Gilbert, R (On the Application Of) v Secretary Of State For Justice

A policy governing transfer of indeterminate-sentence prisoners to open conditions is unlawful where it conflicts with continuing statutory directions stating that phased release will be necessary in most cases to test readiness for release. A Secretary of State may tighten eligibility for temporary release, but cannot maintain inconsistent policy documents or frustrate directions given to the Parole Board while they remain in force.

Where the Parole Board has been asked to consider transfer to open conditions, and does so following an oral hearing, its recommendation must be considered on its merits. It cannot be rejected solely because an interim policy subsequently treats the prisoner as ineligible.

The claimant was serving an imprisonment for public protection sentence. After successfully spending a period in open conditions, he failed to return from a day of release on temporary licence and was returned to closed conditions.

The Parole Board later recommended his transfer back to open conditions. The Secretary of State refused that recommendation under an interim absconder policy, which made prisoners with specified histories ineligible for open conditions except in exceptional circumstances.

The claimant challenged both the policy and its application to him. The central issues were whether the policy was inconsistent with the Secretary of State’s continuing directions to the Parole Board and whether the individual decision was unfair.

1. The claim succeeded. The court declared the absconder policy unlawful to the extent that it was inconsistent with the Secretary of State’s directions to the Parole Board, and ordered the Secretary of State to reconsider his rejection of the recommendation that the claimant be transferred to open conditions.
2. The Secretary of State’s directions, issued under Criminal Justice Act 2003, s 239(6), stated that in most indeterminate-sentence cases phased release through open conditions was necessary to test readiness for release into the community. While the directions remained in force, they bound both the Parole Board and the Secretary of State. The Secretary of State could amend or revoke them, but could not lawfully direct the Board or his officials to ignore or frustrate them.
3. The absconder policy was irrationally inconsistent with those directions. It stated both that phased release would normally be necessary and that, following a failure to return from temporary release, such testing would occur only in exceptional circumstances. The inconsistency remained despite the policy’s reference to cases where open conditions were absolutely necessary.
4. The court did not decide the claimant’s wider challenges to the policy. The Secretary of State was entitled to respond to serious temporary-release failures by tightening the rules. The court also left open whether the new Progression Regime might provide an alternative method of testing suitability for release.
5. Independently, the policy was unfairly applied to the claimant. The Secretary of State had left the referral to the Parole Board unchanged, made no submissions at the hearing, and allowed the Board to consider transfer to open conditions. Its recommendation should therefore have been considered on its merits rather than rejected solely on the basis of the claimant’s supposed ineligibility.
6. The Secretary of State was granted permission to appeal against the declaration, but not against the reconsideration order. A stay was refused.