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

The Secretary of State may maintain and apply a lawful policy governing transfers to open prison conditions, separately from directions governing the Parole Board’s functions. A Board recommendation on transfer is advice, not a binding direction, and the Secretary of State may rationally decline it by applying the current policy.

Directions issued under section 239(6) of the Criminal Justice Act 2003 bind the Board but do not control the Secretary of State’s distinct discretion. Article 5 requires a reasonable opportunity for a post-tariff indeterminate prisoner to demonstrate reduced risk. It does not require a particular course, placement in open conditions, or acceptance of a Board recommendation where a lawful alternative regime provides that opportunity.

The Secretary of State appealed against the Divisional Court’s decision, [2015] EWHC 927, which had held unlawful the policy excluding most prisoners with an abscond or serious ROTL-failure history from open conditions and had found its application to Mr Gilbert unfair.

Mr Gilbert was an indeterminate sentence prisoner. Following a failure to return from temporary release, the Parole Board declined to direct his release but recommended a return to open conditions. The Secretary of State instead applied the new absconder policy and transferred him to the closed-condition Progression Regime.

The appeal concerned the policy’s compatibility with statutory directions and Article 5, whether it undermined the Parole Board or operated as an unlawful blanket policy, and whether the individual decision was unfair or irrational.

1. Appeal allowed unanimously. The Divisional Court’s conclusion that the absconder policy was unlawful, and its finding of unfairness in Mr Gilbert’s individual case, could not stand.

2. The policy was not inconsistent with the Directions issued under section 239(6) of the Criminal Justice Act 2003. The statement that most indeterminate prisoners require a phased move from closed to open conditions was explanatory preamble, not a mandatory instruction. It also recognised that some prisoners could be released from closed conditions. The Progression Regime supplied an alternative route by which affected prisoners could produce evidence for a release decision.

3. The Directions governed the Parole Board, whereas the absconder policy governed the Secretary of State’s separate statutory discretion over transfer to open conditions. Under section 28 of the Crime (Sentences) Act 1997, the Board retained its duty to direct release when satisfied that continued confinement was no longer necessary for public protection. Under section 239(2) of the Criminal Justice Act 2003, however, the Secretary of State had discretion whether to seek the Board’s advice on transfer and was not bound to follow it. This was consistent with In re Findlay [1985] AC 318 and R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin).

4. The policy neither disabled the Board from conducting meaningful release reviews nor created an unlawful blanket exclusion. Its express exceptional-circumstances criteria allowed open conditions where they were absolutely necessary. Applying R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, Article 5 required a reasonable opportunity to demonstrate safety, not provision of a specified programme or open placement. The Progression Regime, together with the possibility of an exceptional transfer, met that standard.

5. There was no procedural unfairness. Continuing with the existing Board referrals did not give Mr Gilbert a clear, unambiguous and unqualified assurance that the new policy would not be applied, as required by R (Davies) v Revenue and Customs Commissioners [2011] UKSC 47. The Secretary of State fairly invited representations before deciding the issue. His conclusion that Mr Gilbert had not met the exceptional-circumstances criteria was rational: the Board had not found the risk of absconding eliminated and had identified further work that could reduce it. It was also rational to regard the Progression Regime as providing a reasonable alternative opportunity to demonstrate readiness for release.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and rejected the challenges to the absconder policy and to its application to Mr Gilbert: [2015] EWCA Civ 802.
• High Court, Divisional Court: Held the policy unlawful as inconsistent with the Directions and found its application to Mr Gilbert unfair: [2015] EWHC 927.