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

A Secretary of State may reassess a prisoner’s suitability for open conditions when policy changes the weight given to a history of absconding. A previous decision or Parole Board recommendation does not prevent such reconsideration, provided the decision is procedurally fair. Confidentiality may be justified where advance notice would increase security risks, but the prisoner must afterwards receive sufficient reasons to make meaningful representations. The duty to provide a reasonable opportunity for rehabilitation is assessed in the circumstances as a whole. A short delay while an alternative progression regime is introduced will not necessarily breach that duty, particularly where public protection requires urgent interim measures and reasonable opportunities are offered.

The claimant was serving an indeterminate sentence for public protection and had been transferred from closed to open conditions after the Secretary of State accepted a Parole Board recommendation. Following a change in policy giving greater weight to previous absconding, a central review panel decided that he should return to closed conditions. He challenged the decision on grounds including departure from published policies, procedural unfairness, inconsistency with the earlier decision and recommendation, and breach of the general public law and Article 5 ancillary duties to provide a reasonable opportunity for rehabilitation and release.

He was later released following a Parole Board direction. The issues before the court were whether the transfer decision was unlawful and whether the systems and opportunities provided after his return to closed conditions were legally adequate.

1. The claim succeeded to the limited extent that the decision to return the claimant to closed conditions was procedurally unfair. The Secretary of State was entitled to review his suitability and to use a central panel rather than the procedure in PSO 4700. That instrument was not a statute but, at most, an expression of procedural policy. Departure was justified by the need for consistency, speed and security: see R (Lumba) v Secretary of State for the Home Department [2012] AC 245.

2. The Secretary of State was also entitled to revisit the earlier assessment in light of the new policy. The Parole Board’s recommendation was not binding as to transfer, and the claimant could expect to be treated under the current policy: In re Findlay [1958] AC 318. The court found no substance in the challenge based on inconsistency with the earlier decision or recommendation.

3. Advance notice of the review was not required in the circumstances because disclosure might have increased the risk of absconding. However, fairness required adequate reasons after the transfer and a meaningful opportunity to make representations. The letter supplied did not explain that greater weight was now being given to abscond history, nor identify the negative factors which led to the conclusion that the claimant presented a high risk of further absconding. The duty was therefore breached.

4. The claim under the general public law duty and the ancillary Article 5 duty failed. The relevant question was whether, looking at the circumstances overall, the claimant had a reasonable opportunity to rehabilitate himself and demonstrate that he was safe to be released. The assessment was fact-sensitive. The period between the transfer in July 2014 and the offer of assessment for the progression regime in December 2014 was limited, the regime provided an alternative route to demonstrate suitability for release, and the claimant had been offered opportunities to seek exceptional-circumstances consideration and progression.

5. The court concluded that the progression regime fulfilled the general duty for prisoners with an abscond history and that there had been no unreasonable delay or wholesale failure of provision. No relief was granted on the successful procedural-fairness ground, although the parties were invited to make further submissions on relief.