David Bonner v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | The Hon.,Mr Justice King |
| Judgment Date | 25 October 2018 |
| Neutral Citation | [2018] EWHC 2819 (Admin) |
| Docket Number | Case No: CO/3980/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 October 2018 |
[2018] EWHC 2819 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice King
Case No: CO/3980/2012
Mr Rule (instructed by Carringtons Solicitors) for the Claimant
Mr Lowe (instructed by the Government Legal Department) for the Defendant
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 tobe 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.
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R Jawad Akbar v The Secretary of State for Justice
...5. 63 In support of that proposition, he relied upon two further authorities. 64 In R (Bonner) v Secretary of State for Justice [2018] EWHC 2819 (Admin), the claimant alleged unlawful delay in transferring him from closed to open conditions, in breach of the Secretary of State's obligation......