Gourlay, R (on the application of) v The Secretary of State for Justice & Ors

A prisoner’s denial of offending must not, by itself, prevent progression or release. It remains relevant to assessing risk and rehabilitation. The Secretary of State must provide systems and resources giving an indeterminate-sentence prisoner a reasonable opportunity to demonstrate reduced risk, provide them rationally, and comply with applicable policies. Under Article 5 ECHR, the opportunity must be reasonable in all the circumstances. The duty does not require provision of a particular course, maximum coursework, or everything conceivably possible. Relevant circumstances include the prisoner’s history and prognosis, risks, competing demands, available resources, and use made of opportunities already provided. A private prison is subject to the same substantive rehabilitation duty as a state prison. On the facts, the claimant had received a reasonable opportunity, and the judicial review claim was dismissed.

The claimant was a post-tariff life prisoner held at HMP Northumberland, a privately managed prison. He maintained his innocence of his sexual convictions and had repeatedly been assessed as unsuitable or unready for the Sex Offender Treatment Programme. He challenged the alleged failure of the Secretary of State and the prison operator to provide suitable rehabilitative work, including work for prisoners in denial, and relied on common-law public-law duties and Articles 5 and 8 ECHR.

The court considered systemic challenges concerning provision for deniers and an individual challenge based on the claimant’s prolonged lack of progression. It also considered whether the private prison’s duties differed from those of the Secretary of State.

1. Permission and pleading. Permission was extended to the second defendant. The claimant could not introduce, through oral submissions, an unpleaded case that particular SOTP modules should have been provided. A prisoner cannot demand a particular course, but a specific alleged failure must be identified sufficiently to give the defendants notice.
2. Applicable duties. Following R (Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587, the common-law duties comprise providing systems and resources giving a reasonable opportunity to demonstrate reduced dangerousness, providing them rationally, and acting in accordance with rules and policy. Under Article 5, R (Haney, Kaiyam and Massey v Secretary of State for Justice [2014] UKSC 66; [2015] 2 WLR 76) establishes a fact-sensitive duty to provide an opportunity reasonable in all the circumstances to rehabilitate and demonstrate that the prisoner no longer presents an unacceptable danger.
3. The duty is not an obligation to maximise provision or furnish a particular course. Resources cannot provide a defence to breach, but available resources and competing needs are relevant in deciding whether the duty has been breached. The relevant assessment includes the prisoner’s history and prognosis, risks, competing needs, resources, and use made of previous opportunities.
4. The systemic duty includes keeping course provision under review and developing it in light of relevant research. The phased development and roll-out of Horizon and Kaizen were rational. The evidence did not establish a breach, and the availability of C-SOGP places for deniers in the community did not demonstrate that equivalent provision was required in custody or open conditions.
5. A denial of guilt cannot alone prevent progression. The prison authorities must proceed on the basis of the conviction while treating denial as relevant to risk. The claimant had completed available courses and received other interventions. His failure to benefit, or refusal to recognise a need for change, did not establish that he had been denied an opportunity reasonable in all the circumstances. The 2015–2016 individual work was not shown to have been required earlier.
6. The duties of the Secretary of State and the private prison were substantively the same. Contractual limits requiring delivery of accredited programmes could not create a two-tier prison system or exclude the Article 5 duty. This conclusion was academic because no breach had been established.
7. The claim for judicial review was dismissed.