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QUEEN v. SECRETARY OF STATE FOR HOME DEPARTMENT and GOVERNOR OF HER MAJESTY'S PRISON RISLEY ex parte CRAIG HARGREAVES, KEVIN BRIGGS AND BRENDAN GREEN  EWCA Civ 1006 (20th November, 1996)
THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM THE HIGH COURT OF JUSTICE
Justice Kennedy and Mr. Justice McCullough)
Courts of Justice
20th November 1996
e f o r e:
JUSTICE PETER GIBSON
- - - - -
OF STATE FOR THE HOME DEPARTMENT
THE GOVERNOR OF HER MAJESTY'S PRISON RISLEY
parte CRAIG HARGREAVES, KEVIN BRIGGS AND BRENDAN GREEN
- - - - - - -
Down Judgment of Smith Bernal
Limited, 180 Fleet Street,
0171 831 3183
Shorthand Writers to the Court)
- - - - -
(Instructed by Messrs Reece Davis Wood Wild & Co., Birmingham) appeared on
behalf of the Appellants/Applicants.
M. BELOFF Q.C. and MR. S. KOVATS
(Instructed by the Treasury Solicitor) appeared on behalf of the
- - - - -
U D G M E N T
approved by the Court
is an appeal against the decision of the Divisional Court (Kennedy L.J. and
McCullough J.) to dismiss the applications by the appellants Craig Hargreaves,
Kevin Briggs and Brendan Green for judicial review of two related decisions
namely (i) a decision by the Secretary of State of the Home Department to
implement a new scheme governing the eligibility of prisoners to apply for home
leave and (ii) the order of the Governor of Her Majesty's Prison Risley which
applied the new scheme to each of the appellants.
all material times the three appellants were category C prisoners serving their
sentences at Risley.
to the implementation of the new system, they would have been entitled to apply
for home leave after serving one third of their sentence. Under the new scheme
they were entitled to apply only after having served half their sentence. Each
appellant's case in a nutshell is that as a result of the new policy, which
deferred his earliest date for eligibility by a substantial period, he was
adversely affected in that he had been deprived of the legitimate expectation
that he would be considered eligible for home leave after he had served one
third of his sentence; each relied on the terms of a notice received form the
prison authorities at the time when he began to serve his sentence and also on
the terms of the compact which he entered into with the prison governor at the
same time. The new rules did contain some transitional provisions, but the
applicants did not benefit from these: essentially their case is that if
these changes were to have been made they should have been implemented in such
a way as to protect their legitimate expectations, and honour the terms of the
47(1) and (5) of The Prison Act 1952, under the heading "Rules for the
management of prisons ....", provide as follows:-
The Secretary of State may make rules for the regulation and management of
prisons, remand centres, detention centres and [youth custody centres]
respectively, and for the classification, treatment, employment, discipline and
control of persons required to be detained therein.
Rules made under this section may provide for the temporary release of persons
[detained in a prison, [remand centre, youth custody centre], or detention
centre, not being persons committed in custody for trial [before the Crown
Court] or recommitted to be sentenced or otherwise dealt with by [the Crown
Court] or remanded in custody by any court]."
Prison Rules 1964, rule 6, under the heading "Temporary Release", provided as
prisoner to whom this Rule applies may be temporarily released for any period
or periods and subject to any conditions.
prisoner may be temporarily released under this Rule for any special purpose or
to enable him to engage in employment, to receive instruction or training or to
assist him in his transition from prison life to freedom.
prisoner released under this Rule may be recalled to prison at any time whether
the conditions of his release have been broken or not.
Rule applies to prisoners other than persons committed in custody for trial or
to be sentenced or otherwise dealt with before or by the Crown Court or
remanded in custody by any court."
change was introduced by the Prison (Amendment) Rules 1995 SI 983, which
substituted for the previous rule the following under the same heading
The Secretary of State may, in accordance with the other provisions of this
rule, release temporarily a prisoner to whom this rule applies.
A prisoner may be released under this rule for any period or periods and
subject to any conditions.
A prisoner may only be released under this rule:
to assist him in maintaining family ties or in his transition from prison life
to freedom; or
A prisoner shall not be released under this rule unless the Secretary of State
is satisfied that there would not be an unacceptable risk of his committing
offences whilst released or otherwise of his failing to comply with any
condition upon which he is released.
The Secretary of State shall not release under this rule a prisoner serving a
sentence of imprisonment if, having regard to:
the period or proportion of his sentence which the prisoner has served; and
the frequency with which the prisoner has been granted temporary release under
Secretary of State is of the opinion that the release of the prisoner would be
likely to undermine public confidence in the administration of justice. ......"
changes were introduced as a result of the recommendations of a Prison Service
Working Group which was set up by the Secretary of State as a result of
problems which had come to his attention arising out of the operation of home
leave, namely absconding and the commission of offences by some prisoners while
on home leave, which had attracted considerable publicity, to the detriment of
public confidence in the criminal justice system.
prisoners' individual circumstances.
18th February 1994 Hargreaves was sentenced to imprisonment for six years for
assault with intent to rob and motoring offences; on 17th June 1994 Briggs was
sentenced to seven years imprisonment for conspiracy to supply cannabis, and on
14th July 1994 Green was sentenced to eight years imprisonment for a like
a result of the new rules, Hargreaves' earliest date for application was
deferred from 12 April 1995 to 12 April 1996, Briggs' from 7 July 1995 to 2
September 1996 and Green's from 26 November 1995 to 26 February 1997.
Notice to Prisoners and the Compact.
admission to HMP Risley each applicant was issued with a Notice to Prisoners
(the notice) entitled "Home Leave" which provided as follows:-
You may be eligible to ask for home leave. The following information applies
from 1 October 1992:
home leave is 2 days excluding travel time. Long home leave is 5 days
excluding travel time.
can ask for home leave only if you are in one of these groups ......
C (or equivalent) sentenced to 2 years of more.
can apply for short home leave after serving one-third of the total term of
sentenced imprisonment, and at 6-monthly intervals after that.
can apply for long home leave 2-months before your release date. ...
leave is a privilege for sentenced prisoners under Prison Rule 6. Its purpose
is to help restore self-confidence by placing trust in you under conditions of
freedom, and to help you to re-adjust to life outside prison by giving you the
opportunity to maintain links with family and friends. Long home leave offers
in addition the chance to contact prospective employers and make firm plans for
the same time each applicant was invited to sign and did sign a compact. Such
compacts were the subject matter of a recommendation of Lord Woolf's 1991
Report, and were current in 61 prison institutions by mid 1994.
inmate compact offered by HMP Risley, and signed by each applicant and by a
representative of the Governor provided inter alia as follows (the compact):-
PRISON PROMISES TO PROVIDE
Throughcare, and its involvement of your family in your resettlement plans if
you wish, including consideration for Home Leave when you become eligible. ...
The opportunity to apply for temporary release or for home leave over and
above the minimum facility (e.g. CJA Home Leave as stated in Notice to
Prisoners 37/93). ...."
followed a number of matters to which the prisoner was expected to commit
himself, such as treating staff with respect, and never using violence.
18th November 1994 the Home Secretary announced in Parliament the proposed
changes relating to temporary release of prisoners as follows so far as
I have been conducting a thorough review of the system of leave from prisons.
In too many cases, the system has been abused. I have come to the conclusion
that it needs to be tightened up. I can announce to the House today changes in
the system that are likely to lead to a reduction of about 40 per cent in the
amount of leave granted. I have placed full details of the new arrangements in
new system will have a number of important features. First, with immediate
effect, a much more rigorous risk assessment will be carried out before any
temporary release is permitted. The safety of the public must be paramount.
Secondly, there will be no automatic right to temporary release, which will be
permitted only in certain carefully prescribed circumstances: first, leave on
specified compassionate grounds; secondly, leave towards the end of a sentence
to assist prisoners in reintegrating into the community; and finally leave for
training, education or work experience designed to help in prisoner
rehabilitation. That form of leave will not be available to the most dangerous
prisoners - those in category A or B prisons - and will be considered only when
suitable courses are not available within the prison. My long-term objective
will be to restrict releases in that category to an absolute minimum by
providing more facilities inside prison.
I am very disturbed by the number of occasions on which prisoners abscond when
on temporary release. I have therefore decided to introduce a new offence
designed to make breaches of licence while on temporary prison leave a criminal
offence for the first time.
governors will have an overriding duty, in considering any release, not only
to ensure the safety of the public but to maintain public confidence in the
prison system. The necessary training for the full introduction of the new
arrangements will be completed early next year. I intend to review the new
system by the end of next year to see whether any further changes are needed."
similar statement was made by Baroness Blatch the Minister of State, Home
Office in the House of Lords as follows:-
A working group was established in June 1993 to review the operation of the
home leave and temporary release schemes. It included representatives from the
police and probation services, as well as from a broad range of penal affairs
groups. Those groups included Victim Support, the Prison Reform Trust and the
Federation of Prisoner Family Support Groups.
working group recognised that, since the report of Lord Justice Woolf some two
years earlier, the profile of home leave and temporary release had changed
significantly. There had been public concern about the operation of both
schemes following a number of serious failures where prisoners had committed
serious and violent offences, including murder and armed robbery, while
released temporarily. In addition, the working group recognised the concerns
of victims that prisoners were being granted temporary release only a short
time after being sentenced.
noble Lord, Lord Rodgers of Quarry Bank, asked whether the Government had
abandoned the principles of the Woolf Report. Again, I say to the noble Lord
that the Government recognise - as, indeed, did Lord Justice Woolf in his
report - the benefits that the temporary release of prisoners can provide.
However, it is important that it should be within a clear framework, with the
necessary safeguards in place to ensure public safety. The working group
established in response to the Woolf Report recommended just such a scheme,
which we have now implemented.
report of the working group was presented to my right honourable friend the
Home Secretary in October last year. The report included four recommendations.
They took full account of the needs of both the public and prisoners and their
families and the need to maintain good order and security in prisons and most
importantly, public safety. It was in the light of that report that my right
honourable friend made his announcement last November about the new system of
release on temporary licence. That came into effect on 25th April.
Government believe that there are important benefits to be gained in releasing
suitable prisoners for short periods as part of the process of preparing for
their eventual return to the community. Evidence shows that prisoners who have
a job to go to, a secure family environment and skills developed by training or
education are less likely to re-offend than those released ´cold' into the
community. Testing prisoners in controlled and monitored circumstances
therefore contributes to public safety.
benefits of releasing prisoners for short periods in that way must, however, be
weighed against any potential threat that prisoners who have been temporarily
released may pose to the public and against the need to preserve public
confidence that prisoners who have been sentenced to a term of imprisonment
will not be released back on to the streets shortly after they have been
new scheme of release on temporary licence is more sharply focused than its
predecessors. Prisoners will in future be released only for precisely defined
and specific purposes. Prisoners will continue to be eligible to be
temporarily released for justifiable purposes such as education and training
leading to a recognised qualification where that cannot be provided in prison.
Any such release would be allowed only where programmed into a prisoner's
sentence plan and specifically designed to help the prisoner to lead a
law-abiding and useful life upon release. It is unacceptable, however, for
prisoners to be released for purposes which are purely social or recreational.
That will no longer be allowed.
new system will also continue to allow prisoners to be considered for temporary
release in urgent and compelling compassionate circumstances or towards the end
of their time in custody to maintain their family ties or re-establish links
with the community in preparation for their return to the community.
of the primary purposes of the new scheme must be to ensure that the public are
not placed at any risk by the unacceptable release of prisoners who pose a
threat to public safety. The new scheme includes a mandatory and stringent
risk assessment carried out in collaboration with the Police and Probation
governors have a duty, in considering any release, not only to ensure the
safety of the public but also to maintain public confidence in the
administration of justice. Prisoners should not be released too early after
sentencing, nor too frequently. To do so would undermine the purpose of
imprisonment. Under the new scheme therefore, prisoners will have to serve
longer in prison before applications for release on licence will be considered."
were sworn on behalf of the Secretary of State by Irving Noyes Jones, who is a
Higher Executive Officer in the Directorate of Programmes Policy Group, Prison
Service Headquarters, and by Audrey Wickington a Grade 7 Administrator in the
same Directorate. Mr. Jones testified as follows:-
Secretary of State became concerned that the system was being abused and that
it needed to be tightened up. He considered that steps needed to be taken to
restore public confidence in the penal system. .....
Secretary of State was aware that his proposed changes would lead to deferment
of the date at which some serving prisoners became eligible for consideration
for resettlement licence. The Secretary of State considered what, if any,
transitional provision should be made. He decided that prisoners who had
already successfully completed a period of home leave and who were within 12
months of their parole eligibility date should continue to be eligible to apply
for temporary release on resettlement licence. However, bearing in mind the
reasons which had prompted the changes, he decided that other existing
prisoners sentenced on or after 1 October 1992 who were serving determinate
sentences of four years or more should be fully subject to the new criteria. ..."
Wickington testified as follows:
part of its remit, the Working Group considered the eligibility criteria for
prisoners being granted home leave. The Working Group noted that eligibility
was based on sentence length and the personal security classification of
prisoners. They also noted that for certain classes of prisoners who had been
sentenced before the implementation of the Criminal Justice Act 1991
eligibility to be considered for home leave was linked to their parole
eligibility date. They concluded that this was an important goal for prisoners
serving long sentences and a fundamental aspect of sentence planning.
Working Group also noted that following the implementation of the Criminal
Justice Act 1991
there had been introduced new Home Leave Eligibility Dates
("HLEDs") for those prisoners sentenced on or after 1 October 1992. The
Working Group recognised that this had led to the system becoming increasingly
complicated to operate and that there had been a number of serious home leave
failures which had given rise to public concern.
Working Group concluded that it was imperative to devise a simple set of fair
but firm criteria covering release on temporary licence which would lead to
better decision making and more confidence that issues of public safety were
properly addressed. Recognising the principles introduced by the Criminal
Justice Act 1991
for the sentencing of offenders, the Working Group concluded
that the criteria for determining the eligibility for the grant of resettlement
licence needed to differ for determinate offenders sentenced to four years or
more from those given shorter sentences of imprisonment. The Working Group
also concluded that release on resettlement licence should remain linked to the
prisoner's parole eligibility date and for prisoners serving four years or more
should not take place before one-half of a prisoner's sentence expiry date.
unanimous recommendations of the Working Group were submitted in a Report to
the Secretary of State for the Home Department in October 1994. On the basis
of the considerations set out in that Report, the Home Secretary accepted the
Working Group's recommendation that for determinate sentence prisoners serving
four years or more any period of release on resettlement licence should be not
earlier than one half of the sentence expiry date. This coincides with the
parole eligibility date set by the Criminal Justice Act 1991
November 1994 the Home Secretary announced to Parliament new arrangements,
based on the recommendations made in the Working Group's report, for the
release of prisoners on temporary licence to replace the existing home leave
and temporary release schemes. The purpose of the new arrangements was to
improve public safety and increase public confidence in the administration of
justice by ensuring that prisoners were released on temporary licence for
precisely defined and specific purposes, justifiable as part of their
rehabilitative process. .....
Home Secretary also considered the effect which the new arrangements would
have on the eligibility of existing prisoners to be granted release on
temporary licence. He concluded that it would be appropriate to make
transitional arrangements for certain classes and categories of prisoners where
this would not compromise public safety and the need to maintain public
confidence in the administration of justice.
the Home Secretary concluded that those prisoners sentenced to four years or
more before the implementation of the Criminal Justice Act 1991
allowed to retain their eligibility for resettlement licence at the point at
which they would become eligible for release on parole licence. Similarly, the
Home Secretary concluded that any prisoners sentenced on or after 1 October
1992 who had been through a risk assessment and had successfully completed a
period of home leave should continue to remain eligible for resettlement
licence if they were within 12 months of their parole eligibility date.
the Home Secretary though mindful of the expectations of other existing
prisoners, concluded that the public interest which prompted the change of
policy outweighed extending the transitional arrangements to them. The Home
Secretary also took the view that it would be inconsistent with the purpose of
the new policy to require the new tighter arrangements to apply to only those
prisoners sentenced after the new system had come into effect. The public
disquiet about the number of serious home leave failures and the release of
prisoners too early and too frequently in sentence had been in relation to the
existing prison population. There were no grounds for believing that only
those prisoners sentenced after the implementation of the new system posed a
greater degree of risk to public safety."
behalf of the appellants, affidavits were sworn by Mr. Paul Francis Cavadino,
Chairman of the Penal Affairs Consortium and Mr. Stephen Shaw, Director of the
Prison Reform Trust.
Cavadino testified as follows:-
respondents argue that there was ´an overriding public interest' which
required the reduction in home leave opportunities to be applied
retrospectively to existing prisoners. Two specific arguments are advanced in
the respondents argue that: ´There had been a number of serious home
leave failures which had given rise to public concern'. (This is true, and is
a reference to a small number of cases in which serious offences of violence or
sexual offences were committed by prisoners on home leave). It is therefore
argued that there was a need for criteria which would produce ´more
confidence that issues of public safety were being addressed'. However, before
April 1995 this concern had already been specifically addressed by rigorous
´risk assessment' procedures which had been developed in response to
concern about home leave failures. Circular instruction 43/92 contained
detailed guidance for governors on risk assessment for prisoners being
considered for home leave. This advised governors on specific issues which
they should consider when assessing the level of risk, relating to the
prisoner's criminal history, home circumstances, the attitude of the local
community, behaviour on any previous home leaves and temporary releases,
behaviour in prison, and other specific areas of concern. A subsequent
instruction issued in November 1994 (70/1994) set out revised criteria which
governors should consider before granting temporary release. This tightened up
the risk assessment procedure by more explicit and rigorous criteria (eg
requiring governors to assess whether the prisoner has ´tackled his
offending behaviour in a positive and successful way', for example by
participating in programmes designed to change offending behaviour); by
instructing governors to contact the relevant police force well in advance and
to take into account any views they expressed; by specifying that the
probation service should also be involved in the assessment; and by providing
that the views of known victims should be sought in the case of violent or
risk assessment is the most logical response to concern about the commission of
serious offences against the person by prisoners on home leave: this would not
normally involve restricting home leave opportunities for non-violent
offenders. The further restrictions of April 1995, which excluded the
applicants from consideration for home leave, were changes in the point in the
sentence at which they would become eligible for consideration. These latter
changes rule out the possibility of home leave for the applicants until a later
point in the sentence whether or not they would have passed the risk assessment
and have been judged safe for release. Unlike the earlier changes in risk
assessment, therefore, the changes of April 1995 do not directly relate to
disquiet about too early or too frequent home leave.
the respondents argue that the changes were needed because of ´public
disquiet about ... the release of prisoners too early and too frequently in
sentence'. This is an additional and separate point, as it refers to a
suggested public feeling that prisoners should not receive temporary release
early or frequently even if they do not threaten public safety. However, this
particular concern had not normally been expressed in relation to home leave
for long term prisoners serving sentences of four years or more, who under the
previous rules had to serve one-third of their sentences before becoming
eligible for home leave. It arose in most cases in connection with media
publicity for a small number of high profile cases in which the use of
temporary release other than home leave, at an earlier point in the sentence
than home leave as such could be used, had resulted in prisoners being
temporarily released after very short periods of weeks or months in custody. I
personally favour opportunities for family contact by means of temporary
release from an early stage in the sentence. However, this issue has no direct
bearing on the separate issue of whether the home leave eligibility of longer
term prisoners should arise after one-third or one-half of the sentence.
neither of the two specific arguments advanced for ´an overriding public
interest' are valid arguments for altering the point of eligibility for home
leave retrospectively from one-third to one-half of the sentence in the case of
the applicants or other prisoners in their position.
any argument for an ´overriding public interest' is even weaker when the
respondents' arguments are set against the following countervailing
considerations which also relate to the public interest:
The reduction of opportunities for family contact increases the risk of
break-up of families during a sentence. This is relevant to the public
interest in two respects. The first is society's interest in promoting the
stability of families. The second is that family break-up can increase the
likelihood of reoffending: the report of the Prison Service working group on
home leave referred to research in the USA which has suggested that a prisoner
without family support is six times more likely to reoffend in the first year
after release than one who has maintained close family ties.
The longer the period of time without home leave, the greater the likelihood of
institutionalisation of the prisoner.
More frequent opportunities for home leave and family contact reduce tension in
prisons and provide a powerful incentive for good behaviour by prisoners.
The applicants and others in their position had signed prison compacts
promising to provide
consideration for home leave at the then applicable date of eligibility. It is
in the public interest that a service which seeks to alter offenders' attitudes
and behaviour in the direction of probity, honesty and honourable dealing
should itself be seen to honour its promises.
my view, therefore, the respondents' arguments of ´overriding public
interest' are weak, and certainly insufficient to outweigh the legitimate
expectations of the prisoners concerned."
Stephen Shaw, Director of the Prison Reform Trust, testified to like effect.
was also a considerable body of evidence, not only from the appellants
themselves, but also from others in the form of letters, which demonstrated (as
is not in any way in dispute) the severely traumatic effect upon the appellants
and upon other prisoners in the same predicament of the change of policy, which
was promulgated in a notice to prisoners dated 20th April 1995.
Divisional Court Judgment.
Divisional Court decided that the appellants had failed to establish any clear
and unambiguous representation that they would be eligible for home leave after
having served one third of their sentence, and that their legitimate
expectation was no more than that their applications would be decided by
reference to the criteria current at the time the application was made. In
reaching this conclusion they placed strong reliance on the principles laid
down by the House of Lords in
 1 AC 318. They rejected a submission that, while giving a margin of
appreciation to the Secretary of State, the court should conduct a balancing
exercise based on considerations of fairness and proportionality, and that the
proper test is not one based upon the
principle but upon whether the Secretary of State had succeeded in showing
sufficient countervailing considerations of public interest to justify his
failure to give the appellants the benefit of the transitional provisions.
Finally they held that there was no reason to conclude that what had been done
in the present case was in breach of the principles contained in Article 8 of
the European Convention on Human Rights.
questions we have to decide are therefore:-
What is the meaning of the notice and of the compact?
What as a matter of principle in the light of
case is the general scope of a legitimate expectation when, in circumstances
like the present, there is a change of policy?
What approach should the court adopt as a matter of principle to a decision by
the Secretary of State on a matter of substance such as the present one?
Should it be by reference to the
test, or by means of the proposed balancing exercise?
Was there any departure here from the principles contained in Article 8?
questions (2), (3) and (4) all raise matters of general principle, while
question (1) relates simply and solely to the facts of the present case, I
shall deal with the former first.
General Scope of Legitimate Expectation when there has been a Change of Policy
(supra) the Home Secretary had decided in 1983 to change the policy for release
of prisoners on parole in relation to certain classes of serious offenders viz:
for drug traffickers and violent offenders sentenced to more than five years
imprisonment by deferment of parole until the final months of their sentence,
and for certain categories of murderers by deferment until they had served at
least twenty years of their life sentence. Four prisoners, two of whom were
serving long determinate sentences, and two of whom were lifers, sought
judicial review of the decision on a number of grounds, the relevant one for
present purposes being that they had been deprived of their legitimate
expectations. They were represented by Mr. Stephen Sedley QC (as he then was).
Their applications failed, and Lord Scarman (with whom the other members of the
Appellate Committee agreed) stated as follows at page 337:-
In the cases of Findlay and Matthews both of whom received determinate
sentences, Mr. Sedley did not suggest that the statute gave rise to any greater
expectation than that their cases would be considered on their becoming
eligible for parole. Their cases have been considered and will continue to be
considered under the new policy. Unless, therefore, the policy is unlawful
(which I have held it is not), this argument avails them nothing. The cases,
however, of Hogben and Honeyman, each of whom is serving a life sentence, raise
issues other than the lawfulness of the policy and I defer my consideration of
them until a later stage.
turn now to the special point taken on behalf of Hogben and Honeyman, namely
that it was unlawful to apply the new policy to them.
post-sentence history of these two appellants, each of whom is serving a life
sentence, I have already summarised. They had good reason under the practice
which prevailed before the adoption of the new policy to expect release much
earlier than became likely after its adoption. The doctrine of legitimate
expectation has an important place in the developing law of judicial review.
It is however, not necessary to explore the doctrine in this case, it is enough
merely to note that a legitimate expectation can provide a sufficient interest
to enable one who cannot point to the existence of a substantive right to
obtain the leave of the court to apply for judicial review. These two
appellants obtained leave. But their submission goes further. It is said that
the refusal to except them from the new policy was an unlawful act on the part
of the Secretary of State in that his decision frustrated their expectation.
But what was their
expectation? Given the substance and purpose of the legislative provisions
governing parole, the most that a convicted prisoner can legitimately expect is
that his case will be examined individually in the light of whatever policy the
Secretary of State sees fit to adopt provided always that the adopted policy is
a lawful exercise of the discretion conferred upon him by the statute. Any
other view would entail the conclusion that the unfettered discretion conferred
by the statute upon the minister can in some cases be restricted so as to
hamper, or even to prevent, changes of policy. Bearing in mind the complexity
of the issues which the Secretary of State has to consider and the importance
of the public interest in the administration of parole I cannot think that
Parliament intended the discretion to be restricted in this way."
Elias submitted that
case is distinguishable on the footing that it was concerned not with when but
with whether the prisoners should be granted parole, in other words that it
dealt with eligibility for parole and not with timing; and that in any event
the second passage quoted above was referable only to the two lifers and not of
am unable to accept these submissions for a number of reasons. First it is
clear that timing, and the very severe impact of the deferment of parole on the
prisoners' morale, was in the forefront of Mr. Sedley's argument (see page 324
C - E and 324 H - 325 A). Secondly, when considering eligibility for parole,
timing is inevitably one of the main criteria, and was in fact the very
criterion which was changed under the new policy adopted in 1983. Thirdly, the
second passage in Lord Scarman's speech with its reference to "the most
can legitimately expect ..." is clearly of general application to all the
prisoners affected by the 1983 change of policy including of course a number on
this interpretation the present case (deferment of the earliest date of
eligibility for making an application for home leave) and
case (deferment of the earliest date of eligibility for parole) are in my
judgment indistinguishable, and consequently I think that Mr. Beloff was right
in his submission that
is dispositive of the present appeal, irrespective of the answer to the
question of the construction of the notice and the compact.
conclusion is strongly reinforced by the following passage from the leading
speech of Lord Diplock in
v. Department and Social Security
 AC 776, which concerned a change of policy as to the retirement dates of
certain classes of civil servant:-
this remains the case only so long as the departmental circular announcing
that administrative policy to the employees affected by it remains in force.
Administrative policies may change with changing circumstances, including
changes in the political complexion of governments. The liberty to make such
changes is something that is inherent in our constitutional form of government.
When a change in administrative policy takes place and is communicated in a
departmental circular to, among others, those employees in the category whose
age at which they would be compulsorily retired was stated in a previous
circular to be a higher age than 60 years, any reasonable expectations that may
have been aroused in them by any previous circular are destroyed and are
replaced by such other reasonable expectations as to the earliest date at which
they can be compelled to retire if the administrative policy announced in the
new circular is applied to them."
Proper Approach for the Court to the Secretary of State's Decision
Elias's argument in support of the balancing exercise to be conducted by the
court was based entirely on the decision of Sedley J. in
v. Ministry of Agriculture Fisheries and Food, ex parte Hamble (Offshore)
 2 AER 714. The case concerned the judicial review of a decision of the
Minister (whereby he declared a moratorium on the permitted transfer of certain
fishing licences), and was eventually resolved in the Minister's favour.
However in the course of his judgment Sedley J. propounded a test which Mr.
Elias submits was correct, viz:-
considerations, I think, bring one closer to some conceptual understanding of
what makes an expectation legitimate. Legitimacy in this sense is not an
absolute. It is a function of expectations induced by government and of policy
considerations which militate against their fulfilment. The balance must in
the first instance be for the policy-maker to strike; but if the outcome is
challenged by way of judicial review, I do not consider that the court's
criterion is the bare rationality of the policy-maker's conclusion. While
policy is for the policy-maker alone, the fairness of his or her decision not
to accommodate reasonable expectations which the policy will thwart remains the
court's concern (as of course does the lawfulness of the policy). To postulate
this is not to place the judge in the seat of the minister. As the foregoing
citations explain, it is the court's task to recognise the constitutional
importance of ministerial freedom to formulate and to reformulate policy; but
it is equally the court's duty to protect the interests of those individuals
whose expectation of different treatment has a legitimacy which in fairness
outtops the policy choice which threatens to frustrate it."
at page 735 he asked the rhetorical question whether the Minister's decision
was fair, and proceeded:-
as I have held, while initially a question for the minister is ultimately a
question for the court. But, in answering the question, the minister's policy
objectives and reasoning form as important an element of the forensic exercise
as do the potency and reasonableness of the applicant's expectations."
J. cited a number of authorities, but they all dealt with alleged procedural
irregularities on the part of a Minister, on which, as is common ground, it is
appropriate for the court to conduct an inquiry into the fairness of the
procedure followed. But in no previous case has this been extended to
decisions on matters of substance such as the present case, and indeed a
distinction has frequently been drawn between the two, as for example in
v. Panel on Take-Overs and Mergers, ex parte Guinness plc
 1 QB 146, which concerned the judicial review of a procedural ruling by
the Takeover Panel not to adjourn certain proceedings affecting Guinness.
L.J. stated at page 183:-
the first place the question whether we are entitled to intervene at all is not
to be answered, as Mr. Buckley argued, by reference to
Provincial Picture Houses Ltd. v. Wednesbury Corporation
 1 KB 223
. It is not a question whether, in the language of Lord
Diplock, quoted by Watkins L.J. in the Divisional Court, the decision to hold
the hearing on 2 September was
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided could
have arrived at it': see
of Civil Services Unions v. Minister for the Civil Service
 AC 374
the question has to be decided in accordance with the principles of fair
procedure which have been developed over the years, and of which the courts are
the author and sole judge. These principles, which apply as well to
administrative as judicial tribunals, are known compendiously,if misleadingly,
as the rules of natural justice.
Buckley argued that the correct test is
unreasonableness, because there could, he said, be no criticism of the way in
which the panel reached its decision on 25 August. It is the substance of that
decision, viz., the decision not to adjourn the hearing fixed for 2 September,
which is in issue. I cannot accept that argument. It confuses substance and
procedure. If a tribunal adopts a procedure which is unfair, then the court
may, in the exercise of its discretion, seldom withheld, quash the resulting
decision by applying the rules of natural justice."
importance of preserving this distinction is demonstrated by another passage in
Lord Scarman's speech in
at page 333:-
the Secretary of State has clearly to consider other aspects of the early
release of a prisoner serving a sentence of imprisonment. Deterrence,
retribution, and public confidence in the system are factors of importance.
The Parole Board, through its judicial and other members, can offer advice on
these aspects of the question. But neither the board nor the judiciary can be
as close, or as sensitive, to public opinion as a minister responsible to
Parliament and to the electorate. He has to judge the public acceptability of
early release and to determine the policies needed to maintain public
confidence in the system of criminal justice. This must be why Parliament saw
as necessary the duality of the parole system: without the advice and
recommendation of a body capable of assessing the risk of early release the
Secretary of State was not to act: but, having received such advice and
recommendation, he was to authorise early release only if he himself was
satisfied that it was in the public interest that he should."
Beloff characterised Sedley J's approach as heresy, and in my judgment he was
right to do so. On matters of substance (as contrasted with procedure)
provides the correct test. If follows that while Sedley J's actual decision in
case stands, his ratio in so far as he propounds a balancing exercise to be
undertaken by the Court should in my judgment be overruled.
am prepared to accept, as did the Divisional Court, that although not part of
English domestic law the provisions of the Convention can assist in the
elucidation of common law or in the interpretation of a statute (
v. Secretary of State for the Home Department, ex parte Brind
 1 AC 696
8 provides as follows:-
Everyone has the right to respect for his private and family life, home and
shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others."
Gallivan submitted that a serving prisoner has a right to respect for his
family and private life, albeit one necessarily circumscribed by the fact of
confinement and the limitations necessarily inherent therein.
cited two decisions of the European Commission
No. 9054/80 30 DR 113 (1982) and
No. 18632/91 15 EHRR CD 98 (1993). However, although both those cases
concerned prisoners in detention, neither throws any light on the present case,
and in both the Commission ruled that the application was manifestly ill-founded.
my judgment the fundamental interference with respect to family life in the
present case is brought about by the lawful sentences of the court. Of course
home visits are an important feature, but it must be borne in mind that there
is no suggestion that any appellant was cut off from his family altogether,
since prison visits continued as usual.
in applying the exceptions which Article 8 stipulates, it is to my mind quite
clear that the considerations of public confidence and public safety, which are
advanced by the Secretary of State, fall within their scope, and are properly
to be regarded as meeting the criteria laid down by Lord Keith of Kinkel that a
pressing social need must be shown, and that the restrictions should be no more
than the is proportionate to the legitimate aim pursued (
C.C. v. Times Newspapers Ltd.
 AC 534
at page 550).
was thus in my view no infringement of the principles contained in Article 8.
of the notice and the compact.
is common ground that a representation can only be relied upon as the basis for
a legitimate expectation if it is clear and unambiguous (
v. Inland Revenue Commissioners, ex parte MFK Underwriting Agents
 1 WLR 1545
v. Devon County Council, ex parte Baker
 1 AER 73). It is also not in dispute that the document must be
interpreted through the eyes of an ordinary prisoner.
heading to the notice made it clear that the information which followed applied
from "1st October 1992". This to my mind indicated that there had been a
change at that date, which would certainly, at the very least, leave open the
possibility that the ensuing information as to entitlement to apply for home
leave might change again. It is also made clear under the word "REMEMBER" that
home leave is a privilege.
compact, in its first relevant passage, makes it clear that consideration for
home leave is available "when you become eligible", and contains no
representation as to timing. The reference to temporary release or home leave
in the ´Optional Enhancements' refers back to the notice, to which I have
as a whole, these two documents in my judgment do not contain a clear and
unambiguous representation as to timing, and therefore are not a proper
foundation for the legitimate expectation for which the appellants contend. It
is, nevertheless, most unsatisfactory that documents of such importance to
prisoners should be other than completely clear and unambiguous, and I trust
that in future great care will be taken to ensure that all references to home
leave (and indeed to any other privilege) in such documents state unequivocally
and in plain language that eligibility for such privileges will be subject to
the regime currently in force at the time of the application.
proceed finally to evaluate the decision of the Secretary of State in
accordance with the correct test. It is not suggested that his decision was in
any way tainted with illegality. Nor could it be reasonably be suggested that
it was irrational, let alone perverse, seeing that the Prison (Amendment) Rules
1995 expressly provided in rule 6(4) and (5) that a prisoner shall not be
released unless the Secretary of State is satisfied that there would not be an
unacceptable risk of his committing offences while released, or if the
Secretary of State is of the opinion that the release of the prisoner would be
likely to undermine public confidence in the administration of justice, i.e.
the two main considerations advanced both by the Secretary of State in the
House of Commons and Baroness Blatch in the House of Lords, and confirmed by
the affidavit evidence of the Home Office witnesses.
appellants' witnesses suggest that the first reason is unsound, seeing that
public safety is already secured by the new risk assessment system; I reject
this criticism, since, while of course that system is very important, the
deferment of the earliest date for home leave is a further safeguard, in that
it extends the period during which the prisoner is not at large with the
opportunity to commit further offences and may also tend to reassure the
public. The appellants' witnesses also contend that the public anxiety about
prisoners re-offending while on home leave (to which Baroness Blatch expressly
referred) was not directed against this particular class of prisoner, but to my
mind that is far too fine a distinction.
it is necessary to assess whether the Secretary of State took account of the
relevant considerations, or omitted any. In my judgment he cannot be faulted
on this account. I have already considered the two main factors behind his
decision, namely public safety and the restoration the public confidence in the
administration of justice. It is also plain from the evidence that he took
into account the specific factors affecting the present appellants,( namely the
deferment of their earliest possible date for home leave during the currency of
their sentences, the precise terms of the appropriate transitional
arrangements, and the inevitable distress which the change in policy would
cause), together with the general benefits provided by home leave.
Elias submitted that he disregarded the compact, and it is true to say that
there is no specific mention of the compact either in the Parliamentary
statements or in the evidence. However, as the Divisional Court held, such
arrangements were widespread in the prison service, and must have been very
well known to the Secretary of State when he was considering the position of
those already sentenced, so that it goes without saying that he must have had
the compact in mind.
follows that his decision is invulnerable under the
all these reasons I would dismiss this appeal.
have had the advantage of seeing in draft the judgments of Hirst and Pill L.JJ.
am in entire agreement with them and there is nothing which I would wish to add.
to the submissions of Mr Elias on behalf of the appellants is the submission
that the Secretary of State’s (the respondent) change of policy as to
home leave was unlawful because it frustrated a legitimate expectation which
had arisen under the former rules of eligibility. A legitimate expectation was
created when the appellants entered into a compact with the Prison Governor of
HMP Risley under the former rules. It cannot be the law, Mr Elias submits, that
a legitimate expectation can never stand against a change of policy. The
question, he submits, is whether the respondent has justified to the Court his
view that there is a public policy consideration which takes priority over the
legitimate expectation created by the compact.
Elias makes the further submission that, in answering that question, the Court,
analysing the situation as a whole, must decide whether the respondent has
acted fairly. Is it fair that the claimed public interest takes priority?
LJ has referred to the compact. It was signed by the appellants and on behalf
of the Governor under the words “We agree to the terms and conditions of
this compact”. Under the heading “The prison promises to
provide”, it is stated
“Consideration for home leave when you become eligible”. The
compact was signed after service on the appellants of a “Notice to
prisoners” which stated that “You can apply for short home leave
after serving one third of the total term of sentenced imprisonment”. The
effect of the subsequent change of policy was that the appellants could apply
for home leave only when they had served one half of their sentences.
the compact under the heading “The prison expects you to commit
yourself” was a list of nineteen requirements. These included aspects of
good behaviour, general exhortations to “offer support to other
prisoners” and “be an example to others” and requirements:
refrain from the use of threats or threats of violence and to fully support the
declared aim of the establishment to provide a “violence free
treat the whole prison environment with care, including the maintenance of your
cell to a high level of cleanliness and tidiness”
mention these requirements as examples of the comprehensive code of good
the heading “If the prison breaches the compact”, opportunities are
provided to make complaints to authorities within and without the prison
service. It is also stated that the prisoner may “Seek judicial review of
administrative action if your legitimate expectations under this compact have
unreasonably been denied”. I agree with Mr Elias that having regard to
its form and substance, the document is not one to be treated lightly in the
context of the present application.
also agree with Mr Elias to the extent that the Court must analyse the
situation as a whole. There must first be a fact-finding exercise as to the
representations made to the promisee on behalf of the respondent and their
impact on the promisee. It must then be considered whether an expectation was
created and, if so, whether it is one which the law regards as a legitimate
expectation which cannot be defeated by the change of policy. That will depend
on all the circumstances, including the nature of the expectation, the change
of policy involved and any justification given for that change in the light of
the expectation claimed to exist.
I cannot agree with Mr Elias is in his submission that the Court can take and
act upon an overall view of the fairness of the respondent’s decision of
substance. The Court can quash the decision only if, in relation to the
expectation and in all the circumstances, the decision to apply the new policy
in the particular case was unreasonable in the
Provincial Picture Houses Ltd
 1 KB 223
). The claim to a broader power to judge the fairness of a
decision of substance, which I understand Sedley J to be making in
of Agriculture, Fisheries and Food ex p Hamble (Offshore) Fisheries Ltd
2 All ER 714, is in my view wrong in principle.
well as the Governor’s notice and the compact, the Court must bear in
mind the context of the respondent’s decision, a decision which was of
importance in an area where he bears grave responsibilities and which is a
matter of great public concern, namely penal policy. I agree with Hirst LJ
that, notwithstanding the notice and compact, these appeals must fail. The
underlying reason was stated by Lord Scarman in
 AC 318:
what was their legitimate expectation? Given the substance and purpose of the
legislative provisions governing parole, the most that a convicted prisoner can
legitimately expect is that his case will be examined individually in the light
of whatever policy the Secretary of State sees fit to adopt provided always
that the adopted policy is a lawful exercise of the discretion conferred upon
him by the statute.”
this context, even if the appellants established that, when they signed the
compact, they were misled by the contents of the notice and compact they could
have no legitimate expectation which defeats the respondent’s new policy
upon home leave and its application to them.
LJ has set out the circumstances in which the respondent took the decisions
complained of and the evidence before the Court. In my judgment, and I apply the
tests, the respondent did not take into account matters he ought not to have
taken into account or neglect to take into account matters which he ought to
have taken into account. He has not come to a conclusion so unreasonable that
no reasonable Secretary of State could have come to it. He was entitled to
treat the Governor’s notice and the compact as being of insufficient
weight to deter him from taking the relevant decisions affecting the appellants.
also wish to state my agreement with the view expressed by Hirst LJ as to the
care which should be taken in the drafting of a document such as the compact.
The issue of charters, whether for patients or passengers or others, has become
commonplace as an activity of public bodies. This compact was different from
most charters in that it stated not only what the prison promised to provide
but what the prison expected from the prisoner in return. Mr Beloff confined
his submission to one that the compact was adequate in point of law and he has
succeeded. I would however express the hope that care is taken to state what
will be provided for the prisoner in “as precise terms as
possible”, to quote the words in paragraph 12.120 of the report of Lord
Justice Woolf and Judge Tumin on Prisons (Jan 1991 Cm 1456). Section 12
Report, paragraphs 120 to 129, recommends that prisoners should be offered the
opportunity to enter into a compact such as that now under consideration. In
the respect identified by Hirst LJ, this compact falls short of the aspirations
would dismiss this appeal.
Appeal dismissed; legal aid taxation.
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