IPP PRISONERS DO NOT NEED A PAROLE BOARD RECOMMENDATION TO GO TO OPEN CONDITIONS
Swain and Co’s Liverpool Judicial Review Team achieve another success in the High Court in that the Secretary of State for Justice acted unlawfully in respect of the transfer of IPP prisoners to open conditions.
On the 30th November 2009 the Administrative Court in Manchester found in favour of the Claimant Mr Michael Guittard in that the Secretary of State for Justice had acted unlawfully by refusing to consider the transfer of IPP prisoners to open conditions without a Parole Board recommendation.
The Court granted a declaration to that effect and ordered that the Secretary of State consider whether the Claimant’s circumstances are sufficiently compelling or exceptional that he be transferred without waiting for a Parole Board to make a recommendation.
The Secretary of State and the Prison Service have always said that IPP prisoners cannot go to open conditions unless a Parole Board has considered their case, usually at an oral hearing and recommended that they go to Open Conditions. This has caused many prisoners to wait, sometimes for many months, for their Parole Board review simply to get a recommendation for open conditions when everybody in the prison they are in has recommended that they are ready to go .
The Court found that the Secretary of State has adopted an unduly and rigid and unlawful approach to transfer prisoners to open conditions. At Court the Prison Service conceded that the Secretary of State did have a discretion to transfer IPP prisoners to open conditions without a Parole Board but the Court found that though the Secretary of State accepted this he had not made others aware of this discretion or how to ask him to use it. The Court found that if there was a genuine discretionary power to transfer to open conditions then it would be apparent not only to those within the Prison Service but also to prisoners and those acting for them.
The Court have found that where there are sufficiently compelling or exceptional circumstances the Secretary of State can transfer to open conditions without a parole Board Review. It seems therefore that if a prisoner has had reports which recommend him for open conditions prior to his parole review then consideration should be given as to whether his circumstances are sufficiently exceptional or compelling to justify asking the Secretary of State to transfer him to open conditions without waiting for a Parole Board Review.
It should be borne in mind that though the Judicial Review in question concerned an IPP prisoner, the same principle should apply to any life sentence prisoner as well. The current position is that it seems likely that the Ministry of Justice will have to formulate a new policy to deal with the findings of the Court. There also remains the possibility that the Secretary of State may seek to appeal to the Court of Appeal regarding this decision. At this point it seems unlikely.
IPP prisoners and indeed any lifer should give consideration as to whether their circumstances are sufficiently compelling or exceptional that they can either themselves make a request or through their representatives request that the Prison Service transfer them to open conditions outside of a parole review. It appears that such applications at this point should be directed to the Public Protection Casework Section. This may change if the Prison Service bring out a specific policy following this case.
In order to be successful it will probably be necessary to have reports which strongly recommend transfer to open conditions and relevant circumstances such as pressing family issues and other relevant factors which can be put forward to argue that the Secretary of State should consider transferring to open conditions without the additional delay of waiting for a Parole Board to consider the case.
● Swain and Co’s Liverpool Judicial Review Team is Associate Solicitor Nick Wells and Lawyer Sara-Jayne Pritt.
Counsel was Vijay Jagadesham of Garden Court North Chambers, Manchester.