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Two indeterminate sentence prisoners awaiting transfer to Category D facilities had suffered delay due to a policy which prioritised prisoners who had served their tariff. The policy breached the Secretary of State's duty to give prisoners serving indeterminate sentences the opportunity to demonstrate that they no longer needed to be detained in prison. The Secretary of State had also acted unlawfully in not publishing the policy.
11 April 2013
(1) The Applicants (H and J) were prisoners serving indeterminate sentences. They were due to be moved to Category D conditions but, due to severe backlogs, the Defendant (SSJ) instituted a policy under which prisoners who had served their tariff were given priority in transfers. This meant that H and J both suffered delays in their transfer of approximately 1 year.
(2) H and J claimed that this amounted to a breach of SSJ's public duty to provide them with a reasonable opportunity to demonstrate to the Parole Board that their detention was no longer necessary. They also argued that the policy was irrational and unfair; that SSJ had fettered his discretion by imposing an inflexible policy; that the policy was unlawful because it was unpublished; and that it breached their rights under Articles 5 and 8 of the European Convention on Human Rights.
(3) Lang J HELD: That SSJ was under a public duty to allow indeterminate sentence prisoners a reasonable opportunity to demonstrate that they were ready for release (R (James, Lee and Wells) v Secretary of State for Justice  1 AC 553 followed). There was no need for H and J to show a separate legal duty owed to them personally; a declaration that a breach of the duty took place was a sufficient remedy given that the backlog had since been cleared and H and J transferred to open conditions. Whether or not H and J had lost the opportunity to demonstrate their reduced level of risk would only have been relevant if the court had been asked to consider damages  - ,  - .
(4) That there was nothing to suggest that SSJ's policy was irrational or unfair. It was clear that all options had been considered. It was important to recognise that the policy was intended to be a temporary one designed to address a serious problem and the outcome was achieved within a reasonable timescale. Transferring post-tariff prisoners before those serving indeterminate sentences was rational and fair as they were already eligible for release; to act otherwise could have led to the risk that Article 5 would be breached. The policy was a lawful exercise of SSJ's discretion  - .
(5) That SSJ enjoyed a wide discretion in the placing of prisoners, under section 12 of the Prison Act 1952. Once he had adopted a policy he was required to apply it with consistency and fairness, but also to make exceptions where appropriate .
(6) That the SSJ was under a public law duty to publish the policy (Lumba (WL) v Secretary of State for the Home Department  1 AC 256 followed). The arrangements under which H and J's transfers were delayed were a significant addition to a published policy, not simply administrative procedures, and could be described as a policy. Whilst they were unaware of the policy, prisoners could not claim exceptional circumstances or understand why their transfer was being delayed. However, the policy was not unlawful and J's outcome would not have been any different if the policy had been published, therefore there was no need to quash the policy, merely to order that the policy be published  - .
(7) That adequate reasons were given for the delay .
(8) That the court was bound to follow R (James, Lee and Wells) v SSJ in finding that Article 5(1) was not breached, in spite of that case having been overturned by the European Court of Human Rights. Permission to appeal would be granted  - .
(9) That there was no breach of J's rights under Article 8 of the European Convention on Human Rights. Transfer would not have allowed him leave, to visit his family or pursue employment. Any decision as to that kind of leave would have been made separately .
(10) That the court was bound to follow R (Clift) v Secretary of State for the Home Department  1 AC 484 in finding that a prisoner's status was not protected by Article 14. However, as that case had been overturned by the European Court of Human Rights, permission to appeal would be grated.
Applications granted in part
 -  - The facts.
 -  - Keith Haney.
 -  - Peter Jarvis.
 -  - Statutory framework.
 -  - Breach of the defendant's public law duty.
 -  - Rationality, fairness and taking into account relevant considerations.
 -  - Fettering of discretion.
 - Reasons.
 -  - Article 5.
 -  - Article 8.
 -  - Article 14.
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