“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.”
“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”
“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.”
“my client has reviewed your client’s most recent categorisation decision, dated20 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.”
“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.”
“[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.”
“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.”
“In consideration of Ms Chambers and her ROTL request (CRL) the board maintain that in order for Ms Chambers to be assessed as suitable for “open” conditions she must be within her last two years prior to release.”
“To be eligible for CRL – PSI 03/2009 clearly states that offenders need to be within 2 years of their release date or have reached their RDR/ROR date to be eligible for open conditions. [P] is not eligible to apply until at least 21/3/13.”
“As the status of “Suitable for semi-open conditions does not exist we are not in a position to apply it for any offender regardless of previous circumstances.... As [P]’s current classification is “Closed” conditions, in order to be assessed as suitable for “open” conditions she must be within her last two years prior to release... 21/03/13. Any application for CRL would have to be on or after 21/03/13 in line with policy that states that an offender must be assessed as suitable for open conditions in order to be eligible for CRL (and in order to be assessed for open conditions an offender must be within the last two years of their sentence).....”
“You are serving a very long sentence of 14 years for a serious offence, there is still almost four years until your conditional release date .. I am not satisfied that your release on temporary licence at this point of your sentence would not attract reasonable public concern, in that the release may undermine public confidence in the administration of justice, having regard to the stage of the custodial period reached. This in no way reflects upon your custodial behaviour, which indeed has been recognised as behaviour befitting someone suitable for open conditions....... I have also considered the welfare of your younger daughter and the impact that your time in custody is having on her. ROTL is not the sole means by which prisoners can maintain contact with their families and at Downview, there are a number of support interventions aimed at supporting families.”
“1.47 The broad canvas created by thePrison Act 1952 and the Prison Rules is ‘filled in’ by a plethora of administrative guidance and directions which, since January 1997, is contained in Prison Service Orders and Instructions. These are supplemented by a series of Prison Service Standards, which purport to ensure ‘a consistent and high quality of service’. The new system results from the Woodcock Report, which recommended that the Prison Service must provide a clear framework within which governors are expected to operate. This required that ‘levels of autonomy, responsibility and accountability should be clearly published, making it plain which aspects of existing manuals and national instructions are mandatory, advisory or purely informative’. 1.48 The old system of Standing Orders, Circular Instructions and Instructions and Advices to governors has thus been gradually replaced by a new one which is intended to ensure that current policy and practice are easily accessible to staff and, where relevant and appropriate for security reasons, to prisoners alike. Prison Service Instructions are short term documents intended to last no more that one year. Prison Service Orders, intended to last more that one year, together with their supporting guidance, are contained in separate Manuals according to subject matter. Prison Service Standards are contained in their own Manual, arranged by subject matter. They aim to provide a concise, detailed statement of key details of the ‘services’ which should be provided. The system is managed by an Instructions Unit based in the Secretariat at Prison Service headquarters. Most PSOs and PSIs are now available on the Prison Service Website.”
“Childcare Resettlement Release can be sought at any point in a sentence, but it is advisable to apply early otherwise the delay may cast doubt on the prisoner being the sole carer”
“either 24 months before the release date, or once they have served ½ the custodial period less half the relevant remand time, whichever gives the later date.”
“prisoners, who are not yet eligible to undertake resettlement day/overnight release, may be granted childcare resettlement leave, if they meet all the criteria above and pass the usual risk assessment process.”
“to encourage the maintenance of the parent/child tie and to help prepare the prisoner for the resumption of their parental duties on release.”
“to assist him in maintaining family ties or in his transition from prison life to freedom”
“4. Outside contacts. (1) Special attention shall be paid to the maintenance of such relationship between a prisoner and his family as are desirable in the best interests of both. (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”
“Where the balance of assessment is in the prisoner’s favour, Governors must, before making the final decision, consider the reaction of the public, if the release on temporary licence was given publicity; if it is judged that reasonable public opinion would find the release unacceptable, Governors must consider whether or not to approve the application even if all other factors are positive.”
“The mere fact that this form of leave is described as ‘resettlement’ leave ought to be conclusive as to its being resettlement leave as opposed to a general form of leave”
“taken alone, the fact that Childhood Resettlement Leave is described as resettlement leave is, of itself, the clearest indication that it is intended to facilitate resettlement as opposed to providing a general means of facilitating contact between parent and child throughout the entire sentence.”
“it is .. resettlement leave and therefore not intended to be taken early in a sentence”
“1.1 Resettlement is a core function of the Prison Service, directly related to the Prison Service’s Aim: ‘to reduce reoffending and protect the public’. It involves work to secure the release of prisoners back to the community without further offending. Helping prisoners maintain and develop appropriate community ties and prepare for their release, including by securing future employment and accommodation, is particularly important. But, as reflected in this PSO, a great deal of what happens to a prisoner while in custody will be relevant to his or her resettlement. This involves action taken to deliver Prison Service Objective 2: ‘to reduce crime by providing constructive regimes which address offending behaviour, improve educational and work skills and promote law-abiding behaviour in custody and after release.’ 1.8 The following are central to the resettlement function: • probation and youth offending team services. • induction, assessment, allocation and sentence management. • bail information (local prisons and remand centres only). • accredited offending behaviour programmes. • drug treatment services (including CARATs). • education and training, including basic and key skills, PE, social and life skills and work-related skills and training. • work, particularly where it provides experience that relates to opportunities available after release. • preparation for release and pre-release courses. • liaison with outside agencies (such as those providing specialist advice, information and help prisoners in relation to employment and accommodation). • Home Detention Curfew, Release on Temporary Licence and parole. • health care. • victim issues.” • probation and youth offending team services. • induction, assessment, allocation and sentence management. • bail information (local prisons and remand centres only). • accredited offending behaviour programmes. • drug treatment services (including CARATs). • education and training, including basic and key skills, PE, social and life skills and work-related skills and training. • work, particularly where it provides experience that relates to opportunities available after release. • preparation for release and pre-release courses. • liaison with outside agencies (such as those providing specialist advice, information and help prisoners in relation to employment and accommodation). • Home Detention Curfew, Release on Temporary Licence and parole. • health care. • victim issues.”
“Starting custody” “Throughout custody” “Preparation for release” “The resettlement estate”
“we use the word “resettlement” to refer to a long tradition of work whose essential aim is the effective reintegration of imprisoned offenders back into the community beyond the period of any licence to which they may be subject. There will be those who look to older terminology – such as aftercare and throughcare . Others may feel that resettlement is as much open to objection as rehabilitation and reintegration on the grounds that it implies restoration of a condition that never was: many imprisoned offenders were not habilitated, integrated or settled prior to their incarceration. We understand these doubts. But we nevertheless favour the use of resettlement. It focuses attention on the desired outcome as well as the processes which allegedly promote the outcome.”
“ The definition of resettlement agreed by the Association of Chief Officers of Probation was adopted for the purposes of the thematic review: ‘A systematic and evidence-based process by which actions are taken to work with the offender in custody and on release, so that communities are better protected from harm and reoffending is significantly reduced. It encompasses the totality of work with prisoners, their families and significant others in partnership with statutory and voluntary organisations.’ ”
“Category A Prisoners whose escape would be highly dangerous to the public or the police or the security of the state, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible. Closed Conditions Prisoners for whom the very highest conditions of security are not necessary but who present too high a risk for open conditions; cannot be trusted in open conditions or for whom open conditions are not appropriate. Semi-Open Conditions Prisoners who present a low risk to the public but who require a level of physical perimeter security to deter abscond (sic) Open Conditions Prisoners who present a low risk; can reasonably be trusted in open conditions and for whom open conditions are appropriate.”
“55. What is envisaged, in my judgment, is that the normal process of categorisation or re-categorisation is to be undertaken, but when it comes to allocation, bearing in mind that it is the normal rule that prisoners do not spend longer than 2 years in open conditions before their release date it is not surprising, when it comes to allocation, that “at this stage” consideration must be given as to whether there are “exceptional circumstances” justifying allocation to open conditions when a prisoner is not in his or her last two years…. “The guidance however, is just that. I have already stated that there is flexibility built into the policy. This means that each case must be carefully and appropriately considered.”
“22. … the Board is not able to consider the needs of the Claimant’s children or any potential impact on their and the Claimant’s article 8 rights. Re-categorisation is a decision based solely on risk in terms of escape/abscond, and risk of harm to the public should there be an escape or abscond.”
“On11 February 2009 the National Offender Management Service (NOMS) announced the re-designation of both HMP Morton Hall and HMP/YOI Drake Hall from semi-open to closed prisons. There are no plans to change this decision. The re-designation, which took effect on2 March 2009 , allowed NOMS to more effectively provide for the needs of all women prisoners through greater flexibility in the use of the estate. It has also improved closeness to home for some women, supported the placement of indeterminate sentenced women in accordance with their needs, and in general enabled more women to access the resettlement regimes available at these two prisons. There was no requirement to move any of the women out of either prison as a result of the change. Both establishments retained their levels of internal and perimeter security and their resettlement regimes, including their roles as specialist foreign national centres. Women suitable for open conditions are able to go to these prisons if such a move meets their resettlement needs.”
“All cases must be considered on the individual circumstances. Cases involving prisoners serving sentences for serious violent or sexual offences, and any offence involving the death or serious injury of the victim, must be considered with particular sensitivity to public confidence. Depending on the individual circumstances of the case, the earlier the proposed period of CRL falls following conviction the higher the risk that granting CRL might undermine public confidence. The review of CRL will consider whether to set a minimum custodial period to be served before a prisoner becomes eligible for CRL.”
“The conclusion of the review, which was an internal review canvassing the views of staff at women’s prisons, was that this extra criterion was unnecessary on balance because (once the reference to semi-open conditions is disregarded as it now should be) the eligibility criteria include a requirement to be in or assessed as suitable for open conditions. This meets the aim of ensuring consistency of practice across prisons so that CRL is generally only available where the prisoner has reached a point in their sentence where they can both be trusted in open conditions and can generally be said to have reached a point where they have served a proportion of their sentence when release would not be likely to undermine public confidence in the administration of justice.”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“It is possible to draw some general conclusions from these authorities: (i) the right to respect for family life is not a right which the prisoner necessarily loses by reason of his/her incarceration; (ii), on the other hand, when a court considers whether the state’s reasons for interfering with that right are relevant and sufficient, it is entitled to take into account (a) the reasonable requirements of prison organisation and security and (b) the desirability of maintaining a uniform regime in prison which avoids any appearance of arbitrariness or discrimination; (iii) whatever the justification for a general rule, Convention law requires the court to consider the application of that rule to the particular case, and to determine whether in that case the interference is proportionate to the particular legitimate aim being pursued; (iv) the more serious the intervention in any given case … the more compelling must be the justification.”
“19. Article 8 makes it clear, in the way in which it is framed, that there is in effect a positive duty on the decision maker to conduct a balancing exercise as between the clear right to maintain a family life – in this instance a specific area of family life, to ensure the visit of a son to a dying father – as against the risks generically referred to as public safety .” “25. ..It seems to me there was an obligation to see if there was any way of managing a visit to the father’s home that sufficiently balanced the perceived risks that arose from the superficial information in respect of the shooting incident … and a generic risk that I have already identified.” b) R (X) v Secretary of State for the Home Department & Ors CO/1662/1995, per Bean J.: “23. .. it does not seem to me that it can properly be said that the effect of the defendant’s decision is a complete separation of mother from children, even in the sense of coming face to face in visits in the usual way. In accordance with the P and Q decision, I do accept Mr Southey’s submission that keeping the claimant in custody without allowing her ROTL is an interference with her Article 8 rights and those of her children. But is a far less serious interference than the decision in P and Q to remove the toddlers from their mothers and place them in foster care. It follows that, although it must be justified by the defendants under Article 8(2), it is more readily justified: see paragraph 78 of the P and Q judgment” “27. it is for the defendants to advance sufficient justification for the decision under challenge to show that the restriction is in accordance with the law and is necessary in a democratic society in the interests of public safety for the prevention of crime and the protection of the rights and freedoms of others. But …I also accept, that in an Article 8(2) case, the decision-maker is entitled to a discretionary area of judgment: see per Dyson LJ in R (Samaroo) v Home Secretary[2001] EWCA Civ 1139 .”
“70. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.”
“Accordingly, a person retains his or her Convention rights on imprisonment, so that any restrictions on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or … an adequate link between the restriction and the circumstances of the prisoner in question. However, it cannot be based solely on what would offend public opinion.”
“52. It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs.. It is instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a suspect, (ii) his detention, where necessary, pending trial, and (iii) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under article 8(2). In practice it is only in the most exceptional circumstances that a defendant would even consider asserting his article 8 rights by way of challenge to remand in custody or imprisonment..Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate. 53. Massey v United Kingdom (App. No. 14399/02)... illustrates this proposition..”
“59. That is not to say, however, that ZH has no impact upon the application of the principles in Norris. The proposition that “the best interests of the child shall be a primary consideration” (UNCRC Article 3(1)) is of general application. But the indefinite article – “a primary consideration” – is significant. As Lady Hale stated in ZH (paragraph 25), “’a primary consideration’ is not the same as ‘the primary consideration’, still less as ‘the paramount consideration’”. 60. Accordingly, while the best interests of affected children are “a primary consideration” in extradition cases, they cannot generally override the public interest in effective extradition procedures. There has to be an “exceptionally compelling feature” (Norris paragraphs 56, 91), giving rise to “the gravest effects of interference with family life” (paragraph 82). That is not ipso facto supplied by an extradition’s adverse consequence for the extraditee’s children.”
“We are here confronted with a situation in which the authorities chose not to interfere when the mother was imprisoned. The situation is not now the same as it was then. What might have been a proportionate interference then may not be proportionate now. A more complex dilemma has been created, in which there are a number of interests to be balanced: those of the state in the proper management of prisons, of the mothers in their family life, and of the children in the protection, not only of their family life but also their best interests. Before considering how this balance should be struck either in general or in any particular case, we must consider the domestic law.....”
“..losing a parent to imprisonment is often an extremely damaging life event for a child and it is one of the international rights of the child that they are able to keep contact with their parent unless it is not in the child’s best interest” “The 1989 UN Convention on the Rights of the Child states that “Children should not be separated from their parent except in their best interest; that both parents should have responsibility for their child; and that the best interests of the child ‘shall be a primary consideration’.”
“The underlying rationale of the principle against fettering discretion is to ensure that two perfectly legitimate values of public law, those of legal certainty and consistency (qualities at the heart of the principle of the rule of law) may be balanced by another equally legitimate public law value, namely, that of responsiveness. While allowing rules and policies to promote the former values, it insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case.”
“When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise. These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd[1919] 1 KB 176 ; British Oxygen Co. Ltd. v Board of Trade[1971] AC 610 . But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), pp 506 et seq., paras 11-004 et seq. The position is well illustrated by your lordships’ decision in In re Findlay[1985] AC 318 which was itself concerned with the legality of the tariff policy announced in 1983 by Mr Leon Brittan. Your lordships held that the policy was lawful because it provided for a departure from the policy in exceptional circumstances. Lord Scarman said, at p.336: “The question, therefore, is simply: did the new policy constitute a refusal to consider the cases of prisoners within the specified classes? The answer is clearly ‘no’.... I see nothing wrong in classifying offenders according to the character and gravity of their offences and to the length of sentences imposed provided always that the classification does not preclude consideration of other relevant factors such as prison record, personal or family circumstances and the element of risk (or its absence) in the event of early release.”
“You may apply to be considered for CRL where it is established that: You have sole caring responsibility for a child under 16 Are resident in open conditions (or categorised as suitable for such conditions) And you are within the last two years of your sentence.”
“you must be within 2 years of your release date and suitable for open conditions to be eligible for CRL. Please reapply 21/3/13.” c) In response to MP’s application for CRL on12 January 2011 , 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”
“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.” 191. In my judgment, this decision was unlawful because the Secretary of State: a) failed to have regard toArt. 8 ECHR and Article 3(1) UNCRC; b) acted in a way which was incompatible withArt. 8 ECHR , contrary to S.6(1) HRA 1998; c) fettered his discretion by applying a blanket policy without considering the individual circumstances of MP and her children. 192. The factors to be taken into account in relation to MP’s application for CRL were different to those which applied in respect of her re-categorisation for open conditions, and deserved separate consideration. 193. In conclusion, this decision was unlawful and should be quashed. MP’s application should be re-considered, by a different decision-maker and in accordance with the law, as soon as possible. The decision in P’s case 194. On26 May 2011 , the Governor of HMP Downview agreed to consider P’s application for CRL on the merits, because she had been assessed as suitable for open conditions. He was correct to do so. In my judgment, dismissing the application as ineligible would have been unlawful for the reasons set out above. 195. Regrettably, his decision on the merits was flawed in several respects. 196. First, Counsel for the Governor confirmed at the hearing that, when he made the decision of26 May 2011 , he adopted the same interpretation of the policy on the grant of CRL as Mr Potter, taking the view that CRL was only ever intended to be available to prisoners who were in the final stages of their custodial term, and thus close to release. 197. In so doing, he took into account an irrelevant consideration which, in my view, influenced him in reaching his conclusion that the length of P’s outstanding sentence meant that she should not be granted CRL. 198. Mr Potter explained in his witness statement in the P case, at paragraph 12, that this (mistaken) interpretation of PSO 6000 had to be taken into account by the Governor when making his decision of26 May 2011 and deciding whether, under rule 9(5) of the Prison Rules, it would undermine public confidence in the administration of justice if P was given CRL when she was not in the final stage of her custodial term. 199. The Secretary of State was entitled to direct the Governor on the relevant factors to take into account since, in accordance with PSO 6300, Statement of Purpose, p.1, it is for the Secretary of State, not the Governor, to decide whether to grant a period of release on licence. In practice, the Governor takes the decision on behalf of the Secretary of State. 200. Secondly, the Governor failed to take into account the fact thatArt. 8 ECHR was engaged and therefore the interference with P’s family life had to be justified in accordance with Convention law. Although the Governor referred to factors which were relevant to Art. 8, such as the needs of P’s child and the fact that P’s behaviour ‘befitted someone suitable for open conditions’, he did not apply the correct legal test. The reason given for the interference has to be shown to be ‘necessary in a democratic society’, meaning that the reason has to be correspond to a pressing social need and be proportionate to the legitimate aim pursued. If he had applied the correct legal test, his conclusion might well have been different. 201. Thirdly, the Governor erred in law in deciding the application upon the basis that the grant of CRL may undermine public confidence in the administration of justice, because of the length of sentence P still had to serve. 202. The Governor misapplied the test in rule 9(5) of the Prison Rules, by refusing CRL on the ground it ‘may undermine public confidence in the administration of justice’. Under rule 9(5) he was required to be of the opinion that it ‘would’ undermine public confidence in the administration of justice. This is a significantly higher threshold which, on the evidence in P’s case, might well not have been met, had he applied his mind to it. 203. The Governor also relied on rule 9(5) as the sole ground upon which to justify an interference with Art. 8 rights, contrary to Dickson v United Kingdom and Hirst v. UK (referred to above). 204. The advice to Governors in ROTL 4, Appendix B, PSO 6300, summarising the effect of rule 9(5), states “if it is judged that reasonable public opinion would find the release unacceptable, Governors must consider whether or not to approve the application even if all other factors are positive.”
“[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.”