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||Neutral Citation Number:  EWHC 2819 (Admin)
||Case No: CO/3980/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR JUSTICE KING
|| David Bonner
||- and -
||Secretary of State for Justice
Mr Rule (instructed by Carringtons Solicitors) for the Claimant
Mr Lowe (instructed by the Government Legal Department) for the Defendant
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Hon. Mr Justice King :
- These proceedings for judicial review have had a chequered history although the essential facts are relatively straightforward. The issue now before me is to determine whether in the light of recent judicial authority this claim continues to have any viable grounds and / or any purpose and to the extent that it does, to determine the relief, if any, which should be granted.
- On 11 November 1999 the Claimant, then aged 27, was convicted of murder and received the mandatory sentence of imprisonment for life. The minimum term specified, that is the term which the Claimant was required to serve in full before becoming eligible for consideration by the Parole Board for release on licence, was a period ( otherwise known as the tariff period ) of 17 years less time spent on remand. That tariff expired on 6 August 2014.
- These proceedings have concerned alleged unlawful delay on the part of the Defendant in transferring the Claimant from closed to open prison conditions in alleged breach of his public law duty at common law, and in alleged violation of a duty arising under Article 5 of the European Convention on Human Rights 1950 ( 'ECHR' ). It has been common ground throughout that the transfer to open conditions was a necessary precursor to someone in the position of this Claimant upon tariff expiry being in a position to demonstrate to the Parole Board that he was safe to be released.
- When these proceedings were first issued in April 2012 the Claimant was still in closed conditions, although his transfer to open conditions had been approved and agreed to by the Defendant in October 2011. This approval came in a decision letter of the Defendant dated 12 October 2011 following on from a recommendation of the Parole Board dated 5 October 2011, which had been made after a panel hearing on 20 September 2011. By that letter the Defendant indicated that he agreed with the Parole Board and "notes that a period in open conditions will allow for your gradual re-integration back into society and for you to demonstrate your ability to put into practice all the skills you have learnt whilst in closed conditions that are more on a par with life in the community". The Defendant further indicated that the Claimant would be referred to the Parole Board for a provisional hearing date just before his tariff expired in August 2014.
- The Claimant's complaint at that stage concerned, amongst other things, the backlog in the prison system in the transfer of those prisoners serving indeterminate sentences ( 'ISPs' ) to open conditions to which the Defendant was applying a prioritisation policy introduced on 17 October 2011. Under this policy priority was to be given to those prisoners whose tariff had already expired – not of course the Claimant. Complaint was made as to the unlawfulness of the policy which did not allow for the prioritisation on a case by case basis. The Claimant's solicitors had written in a letter before action, dated 16 January 2012 that :
"As a result of the recent MOJ policy in relation to the transfer of life sentenced prisoners to the category D estate our client has been significantly prejudice(d). The email issued to all parties relating to the new policy states that it will take approximately 9 months for the move of all post tariff lifers to be effected. It is only at that stage that the MOJ consider it appropriate to transfer pre-tariff lifers. We are firmly of the view that each case should be considered on its merits and that our client should be treated in the same way as post tariff life sentence prisoners."
The Defendant had replied by letter dated 19 January 2012 rejecting these criticisms of the policy saying amongst other things :
"For the purposes of clearing the backlog, prisoners whose tariff has expired are considered to be a higher priority than pre tariff prisoners because they have served the punitive part of their sentence and progression through their sentences is now entirely focused on reducing their risk to the point that they may be safely released.
NOMS considered other ways of prioritising prisoners, such as proximity to next parole review, length of tariff and period served post tariff but these options would disadvantage many prisoners who had been waiting significant periods of time for transfer, leading to anomalous and unfair treatment.
Consideration was given to prioritising each prisoner's position on a case by case basis rather than using any specific criteria but this would have been extremely time consuming and wold have proved very difficult to weigh up the relative merits of each case on an individual basis, to prioritise against all the other cases in the backlog and to reconsider their relative merits as new cases came up for consideration.
We will begin the process of transferring pre tariff prisoners once the backlog of post tariff prisoners has been dealt with; we will expect this to be done within 9 months. Prioritisation of pre tariff prisoners will also be determined by the date of SofS approval ; the longer the period of time the prisoner has been waiting for transfer the higher the priority will be to transfer the prisoner."
- Complaint was also made that the policy when implemented was an unpublished policy.
- The backlog was in fact cleared by August 2012, and on 20 September 2012 the Claimant was transferred to open conditions.
- The Claimant's tariff expired on 6 August 2014. On that same day a tariff expiry Parole Board review took place at an oral hearing and on 12 August 2014 the Parole Board directed the release of the Claimant.
- Consequent upon that direction, the Claimant was released from detention – on licence – on 19 August 2014.
- In other words, notwithstanding any delay in transfer to open conditions, the Claimant was released on licence, on tariff expiry.
Developments in judicial authority
- Meanwhile following the grant of permission in June 2012 these proceedings were stayed pending the outcome of proceedings raising similar issues, namely R ( Haney and Jarvis ) v Secretary of State for Justice ( CO/414/2012 ) ('Haney'). In her first instance decision in Haney ( [2013 EWHC 803] ( Admin ) ) Lang J in her judgment dated 11 April 2013 had dealt with grounds overlapping with those raised in these proceedings, namely those relating to the application of the prioritisation policy, those relating to the Defendant's alleged breach of his public law duty in failing to provide adequate resources, and the claim pursuant to the Human Rights Act 1998 alleging violations of the Claimant's ECHR convention rights under amongst other articles, Article 5 and Article 8.
- As regards the prioritisation policy, Lang J dismissed the claim that the policy was unlawful or that the policy had unlawfully fettered the Defendant's discretion to place and manage prisoners within the prison estate under sections 12 and 47 of the Prison Act 1952 ( 'the 1952 Act' ). The policy allowed for consideration of exceptional circumstances on request in individual cases, although in each case Lang J found that the Defendant had been entitled to refuse to treat the Claimant as an exceptional case.
- It is of note when comparing the facts of the cases of the Haney Claimants with those of the present Claimant, that (i) in Mr Haney's case, his tariff expired in November 2012 ; (ii) by a letter dated 9 June 2011 the Defendant had agreed his transfer to open conditions without the need for a Parole Board review but (iii) Mr Haney was still awaiting transfer in October 2011 when the Defendant's prioritisation policy came into effect which meant – as with the Claimant – that post tariff ISP's took priority over Mr Haney as did any pre-tariff prisoners who were closer to their tariff expiry date. On 18 May 2012 Mr Haney's solicitors had written to the Defendant requesting that the Defendant expedite his transfer as an exception to the policy on the grounds of the length of time Mr Haney had been waiting for transfer, the anxiety and distress this had caused him, the fact the report authors in his Parole Board dossier had been unable to recommend release primarily on the basis that he had not yet been transferred, and the proximity of Mr Haney's next Parole Board hearing. In May 2012 the Defendant indicated that Mr Haney's position was not so exceptional as to justify an expedited transfer to open conditions as an exception to the Defendant's policy. He was ultimately transferred on or around 16 July 2012.
- In Mr Jarvis's case his tariff expired on 8 July 2013. After an oral hearing the Parole Board recommended his transfer to open conditions on 8 June 2011, which recommendation the Defendant accepted on 13 June 2012, and directed that Mr Jarvis be transferred. By letter of 4 July 2011 the Defendant formally notified Mr Jarvis that he agreed the transfer. Mr Jarvis, too, was still awaiting transfer when in October 2011 the prioritisation policy came into effect. On 27 January 2012 Mr Jarvis's solicitors ( coincidentally the same solicitors as the Claimant's ) wrote asking that he be transferred to open conditions as a priority. On 31 January 2012 the Defendant had replied explaining the new policy in terms not dissimilar to those of the Defendant's reply of 19 January 2012 to the solicitors in the present case. Like the present Claimant, Mr Jarvis issued his claim in April 2012. Mr Jarvis was ultimately transferred to open conditions in July 2012.
- It is of note that Lang J found nothing in these facts which meant that either Mr Haney or Mr Jarvis should have been treated as exceptional under the prioritisation policy. At paragraph 79 she said this :
"As Mr Mercer described in paragraph 4 of his first witness statement, the policy included an express provision providing for exceptional circumstances to be considered upon request in individual cases. An example might be pressing psychiatric or medical needs requiring speedier transfer. The Claimants were not able to point to anything exceptional about their cases. The length of time they were awaiting transfer, and the potential detriment to their progress towards release, were factors shared by many prisoners caught up in the backlog. These factors had already been taken into account when the Secretary of State was deciding best how to prioritise the prisoners awaiting transfer."
- Lang J found the policy was lawful, being rational and fair, but accepted the submission that the policy should have been published and the failure to do so was unlawful. She granted a declaration to this effect. In accordance with the undertaking given to the court in Haney, the policy was subsequently published in Annex 1 of PSI 36/2012 (as amended in May 2013).
- Lang J however, rejected the submission of Mr Rule then acting for Mr Jarvis, that the policy itself was unlawful because it was unpublished and because it was inconsistent with published policy, a submission which relied on the decision of the Supreme Court in Lumba ( WL ) v. SSHD 1 AC 245.
- Lang J found there was no inconsistency with published policies ( the relevant PSIs and PSOs ) which were silent on the question of any policy or arrangements for prioritising some categories of prisoners over others when implementing transfers to open conditions. Although she accepted that the October 2011 arrangements / policy should have been published, being a significant addition to existing policy, she found the case was in these circumstances distinguishable from Lumba. Her reasoning is at paragraphs 83 and 84 ( any emphasis is the emphasis of this court ) :
"83. Applying the principles set out in Lumba, I have come to the conclusion that the Defendant was under a public law duty to publish the October 2011 arrangement for the transfer of prisoners to open conditions. Prisoners had already been informed they were going to be transferred. There had been considerable delay, which was unexplained. The prioritisation scheme did affect the likely timing of their transfer. This in turn could affect the likely outcome of a Parole Board review and their release. Perhaps most importantly of all, under the October 2011 arrangements, they could make an individual request for their cases to be treated as exceptional. Prisoners could not exercise that right if they were not aware of the existence of the arrangements or the right to claim exceptional circumstances. Even though the policy was only temporary, it should still have been published.
84. However this case is distinguishable from Lumba because I have not found the unpublished policy to be unlawful on grounds of inconsistency with published policy, nor for any of the other reasons relied upon by Mr Jarvis. Nor has Mr Jarvis suffered any detriment as a result of the failure to publish. His legal representatives were aware of the policy and applied for him to be given priority transfer in their letter of 27 January 2012. I have already found that the Defendant was entitled to refuse to treat him as an exceptional case, and so it would not have made any difference if he had been aware of the policy at an earlier date. Mr Rules' submission that, if the policy had been published, Mr Jarvis could have challenged the policy sooner, does not assist since the challenge to the lawfulness of the policy has been unsuccessful. He would not have gained any benefit from an earlier challenge. In the exercise of my discretion, I do not consider it would be appropriate to quash the policy, merely because of a failure to publish, when the policy has been upheld as lawful and the Claimant has not suffered any detriment."
- Permission to appeal the rulings as to the lawfulness of the policy and the lawfulness of its application in the individual cases was refused both by Lang J and, on Mr Haney's application, by the Court of Appeal.
- As regards the other grounds, following concessions by the Defendant, Lang J found that there had been a breach on the part of the Defendant of his public law duty ( often referred to as the James duty following R ( James, Lee and Wells ) v Secretary of State of Justice  AC 553 ) to provide the necessary resources to allow prisoners to be transferred to open conditions, and further that in consequence there had been excessive delay in effecting a transfer in the case of each claimant. She made a declaration to this effect.
- This breach of duty being a breach of a public law duty entitled the Claimants as persons adversely affected, to seek a public law remedy and in their cases the declarations referred to, were granted. On different facts, if the Defendant had not already taken steps to address the backlog of ISP's awaiting transfer, the Claimants would have been entitled to apply for the public law remedy of a mandatory order requiring the Defendant to perform his public duty. The breach of such public law duty, not being a private law duty owed to the Claimants personally, did not however give rise to any right to damages.
- Again none of the above was the subject of any appeal in the Haney proceedings.
- Permission to appeal was however granted in respect of the dismissal of the claims under the Human Rights Act in which damages were sought for violation of the Claimants' Convention rights under Articles 5, 8 and 14 of the ECHR. It was pending the outcome of such appeals that the present proceedings were stayed.
- Lang J had felt bound by the decisions of the House of Lords in James and in Clift ( R ( Clift ) v Secretary of State for the Home Department  1 AC 484 ( HL ) ) to dismiss these human rights claims notwithstanding the judgment of the ECtHR in James and Others v United Kingdom (2013) 56 EHRR 12, finding ( contrary to the House of Lords in James ) that the detention in those cases had become arbitrary and in breach of Article 5(1).
- It is at this stage worth setting out precisely the remedies granted by Lang J at first instance which were not the subject of any appeal. As far as is material for present purposes, the Order of Lang J was as follows :
"… Upon the Defendant undertaking to publish the National Offender Management Service policy for prioritisation of transfer of indeterminate sentenced prisoners, implemented in October 2011, indicating the extent to which it is no longer in force and / or has been superseded, as at the date of publication :
IT IS ORDERED that :
3. The Claimants' applications for judicial review are allowed to the extent set out in the judgment of Lang J.
4. It is declared that :
a. the Defendant was in breach of his public law duty to provide the systems and resources that prisoners serving indeterminate sentences need to demonstrate to the Parole Board that it is no longer necessary for the public that they should remain in detention ; and
b. in consequence there was excessive delay in implementing the transfer of each of the Claimants to open conditions, to enable them to undertake the work required to meet the objectives for their Parole Board review on expiry of their tariff ; and
c. the Defendant unlawfully failed to publish the National Offender Management service policy, implemented in October 2011 for the prioritisation of transfer of indeterminate sentenced prisoners ; and
7. Permission to appeal is granted to both Claimants against the dismissal of the claim of a breach of Article 14 ECHR in conjunction with Articles 5 and 8.
8. Permission to appeal is granted to Mr Haney against the dismissal of the claim of a breach of Article 5(1) ECHR.
9. Permission to appeal on all other grounds is refused."
The decision of the Supreme Court in Kaiyam and Others
- The culmination of the appeal proceedings in Haney was the Supreme Court decision in the joined appeals of Kaiyam, Haney, Robinson and Massey v Secretary of State for Justice  AC 1344 ;  UKSC 66, whose judgment was delivered on 10 December 2014. These established the existence of an ancillary duty upon the Defendant under Article 5 of the ECHR to facilitate release, that is to provide a prisoners serving indeterminate sentences with a reasonable opportunity to rehabilitate himself and to demonstrate that he was safe to release at or within a reasonable time after the expiry of the tariff period. This duty could not be found in the express words of Article 5.1 or of Article 5.4 but was to be implied as an ancillary duty as part of the "overall scheme of Article 5". As a result a claim against the Defendant for damages for breach of such duty could be maintained pursuant to sections 6, 7 and 8 of the Human Rights Act 1998.
- Relevant to the present proceedings, it was expressly held that a failure in such provision before the expiry of tariff might constitute a breach of such duty "if it remains uncorrected so that he is deprived of such reasonable opportunity which he ought to have had" ( as per Lords Mance and Hughes JJSC at paragraph 48 ). The duty did not affect the continuing lawfulness of detention but if breached, could sound in damages – albeit in the absence of establishment of a consequential prolongation of detention ( which was likely to be established only in the rarest of cases ) these would be at relatively low level for "legitimate frustration and anxiety where such can properly be inferred to have been occasioned" ( ibid at paragraph 39 ).
The Guittard ground
- The one ground pursued in these proceedings when issued, which was not before Lang J in Haney, concerned the Claimant's application in March 2011 that on exceptional grounds the Defendant exercise his discretion under section 12 of the Prison Act 1952 to transfer the Claimant to open conditions without first seeking the advice of the Parole Board which was the usual procedure.
- Under the material PSI ( I was referred by the Defendant for the present purposes to PSI 22/2015 on Generic Parole Process although earlier manifestations were not materially different on this particular matter ) ISPs generally became eligible for transfer to open conditions 3 years prior to their tariff expiry date ( paragraph 4.1 ).
- Mr Lowe, accurately in my judgment, summarised the prevailing position as being that there were only two processes by which a pre-tariff ISP would be considered for suitability for transfer to open conditions ( PSI section 6.1 ) : (i) where the Defendant referred a case to the Parole Board for advice, the Parole Board recommended transfer, and the Defendant accepted that recommendation ( section 4 ) and (ii) exceptionally, where a prisoner made an application and could demonstrate he "has made exceptional progress sufficient to justify transfer to open conditions without seeking the advice of the Parole Board" ( see section 5 ).
- Such an application is known as a Guittard application following the decision of the High Court in R (Michael Guittard ) v. Secretary of State for Justice  EWHC 2951 (Admin) in which it was held that the Defendant in his then published PSO had not evidenced a true discretion to depart in exceptional circumstances from the general policy of referring to the Parole Board the question of the transfer of ISPs to open conditions, and had unlawfully fettered the discretion which he had under sections 12 and 47 of the 1952 Act for the placement and management of prisoners.
- The material section of the PSI, at the time 36/2012, ( section 5 ) is headed "Consideration of exceptional transfer to open conditions by the Secretary of State without referral to the Parole Board". It states that "the Secretary of State is required to consider open conditions in cases where the ISP can demonstrate exceptional progress without reference to the Parole Board" ( paragraph 5.1 ) and that the process will apply to all ISPs "where the case has been referred to the Parole Board, the parole process has commenced and there is a complete dossier of reports" ( paragraph 5.2 ).
- The section makes clear that although all cases have to be considered on their individual merits, the prisoner will usually be required to meet certain criteria to demonstrate exceptionality. These are set out in paragraph 5.3 which provides as follows :
"5.3 the criteria for exceptional progress are :
- The prisoner's parole dossier must contain evidence that the prisoner has made significant progress in addressing all identified risk factors ; and
- There must be a consensus amongst report writers that the prisoner is suitable and safe to be transferred to open conditions ; and
- There are no areas of concern identified by report writers which would clearly benefit from further exploration by an oral hearing of the Parole Board ; ( emphasis of this court ) and
- The prisoner has demonstrated in his / her representations that there are clear benefits to being transferred to open conditions immediately rather than following the established process ( for example because it would maintain the momentum of his / her recent progress or would allow sufficient time for the prisoner to be fully tested in open conditions prior to the expiry of tariff ).
It must be noted that all cases must be considered on their individual merits although usually the prisoner must meet all the criteria to be regarded as exceptional. The Head of Offender Management and Public Protection Group ( OMPPG ) will make the final decision whether to transfer to open conditions without reference to the Parole Board."
The Claimant's Guittard application
As indicated, the Claimant through his legal representatives made such a Guittard application by written application dated 17 March 2011 and headed "Representations in Support of a Transfer to Open Conditions".
Although complaint was made that the application was considered by reference to an unpublished version of the Defendant's "Guittard Policy / Guidance", it must have been the case that the Claimant's solicitors were aware of the then applicable criteria, since the representations are self-evidently expressly tailored to the relevant guidance.
Thus after an introduction stating "this is an application to the Secretary of State to review Mr Bonner's suitability for transfer to open conditions without awaiting advice from the Parole Board in this matter" ( paragraph 1 ), and "Mr Bonner's case includes exceptional circumstances justifying transfer to open conditions without consulting the Parole Board", ( paragraph 3 ), this then appears at paragraph 4 clearly reflecting the criteria referred to :
"The exceptional circumstances"
There then follows detailed submissions under the four headings :
"The exceptional circumstances in Mr Bonner's case are that his parole dossier contains evidence that he has made significant progress in addressing all identified risk factors and there is a consensus amongst report writers that Mr Bonner is suitable and safe to be transferred to open conditions. In addition there are no areas of concern identified by report writers which would benefit from further exploration at an oral hearing and Mr Bonner would benefit from being transferred to open conditions immediately rather than following the established process."
"Evidence in the dossier of Mr Bonner showing significant progress in addressing all identified risk" ;
"Consensus amongst report writers that Mr Bonner is suitable and safe to be transferred to open conditions" ;
"Report writers have not identified an area of concern in relation to Mr Bonner which would need further exploration by the Parole Board at an oral hearing" ;
"There are clear benefits in Mr Bonner being transferred to open conditions immediately rather than following the established process"
The application was rejected by a decision letter of 27 May 2011 apparently because it did not meet the criterion that there "be no areas of concern identified by report writers". On this aspect the letter referred to the fact that although the Claimant had expressed remorse and recognised the impact on the victim's family,
"… in interview with the Offender Manager it is reported that he came across as minimising the extent of his involvement and passing the responsibility to his co-defendants. He has taken some responsibility but the OM states he needs a greater understanding of the magnitude of his role (dossier 264, 267)"
The letter concluded that the Defendant recognised that the Claimant had completed a significant amount of offending programmes and that the reports on his progress were positive but "given that some concerns have been raised, on balance we are unable to grant an exceptional transfer to open conditions…".
It is common ground ( and conceded by the Defendant in these proceedings ) that there had in fact been an error in the OM report relied on by the decision maker in rejecting this Guittard application, in that the Claimant's case had been confused by the OM with that of another prisoner.
This error, when discovered, was drawn to the attention of the Defendant's decision maker by the Indeterminate Sentence manager in a letter of 6 July 2011 which in effect sought on the Claimant's behalf a reconsideration of the Guittard application, which she described as a "second Guittard application". The letter concluded with these words : "I would be grateful if you would consider this second exceptional application despite the tight timescale. The availability of places on open conditions is currently poor and any time gained is advantageous".
No decision on this second Guittard application was ever made before matters were overtaken by the events which I have already identified, namely the completion of the normal process contemplated by the PSI, by the consideration by the Parole Board of the suitability of the Claimant for transfer, with an oral panel hearing on 20 September 2011, the Parole Board recommendation of 5 October 2011 for the Claimant's transfer to open conditions, and the acceptance of that recommendation by the Defendant in the letter sent to the Claimant dated 12 October 2011 to which I have already referred.
The ground pursued under this head concentrated its fire at the policy adopted by the Defendant – as reflected initially in the ( said to be unpublished ) departmental guidance of 2010 and then formalised in the Prison Service Instruction 36/2012 as amended ( Chapter 5 ), to which I have already referred (albeit principally by reference to the later manifestations of the PSI ). The challenge was to the lawfulness of the criteria adopted and further raised an allegation of procedural unfairness. The Ground ( originally ground (9) ) read as follows :
"The SSJ has (i) adopted an unlawfully restrictive and inflexible policy in the exercise of his statutory discretion ( whereas appropriate Directions are made by the SSJ to the Parole Board in the exercise of its discretion ) and / or (ii) failed to provide for a procedurally fair determination of the decision in relation to that important discretion."
In summary as to (i), it was said that the listed criteria did not reflect all the factors and proper considerations which the SSJ should take into account in exercising his discretion as to the location and categorisation of prisoners ; that it unjustifiably set the bar higher than that which was before the Parole Board when it considered the same question of open transfer in that it did not incorporate all the considerations contained in the Directions issued by the SSJ to the Parole Board which required a balancing of factors ( in the round those going to the level of risk balanced against the benefit to the prisoner ); as to (ii), the complaint went essentially to the lack of any procedure whereby any challenge could be made or scrutiny be applied to the recommendations of the report writers or to any identified "areas of concern that would benefit from further exploration", and to the lack of provision when requested or where required, for some sort of communication involving the decision maker and the report writers and / or the prisoner whether by oral hearing, video link, telephone or otherwise, before any final determination was made.
As to the link if any between this ground and the other grounds being pursued, paragraph 25 of the original grounds of the claim read as follows :
"It is necessary to consider the lawfulness and proportionality of the SSJ's unpublished policy in the instant claim and the process of decision-making. If the Claimant was, and it is submitted to be the case, wrongly denied a Guittard categorisation to open conditions, his present and continuing wait for open conditions commenced at a still earlier stage, and, the unfairness to now delay his progress is compounded further."
I should add in the context of the issue now raised as to the continuing relevance of this ground ( see further below ), that the report error underlying the initial refusal of the Claimant's Guittard application, was relied on by the Claimant's solicitors in their letter of January 2012 when asking that the Claimant's case be decided on its merits, as part of individual circumstances personal to the Claimant, which they said should be taken into account by the Defendant when applying his recently introduced transfer prioritisation policy.
The material part of that letter was in these terms :
As I have indicated however, the Defendant, for reasons found by Lang J in Haney to be rational and fair, declined to apply prioritisation on a case by case basis in preference to the adopted criterion based on giving priority to post tariff prisoners. To the extent therefore that this ground is a complaint that the Defendant, in January 2012 in determining prioritisation, unlawfully failed to take into account the Claimant's particular individual circumstances identified by the solicitors, it inevitably in my judgment falls foul of the reasoning of Lang J when refusing to find the policy to be unlawful, which reasoning I would adopt and endorse. Equally in my judgment there can be nothing in these facts peculiar to the Claimant which would make him an exceptional case within the Defendant's policy. If the Defendant was entitled on the Haney and Jarvis facts, to refuse to regard these as exceptional cases ( see again the reasoning of Lang J ) this must be equally so on the facts applicable to the Claimant which are in truth no more than a cri de coeur that had the first Guittard application been dealt with properly, it would have been granted and the Claimant would have been transferred before the prioritisation policy took effect. This cannot however, in my judgment, make him an exceptional case for the purposes of the prioritisation policy in contrast to the cases of Messrs Haney and Jarvis, not least because it is impossible to say that his transfer in such circumstances would have taken effect before 17 October 2011. It is to be noted that in Mr Jarvis' case the Defendant had directed his transfer on 13 June 2011 but Mr Jarvis was still awaiting transfer in October. Similarly Mr Haney was still awaiting transfer at the time the policy took effect even though his Guittard application had been granted on 9 June 2011. It is difficult to see how it would have been any different in the Claimant's case even assuming that but for the error, the decision of 27 May 2011 on the Guittard application would have been in his favour.
"On 20 September 2011 a panel of the Parole Board convened and recommended our client transfer to open conditions. No response to the second Guittard application was received. It is apparent however that no other concerns were raised by the Initial Action Team save for that noted above. If it had not been for the gross error made by the Offender Manager our client would have been successful in his first Guittard application submitted in March and would have achieved a move to open conditions."
As was the position in the cases of Mr Haney and Mr Jarvis ( Lang J at paragraph 41 ) no one before me was able to say precisely when the present Claimant would have been transferred, if (a) a backlog had not developed and (b) priority had not been given to post tariff ISPs when clearing the backlog.
The amended Grounds in the present proceedings
Following the Supreme Court decision in Kayaim, the stay on these proceedings was lifted and by Amended Grounds dated July 2015, the Claimant now sought to pursue the following grounds :
Ground 1 : Unlawful application of an unpublished policy implemented in October 2011 for the prioritisation of the transfer of indeterminate sentenced prisoners ;
Ground 2 : Failure of public law duty to provide the systems and resources that indeterminate sentence prisoners need to demonstrate reduction in risk sufficient for the Parole Board to direct release ;
Ground 3 : Failure to effect the Claimant's transfer within a reasonable time. There was an excessive delay in implementing the transfer of the Claimant to enable him to begin work required for the objectives to be met of the preparations for subsequent parole review at the expiry of the tariff ;
Ground 4 : Breach of the ancillary duty implicit within Article 5 of the ECHR ;
Ground 5 : (i) The Secretary of State has adopted an unlawfully restrictive and inflexible policy to the exercise of his statutory discretion where appropriate Directions are made by him to the Parole Board in the exercising of its discretion and / or (ii) failed to provide for a procedurally fair determination of the decision to that important discretion.
As regards Ground 5, the equivalent of paragraph 29 of the original grounds ( see paragraph 44 above ) now read at paragraph 40 as follows ( the underlining indicate the modification ) :
"It is necessary to consider the lawfulness and proportionality of the SSJ's unpublished policy in the instant claim and the process of decision-making. If the Claimant was, as it is submitted to be the case, wrongly denied a Guittard categorisation to open conditions, his present and continuing wait for open conditions commenced at a still earlier stage, and the unfairness in delaying his progress in October 2011 when rearranged policy and practice was adopted, is compounded further."
By way of relief, the Claimant sought declarations tailored to each of these grounds together with an award of damages by way of just satisfaction for the violation of Article 5 of the ECHR pursuant to the Human Rights Act 1998, section 8.
At the two hearings before me these grounds were argued with the Defendant submitting that the Human Rights Act claim had to fail – there could have been no breach of the Kayaim ancillary duty to provide a reasonable opportunity for rehabilitation since whatever the delay in transfer to open conditions (at most the Defendant suggested some 9 months ) the Claimant had had just under 2 years in open conditions before being released at or about his tariff expiry date, and as far as the other grounds and relief sought, these claims were either otiose having been determined by Lang J with appropriate declaratory relief given as regards the conceded breach of the public law duty and the failure to publish the prioritisation policy or, were bound to fail having been determined adversely to the claimants in Haney ( in rulings not disturbed on applications to appeal ) in relation to whom the present Claimant was in no better factual position. The Guittard ground was said to be wholly academic, in light of the application having been overtaken by the Parole Board proceedings and the subsequent acceptance by the Defendant of the Parole Board recommendation for transfer.
The Claimant through Mr Rule disputed the correctness of the Defendant's analysis of the Kayaim duty, submitting that the question of breach was not to be determined with the benefit of hindsight of when in fact the prisoner was released. He relied heavily on the terms and date of the approval for transfer decision letter of 12 October 2011 as demonstrating what a reasonable opportunity for rehabilitation must have been in Mr Bonner's case based on the Secretary of State's own assessment, notwithstanding he was in the event released on or about his tariff expiry. His feelings of frustration and anxiety as a result of the delay were no less real because he in the event suffered no detriment by reason of the delay as regards the timing of his release on licence. As regards the other grounds Mr Rule maintained the argument that the claims were neither otiose nor academic.
I should add that as argued before me the Article 5 claim emerged as the principal claim being pursued.
The Supreme Court Decision in Brown
Since the hearings before me, in a major judicial development, the Supreme Court in November 2017 in Brown v. Parole Board for Scotland 2017 UKSC 69 has departed from the decision in Kayaim. It was held there is no ancillary duty implicit in Article 5 and any Article 5 claim for breach of duty to provide a real opportunity for rehabilitation to those serving indeterminate sentences can apply only to detention post tariff expiry - not the position here where the Claimant suffered no such detention, having been released on or about tariff expiry. This is because, on proper analysis, the duty is an aspect of the duty to ensure detention does not become arbitrary under Article 5(1)(a).
The present position of the Claimant
In the light of Brown, the Defendant invited the Claimant to withdraw his claim in its entirety. This he declined to do. Although the court gave the parties an opportunity to resolve their differences, this proved unsuccessful and hence the court has been called upon to give its rulings on the claim as it now stands.
In the light of Brown, the Claimant has now withdrawn his Human Rights claim for damages for frustration, distress and anxiety arising out of the claimed unlawful delay on the part of the Defendant in not transferring him until September 2012, notwithstanding the Defendant's approval of his transfer on 12th October 2011 ( or alternatively notwithstanding the submission that his transfer would have been approved in May 2011 had the consideration of his Guittard application not been in gross error ). In formal terms he has withdrawn any claim for violation of Article 5 of the ECHR.
However all other grounds of claim are maintained. In his further submissions of 14 November 2017 for the reasons therein set out, Mr Rule on behalf of the Claimant sought the following relief by way of Declaration :
"1. The Defendant unlawfully failed to publish the policy implemented in October 2011 ; and that had the consequence that the Claimant was not able to seek priority according to that policy.
2. The Defendant failed to properly and lawfully process and handle the Claimant's application for a move to open conditions without awaiting the Parole Board decision ( Guittard application ) in a procedurally fair manner, failing to give the necessary individual consideration to the application.
3. The Defendant breached his public law duty to provide system and resources that prisoners serving indeterminate sentences need to demonstrate to the Parole Board that it is no longer necessary for the public that they should remain in detention ; and in consequence, there was excessive delay in implementing the transfer of the Claimant to open conditions.
4. It is declared that the Defendant's policy purporting to identify the proper exercise of Guittard discretion fails to provide a lawful policy for the exercise of that discretion."
In his submissions, Mr Rule has submitted amongst other things that in considering whether to grant a declaration of a public law breach in the Claimant's case, despite the passage of years since the events, the fact "that for many years he had a good or viable claim for damages to compensate for anxiety, frustration and distress" but "only now has that possibility ( been ) removed" ought to favour "at least the declaration of the public law errors to which he was subjected - which are in part, in fact not even disputed by the Defendant".
Mr Lowe on behalf of the Defendant in submissions dated 8 January 2018 has submitted that the entire claim should now be dismissed. The Defendant's position is summarised in these terms :
"D's position, as developed below, is that none of the declaratory relief should be granted, in summary because (i) the practical significance of the Claimant's claim was ensuring he was transferred to open conditions, to help him progress toward release ;(ii) C was transferred to open conditions a long time ago ( and indeed released at tariff expiry ) and the claim therefore serves no practical purpose ; (iii) there is no longer any human rights claim ; (iv) as for the public law claims, the relevant issues of public importance were addressed in Haney and Jarvis at first instance ; (v) D has made appropriate concessions in relation to the public law claims, which can be recorded in the Court's judgment as appropriate, with the judgment then speaking for itself, and no further relief being required."
In reaching my conclusions I have very much in mind that the grant of relief in judicial review is discretionary. I was referred by Mr Lowe in this regard to the helpful summary of principle in the judgment of Nicola Davies J in R ( Save our Surgery Ltd) v Joint Committee of Private Care Trusts  EWHC 1011 (Admin) at :
I was also referred to the decision of Simler J in R (Lamot) v Secretary of State for Justice  EWHC 2564 ( Admin ) as an example, on facts not dissimilar to the present case, of the practice of the Court to refuse relief where it would serve no useful purpose to grant it due, for instance, to factual developments since the issue of the claim which have rendered the claim academic. Simler J referred to the guidance given in Rusbridger v AG  1 AC 357 which made clear that "it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them".
"It is well-settled that the grant of relief in judicial review is discretionary… The discretion must be exercised judicially... The discretion of the court in deciding whether to grant any remedy is a wide one. It can take into account many considerations including the need for good administration, delay, the effect on third parties, and the utility of granting new relevant remedy... The interests of the particular Applicant is not merely a threshold issue which ceases once the requirement of standing has been satisfied, it may also bear upon the Court's exercise of its discretion as to the remedy, if any, which it should grant in the event that the challenge is well-founded... When the Defendant is a responsible public body the court may allow the judgment 'to speak for itself' and decline to grant further relief …"
With these principles in mind, I take each of the grounds which remain in turn and consider the declaratory relief sought in respect of each.
Ground 1 ( the unpublished prioritisation policy )
It is not in dispute and has long been conceded by the Defendant ( it was so conceded before me ) that the prioritisation policy should have been published for the reasons given by Lang J in Haney and Jarvis but unlike the position before Lang J the policy has now been fully published. In these circumstances although the failure to publish was an unlawful failure, it can now serve no useful purpose in my judgment to grant a declaration to this effect. There is no personal interest of the Claimant demonstrated to me that requires a declaration to this effect. It is of note that in his original skeleton argument in support of the amended grounds, Mr Rule did state at paragraph 33 : "As for relief, if the Defendant has properly published the policy as it undertook to do, then it may be appropriate simply to record the Claimant's case is the correct one on this issue".
In so far as the Claimant seeks to maintain a claim that he suffered a detriment as a result of the failure to publish or that the policy was unlawfully applied to him or that the policy was itself unlawful such a claim must fail. He was, in my judgment as I have already explained ( see paragraphs 46-47 above ), in no better position factually than the Claimants in Haney and Jarvis. There were in my judgment no individual factors in his case which meant he ought to have been prioritised under 'the exceptional case' exception. As Mr Lowe submitted, the only advanced basis for exceptionality was the failed Guittard application which it is said would have succeeded but for the report error. But I agree that even if it be assumed that this is so, it could not have provided a good reason for transfer ahead of post tariff prisoners since at most it would have enabled the Claimant to complain of a longer period awaiting transfer, that is from an assumed approval in May 2011, than one dating from the October 2011 approval of the Parole Board recommendation. The reasoning of Lang J in paragraphs 79 and 84 of her judgment in Haney ( see again paras 15 and 18 above ) applies equally to the Claimant in my judgment.
At its highest the complaint of detriment as a result of the failure to publish is a complaint that the Claimant was unable to seek prioritisation in accordance with the policy, but for the reasons I have already given, it is highly likely in my judgment that the outcome would have been the same on any proper application of the prioritisation policy. Relief in these circumstances would fall to be refused under section 31(2A) of the Senior Courts Act 1981 even if there were otherwise merit in the complaint.
For all these reasons I refuse any relief under this Ground 1 notwithstanding that I endorse the ruling of Lang J that the policy should have been published and the failure to do so was unlawful. I reiterate however that no other unlawfulness under this ground has been established whether as regards the policy itself or in its application to the Claimant.
Grounds 2 and 3 ( the breach of the public law duty to provide systems and resources ; the consequential excessive delay in transfer )
The Defendant has long conceded this breach of public law duty and the fact of the consequential delay in transfer and did so before me. The Claimant in effect seeks the declaratory relief which mirrors the relief granted in Haney. In Haney Lang J considered it appropriate to grant such relief notwithstanding the Defendant's like concessions to her ( recorded in her judgment at paragraphs 34 and 55 ) because (Judgment paragraph 67) :
Before me the Defendant argued that such relief should be refused because, unlike in Haney, this was not a test case and ( skeleton argument paragraph 20 ) :
"… the Defendant has disputed the Claimants' rights to bring this claim and to seek relief and as this claim may proceed to a higher court on the ECHR grounds."
Mr Rule's counter argument at that stage was that declaratory relief should be granted under these heads because ( his original skeleton argument at paragraph 44) ( any emphasis is that of this court ) :
"Here, neither of Lang J's reasons applies. The Defendant does not dispute the Claimant's rights to bring the claim, nor the existence of the relevant breach nor the fact that it delayed the Claimant's transfer to open conditions. And this Court will be addressing the Claimant's ECHR claim and can do so in the light of the Defendant's concession regarding the James duty breach and the delay it caused to his transfer to open conditions. There is no need to be concerned with how precisely the adverse effect of the James breach was on the Claimant at this stage : the Court can consider the issue in full at the more appropriate juncture of deciding whether or not there was an Article 5 breach ( i.e. under Ground 4 )."
Whatever the force of Mr Rule's then argument ( and it does depend in part upon recognising a legitimate link between the public law claims and the ECHR claim which Mr Lowe disputes ), Mr Lowe argues that now that the Article 5 ECHR claim has been withdrawn, there can be no proper basis for the grant of relief under this head of claim. He says that at this stage there is no answer ( if there ever was ) to the Defendant's submission that although the James duty breach and its impact on the Claimant are admitted, they are completely academic. The Claimant has been transferred to open conditions and has been released and the relevant issue of public importance – the lack of resources and its impact on prisoners awaiting transfer to open conditions ( including pre-tariff prisoners in materially the same position as the Claimant ) was fully resolved in Haney and Jarvis including by the grant of declarations.
"It is not a question of encouraging new Claimants to establish the declaration previously issued, but of the proper resolution of a claim that was begun in April 2012, was stayed at the Defendant's request to await determination of the disputes the Defendant was raising that were to be unsuccessful in Haney and Jarvis ; and in which the specific recognition of the adverse impact upon the Claimant is relevant to the question of relief for a violation of the ancillary duty implicit within Article 5 ECHR."
I can see the force in Mr Lowe's submission but I have come to the conclusion that nonetheless the declarations sought under this head should be made. The fact is that when this claim was issued the Defendant did not concede the claim under this head and the claim was stayed at the Defendant's request to await the outcome of the pending litigation raising a like claim. The Claimant's case under this head was bound to be successful once Haney was decided as it was without demur from the Defendant. Had this claim under this head been issued after Haney and Jarvis was resolved, I would have had no hesitation in refusing relief but given it was issued at or round the same time, and given the Defendant has accepted the outcome of Haney under this head, I consider the Claimant is entitled to a declaration of the public law breach of duty to which he was subjected under this ground. The Claimant's position under this ground is very different from his position as I have found it to be under Ground 1 where for reasons already explained no personal interest sufficient to justify a public law declaration has ever been made out.
Ground 5 ( the Guittard Ground )
In my judgment this ground of claim was always academic even when it was first raised. I agree with Mr Lowe that there was never any practical purpose in pursuing this ground in these proceedings for the straightforward reason that the Claimant was approved for transfer in October 2011, many months before he brought his judicial review claim, and so had already obtained in practical terms the benefit he might have gained from a reconsideration of the relevant Guittard decision of May 2011, which I might add the Defendant has never sought to defend. As I have already explained, matters relating to a reconsideration of the Guittard application once the report error was identified, were overtaken by the Claimant being approved for transfer to open conditions in October 2011 through the Parole Board process.
In so far as the failed Guittard application had a relevance to the Claimant's case when issued, it was not under this ground but under a quite different ground, namely Ground 1, which alleged an unlawful application of the unpublished prioritisation policy. I have already explained why this particular part of the claim fails.
This Ground 5 has become all the more academic since the Claimant has been both transferred and released ( and this was the position when the Amended Grounds were filed ) and now the Article 5 claim has been withdrawn, removing any argument ( Mr Lowe would say "however bad" ) that the Guittard ground had some continuing relevance to the length of time the Claimant was allegedly unlawfully denied access to rehabilitation in alleged breach of the Article 5 ancillary duty owed to him.
I have no doubt that this case is not one in which it would be proper to allow a challenge to be mounted, as the terms of this Ground seek to do, to the whole Guittard decision-making process. In the context of this case this challenge is both an abstract and academic one. Its outcome could not and cannot affect the Claimant. The suggestion raised by Mr Rule in his most recent submissions that the Claimant might be affected if he were recalled from licence to closed conditions is speculative. As Mr Lowe submitted, the Claimant may never be in that position, and even if he were, by then the policy may have changed.
In the round I agree with Mr Lowe that this court should leave this issue to be raised, if appropriate, in another case by a person genuinely affected ( see again the approach of the court in Lamot ) and in the context of a decision which the Defendant is seeking to defend.
For all these reasons I dismiss this ground of claim.
For all these reasons I grant relief limited to the indicated declaration under Ground 2 ( and the linked Ground 3 ). The claim for relief under Ground 1 is refused. The claim under Ground 5 is dismissed.
Although submissions as to costs have been made by both parties in their respective submissions following the decision in Brown, I invite the parties to make submissions both as to costs and the terms of the Order to be made in the light of this judgment.
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