R Jawad Akbar v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Lord Justice Nugee,Lady Justice Nicola Davies |
| Judgment Date | 15 June 2021 |
| Neutral Citation | [2021] EWCA Civ 898 |
| Date | 15 June 2021 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2020/1594 |
[2021] EWCA Civ 898
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Haddon-Cave
Lady Justice Nicola Davies
and
Lord Justice Nugee
C1/2020/1594
Dan Squires QC and Anita Davies (instructed by Birnberg Peirce) for the Appellant
Ben Watson QC (instructed by Government Legal Department) for the Respondent
Hearing date: Tuesday 16 March 2021
Judgment Approved by the court for handing down
This appeal concerns a challenge to Rule 7(1A) of the Prison Rules 1999 (“Rule 7(1A)”), which provides that the Secretary of State for Justice must not transfer any prisoner to open conditions if they are subject to a deportation order and have exhausted their rights of appeal.
Background
The Appellant was born in Pakistan on 20 th June 1983 but is an Italian citizen through his father. In 1992, the Appellant moved to the UK with his family. During his second year of university, the Appellant became radicalised and formed extremist jihadist views.
On 30 th March 2004, the Appellant was arrested, and later charged with four others with conspiracy to cause an explosion likely to endanger life or cause serious injury to property contrary to section 3(1)(a) of the Explosive Substances Act 1883. The Appellant was convicted after trial and sentenced to life imprisonment with a minimum term of 17 1/2 years. The Appellant's tariff expires on 29 th September 2021.
During his time in prison, the Appellant progressed from Category A to Category B in 2014, and then to Category C in 2016. There is now no further rehabilitation work he can do in closed conditions, i.e. without progressing to Category D open conditions.
On 31 st December 2015, the Home Secretary notified the Appellant of the intention to deport him to Italy. The Deportation Order was subsequently made on 15 th December 2017. The Appellant did not appeal the deportation order and, therefore, became “ appeal rights exhausted” (“ARE”).
Accordingly, by reason of Rule 7(1A), the Appellant was not eligible for transfer to open conditions. The Appellant was considered for removal under the Tariff Expired Removal Scheme (“TERS”) for Foreign National Prisoners serving Indeterminate Sentences (a process which began in January 2021).
On 10 th July 2018, the Appellant submitted representations to the Secretary of State in support of his pre-tariff review of suitability for Category D open conditions. On 18 th September 2018, the Secretary of State issued a decision cancelling the Appellant's pre-tariff review referral to the Parole Board because he was ARE in respect of his deportation order.
On 29 th May 2019, the Appellant was granted permission for judicial review. The judicial review hearing was held on 30 th October 2019. In a judgment handed down on 20 th November 2019, the Divisional Court (Hickinbottom LJ and Johnson J) dismissed the Appellant's claim for judicial review. The Order dismissing the Appellant's judicial review was sealed on 4 th September 2020.
On 4 th November 2020, the Appellant was granted permission to appeal by Floyd LJ.
The Law
Rules governing indeterminate sentence prisoners
The Prison Act 1952, section 47(1) gives the Secretary of State the power to make rules for the “classification” of prisoners. Rule 7 of the Prison Rules 1999 provides that, subject to rules 7(1A)-(1D):
“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. Adults may be held in one of four security categories of decreasing security intensity: Category A, Category B, Category C and Category D. Prisoners in Category D are the only prisoners in “open conditions”.
The Secretary of State's “Principles of Categorisation” are contained in paragraph 3.1 of PSI 40/2011:
“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)”.
The sentencing court of an Indeterminate Sentence Prisoner (“ISP”) sets a tariff, which is the minimum time an offender must spend in custody. After the tariff period has been completed, the ISP must remain in custody until the Parole Board is satisfied “that it is no longer necessary for the protection of the public that the prisoner should be confined” (s.28(6)(b) Crime (Sentences) Act 1997 (“ CSA 1997”)). The Secretary of State is bound by the Parole Board's decision ( s.28(5) CSA 1997). This process is referred to as the ‘section 28 regime’. If and when released, an ISP will be subject to licence conditions, and liable for recall to prison for the rest of their life.
Foreign Nationals serving indeterminate sentences
An alternative scheme has been introduced for foreign nationals who are serving indeterminate sentences of imprisonment (“Indeterminate Foreign National Prisoners” or “IFNPs”). TERS was introduced by section 119 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which inserted a new section 32A into the 1997 Act:
“32A. Where P—
(a) is a life prisoner in respect of whom a minimum term order has been made, and
(b) is liable to removal from the United Kingdom,
the Secretary of State may remove P from prison under this section at any time after P has served the relevant part of the sentence (whether or not the Parole Board has directed P's release under section 28).”
Section 32A(5) defines the “relevant part of the sentence” as, in effect, the minimum term or tariff.
PSI 18/2012 sets out the eligibility criteria for removal through TERS. On 7 th January 2020, PSI 18/2012 was replaced by the Generic Parole Process Policy Framework, which for present purposes is in materially the same terms: see paragraphs 3.3, 4.2, and 5.3. All foreign national ISPs are presumed suitable for TERS unless they fall within one of the categories listed in paragraph 2.3, namely, (i) prisoners subject to confiscation orders, (ii) prisoners with outstanding criminal charges, (iii) where there is evidence that the prisoner in question is planning further criminal offences, (iv) prisoners “serving a sentence for a terrorism or terrorist-related offence”, and (v) where the removal of a prisoner would undermine the confidence of the public in the criminal justice system.
In relation to the instant case (iv), namely a terrorist prisoner, paragraph 2.3 provides:
“The prisoner is serving a sentence for a terrorism or terrorism-related offence. [The Ministry of Justice Public Protection Casework Section (“PPCS”)] must consider, on a case by case basis, whether TERS should be refused to IFNPs serving a sentence for a terrorism or terrorism-related offence due to the very serious nature of such offences and the significant risk that such prisoners might present both in the UK and abroad. In doing so, PPCS must always consult with the NOMS Extremism Unit before a final decision is made.” (emphasis added)
Paragraph 2.3, therefore, requires a case-by-case assessment to be carried out in relation to terrorist prisoners as to whether TERS should be refused “due to the very serious nature of such offences and the significant risk that such prisoners might present both in the UK and abroad”.
As a convicted terrorist, the Appellant falls within paragraph 2.3 and is, therefore, not automatically eligible for TERS.
Prisoner transfers
The Secretary of State has a discretion to transfer a prisoner from closed to open conditions and generally does so after referring the case to the Parole Board for its advice and recommendations under s 239(2) of the Criminal Justice Act 2003 (“the 2003 Act”). Transferring a prisoner from closed to open conditions requires a re-categorisation of the prisoner's security classification.
In the PSI 22/2015 on “ Transfer of life sentence prisoners to open conditions” the Secretary of State gives directions that when deciding whether or not to recommend a transfer of an ISP to open conditions, the Parole Board should weigh the risks posed by allowing the prisoner to enter open conditions against the benefits accrued to the prisoner of being able to demonstrate his reduced risk and to access forms of temporary release. The Secretary of State is not bound to accept a recommendation by the Parole Board.
Rule 7(1A)
Until August 2014, the Secretary of State had the power to transfer IFNPs to open conditions, although the ARE status of an IFNP remained a relevant consideration. On 15 th August 2014, the then Secretary of State, the Rt Hon. Chris Grayling MP, brought into force the Prison and Young Offender Institution (Amendment) Rules 2014 (SI 2014 No 2169), paragraph 2 of which made the general classification rule in Rule 7(1) of the Prison Rules subject to further rules:
“(1A)…. [A] prisoner who has the relevant deportation status must not be classified as suitable for open conditions. …
(1E) For the purposes of this rule, a prisoner has the relevant deportation status if—
(a) there is a deportation order against the prisoner under section 5(1) of the Immigration Act 1971; and
(b) no appeal under section 82(1) of the Nationality, Asylum and...
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