Prisoner - Release on licence - Childcare resettlement leave

R (on the application of MP) v Secretary of State for Justice; R (on the application of P) v Governor of HMP Downview: QBD (Admin) (Mrs Justice Lang DBE): 13 February 2012

The instant proceedings concerned two separate applications which were heard together because they raised common issues.

The proceedings concerned the application of Prison Service Order (PSO) 6300 'release on temporary licence'. PSO 6300 had been reviewed by the secretary of state, as defendant in the first application, between late 2009 and early 2010. PSO 6300 was concerned in part with childcare resettlement leave (CRL), a type of temporary licence available to prisoners who had sole caring responsibility for a child under the age of 16. The claimant in the first application, MP, had been sentenced to 10 years' imprisonment for conspiracy to import cocaine. Her conditional release date was 2 September 2014 and she was eligible for transfer to an open prison on 2 September 2012.

She was the sole carer for three children, who were the interested parties in her application. The eldest child was 13 and the youngest 4. The two older children suffered significant emotional disturbance because of their prolonged separation from MP. MP sought recategorisation to open conditions. Her request was refused on a number of occasions. MP also applied for CRL. In June 2011, the secretary of state concluded that MP remained appropriately categorised as closed and, accordingly, remained ineligible for CRL in accordance with PSO 6300.

The claimant in the second application, P, had been sentenced to 14 years' imprisonment for importation of cocaine. Her conditional release date was 17 July 2015 and her eligibility date for transfer to open conditions was 17 July 2013. P was the sole carer for her daughter who was aged 15. Her daughter, an interested party in the instant proceedings, suffered from depression as a result of their separation. P was recategorised on a number of occasions. In March 2011, P was recategorised as closed but assessed as 'suitable for open conditions'. In April, P applied for CRL. In May, the prison governor, the defendant in the second application, found that she should not have been assessed as suitable for open conditions when she was categorised as closed, therefore she was technically ineligible for CRL.

However, he was willing to consider her application on the merits. In refusing her application he found that release on temporary licence might undermine public confidence in the administration of justice, having regard to the stage of the custodial period reached. The claimants sought judicial review of, inter alia, the defendants' refusal to allow them to take CRL.

The claimants contended that, in restricting eligibility for CRL to prisoners who met the criteria for transfer to open conditions, the defendants had: (i) departed from past practice and established policy, as set out in PSO 6300, without justification; (ii) acted irrationally and failed to have regard to relevant considerations; (iii) unlawfully fettered their discretion by applying a blanket rule without considering the merits of individual cases; and (iv) contrary to their rights and the rights of their children, acted in breach of article 8 of the European Convention on Human Rights and the Human Rights Act 1998, and had failed to treat the best interests of the children as a primary consideration, as required by articles 3 and 9 of the UN Convention on the Rights of the Child 1989 (UNCRC).

The court ruled: (1) The secretary of state had acted unlawfully in reviewing and applying his policy on CRL. He had misinterpreted PSO 6300, and the policy on the grant of CRL, by 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. He had failed to have regard to article 8 of the convention and article 3(1) of the UNCRC. He had acted in a way which had been incompatible with article 8 of the convention, contrary to section 6(1) of the 1998 act, and had fettered his discretion by applying a blanket policy without considering the individual circumstances of prisoners (see [110], [143], [144], [188] of the judgment).

(2) The decision in June 2011 that MP was ineligible for CRL had been unlawful. The secretary of state had failed to have regard to article 8 of the convention and article 3(1) of the UNCRC. He had acted in a way which was incompatible with article 8, contrary to section 6(1) of the 1998 act and had fettered his discretion by applying a blanket policy without considering the individual circumstances of MP and her children. The factors to be taken into account in relation to her application for CRL were different to those which applied in respect of her recategorisation for open conditions and had deserved separate consideration (see [191] of the judgment). The decision would be quashed (see [193] of the judgment).

(3) In the case of P, the decision of May 2011 had been unlawful. First, by 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, the governor had taken into account an irrelevant consideration which had influenced him in reaching his conclusion that the length of P's outstanding sentence meant that she should not be granted CRL. Second, the governor had failed to take into account the fact that article 8 of the convention was engaged and therefore the interference with P's family life had to be justified in accordance with convention law. Third, the governor had erred in law in deciding the application upon the basis that the grant of CRL might undermine public confidence in the administration of justice due to the length of sentence P still had to serve (see [196]-[202] of the judgment).

The decision would be quashed (see [205] of the judgment).

Quincy Whitaker (instructed by Prisoners Advice Service) for MP; Clair Dobbin (instructed by the Treasury Solicitor) for the secretary of state; Adam Straw (instructed by Bindmans) for the interested parties in the first application; Alison Macdonald (instructed by the Prisoners Advice Service) for P; Clair Dobbin (instructed by the Treasury Solicitor) for the ­governor and the secretary of state as the first interested party in the second application; Adam Straw (instructed by Bindmans) for the ­second interested party in the second application.