R Jawad Akbar v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 20 November 2019 |
| Neutral Citation | [2019] EWHC 3123 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5051/2018 |
| Date | 20 November 2019 |
[2019] EWHC 3123 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Mr Justice Johnson
Case No: CO/5051/2018
Dan Squires QC and Anita Davies (instructed by Birnberg Peirce Solicitors) for the Claimant
Ben Watson (instructed by Government Legal Department) for the Defendant
Hearing date: 30 October 2019
Approved Judgment
Introduction
This is the judgment of the court.
Generally, to obtain release from prison, a life prisoner is required to satisfy the Parole Board of England and Wales (“the Parole Board”) that he no longer poses more than an acceptable risk to the public. To assist him to do so, and to test him in conditions more approaching those on release, during the course of his custodial sentence he would normally progress from high security to lower security prisons until, prior to the expiry of his minimum term or tariff, he would hope to be transferred to an open prison where, for example, he can enjoy release on temporary licence (“ROTL”). The Secretary of State has a power, but not an obligation, to transfer him to open conditions if the Parole Board recommends such a transfer.
However, in 2014, the Secretary of State added rule 7(1A) to the Prison Rules 1999 (SI 1999 No 728) (“the Prison Rules”) removing his own power to transfer life prisoners to open conditions if they are subject to a deportation order in respect of which they have no extant right to appeal, i.e. they are “appeals rights exhausted” or “ARE”. We shall refer to prisoners who are the subject of a deportation order and are ARE as “ARE prisoners”.
The Claimant is a foreign national prisoner (“FNP”) who is currently serving a life sentence for a terrorist offence, with a tariff which is due to expire in September 2021. He is the subject of a deportation order which he has never challenged, and so is ARE. He is firmly of the view that, but for rule 7(1A), he would have been referred to the Parole Board by now to consider whether he should be transferred to open conditions: but that rule means that he cannot be considered for transfer. He has consequently not been referred to the Parole Board for any assessment of risk.
In this claim, the Claimant challenges rule 7(1A), which he submits is unlawful on two grounds:
i) The rule is in breach of article 14 of the European Convention on Human Rights (“ECHR”), as falling within the ambit of article 5 and/or 8 of the Convention and being a discriminatory and unjustified difference in treatment between ARE prisoners and all other prisoners (including prisoners who are the subject of a deportation order who are not ARE).
ii) The Secretary of State's decision through rule 7(1A) to deprive himself of the power to transfer any ARE prisoner into open conditions was irrational.
Before us, Dan Squires QC and Anita Davies appeared for the Claimant, and Ben Watson for the Secretary of State. We thank them all for their contribution to the debate.
Categorisation of Prisoners
Section 47(1) of the Prison Act 1952 gives the Secretary of State the power to make rules “for the regulation and management of prisons… and for the classification… of persons required to be detained therein”. The management of prisons and of prisoners, including how prisoners are classified and how different categories of prisoner are managed, is essentially an administrative matter for the Secretary of State in respect of which the Secretary of State has a wide discretion or margin of appreciation.
The relevant rules are the Prison Rules. Rule 7 provides that, subject to rules 7(1A)-(1D) to which we shall shortly return, “prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment…”.
The relevant directions appear in PSI 40/2011 Categorisation and Recategorisation of Adult Male Prisoners. Paragraph 2.1 states:
“Adult male prisoners may be held in one of four security categories.
Category A
Prisoners whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible.
Category B
Prisoners for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult.
Category C
Prisoners who cannot be trusted in open conditions but who do not have the resources and will to make a determined escape attempt.
Category D
Prisoners who present a low risk; can reasonably be trusted in open conditions and for whom open conditions are appropriate.”
Prisoners in Categories A, B and C are said to be in “closed conditions”, whilst those in Category D are in “open conditions”.
Paragraph 3.1, under the heading “Principles of Categorisation”, explains:
“All prisoners must have assigned to them the lowest security category consistent with managing their needs in terms of security and control and must meet all the criteria of the category for which they are being assessed (i.e. for Category D this will mean that they are low risk of harm, can be reasonably trusted not to abscond and for whom open conditions are appropriate i.e. will usually be within the time to serve limit).”
It is noteworthy that, whilst allocation to Categories A, B and C is determined on the basis of an assessment of the risks of harm and absconding posed by the prisoner, it is a condition of transfer to Category D that open conditions are also “appropriate”, i.e. that it is within a reasonable time of the earliest release date.
We will come to the mechanics of transfer to – and the purpose and aims of – open conditions shortly (see paragraphs 29–34 below); but a life prisoner who has progressed well can expect to be transferred to open conditions at some point during the last couple of years of his minimum custodial term. There are significant differences between closed and open conditions, the latter providing a generally less severe regime, with a far greater sense of personal autonomy as opposed to a rigidly imposed structure. For example, whereas higher category prisoners may spend long periods each day locked in their cells, cell doors in a category D prison are not regularly locked. Once cleared for ROTL, there is considerable freedom during the day to leave the prison, for example to attend educational courses or work or to visit family and friends including “resettlement overnight release” once per month allowing the offender to spend four consecutive nights with his family. Of course, any prisoner who has been in custody for a substantial period is likely to benefit personally from steps taken to assist his return to living in the community. However, “resettlement” in this context has to be seen in its proper, public interest context in which the assessment of risk as a result of reoffending is a priority. “Resettlement” is thus a reference to return to living in the community without any significant increase in risk from reoffending.
Indeterminate Sentence Prisoners: Release Provisions
Whilst brought under article 14 of the ECHR, for reasons which will become apparent in due course, we consider article 5 is key to the proper consideration of this claim. So far as relevant, it provides:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
…
…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
For most serious offences for which a custodial sentence is warranted, the sentencing court fixes a determinate period for the sentence which represents the punishment which, in all the circumstances, the court considers appropriate. There are various provisions in relation to earlier release (including Home Detention Curfew (“HDC”), to which we shall return: see paragraphs 86 and 111 and following below), but the offender must be released by the end of the determinate period.
However, in some cases the offender may pose an unacceptable risk of reoffending (and thus of causing further serious harm) which the court considers must be addressed and reduced to an acceptable level before the offender is released. In such cases, the court may – and in some circumstances (e.g. on a conviction for murder) must – impose a life sentence or other indeterminate sentence to which the release provisions for life sentences apply. Offenders upon which such a sentence is imposed are called “indeterminate sentence prisoners” (or “ISPs”).
ISPs are subject to the release provisions of section 28 of the Crime (Sentences) Act 1997 (“the 1997 Act”). The sentencing court fixes a “tariff” by reference to the seriousness of the offence and the circumstances of the offender, the object of which is punishment. The tariff is the minimum term which the offender must spend in custody. However, even after that term has been served, he will remain in detention unless and until he can demonstrate that he no longer presents an unacceptable risk to the public. The object of that second part of the sentence is to prevent unacceptable risks to the public as presented by the offender, coupled with any required continued rehabilitation with a view to...
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