In a judgment which described the stated position of the Secretary of State for justice as 'striking' and which has caused ripples in the legal community, the High Court has ruled that a hastily announced policy of banning a whole class of prisoners from a period in open conditions is unlawful.
R (ota Gilbert) v Secretary of State for Justice, The Parole Board (Interested Party)  EWHC 927 (Admin)
In May 2014, in response to three high-profile failures of prisoners on temporary release to return to their open prisons, Mr Grayling had announced on Sky News that he would be 'tearing up the system'.
In fact, a period in open conditions has been (and still is) recognised as an important stage in testing whether a prisoner is suitable for release and a means of easing back into the community those who may have spent long periods locked up. The Prison Reform Trust has analysed the Ministry of Justice statistics which show that only 0.06% of releases on temporary licence result in failures, such as late return from home leave or absconding. The Trust also notes that release failures are more likely to occur where there has been no period in open conditions.
Mr Gilbert, who was serving an indeterminate sentence for a serious alcohol-related assault, was an exemplary prisoner on the highest trusted status preparing for release when he missed his train back to his open prison one Sunday on home leave and handed himself in to the local prison the next morning. He was returned to a closed prison. The Parole Board, acting in accordance with binding Directions issued by the Secretary of State and a specific referral asking it to consider whether Mr Gilbert should be returned to open conditions, considered that the failure to return to prison, while avoidable, was not deliberate. The Parole Board considered that this did not impact on future risk, but it could not consider further whether Mr Gilbert was suitable for release until he had been further 'tested' in open conditions. The Secretary of State's response - in reliance on his policy - was to exclude Mr Gilbert from return to open conditions. Consequently, Mr Gilbert was unable to satisfy the Parole Board that he was suitable for release and he had spent an extended and unnecessary period in detention attributable to the change in policy.
A Divisional Court, which heard Mr Gilbert's judicial review to both the policy and the decision in his case, allowed his challenge on both grounds. Mr Gilbert had pointed out that the Secretary of State's 'absconder' policy was at odds with the statutory Directions to the Parole Board and published Prison Service Instructions. He submitted that there had been policy making 'on the hoof' and a failure to ensure clarity and consistency. The Secretary of State's response was that as he made the Directions, he was entitled to ignore them. About that submission, the Divisional Court said this:
"We cannot accept this submission. The Secretary of State could indeed amend or revoke the Directions to the Board. But so long as they remain in force they are binding on the Board and also binding on the Secretary of State, in the sense that he cannot lawfully tell the Board to ignore them or his officials to frustrate them."
The Court declared the operative part of the policy to be unlawful.
Mr Gilbert was represented by Amanda Weston and Leonie Hirst of Garden Court Chambers, who were instructed by Naomi Lumsdaine of the Prisoners' Advice Service. Amanda and Leonie are members of the Public and Administrative Law Team and the Prison Law Team at Garden Court.