R v Secretary of State for the Home Department, ex parte Hargreaves

JurisdictionEngland & Wales
Judgment Date20 November 1996
Judgment citation (vLex)[1996] EWCA Civ J1120-8
Docket Number96/0341/D
CourtCourt of Appeal (Civil Division)
Date20 November 1996
The Queen
Secretary of State for the Home Department
(2) the Governor of Her Majesty's Prison Risley
ex parte Craig Hargreaves, Kevin Briggs and Brendan Green

[1996] EWCA Civ J1120-8


Lord Justice Hirst

Lord Justice Peter Gibson

Lord Justice Pill








(Lord Justice Kennedy and Mr. Justice McCullough)

Royal Courts of Justice

MR. T. GALLIVAN (Instructed by Messrs Reece Davis Wood Wild & Co., Birmingham) appeared on behalf of the Appellants/Applicants.

MR. M. BELOFF Q.C. and MR. S. KOVATS (Instructed by the Treasury Solicitor) appeared on behalf of the Respondents/Respondents.




This 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.


At all material times the three appellants were category C prisoners serving their sentences at Risley.


Prior 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 compact.


The Statutory Background.


Section 47(1) and (5) of The Prison Act 1952, under the heading "Rules for the management of prisons ….", provide as follows:—

"(1) 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.

(5) 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]."


The Prison Rules 1964, rule 6, under the heading "Temporary Release", provided as follows.

"6.(1) A prisoner to whom this Rule applies may be temporarily released for any period or periods and subject to any conditions.

(2) A 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.

(3) A prisoner released under this Rule may be recalled to prison at any time whether the conditions of his release have been broken or not.

(4) This 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."


The change was introduced by the Prison (Amendment) Rules 1995 SI 983, which substituted for the previous rule the following under the same heading "Temporary Release":—

"6. (1) The Secretary of State may, in accordance with the other provisions of this rule, release temporarily a prisoner to whom this rule applies.

(2) A prisoner may be released under this rule for any period or periods and subject to any conditions.

(3) A prisoner may only be released under this rule:


(h) to assist him in maintaining family ties or in his transition from prison life to freedom; or


(4) 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.

(5) The Secretary of State shall not release under this rule a prisoner serving a sentence of imprisonment if, having regard to:

(a) the period or proportion of his sentence which the prisoner has served; and

(b) the frequency with which the prisoner has been granted temporary release under this rule

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. ……"


These 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.


The prisoners' individual circumstances.


On 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 offence.


As 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.


The Notice to Prisoners and the Compact.


On 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:

Short home leave is 2 days excluding travel time. Long home leave is 5 days excluding travel time.

You can ask for home leave only if you are in one of these groups ……

Category C (or equivalent) sentenced to 2 years of more.

You can apply for short home leave after serving one-third of the total term of sentenced imprisonment, and at 6-monthly intervals after that.

You can apply for long home leave 2-months before your release date.


Home 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 release."


At 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.


The 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):—



…… 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). …."


There followed a number of matters to which the prisoner was expected to commit himself, such as treating staff with respect, and never using violence.


The Parliamentary Statement.


On 18th November 1994 the Home Secretary announced in Parliament the proposed changes relating to temporary release of prisoners as follows so far as relevant:—

" 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 the Library.

The 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...

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16 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2017, December 2017
    • 1 Diciembre 2017
    ...2 WLR 622 (“Coughlan”) at [66]. This used to be the approach prior to Coughlan (see, eg, R v Home Secretary, ex parte Hargreaves[1997] 1 WLR 906). 70 See R (Nadarajah) v Secretary of State for the Home Department[2005] EWCA Civ 1363 at [69]; see also Janina Boughey, “Proportionality and Leg......
    • Singapore
    • Singapore Academy of Law Journal No. 2014, December 2014
    • 1 Diciembre 2014
    ...involving the early release of prisoners: see In re Findlay[1985] AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves[1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulte......
  • Substantive legitimate expectations in Australian administrative law.
    • Australia
    • Melbourne University Law Review Vol. 32 No. 2, August 2008
    • 1 Agosto 2008
    ...Thames London Borough Council [1994] 1 All ER 577, 596 (Laws J); R v Secretary of State for the Home Department; Ex parte Hargreaves [1997] 1 All ER 397, 412 (Hirst (25) [2001] QB 213. (26) Ibid 214. (27) Ibid 241 (Lord Woolf MR for the Court). (28) That standard comes from Associated Provi......
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    • Caribbean Law Review No. 17-1/2, June 2007
    • 1 Junio 2007
    ...ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714. 35 R v Secretary of State for the Home Department, ex p Hargreaves et al [1997] 1 All ER 397. Lord Irvine described this approach as “no more than judicial irredentism.” See Lord Irvine of Lairg QC, “Judges and Decision-Makers: The T......
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