Bonner v Secretary of State for Justice

Judicial review relief is discretionary and should serve a practical purpose. A declaration may be refused where the claimant has already obtained the benefit sought, the challenged policy has been published or the issue is academic. A declaration may nevertheless be granted for an admitted public law breach where the claim was issued before related test litigation resolved the issue. A challenge to a discretionary prison-transfer process will not be entertained where the claimant has already been transferred and released and its outcome cannot affect him.

The claimant, serving a life sentence, challenged delay in transferring him from closed to open prison conditions, the unpublished prioritisation policy for indeterminate-sentence prisoners, and the handling of an exceptional transfer application under the Prison Act 1952. His transfer was approved in October 2011, he moved to open conditions in September 2012, and he was released on licence at tariff expiry in August 2014.

The proceedings were stayed pending related litigation in R (Haney and Jarvis) v Secretary of State for Justice. The claimant later withdrew his Article 5 damages claim following Brown v Parole Board for Scotland. The remaining issues concerned the utility of declaratory relief and the continuing viability of the public law and Guittard grounds.

1. Ground 1. The court endorsed the conclusion in R (Haney and Jarvis) v Secretary of State for Justice that the October 2011 prioritisation policy ought to have been published. However, the policy had since been published, the claimant had not shown a personal interest requiring a declaration, and his position was no better than that of the Haney claimants. Any alleged detriment from non-publication was unlikely to have altered the outcome. Relief was refused, including under section 31(2A) of the Senior Courts Act 1981.
2. Grounds 2 and 3. The defendant conceded the public law breach concerning the provision of systems and resources necessary to enable indeterminate-sentence prisoners to demonstrate reduced risk to the Parole Board, and the consequential excessive delay in transfer. The claim had been issued before related litigation resolved the issue, and the defendant had initially disputed it. A declaration was therefore appropriate.
3. Ground 5. The Guittard challenge was academic from the outset because the claimant had already obtained approval for transfer through the ordinary Parole Board process before issuing the claim. The alleged error in the earlier exceptional-transfer application could not affect the practical outcome. The later transfer, release and withdrawal of the Article 5 claim made the challenge wholly abstract. The court declined to determine the lawfulness of the process in circumstances where the issue could be raised by a person genuinely affected.
4. The court’s approach was guided by the discretionary nature of judicial review relief, including utility, delay, good administration and the claimant’s interests, as explained in R (Save our Surgery Ltd) v Joint Committee of Private Care Trusts and R (Lamot) v Secretary of State for Justice. Relief was granted only for the Ground 2 and linked Ground 3 declaration. Ground 1 relief was refused and Ground 5 was dismissed.

The judgment does not state an appeal from the present claim. It records that the proceedings were stayed pending related litigation:

• Supreme Court: Kaiyam, Haney, Robinson and Massey v Secretary of State for Justice, [2014] UKSC 66; [2015] AC 1344.
• Supreme Court: Brown v Parole Board for Scotland, [2017] UKSC 69. The claimant withdrew his Article 5 claim.