Changes in prison rules were not unlawful

LAW REPORT v 11 December 1996

Regina v Secretary of State for the Home Department and another, ex parte Hargreaves and others; Court of Appeal (Lord Justice Hirst, Lord Justice Peter Gibson, Lord Justice Pill) 20 November 1996

A decision of the Home Secretary to change the prison rules, so that a prisoner had to wait until he had served half of his sentence before becoming elegible for home leave, instead of only a third, did not frustrate any legitimate expectations on the prisoner's part so as to entitle him to judicial review of the decision.

The Court of Appeal dismissed an appeal by Brendan Green, Kevin Briggs and Craig Hargreaves against the decision of the Queen's Bench Divisonal Court on 25 July 1995 ([1996] COD 168) refusing their applications for judicial review of the Home Secretary's decision to implement a new scheme governing the eligibility of prisoners to apply for home leave, and of an order of the governor of HM Prison Risley applying the new scheme to each of the applicants.

Patrick Elias QC and Terence Gallivan (Reece David Wood Wild & Co, Birmingham) for the applicants; Michael Beloff QC and Steven Kovats (Treasury Solicitor) for the respondents.

Lord Justice Hirst said the three applicants were category C prisoners at Risley. Prior to the implemention of the new system, each would have been entitled to apply for home leave after serving one third of his sentence. Under the new scheme, he was entitled to apply only after serving half his sentence.

Each argued that as a result of the new policy, he was deprived of the legitimate expectation that he would be considered eligible for home leave after he had served a third of his sentence. Each relied on a notice received from the prison authorities when he began his sentence, and also on the terms of the compact he then entered into with the prison governor.

The change was effected by the Prison (Amendment) Rules 1995 (SI 983) which replaced the provisions of rule 6 of the Prison Rules 1964. The new rule was introduced as a result of problems with the existing regime, such as absconding or the commission of offences by prisoners while on leave, which had attracted adverse publicity, to the detriment of public confidence in the criminal justice system.

The Divisional Court, in rejecting the applications, placed strong reliance on the House of Lords' decision in Re Findlay [1985] 1 AC 318 at 337. It concerned a decision by the Home Secretary in 1983 to change the policy for release of prisoners on parole in relation to certain classes of serious offenders, such as drug traffickers and violent offenders sentenced to more than five years, by deferment of parole until the final months of their sentence, and for certain categories of murderers by deferment until they had served at least 20 years of their life sentence. Rejecting a claim that this decision frustrated prisoners' legitimate expectations, Lord Scarman said:

The most a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt, provided always the adopted policy is a lawful exercise of the discretion conferred on him by statute.

The present applicants sought to distinguish Findlay on the footing that it was concerned not with when but with whether the prisoners should be granted parole; it dealt with eligibility not with timing. His Lordship did not accept that.

First, it was clear that timing was at the forefront of the applicants' argument in that case. Second, in considering elegibility for parole, timing was one of the main criteria and was in fact the one changed under the new policy of 1983. Third, the passage quoted from Lord Scarman was clearly of general application to all prisoners affected by the change of policy. On this interpretation, the present case was indistinguishable from Findlay.

In any case, a representation could only be relied upon as the basis for a legitimate expectation if it was clear and unambiguous. The notice to prisoners and the compact with the governor relied upon in this case did not, taken as a whole, contain a clear and unambiguous representation as to timing, so were not a proper foundation for the legitimate expectation for which the applicants contended.

It was, however, unsatisfactory that documents of such importance to prisoners should be other than completely clear and unambiguous.