Back

Guittard applications

By Lisa Gianquitto and Philip Rule, from insidetime issue December 2012

Solicitor Lisa Gianquitto and Barrister Philip Rule explain the Guittard ruling


Guittard applications

In R (Guittard) v Secretary of State for Justice in 2009 the Court found that the Secretary of State (SSJ) failed to exercise his statutory discretion in refusing to conduct an assessment of Mr Guittard’s suitability for a transfer to open conditions, outside of his parole board review. Mr Guittard was an indeterminate public protection prisoner, who was approaching the expiry of his tariff. The Court said that the SSJ had acted unlawfully by refusing to consider the recategorisation and transfer to open conditions, outside of his parole review. The SSJ was also ordered to consider his suitability for a move to open conditions without delay.
The Judge commented that even though the SSJ had accepted that he had the discretion (authority) to consider the transfer of IPP prisoners to open conditions, without a Parole Board review/recommendation, no-one actually knew about this discretion! A change of policy was therefore required.

Following that judgment the Ministry of Justice adopted some informal criteria for considering a move to open conditions outside the usual parole process. In other words, if the Ministry of Justice felt, after reviewing a case, there was merit in a prisoner moving to open conditions this decision could be made administratively, without the need for a hearing. The criteria were:
1. the parole dossier must contain evidence the prisoner has made significant progress;
2. there must be consensus amongst the reports he/she is suitable and safe for open conditions;
3. there are no areas of concern that would benefit from further exploration at an oral hearing;
4. it is demonstrated in the prisoner's representations that there are clear benefits to transfer immediately.
The SSJ put in place unpublished departmental guidance titled “ISP Transfer to Open Conditions”. The guidance adopts criteria for “exceptional” progress justifying such a transfer. These criteria have not been tested in Court as to their reasonableness or legality. The question remains whether the criteria adopted are lawful? Arguably they are not fair criteria for the exercise of the discretion.
The concerns that we have that apply to all Guittard applications include:
(1) Is the unpublished policy consistent with the published policies?
(2) Does the policy adopt an artificially high test and fail to allow proper consideration of the case? The fact that anything may be considered an area of concern is almost inevitably the position when a prisoner is recommended for open conditions by the Board. From experience a failure under this requirement is often cited by the MOJ to refuse an application under Guittard;
(3) Is it logical to set the bar higher than it is for the Parole Board? The Secretary of State refers life sentence and IPP prisoner cases to the Parole Board. Why isn’t an application under Guittard decided on the same factors as those under consideration by the Parole Board?

We are also concerned that some applications are not being properly dealt with by the prison authorities and MOJ; individual cases we have experience of do present further problems which will not apply to all prisoners. A successful application under Guittard will mean that a prisoner will not have to go through the daunting prospect of a parole hearing to get to open conditions. This process, without doubt, saves time, money and Parole Board resources. If a prisoner has an unsuccessful application under Guittard this will not impact upon any subsequent parole hearing. It must be remembered that an application under Guittard and an application to the Parole Board run alongside one another.

A prisoner does not need to use the same solicitors for the parole process as the Guittard process as, although they run alongside one another, they are separate and distinct processes. If you feel your case may warrant an application under the Guittard principles, or you have been refused a transfer to open conditions and wish to know whether you can challenge that in court, please contact Lisa Gianquitto, consultant for Carringtons Solicitors who can provide advice and where necessary obtain counsel’s opinion to assist you.

Co-Authors:
Lisa Gianquitto, consultant solicitor for Carringtons Solicitors
Philip Rule, barrister specialising in prison law and criminal law, Castle Chambers



Back to top

Comments about this article

There are no comments, be the first to leave one!

Post a comment

This article appears under the following categories...
Law
Legal Issues
Parole

Summary of headlines for December 2012
Confusion in his mind
The 2012 Longford Lecture goes down a storm
Prison, rehabilitation and slavery
Dial M for Murdoch
Bob Woffinden writes...
The history of public protection from offenders
Opened in error
Current page: Guittard applications
The Association for Prison Lawyers 5th Anniversary
Donít let recall ruin Christmas
Trafficking
Funding an appeal
Month by Month
In the Spotlight - Prison Chat UK
Who am I
Nipping criminality in the bud
Jonathan King writes
Changing places
Insider Art
Cutting the roots of destructive behaviour
From over the wall
Prison Widow

Back to top

insidetime

Inside Time Latest Issue

Issue : December 2014

Headlines | Mailbag | Poems
Book List | PSI Updates

Advert

Back Issues

 
Back Issues

View backissues and extras

Browse and Search Tools

View headlines by category
Search headlines | All headlines
Search mailbag | All mailbag
Search poems | All poems

December 2014 Headlines
> Treat Prisoners as Human Beings, Not Criminals
> What are prisons for
> A search for any trace of the governmentís Rehabilitation Revolution
> Tell us why you did it?... You must be joking I didnít do it
> Care Act - what does it mean for prisoners
> Doctor Frankenstein and his monster
> Human Rights: truth and lies
> Scapegoating the undeserving poor
> Interview
> The first Miscarriage of Justice
> Month by Month - December 2014
> The 2014 Longford Trust Awards
> Is it all in the mind
> Time
> Learning in prison
> Take your first Steps to Success in 2015
> Spotlight Police and Crime Commissioners
> From over the wall
> Over-tariff IPPs: an appeal for your stories
> Paperwork is the key
> Adjudication - donít let those days count against you
> Insider Dealing
> Christmas Stories
> Christmas Messages
> Christmas Messages

About Us

About insidetime
Directors
Editorial Team

InsidePoetry Book

insidepoetry book New! Volume 5 of
insidepoetry book
is now available!

A collection of poems by prisoners of all backgrounds.

Availabe to buy from this site! Volume 1,2,3 and 4 are also still available and you can SAVE by purchasing bundles!

USP Service

USP from Inside Time

The Useful Services for Prisoners scheme from insidetime provides discounts, vouchers and other benefits from USP Group Members for Prisoners, their families and legal advisors. Click the image above to read more about it.

Subscribe

You can subscribe to insidetime Newspaper and get the paper each month delivered to your door!

Advertise

Advertise your business or solicitors office to a highly defined target audience.

Other Publications

Inside Time has produced a number of books and publications you can purchase online.

Advert

Contact Us

All contact info for the Operations office and the Editorial Team.

Site Map

Our site map page contains links to all pages on the insidetime site.

External Links

We have a number of external websites which you may be interested on our Links Page.

Social Networking


insideinformation

Inside Information

Prisons

Everything you need to know about visiting people in prison; procedures, opening times, directions etc.

Comprehensive information about each prison regime; lock down times, facilities, healthcare etc.

*NEW* Detailed information about IRC - Immigration Removal Centres.

insideinformation Book

insideinformation book
The insideinformation book

A comprehensive guide to prisons and prison related services, designed and compiled by former prisoners.

Advert

Help and Support

Various pages of information for help and support organisations and networks for those in custody as well as recently released. Also information for friends and family.

Grants and Funding

This grants and funding pdf document aims to meet the need of prisoners and ex-offenders for accurate, up to date information on the supplementary funding available to prisoners.

Rules and Regulations

Information on rules & regulations used throughout the prison service.

Glossary of Terms

The Glossary of Prison Related Terms explains what all the acronyms and terms stand for with prison related matters. Includes links to external sites to further explain things.

Fact Sheets

We have produced many Prison Related Fact Sheets inc. Legal Fact Sheets, Parole Fact Sheets and Other related information.

Advert

Find a Solicitor

You can search our solicitor database for listings of solicitors in your area that provide the services you require.

Find a Barrister

You can search our barrister database for listings of barristers in your area that provide the services you require.

Address Finder

You can search our address database in many ways to retrieve contact information for all those elusive addresses you need in a hurry.

Prison Law pdf

This document provides details of leading training providers who offer sound professional training.

Other Publications

Inside Information has produced a number of books and publications you can purchase online.

Site Map

Our site map page contains links to all pages on the insideinformation site.

Contact Us

Use the Contact Us Feedback form to send us suggestions, plus our address and phone numbers.

Advert




insidejustice

Inside Justice

insidejustice was launched in July 2010 to investigate alleged miscarriages of justice.

Full introduction is on the insidejustice homepage

insidejustice Cases

insidejustice Articles & Reviews

insidejustice Advisory Panel Members

insidejustice Sponsors page

insidejusticecontact details