R (JH) v Secretary of State for Justice

The court considered a judicial review in which the claimants sought the long term transfer of a category B long‑term prisoner to a nearer local prison so that his disabled wife could visit, together with declarations and damages under the Equality Act 2010. The claimant argued breach of the Prison Rules, irrationality in prison allocation policy, failure to make reasonable adjustments under section 20 of the Equality Act 2010, and breach of the public sector equality duty in section 149. The judge held that the Prison Rules duty to provide visits is owed to the prisoner (rule 35) and does not require a particular visitor to be accommodated; the policy of separating local (short‑term) and training (long‑term) prisons is rational; and the defendant had made the reasonable adjustment of offering Accumulated Visits which was sufficient in the circumstances (section 20). The judge found shortcomings in the way the Secretary of State had given due regard under section 149 but concluded that, because of the statutory bar in section 31(2A) of the Senior Courts Act 1981 (as inserted by the Criminal Justice and Courts Act 2015), he could not grant a formal declaration where the outcome for the applicants would not have been substantially different; accordingly the claim was dismissed.

The claimants were a married couple: the second claimant is a convicted long‑term category B prisoner serving a determinate 17 year term; the first claimant is his wife who suffers from severe fibromyalgia and cannot reasonably or at proportionate cost undertake long car journeys to visit him where he is detained on the Isle of Wight. The claim sought transfer of the prisoner to HMP Exeter (a nearer local prison), a declaration of breach of the public sector equality duty under section 149 of the Equality Act 2010, and damages.

The court set out the factual and statutory context: the Prison Rules 1999 (notably rules 3, 4 and 35) emphasise maintenance of family relationships and provide prisoners an entitlement to receive visits; Prison Service policy divides category B establishments into local (short‑term) and training (long‑term) prisons; Accumulated Visits are an available adjustment to enable concentrated visiting opportunities.

The principal issues framed were whether (i) any public law duty under the Prison Rules required transfer to Exeter; (ii) the Secretary of State had failed in the statutory duty to make reasonable adjustments under section 20 of the Equality Act 2010; and (iii) the Secretary of State had breached the public sector equality duty in section 149 by failing to have due regard to equality considerations when formulating or applying policy. The judge also considered the impact of the amendment to section 31 of the Senior Courts Act 1981 (s31(2A) and (2B)) made by the Criminal Justice and Courts Act 2015.

The court reasoned that rule 35 protects a prisoner's entitlement to receive visits but does not confer a right for a specified visitor to be accommodated; the categorisation policy was rational and necessary for the effective operation of local prisons and rehabilitation services; the Secretary of State provided Accumulated Visits and related temporary transfers and had shown convincingly why a permanent transfer of a long‑term prisoner to a short‑term local establishment was not a reasonable adjustment. Accordingly there was no breach of the reasonable adjustment duty under section 20. On the public sector equality duty (section 149) the judge found evidence that the Secretary of State and staff had not positively and demonstrably given the due regard the statute requires. However, applying section 31(2A) of the Senior Courts Act 1981 (inserted by the Criminal Justice and Courts Act 2015), the court concluded it must refuse relief in the form of a declaration because it was highly likely that the outcome for the applicants would not have been substantially different had the duty been properly discharged; no exceptional public interest under s31(2B) justified disregarding that bar. The judge therefore dismissed the claim, and although he expressed a declaratory judgment-style finding about failure to have due regard, he ruled that a formal declaration could not be made because of the statutory embargo.

The claim is dismissed. The Secretary of State's policy of allocating long‑term category B prisoners to training prisons and local prisons to short‑term prisoners is rational and, in the circumstances, the provision of Accumulated Visits constitutes a reasonable adjustment under section 20 of the Equality Act 2010; there is no public law duty to transfer the prisoner to a particular visitor. Although the court considered that officials had not given the positive due regard required by section 149, section 31(2A) of the Senior Courts Act 1981 (as amended) prevents granting a declaration where the appellant could not show the outcome would have been substantially different, and no exceptional public interest justified departing from that bar.