Prison JR: SSJ acted unlawfully in respect of the transfer of IPP prisoners to open conditions

30 November 2009

In R (on the application of Guittard) v The Secretary of State for Justice [2009] EWHC 2951, judicial review in which Garden Court North Chambers’ Vijay Jagadesham represented the Claimant, the Administrative Court (HHJ Stewart QC) found that the Secretary of State for Justice had acted unlawfully by failing to consider the transfer of IPP prisoners to open conditions outside of a parole review (ie, without a Parole Board review and recommendation). The Court granted a declaration to that effect, and ordered that the Defendant decide whether the Claimant’€™s circumstances are sufficiently compelling or exceptional, such that he can be transferred to open conditions without a Parole Board recommendation.

The Claimant is an IPP prisoner, whose minimum term is due to expire on 31 December 2009. His target oral hearing date is set for February 2010. Probation and prison service personnel have supported the Claimant’s move to open conditions since at least June 2009. Accordingly, in August 2009, the Claimant’s solicitors requested that the Defendant transfer him to open conditions immediately, outside of his parole review. The Defendant failed to respond to the request.

The Court found that the Defendant had adopted an unduly rigid and unlawful approach to the transfer of IPP prisoners to open conditions; [24]:

“€œ….I conclude that PSO 6010, being the only document/evidence relied on by D in this regard, does not evince a true discretion to depart, in exceptional circumstances, from the general policy of referring to the Parole Board the question of transfer of IPP prisoners from closed to open conditions. The reality is, as I find, that D has unlawfully fettered the discretion which he must have. In the alternative, there is no evidence that in practice any proper consideration is given to the exercise of the discretion, a fact amply borne out by the inadequate response in this case to the letters of 12th August 2009.”

HHJ Stewart pointed out that even though the Defendant had accepted that he had a discretion to consider the transfer of IPP prisoners to open conditions, without a Parole Board review/recommendation, no-one knew about this discretion; [23(iv)]:

“That the relevant discretion actually exists is something which should be apparent not only to D’s officers but also to anyone else eg, IPP prisoners themselves and those acting for them.”

Comment

Practitioners representing indeterminate sentence prisoners should carefully consider whether their client’™s circumstances are sufficiently compelling or exceptional, such that they can request that the SSJ transfer their client to open conditions outside of a parole review*. Although this claim for judicial review concerned an IPP prisoner, it is submitted that the same principle / exception applies to lifers as well.

*Discussion after judgment indicated that applications should be directed to the Public Protection Casework Section. The SSJ was unable to indicate whether a new policy would be promulgated, although this is likely in view of the nature of the judgment and relief granted.

Vijay was  instructed by Sara Jayne-Pritt of Swain and Co.