Solicitor Lisa Gianquitto and Barrister Philip Rule explain the Guittard ruling
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The SSJ put in place unpublished departmental guidance titled “ISP Transfer to Open Conditions”.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(1) Is the unpublished policy consistent with the published policies?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.
Lisa Gianquitto, consultant solicitor for Carringtons Solicitors
Philip Rule, barrister specialising in prison law and criminal law, Castle Chambers
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