimant had no substantive legitimate expectation of transfer. Consistently with Findlay [1985] AC 318, the relevant expectation was only that his case would be examined individually under whatever lawful policy the minister adopted. That had occurred.

High Court (Administrative Court): Mrs Justice Carr refused permission on the papers on 4 September 2014. On renewal, the High Court refused permission.