R MP v Secretary of State for Justice A, B, C (by G, Their Grandmother and Litigation Friend) (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MRS JUSTICE LANG DBE |
| Judgment Date | 13 February 2012 |
| Neutral Citation | [2012] EWHC 214 (Admin) |
| Docket Number | CO/4345/2011. CO/364/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 February 2012 |
[2012] EWHC 214 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
CO/4345/2011. CO/364/2011
and
and
MP's Claim
Q. Whitaker (instructed by Prisoners' Advice Service) for the Claimant
C. Dobbin (instructed by the Treasury Solicitor) for the Defendant
A. Straw (instructed by Bindman & Partners) for the Interested Parties, A, B and C P's Claim
A. Macdonald (instructed by Prisoners' Advice Service) for the Claimant
C. Dobbin (instructed by the Treasury Solicitor) for the Defendant and the First Interested Party
A. Straw (instructed by Bindman LLP) for the Second Interested Party, R
Hearing dates: 20, 23, 24 January 2012
In both these applications for judicial review, the Claimants, who are serving prisoners, challenge the refusal by their respective Prison Governors to allow them to take Childcare Resettlement Leave ('CRL'). Because of the overlap of issues, the claims were consolidated and heard together.
CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim is whether the Defendants are acting lawfully in restricting CRL to female prisoners who are within 2 years of their earliest release date. Although male prisoners are also eligible for CRL, these claims, and hence this judgment, focus exclusively on the position of female prisoners.
MP's case: the facts
On 2 September 2009, MP was sentenced to 10 years' imprisonment for conspiracy to import cocaine. This was her first offence. Her conditional release date is 2 September 2014, when she will have served half her sentence. She will be eligible for transfer to an open prison two years prior to that date i.e. 2 September 2012.
MP is the sole carer for three children, who are interested parties in this application. Her ex-partner's daughter, A, was born on 27 March 1998, and is now aged 13. Her son, B, was born on 12 April 2002 and is now aged 9. Her daughter, C, was born on 27 November 2007 and is now aged 4.
Following her imprisonment, MP's elderly mother moved into her family home in order to care for the children. She is now also caring for her terminally ill partner (MP's stepfather).
The two older children are suffering significant emotional disturbance because of their prolonged separation from their mother and primary carer. A is particularly vulnerable because she was neglected and then abandoned by her birth mother, and so experiences separation from MP as a further loss. B has exhibited signs of disturbed behaviour and anxiety. The concern with the youngest child, C, is that there may be long-term negative effects on her because she has missed the opportunity to form a close bond with her mother.
The children visit MP in prison weekly, for about 2 hours. The children find these occasions forbidding and restrictive. They also attend family days three times a year, which last for 5 hours and are more informal.
Turning to MP's prison history, in September 2009, she was categorised as closed and allocated to HMP Downview. She was transferred to HMP Send on 8 April 2010, where she has remained ever since.
At her routine re-categorisation review on 20 August 2010, the Board decided that her current level remained closed for the following reasons:
"The board notes your good behaviour and enhanced status, however you are still more than 2 years from release and therefore not yet suitable for open conditions".
On 8 September 2010, her OASys assessment assessed her as 'low risk' of re-offending, with low predictor scores. There were 'no concerns' in relation to 'escape/abscond; control issues/disruptive behaviour; concerns in breach of trust'.
On 6 December 2010, in response to a request for details of her last re-categorisation, HMP Send responded saying:
"At this time the primary reason for your category is that prisoners cannot be considered for open conditions until they are in their final 2 years and you are not eligible for ROTL until 02/03/12. Your current situation is very straightforward."
On 12 January 2011, in response to an application for CRL made by MP's solicitor, Mr Charalambous, Head of Reducing Reoffending at HMP Send, said:
"The Release on Temporary Licence board noted your client's good custodial behaviour and enhanced status however [she] is not eligible to apply for Child Resettlement Leave as per PSO 6300. Your client can reapply for re-consideration when she is within 2 years of her release date"
On 15 March 2011, MP's application for transfer to East Sutton Park prison was refused on the ground that she "was not eligible to be considered for open conditions until you are in the final 2 years of your sentence".
On 24 March 2011, MP's solicitor applied for her to be re-categorised as an open prisoner, on the grounds of exceptional circumstances, including her and her children's need for CRL. She also relied on the fact that MP was an enhanced prisoner on the IEP scheme; she was employed in a position of trust, unsupervised, in the library; she had completed 12 courses, to develop her skills, and all targets on her sentence plan.
On 12 April 2011, Mr Charalambous wrote to MP's solicitor saying:
"your client is not eligible for consideration until she is within two years of her conditional release date, in addition she must be assessed as suitable for open conditions, and be of enhanced status on the incentive and earned privileges scheme."
On 23 May 2011, the Treasury Solicitor wrote to MP's solicitor in response to the issue of an application for judicial review, filed on 12 May 2001. In respect of the refusal to categorise her as suitable for open conditions, the Treasury Solicitor agreed to re-take the re-categorisation review. The letter explained its reasons as follows:
"my client has reviewed your client's most recent categorisation decision, dated 20 August 2010, and subsequent correspondence with her (notably the responses to her application to be transferred to an open establishment in February 2011) and accepts that these communications give the impression that your client was categorised as closed solely on the basis that she has more than two years of her sentence left to serve. While my client does not accept that their decision was in fact taken on that basis, it is accepted that the wording of the decision does not sufficiently record their reasoning."
In respect of her application for CRL, the Treasury Solicitor said:
"my client considers that your client is currently ineligible as she is categorised as closed and [is] therefore not eligible for consideration for CRL in accordance with PSO 6300. However, my client appreciates that its communication with you and your client in respect of this position has inaccurately stated that she is not eligible to be considered for CRL until she is within two years of her conditional release date."
On 13 June 2011, Ms Charles, Head of OMU, Resettlement and Drug Strategy wrote to inform MP that her request for re-categorisation had again been refused. The Board considered representations from MP, her children, children's grandmother, the Prisoners Advice Service and Dr Sarang. The Board decided that she should remain in closed conditions because:
"[MP] was sentenced to 10 years, and has yet to reach the 2 year stage of that sentence.
In September 2010, [MP's] appeal against conviction was refused.
[MP] continues to maintain her innocence and as a result has not yet demonstrated responsibility for her offence which is an indicator of heightened risk of escape or abscond, and of harm to the public should she do so."
The Board did not consider that there were exceptional circumstances to justify a re-categorisation to open conditions.
On 17 June 2011, the Treasury Solicitor wrote to MP's solicitors enclosing a copy of the letter of 13 June 2011 refusing to re-categorise MP as suitable for open conditions and concluding:
"You will note that my client has concluded that your client remains appropriately categorised as closed. Accordingly, your client remains ineligible for childcare resettlement leave in accordance with PSO 6300, paragraph 2.5.1."
On 15 August 2011, an OAsys assessment was completed. MP was assessed as 'low risk' of re-offending, with very low predictor scores. In response to the question whether there were 'any concerns' in relation to 'escape/abscond; control issues/disruptive behaviour; concerns in respect of breach of trust', the answer was 'no'.
On 19 September 2011, HMP Send refused to carry out her annual review of re-categorisation, due to take place in August 2011, on the basis that it was not necessary in the light of the recent review in June 2011.
P's case: the facts
On 6 October 2008, P was sentenced to 14 years' imprisonment for importation of cocaine, with her mother. This was her first offence. Her conditional release date was 21 March 2015. She would have been eligible to transfer to an open prison 2 years...
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