Prisoners' challenge to home leave rules fails

LAW REPORT v 26 September 1995; Regina v Secretary of State for the Home Department, Ex parte Briggs and others; Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice McCullough) ; 25 July 1995

Changes to the rules as to eligibility for home leave could not be challenged by prisoners adversely affected by the changes since prisoners could only legitimately expect to have their applications for home leave decided by reference to criteria current at the time of application.

The Divisional Court dismissed three applications by prisoners for judicial review of decisions of the Home Secretary to implement new provisions as to eligibility for home leave and of the Governor of Risley prison giving effect to the Home Secretary's decision.

Prior to October 1992 prisoners who received substantial determinate sentences were entitled under rules made under the Prison Act 1952 to be considered for parole after they had served one-third of their sentence and were allowed to apply for home leave at the same time. On 1 October 1992 the Criminal Justice Act 1991 required prisoners sentenced to terms of four years or more to serve half their term before becoming eligible for parole but initially no change was made to the home leave eligibility date. In 1993 a prison service working group reviewed the operation of home leave.

In the earlier part of 1994 the applicants were sentenced to terms of imprisonment of more than four years. On admission to Risley each applicant was issued with a notice entitled "Home Leave" which stated that applications for home leave could be made after serving one-third of the sentence. Each applicant signed an inmate compact which referred to home leave.

In November 1994 the Home Secretary, referring to the working party review, informed Parliament of proposed changes in relation to home leave in order to restore public confidence in prisons. In April 1995 rules amended the old home leave system so that prisoners sentenced to four years or more could apply no earlier than when they had completed half their sentence. Transitional provisions protected those who had already successfully completed a period of home leave.

The applicants commenced proceedings for judicial review of the change of rules on the ground that the rules should have been implemented so as to protect their established rights.

Patrick Elias QC and Robin Howat; Terence Gallivan (Reece Davis Wood Wild & Co, Birmingham) for the applicants; Michael Beloff QC and Steven Kovats (Treasury Solicitor) for the Home Secretary.

Lord Justice Kennedy, giving the court's judgment, said that it was common ground that the compact did not give rise to any rights enforceable as a matter of private law, and although legitimate expectation was a well-known concept in public law it was normally applied to alleged defects in procedure. Here if the home leave date was to be changed the right steps were taken. In the light of the evidence it could not be contended that the Home Secretary failed to have regard to the applicants' expectations in relation to home leave. The Home Secretary had decided that the transitional provisions should not be more widely drawn.

Although it was accepted that in some circumstances an applicant for judicial review might have a legitimate expectation of obtaining a substantive benefit, the Home Secretary submitted that the original statement or course of conduct of the public body giving rise to the expectation had to be clear and unambiguous and all the applicants here could legitimately expect was to have their applications for home leave decided by reference to criteria current at the time of application.

That was right. No representation was made to prisoners that the policy for home leave was immutable. The rules, having been amended in accordance with the power given to the Home Secretary by Parliament, the Home Secretary was bound to reconsider his policy in the light of the criteria set out in the amended rule.

Given the substance and purpose of the legislative provisions governing home leave, the most that a convicted prisoner could legitimately expect was that his case would be examined individually in the light of whatever policy the Home Secretary saw fit to adopt, provided that the adopted policy was a lawful exercise of the discretion conferred on him by statute. The applications were dismissed.