Neutral Citation number [2009] EWHC 2951 (Admin)
Case No. CO/10041/09
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
Date: Wednesday, 18th November 2009

Before:

HH Judge Stephen Stewart Q.C.
(sitting as a Judge of the High Court)
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BETWEEN:

	THE QUEEN (on the application of) MICHAEL GUITTARD	Claimant	
	and		
	THE SECRETARY OF STATE FOR JUSTICE	Defendant	

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Mr Vijay Jagadesham appeared on behalf of the Claimant

Mr Ian Ponter appeared on behalf of the Defendant
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Judgment

Introduction
1	The Claimant (“C”) is a prisoner who is subject to imprisonment for public protection (“IPP”). He was convicted on 1st July 2006 of an offence of wounding with intent and was sentenced to IPP with a tariff of 3 years and 45 days. The tariff period will expire on 31st December 2009. He is at present detained at HMP Wold as a category C prisoner in closed conditions. On 8th September 2009 he filed an application for Judicial Review of the Defendant’s (“D”) decision which is described in the claim form as “The Defendant’s refusal to conduct a review of the Claimant’s suitability for a transfer to open conditions, outside of his parole review”. The claim form claims “a mandatory order requiring the Defendant  to consider the Claimant’s suitability for a move to open conditions forthwith”  and “ a declaration that the Defendant has acted unlawfully by refusing to consider the recategorisation and transfer of the Claimant to open conditions, outside of his parole review”.

2	Although opposing the claim, D did not contest the granting of permission and permission was granted on 30th September 2009 by Judge Waksman QC.  On 23rd October 2009 D filed detailed grounds for resisting the claim.

3	There are also statements from the following witnesses:
	
*	Russell A’Court, Head of the Public Protection Casework Section of the National Offender	Management Service within the Ministry of Justice
*	Nicholas Simon Wells, C’s solicitor
*	Sara-Jayne Pritt, Trainee Solicitor assisting Mr Wells.

4	The claim gives rise to two broad issues, summarised in C’s skeleton as:

A	Whether D’s present rigid policy as regards the transfer of IPP prisoners is unlawful by reason of : (i) D having unlawfully fettered his discretion; and (ii) inconsistency with PSI 07/2008. 
If so,

B	The form of relief that should be granted in C’s case.

 Relevant Statutes, Statutory Instruments and Policy Documents
5	The Prison Act 1952 provides, so far as relevant:

Section 12
(1)A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.
(2)Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.
Section 47
(1)The Secretary of State may make rules for the regulation and management of prisons…..and for the classification, treatment, employment, discipline and control of persons required to be detained therein

6	Rule 7(1) of the Prison Rules (SI 1999/728) states:

7.  - (1) 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 as provided by rule 3.

7	Prison Service Order (“PSO”) 6010 issued on 2nd April 2009 and entitled “General Parole Process” states at para 2.2

2.2	Move to Open Conditions
2.2.1	Indeterminate sentenced prisoners will normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted by the respective Case Managers in the PPCS on behalf of the Secretary of State.
The PPCS is the Public Protection Casework Section. The para then goes on to describe the process of transfer in some detail.

8	Prison Service Instruction (“PSI”) 07/2008, Implementation date 18th February 2008, Expiry date 17th February 2009 and entitled “Initial Categorisation of Male Indeterminate Sentence Prisoners” states, so far as relevant:

Purpose and output

1.         This PSI introduces mandatory requirements for establishments on:

•	 the initial categorisation of adult male prisoners, with the introduction of a new ICA1 form revised to reflect indeterminate sentences for public protection (IPP)
•	a review of the categorisation of most existing adult male IPPs, using the revised ICA1 form 
•	the onward allocation of adult male IPPs within the closed estate

Background

2.	IPP prisoners now form a significant proportion of our indeterminate sentenced population. The average tariff length for an IPP prisoner is around 3 years 9 months. Prior to the introduction of the IPP sentence in April 2005, many of these cases would have received determinate sentences and been categorised to C at initial categorisation. The current categorisation algorithm within the ICA1 form treats all indeterminate sentenced prisoners the same, and will indicate B at initial categorisation.  This has resulted in a significant number of IPPs being held in establishments which do not fit their security risk and has put pressure on local establishments through lack of movement, with the added problem of hindering the progress of IPPs through the system. 

3.       	Following a review of the management of Indeterminate Public Protection sentences we are revising our approach to these cases. The key feature of the new arrangements outlined here is that we will cease to treat IPPs like life sentence prisoners, and instead manage them through the closed estate in the same way as determinate sentence prisoners. 
4.    	A revised algorithm on the ICA1 categorisation form to take account of the IPP sentence has been agreed.  This will generally indicate that those IPP prisoners with short tariffs (3 years and under) should be Category C, and can be allocated to the Category C training estate in the same way as determinate sentence prisoners. There is no longer a requirement for all IPP prisoners to move to Category B conditions if they are assessed as suitable for category C on the categorisation algorithm.  
5.	Following categorisation IPP prisoners will be allocated to appropriate training establishments.  Category C prisons must not have allocation criteria which exclude or limit numbers of IPPs except where such criteria are exceptionally agreed by the Area Manager and the Deputy Director General.  IPPs must not be moved into the open estate on initial categorisation.

9	PSI 03/2009, Implementation date 25th May 2009, Expiry date 24th May 2010 
and entitled “NSF - Recategorisation to Cat.D and other matters”, states, so far as relevant:

RECATEGORISATION

The following instruction is effective immediately

8.	Principles of recategorisation

8.1	The purpose of the recategorisation process is to determine whether, and to what extent, the risks a prisoner presented at his or her last review have changed and to ensure that the prisoner continues to be held in the most appropriate conditions of security. 

	Recategorisation must be based on:

•	Evidence of a clear change in the level of risk posed by the prisoner in terms of escape
or abscond and/or risk of harm to the public in the event of an escape or abscond.

•	New or additional information, which impacts on the original categorisation decision  

•	Concern that the previous recategorisation decision is unsound.  There must be corroborative evidence to support that concern. 

•	Control issues, which mean that the prisoner poses a threat to the security of the prison, or the safety of staff or other prisoners, or that the prisoner’s notoriety potentially undermines the security of the prison.

	Risk levels may increase or decrease depending on individual circumstances and the 	prisoner’s security category must reflect this

8.2	In reviewing a prisoner’s security category it is essential to look at the reasons why at his or her last review the prisoner was placed in the current security category. Only then is it possible to determine whether and to what extent circumstances may have changed to warrant a change in the prisoner’s category.  It is also essential to consider the particular characteristics of the estate for which the prisoner is being assessed taking account of physical security, supervision levels and regime availability. This is particularly important when considering a prisoner for open prison (see below, Recategorisation to category D).

8.3	It must be the aim that prisoners are held in the lowest possible security consistent with preventing escape or risk of harm to the public or to the security of the prison. However, for operational reasons, prisoners may be held in a prison of a higher security category, although the numbers of such prisoners must be limited by agreement between Regional Managers Custodial Services and PMU. On no account must a prisoner be allocated to a prison of a lower security category than the category assigned to the prisoner. 

9. 	Timing

9.1	As a minimum, all adult prisoners other than those in open prison and those serving less than 12 months must have their security category reviewed at regular prescribed intervals.  Prisoners will have their security category reviewed at least every six months for those serving between 12 months and under 4 years, and at least every 12 months for those serving a sentence of 4 years or more. EPP prisoners will be reviewed according to these criteria in line with the custodial part of their sentence. IPP prisoners will be reviewed according to these criteria dependent on tariff length. 
…………………………………..

14.	RECATEGORISATION TO CATEGORY D.

14.1	 It is essential that prisoners must be assessed as trustworthy and sufficiently low risk before being allocated to open conditions. In making the decision, governors must keep in mind the particularly challenging management issues associated with the low physical security and supervision levels of the open estate and that the environment and regime opportunities available in open prison may not be suitable for a prisoner who is still many years away from possible release.  

14.2	In addition to the risk assessment issues listed above (under Process) it is important to bear in mind the damage to public confidence in the Criminal Justice System if a prisoner serving a lengthy sentence were to abscond, particularly if the prisoner had spent a very short period of time in closed conditions and/or still has many years left to serve. 
 
14.3	The risks to be assessed may conflict. Likelihood of abscond and risk of harm to the public and damage to public confidence if an abscond occurs will not necessarily be the same, and long sentence prisoners who statistically present an average or lower likelihood of abscond may represent a disproportionately high risk of harm to the public should they abscond and/or a high risk of damage to public confidence in the Prison Service’s ability to safeguard the public by keeping prisoners in safe custody. 

14.4	When assessing long sentence prisoners for open conditions it is vital to balance the risks involved if the prisoner were to abscond against the likely benefits to the prisoner of going to open conditions at this stage. Governors will need to consider whether the prisoner has made sufficient positive and successful efforts to reduce risk levels and that the benefits he or she would gain from allocation to open prison are worthwhile at this particular stage in sentence. Consultation with the Police Intelligence Officer should be an integral part of the assessment of any long-term prisoner. 

14.5	Every case must be considered on individual merit but, in general, long sentence prisoners should not be recategorised and allocated to open prison  until they have served a sufficient proportion of their sentence in a closed prison to enable them to settle into their sentence and to access any offending behaviour programmes identified as essential to the risk reduction process. 

14.6	In addition, prisoners should generally not be allocated to open prison :-

•	with more than 2 years to serve before their earliest release date ; and

•	in the case of prisoners subject to the release provisions of the Criminal Justice Act 1991 to whom the new duty to release at the half-way point in section 33(1A) does not apply (i.e. ‘unconverted’ 1991 Act prisoners with a PED), they must also be within 5 years of non-parole date (NPD).

 Where prisoners are more than 2 years away from earliest release date they must still have their categorisation reviewed in line with the normal process and consideration given to whether there are exceptional circumstances to justify allocation to open prison at this stage. There is no right to have 2 years in open conditions before possible release

Facts relating to C: 2008 -2009
10	There are two reports before the court. These are:
*	A Progress Report by Psychologist (Mr Gill) dated 24th April 2008
*	A Parole Assessment report Offender Manager (“PAROM 1”) prepared by C’s Offender Manager and dated 3rd June 2009.

11 	From these two documents the following emerges:

The Gill report
(i)	Gill’s report was prepared “to assist the Parole Board in their decision-making with regard to Mr Guittard’s current detention in Category C conditions and to consider Mr Guittard’s suitability for a progressive move to conditions of lower security” para 1.6
(ii)	C completed the Enhanced Thinking Skills course and his post programme review minutes (06.06.07) document the positive progress achieved. para 3.5
(iii)	C “has made some progress in developing his understanding of the consequences of violence and the relationship between his drug misuse and violence. He now needs to demonstrate progress in developing his anger control and his understanding of his intent when using a weapon in this index offence”. para 3.17
(iv)	Behaviour in Prison: “Prior to Mr Guittard’s transfer to HMP Wolds, he had no reported adjudications during his time in custody and it is my understanding that this continues to be the case. This is a positive step forward for Mr Guittard and suggests that he has started to apply the skills learnt from the interventions, to demonstrate periods of stable, settled behaviour”  para 4.1
(v)	“From completing an in-depth assessment of risk, including the use of the HCR-20 risk assessment tool, I conclude that Mr Guittard is currently at moderate risk of committing a further serious violent act at this time…..Mr Guittard would need to show a reduction in his level of risk associated with his anger before he should be considered for a progressive move to conditions of lower security….This reduction in risk could be achieved via his successful attendance of the CALM programme….Mr Guittard would also need to have a clearer understanding of aspects of his index offence…before he should be considered for a progressive move…If Mr Guittard is considered for a transfer to conditions of open security after these areas of risk have been addressed, then I would recommend that he is tested in a less restrictive environment for a timescale of between 6-12 months, to begin his preparation for release and demonstrate his ability to manage his behaviour with a reduced level of supervision and support from staff. However, it is also clearly important that for this to be a suitable recommendation, then appropriate progress on the areas of work cited in this report would need to be achieved by Mr Guittard…I do not think that it would be in Mr Guittard’s interests for him to remain in closed conditions with a view to being released directly back into the community, as it is clear ….that further resettlement work is needed to minimise the difficulties he may face when returning to the community. In addition, a period of positive behaviour in open conditions would be required before it could be concluded that Mr Guittard’s level of risk has reduced to an acceptable level for release into the community”  paras 7.1 – 7.6

The PAROM 1 Report

(i)	The OASys Score assessing risk of serious harm level as at 3rd June 2009 was “MEDIUM”. Para 2
(ii)	C had attended a number of courses including a CALM course (January 2009) and a Cognitive Skills Booster Course (Review April 2009). C progressed very well on these programmes and the courses were having a positive impact on his attitudes and behaviour. Para 8
(iii)	“His tariff expiry date is set at 31 December 2009. I understand that the Panel will consider if Mr Guittard is ready to be moved to open conditions……It is my assessment that he should now move to open conditions….I would recommend that Michael Guittard is ready to move to open conditions” paras 12 and 13.

12	On 12th August 2009 Ms Pritt wrote letters to D and to the prison requesting that C be transferred forthwith to the open estate to allow him to comply with the last of his sentence planning targets prior to his tariff expiry. The letters also contained notice that Judicial Review proceedings might be started. No response was received from D. Ms Pritt says that on 17th August 2009 she received a telephone call from Kerry Hughes at the prison stating that they cannot transfer Mr Guittard unless the Parole Board directs so.

13	C’s next Parole Board review is due to take place in February 2010, shortly after expiry of his tariff and a full dossier was sent to the Parole Board on 12th August 2009. (C has concerns that there might be some slippage in that date due to pressures of work on the Parole Board)

Evidence from Mr A’Court and Mr Wells

14	Mr A’Court sets out the background to D’s policy and in particular says:

(i)	IPP prisoners are normally transferred from closed to open conditions only when a positive Parole Board recommendation has been accepted by D. Report writers commissioned to prepare reports and risk assessments for the Parole Board are specifically asked to address the issue of transfer to open conditions in order to facilitate the Board making an informed assessment of the risks of such a move. Para 6

(ii)	D recognises that life sentence prisoners and those serving IPP are potentially the most dangerous offenders within the system, all having been convicted of committing the most serious sexual and/or violent offences. The impact of the risk involved in managing offenders in the open setting is significantly greater than the impact of a move from one category of closed prison to another.	Para 9
(iii)	D adopts a cautious approach when deciding whether to transfer to open estate and the policy of referring such cases to the Parole Board reflects the fact that the Board has expertise in the risk assessment of dangerous offenders. “There is a clear benefit from having an independent expert body, which is not involved in the day-to-day management of the case, assessing all the relevant factors with a degree of objectivity that practitioners may be unable to provide. In short, the policy of seeking the views of the Parole Board as to whether such a transfer would undermine public safety offers a sensible additional public protection safeguard.” Para 10

15	Mr Wells has more than 15 years’ experience of dealing with prison law matters and has represented many prisoners in different categories. He says:

(i)	Many determinate sentence prisoners have been convicted of very serious offences yet the decision as to whether to transfer them to open prisons is taken by Governors who are well versed in such matters.

(ii)	The most serious crimes can and do receive discretionary life sentences rather than IPP

(iii)	Many IPP prisoners wait a long time prior to their case going before the Parole Board to obtain Category D (open prison) status and the Board’s decision is largely based on the reports and recommendations of the report writers, the majority of whom are based within the prison.

(iv)	Most recently, D’s policy appears to have changed insofar as D’s view is no longer routinely provided at IPP oral hearings and Public Protection Advocates are not attending the hearing to provide reasons why IPP prisoners should not be transferred to open prisons or released into the community.

C’s Grounds for Judicial review
16	There are 3 Grounds for Judicial Review, namely:

I	D has adopted an inflexible and invariable policy in refusing to consider the merits of recategorising and transferring IPP prisoners to open conditions, such that D precludes himself from departing from the policy or from taking into account the circumstances of a particular case. D has fettered his discretion in this way, notwithstanding D being empowered by statute to make such decisions for himself.
II	Further or alternatively, it is contrary to D’s policy set out in PSI 07/2008 that IPP prisoners are now to be managed in the same way as determinate sentence prisoners. Determinate sentence prisoners can be recategorised and transferred to open conditions by D
III	It is illogical and irrational for D to manage IPP prisoners for the substantive part of their sentence in the same way as determinate sentence prisoners, but, on the question of transfer to open conditions, revert to his old policy in respect of life sentence prisoners. This is despite it being stated in PSI 07/2008 that “we will cease to treat IPPs like life sentence prisoners” 

Ground I – Fettering Discretion
17	The approach to this ground benefits from a substantial amount of common ground between the parties which can be summarised in this way:
(i)	D has a wide discretion in terms of locating a prisoner (s12 of the Prison Act 1952) and discretionary powers to regulate and manage the operation of the prison system (s47 of the Prison Act 1952 & Rule 7 of the Prison Rules)

(ii)	the discretions/powers, though wide, have to be exercised lawfully.

(iii)	the person on whom a discretionary power is conferred cannot fetter the future exercise of the discretion by committing himself now as to the way in which it will be exercised in the future, though this does not preclude that person from developing and applying a policy as to the approach which he will adopt in the generality of cases; however, the policy must not be such as to preclude departure from the policy or the taking into account circumstances relevant to the particular case. (R v Secretary of State for the Home Department ex parte Venables and Thompson [1998]AC 407 @ 496G-497C.)

(iv)	As to policies, Lord Reid in British Oxygen Co. Ltd. v Board of Trade [1971]AC 610 said @ p625:
“What the authority must not do is to refuse to listen at all. But a ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say – of course I do not mean to say that there need be an oral hearing”

18	C submits that D’s policy precludes any departure i.e. he will not consider any meritorious applications for transfer to open conditions outside of a Parole Board review and that D has refused to listen to C’s request for a transfer irrespective of the merits of his case. D, on the other hand, submits that C’s case, whether in the grounds of claim or in Counsel’s skeleton argument makes no reference to the relevant policy, namely PSO 6010, and points out that para 2.2.1 of that document, by the use of the word “normally” expressly permits departures from the general approach in exceptional cases as a result of which, D contends, the first ground must fail. 

19	There was substantial dispute between the parties as to the meaning of the word “normally” and whether a discretion was thereby retained. Further, C’s argument developed during submissions so as to allege that if there was a discretion, it had not been applied in C’s case. It seems to me that I must look at the circumstances of the case as a whole in order to come to an informed conclusion on whether D has in reality retained an effective discretion such that, to use the words in the British Oxygen case “the authority is always willing to listen to anyone with something new to say”.

20	Let me begin with the letters sent to D and the prison by C’s solicitors on 12th August 2009. They are short and the substance is contained in these words:

“As Mr Guittard’s tariff expiry Parole Review is due soon, he has provided (sic) with a copy of his dossier. The report writers indicate that Mr Guittard would need to complete the E.T.S course, CALM and the CSB prior to being ready to transfer to open conditions. Mr Guittard has completed all of these courses. His OASys indicates that his last remaining sentence planning target is to spend a period of time in open conditions.
In the circumstances, we request that Mr Guittard is transferred forthwith to the open estate to allow him to comply with the last of his sentence planning targets prior to his tariff expiry.”

21	
(i)	As I have already stated there was no response at all from D to that letter. This is notwithstanding the fact that D’s own case, based on para 2.2.1 of PSO 6010, is that any decision about transfer to the open estate is made not by a prison, but by D himself acting through the respective case managers in the PPCS. Thus there is nothing before the court, and nothing communicated to C by the person responsible for making the decision, to suggest that they have actually considered or made that decision.
(ii)	D submits that the letter does not give particulars as to why it is said that there are exceptional circumstances in C’s case which might justify D in departing from the general policy, and states that that the content of the letter would apply to a large number of IPP prisoners. However, D accepts that the letter raises the issue as to whether C should be transferred forthwith to open conditions and that it was therefore incumbent upon D to review C’s file and make a decision as to whether or not there are exceptional circumstances in C’s case. Yet there is no evidence that D did so review C’s file with a view to making such a decision. Mr A’Court’s statement is the only evidence filed on behalf of D in this case. My copy is undated but it bears a fax date in October 2009. There is no mention in that statement of the letter(s) of 12th August nor any suggestion that C’s file has been reviewed by D in order to decide whether exceptional circumstances might in his case justify transfer to open conditions. 	
(iii)	As to the telephone response from the prison. According to Ms Pritt, Kerry Hughes said “they cannot transfer Mr Guittard unless the Parole Board directs so”. Without more this might mean that all IPP prisoners can only be transferred if the Parole Board says so or that in Mr Guittard’s case that is the position. Nevertheless, (a) it is D, not the prison (or indeed the Parole Board) who makes such a decision (b) there was no suggestion that C’s file had been reviewed (c) no reasons were given.
(iv)	In my judgment one only has to recite the above facts, in the context that D accepts that the letters of 12th August are sufficient to call for D to consider C’s file so as to determine whether there are exceptional circumstances justifying departure from the general policy, to realise that the response has been wholly inadequate. Nothing has been communicated in writing to C; nothing has been communicated at all by the person charged with making the decision (D); the oral response from the prison is ambiguous; there is no evidence whatsoever that anybody reviewed C’s file with a view to considering whether he might fall outwith the general policy

22	The matter does not, however, end there. The response (or lack of response) has to be examined to see if it casts any light on the issue of whether the discretion (which both parties accept D must have) has hitherto been real in the sense that D has been “willing to listen to anyone with something new to say”. The way C’s case has been dealt with, as set out above, is unusual to say the least if there has hitherto been such a willingness to listen. One can add to that the following factors:

(i)	Nowhere prior to D’s skeleton was it expressly stated that D had a discretion
(ii)	Mr A’Court does say (para 6) “Indeterminate sentence prisoners are normally.. transferred from closed to open conditions only when a positive Parole Board recommendation has been accepted on behalf of the Secretary of State”, but he does not say that this gives D discretion to transfer without reference to the Parole Board in exceptional circumstances; nor does he explain whether or not there is any process at all for the exercise of the discretion; nor does he even touch on the possibility that a discretion has been considered in any case whatsoever (including C’s case)

23	Against that backdrop I look at the words in para 2.2.1 of PSO 6010 that:

Indeterminate sentenced prisoners will normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted by the respective Case Managers in the PPCS on behalf of the Secretary of State

(i)	The first point to note is that the wording is ambiguous. It might mean what D now submits that it means. It may also mean that if (but only if) there is a positive Parole Board recommendation, a prisoner will then normally be transferred. “Normally” would then mean that even with a recommendation, transfer is not inevitable. D may still refuse to transfer. That D retains this right is clear from the case of  R (Hill) v Secretary of State for the Home Department [2007] EWHC 2164 (Admin). This case concerned a life prisoner who had a positive recommendation from the Parole Board and who unsuccessfully challenged the Secretary of State’s decision not to follow that recommendation. The Policy Document governing the process was the lifer manual of which para 5.7.1 was in very similar terms to para 2.2.1 of PSO 6010 in that it stated;

Lifers can normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted by senior managers in LRRS on behalf of the Secretary of State

(See judgment para 43)
	
(ii)	The wording of para 2.2.1 of PSO 6010 may also mean that all cases must go before the Parole Board but in exceptional circumstances D may exercise a discretion in cases where the Parole Board advises against transfer. Cf Hill at para 44:

“What that (Para 5.7.1 of the Lifer Manual) makes clear, and it is a key fact confirmed directly by Miss Greaney, is that there is no actual exercise of discretion, save, perhaps, in exceptional circumstances, in cases where the Parole Board advises against transfer”

(iii)	PSO 6010 is entitled “GENERIC PAROLE PROCESS”. Its “Statement of Purpose” in its “Executive Summary” provides:

This PSO is issued to update Chapters 5 and 6 of PSO 4700 “The Lifer Manual”, which it replaces. It reflects the necessary changes to the parole process for pre and post-tariff indeterminate prisoners to enable successful monitoring of the performance of the parole process.
The PSO sets out the background to the Generic Parole Process (GPP) for indeterminate prisoners along with the mandatory actions to be undertaken.

It therefore (a) replaces the Lifer Manual reviewed in Hill (b) applies to Lifers and IPP prisoners and (c) is dealing expressly with the ‘Parole Process’. These matters make it far from clear that there is intended, by the use of the single word “normally” in para 2.2.1, to be a discretion in exceptional circumstances to permit transfer by D of IPP (or Life prisoners) to open conditions without a Parole Board review. 

(iv)	I might add to this the words of para 13 of Hill where the Secretary of State’s counsel’s statement is recorded in these terms:

“The next relevant provision is the Crime (Sentences) Act 1997, section 28. It may be sufficient to summarise the effect of this section as follows: there is an obligation on the part of the Secretary of State to refer life sentenced prisoners to the Parole Board to consider whether the Parole Board should direct their release and, if the Parole Board directs release, the Secretary of State must follow that direction. This is a provision specifically concerned with release, not with transfer. However, Miss Greaney for the Secretary of State emphasises that while there is no statutory duty on the Secretary of State for Justice to seek advice on categorisation or transfer of life sentenced prisoners, it is the invariable practice - and, one pauses to comment, entirely sensible practice on the part of the Secretary of State - to request advice from the Parole Board on categorisation, classification or transfer, however it is expressed, when a life sentence prisoner is referred to the Parole Board on the question of release.”

It follows that, notwithstanding the use of the word “normally”, it appears to have been the “invariable” practice of the Secretary of State. to request advice from the Parole Board in life prisoner transfer cases. It is common ground in the present case that the general policy of referring IPP prisoners’ cases to the Parole Board is entirely sensible, but it is also common ground that the policy would be unlawful if it admitted of no possible exception. Of course, that particular issue was not before Irwin J in Hill. But the content of para 13 of that case does not inspire confidence, especially when seen in the context of all the other matters I have already mentioned, that hitherto there has in fact been any real appreciation by D  - or of anybody acting on his behalf -that the discretion exists as a live discretion to be considered and exercised, albeit exceptionally. Further, to hang the D’s case solely on the peg of the single word “normally” is in all those circumstances an unconvincing submission. Furthermore, were there such a discretion intended to be conferred in para 2.2.1 of PSO 6010, it would not be at all clear that this was the case to any officer of D called upon to exercise that discretion:- something which may well explain the response or lack of response to the letters of 12th August 2009 and the fact that there is no evidence from Mr A’Court on any possible exercise of the discretion. (I note that in Hill there were statistics before the court on that exercise of the discretion there in issue – see para 47). That the relevant discretion actually exists is something which should be apparent not only to D’s officers but also to anyone else e.g. IPP prisoners themselves and those acting for them. (cf Cannan v The Governor of HMP Sutton & Another [2003] EWCA Civ 1480 @ para 4).

24	In consequence of the above 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. From this conclusion must flow, in my judgement,  the following relief claimed by C

(1)	A declaration that the Defendant has acted unlawfully by refusing to consider the recategorisation and transfer of the Claimant to open conditions, outside of his parole review.

(2)	A mandatory order requiring the Defendant  to consider the Claimant’s suitability for a move to open conditions forthwith”  

25	C also submitted that there should be a prescribed procedure by reference to which special circumstances can be assessed with a view to considering whether an exception should be made in an individual case. He relied on R v London Borough of Bexley ex parte Jones [1995] ELR 42 for this proposition. That was a case concerning educational grants. D’s submission was that the circumstances there were very different not only because of the subject matter but also because some exceptions procedure was sought to be introduced for the first time in an affidavit in response to the application for judicial review, and that Jones did not lay down a legal requirement that in every case of there being a discretion to be exercised exceptionally, a procedure must be in place and available to an applicant. Since I have already decided to grant C the relief he seeks, I am not prepared to go further and decide what, if any, prescribed procedure there should be. This is especially so given that the issue of the lack of prescribed procedure was raised late in the day. 

Grounds II & III

26.1	C submits that D’s refusal to conduct a recategorisation review is also contrary to his own Policy in PSI 07/2008 (paras 2 & 3) in which, C says, “it is made clear that IPP prisoners are no longer to be treated as life sentence prisoners, but are instead to be managed in the same way as determinate sentence prisoners” . C submits that there is inconsistency between the stated intention to cease to treat IPP prisoners like life sentence prisoners such that they will be managed in the same way as determinate sentence prisoners and, on the other hand, D’s approach to their transfer to open conditions, which is identical to his approach to life sentence prisoners. C says that this is illogical and contrary to PSI 07/2008.

26.2	It seems to me that there are numerous obstacles to the success of this submission:
	
(i)	PSI 07/2008 expired on 17th February 2009. It is therefore not an extant policy. 

(ii)	The policy relevant to transfer from closed to open prison is PSO 6010.

(iii)	As PSI 07/2008 makes clear from its title, and from paras 1 - 5 (cited previously), its express purpose was to deal with initial categorisation of prisoners within the closed estate and allocation following such categorisation to appropriate training establishments within that estate. It had nothing to do with later transfers to the open estate which are very dependant on assessment of risk based not just on the position on arrival but on progress thereafter. The transfer from open to closed estate gives rise to very different considerations than a transfer within the closed estate, according to Mr A’Court (para 9). PSI 07/2008  dealt with a narrow but important problem that had arisen of treating IPP prisoners as category B on arrival, by providing that those with short tariffs of 3 years and under would generally be categorised as C. This is the context of the PSI and its statements in the relevant paragraphs. One must always remember that the words of documents such as these are not to be construed as statutes.

26.3	For those reasons I find nothing illogical, inconsistent or indeed relevant in PSI 07/2008 when comparing it with the relevant policy in PSO 6010.

27.1	C further submitted in the skeleton argument that IPP prisoners are subject to the same policy guidance as determinate sentence prisoners in respect of the timing of their categorisation reviews (PSI 03/2009; para 9.1). He said that the guidance falls under a policy specifically aimed at transfer to open prisons and underlines that IPP prisoners are to be managed in a similar way to determinate sentence prisoners i.e. according to the same criteria as when open conditions are under consideration. Thus, it is said, the policy on normally requiring Parole Board review for IPP prisoners, but not for determinate sentence prisoners, is inconsistent and the prescribed categorisation reviews will otherwise be nothing but an empty exercise given that the prison cannot by itself transfer to the open estate.

27.2	D’s response is that PSI 03/2009 is relevant to prisoner recategorisation in general and not specifically at IPP prisoners, though it is acknowledged that para 9.1 does refer expressly to IPP prisoners. D points out that there is no commentary or instruction within the document directed at the procedure to be adopted by D in considering transfer of an IPP prisoner from closed to open estate. Thus, it is said, there is no inconsistency between PSI 03/2009 and PSO 6010. 

I accept D’s submission on this point and find that there is nothing in PSI    03/2009 which assists C’s case

Summary

28	I accept C’s case on Ground I but reject it on Grounds II & III. As a result of C’s success on Ground I the relief set out in para 24 of this judgment will be granted