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

A prisoner serving an indeterminate sentence must be given a reasonable opportunity to demonstrate reduced risk, but that duty does not make completion of a recognised sex offender treatment programme an invariable prerequisite for release. The Parole Board must assess risk for itself and must not fetter the means by which reduced risk may be demonstrated.

Where a prisoner’s case is complex, a reasonable and sequenced treatment pathway may require psychological or therapeutic work before sex-offender-specific treatment. The Article 5 duty is assessed by reference to the individual circumstances of the case. Discrimination is not established merely because a programme’s suitability for transgender prisoners has not been researched.

The claimant, a transgender prisoner serving detention for public protection following convictions for sexual offences, sought judicial review of the Secretary of State’s alleged failure to provide suitable offending-behaviour work. Her tariff had expired, but the Parole Board considered that her risk remained high pending further work.

The claim alleged breaches of a public-law duty to provide a reasonable opportunity for release, Article 5 of the European Convention on Human Rights, Article 14, the Equality Act 2010, and policy duties concerning transgender prisoners. The central issues were whether the claimant had been denied meaningful risk-reduction work, whether the treatment pathway was unreasonable or discriminatory, and whether completion of an accredited sex offender programme was required.

Claim dismissed. The Secretary of State had not breached any of the duties relied upon.

1. The public-law duty, described in R (Wells) v Secretary of State for Justice [2010] 1 AC 553, required a reasonable opportunity to demonstrate to the Parole Board that release was justified. It did not require an opportunity specifically to complete an accredited sex offender treatment programme. The Parole Board had to make its own assessment of risk and could not treat completion of a recognised programme as an invariable prerequisite or delegate its decision to programme providers.
2. The evidence showed meaningful risk-reduction work, including cognitive behavioural and in-reach work. The claimant’s case was unusually complex. The staged approach of addressing personality, relationship and other psychological needs before sex-offender-specific work was reasonable. The time spent in custody called for explanation, but did not itself establish unreasonable delay or a failure of public law duty.
3. The Article 5 duty was the duty identified in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 WLR 76: an opportunity reasonable in all the circumstances to rehabilitate and demonstrate that the prisoner no longer presented an unacceptable danger. The assessment was individual. Comparisons with selected features of other prisoners’ cases were unhelpful. The claim also differed from James, Wells and Lee v United Kingdom (2013) 56 EHRR 12, where the prison locations themselves deprived prisoners of offending-behaviour programmes.
4. The evidence did not show that access to offending-behaviour work had been denied because of transgender status. The need for preliminary work arose from the claimant’s psychological and relationship difficulties. The Article 14 and Equality Act claims therefore failed. The absence of research concerning transgender prisoners was not evidence of particular disadvantage, and evidence that at least 16 transgender prisoners were undertaking SOTP courses pointed against discrimination.
5. Section 149 of the Equality Act 2010 did not assist the claimant because it was premised on an invariable requirement to complete offending-behaviour coursework before release, which did not exist. The policy and sentence-planning complaints also failed.