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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AA v The Governor of HMP Downview & Anor [2008] EWHC 2612 (Admin) (28 October 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2612.html Cite as: [2008] EWHC 2612 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand. London. WC2A 2LL
		28th October 2008

The Deputy Judge:

1. By this application for judicial review the Claimant, Ms AA ("the Claimant"), seeks to challenge: -

(i) A decision of the Secretary of State for Justice ("the Second Defendant") given on 19^th May 2008;

(ii) A decision of the Governor of HMP Downview ("the First Defendant") dated 18^th July 2008;

(iii) Relevant parts of the Second Defendant's policy PSO 6300.

2. Permission was granted by Mr Justice Walker on 16^th July 2008 following an oral hearing and I have read a copy of his narrative judgment.
3. The essential factual background to this application is as follows.
4. On 23^rd October 2006, the Claimant received a four year sentence of imprisonment for conspiracy to defraud HM Customs and Revenue. The Claimant's parole eligibility date in relation to that sentence is 23^rd October 2008.
5. On 26^th January 2007, a Confiscation Order was made under Section 75 of the Criminal Justice Act 1988 in the sum of £75,000. The Claimant was ordered to pay that amount within nine months, in default of which she would be required to serve a further term of imprisonment of 21 months. The Claimant did not pay, and so on 30^th October 2007 a default warrant was issued by District Judge Evans. The default term of 21 months will therefore start to be served on 23^rd October 2008.
6. The Claimant's personal circumstances are as follows. Her partner, SA, is also serving a four year term of imprisonment for the same offence. The parties have two children aged 15 and 10 respectively. They also have parental responsibility for the Claimant's niece. It need hardly be stated that these sentences of imprisonment are causing distress and pain to the children.
7. Initially the Claimant's sister looked after the children and, I believe, the niece at L Road. However, in the spring of 2008, that property was repossessed. The Claimant's sister left for the USA, and the Claimant's cousin looked after the children.
8. On 4 November 2007, the Claimant had applied for Release on Temporary Licence ("ROTL"). That application was refused on the ground that she was not eligible. She reapplied on 2^nd May 2008, by her solicitors, on the basis of the possession order, and the circumstances which had arisen. According to the second page of the letter of Bindmans, dated 2^nd May 2008:-

"Ms AA has applied to (sic) ROTL in order to attend to the needs of her three children. Please read her Witness Statement (attached) carefully which sets out the reasons for her request. We are informed as of today, however, that a possession order has now been made and the Bailiffs will shortly be attending the former family home. Care for the children has also recently passed to Ms AA's cousin from her sister B. Ms AA's middle child is about to start her GSCEs and is highly distressed at the imminent possession proceedings. Her younger son is also highly distressed. This matter is therefore becoming more pressing.

As expressed in her statement, Ms AA could attend appointments with the Housing Department to ensure that the family are rehoused. She could attend appointments at the school to ensure the children's education does not suffer. In all respects Ms AA is an exceptional candidate for consideration for ROTL. "

9. On 19^th May 2008 HM Prison Service, in other words the Second Defendant, replied to that application as follows:-

"I am in receipt of your letter dated 2^nd May 2008 with reference to your client, Ms AA.

Ms AA was sentenced to a four year term of imprisonment on 3^rd August 2006. At the same time she was subject to a Confiscation Order to the value of £75,000 and in the event of non-payment, a further term of imprisonment of 21 months. The consecutive to full term was activated on 30 October 2007.

PSO 6300 Release on Temporary Licence is quite specific in that if a Confiscation Order is in default, ROTL can only be considered on the second period of imprisonment.

Ms AA at present is therefore ineligible for temporary release. "

9. The letter could not, in my view, have been clearer: HM Prison Service did not have power, in the writer's view, to entertain the application.
10. The matter proceeded to litigation and, following Mr Justice Walker's grant of permission on 16^th July 2008, the Defendants offered to reconsider the application. By then, the situation had changed in relation to the children. On 6^th June 2008, the Claimant had filed a Witness Statement in support of the application for judicial review. This stated (see paragraph 10 and following):-

"The present situation is that we have just been able to arrange alternative private sector accommodation for the children and K. They will be moving out of the family home and into the new rented place in the next week or so. A cousin has arranged for this accommodation and is paying for it, until I or my husband are released and can apply to the local authority for rehousing, or arrange for other accommodation as a family.

This means that I do not now require ROTL to specifically visit the local authority with my children to apply for rehousing. However, the whole experience of moving out of the family home and somewhere new will be very upsetting and disruptive for the children. This, in addition to the recent change in carer, has led to further upset for them...

For the most part my children have thankfully remained healthy in the care of my sister (now my cousin) while I have been in prison. Recently, however, my middle daughter (BA, who is aged 15) told me on the telephone that she has been suffering from what I think must be symptoms of stress. Her periods have become very irregular. Of course I have told her she must go to the GP and I know she will But this is the sort of thing that I would want to help her with. ...

There are so many inquiries I would want to make and meetings I would like to have regarding my children's education. My partner and I always took the children's education very seriously. If I was granted ROTL I would set up meetings with all three children's teachers or tutors to discuss each child's progress and their behaviour.

BA is in the first year of her GCSEs. She is about to take end of year tests and will sit the final GCSEs next summer.

BA's school has written to me expressing concern that her parents have not attended parents' evenings for a long time. I gave this letter to my criminal barrister several weeks ago and am in the process of requesting it is returned to me to show to the Court."

11. After the hearing before Justice Walker on 16^th July 2008, the Claimant filed Witness Statements dated 17^th July 2008 by Ms KO and BO. These testify to the overall detrimental effect of prison services on the well-being of the two children and the niece. However, in my view these detrimental effects are the inevitable consequences or concomitants of lengthy prison sentences and are not directly related to the issue of special purpose licence ROTL.
12. All this evidence was placed before the Defendants and on 18^th July 2008 the Duty Governor of the First Defendant rejected the application for ROTL. The whole of this letter needs to be read in order to do full justice to it, but for present purposes I confine myself to setting out the key portions:-

"...We have carefully considered your submissions of 2nd May 2008 and 15 May 2008 in support of Ms AA's application for Release on Temporary Licence... on this basis you ask us to treat Ms AA's application for Release on Temporary Licence as exceptional, implying, as we understand your letter, that the relevant policy contained in PSO 6300, whereby prisoners subject to Confiscation Orders are ineligible for Release on Temporary Licence, should not be applied in Ms AA's case...

In your letter of 2" May 2008 you specifically ask us to treat Ms AA's case as exceptional, indicating that we should now consider Release on Temporary Licence, "despite the default term" for "exceptional reasons". You now state, in your letter of 17^th July 2008, that while you are of the opinion that her case is an exceptional one, you have "do not and never have accepted" that Ms AA must show her case to be exceptional in order to be granted Release on Temporary Licence. You now appear to take the view that Ms AA should be considered eligible for Release on Temporary Licence, irrespective of whether her circumstances are exceptional or not.

We make no comment on your initial suggestion, in your letter of 2nd May 2008, that Ms AA should be considered eligible for Release on Temporary Licence by reason, specifically, of the exceptional circumstances of her case. Suffice it to say, in response to your request of 2^nd May 2008 that we should treat Ms AA's circumstances as exceptional, that we are not prepared to do so. We have considered her circumstances as described in the submissions and evidence referred to above carefully, but it is our clear view that there is nothing exceptional or unusual about the circumstances of her case. We note in this connection that you have failed to explain to us why or in what respects her circumstances, including those as described in your more recent submissions, are exceptional.

In response to your more recent suggestion that Ms AA should be considered eligible for Release on Temporary Licence irrespective of whether or not her circumstances are exceptional, the position, in our view, is clear. Ms AA, as a prisoner subject to a Confiscation Order and default term of imprisonment, is ineligible, by reason of the policy contained in PSO 6300, for Release on Temporary Licence until she comes to serve her second term of imprisonment.

We are not prepared, therefore, to give substantive consideration to Ms AA's application for Release on Temporary Licence for the above reasons. "

13. I will need to return to the language and substance of this letter at a later stage in this Judgment.

Release on Temporary Licence; Relevant Legal Framework

14. Temporary Release is a creature of Rule 9 of the Prison Rules 1999. The Secretary of State is empowered under this rule to order temporary release for such periods and on such conditions as he considers appropriate, "on compassionate grounds" (rule 9(3)(a)), or to assist the prisoner in maintaining family ties or in his / her transition from prison life to freedom (I paraphrase rule 9(3)(h)).
15. Under Rule 9(5):-

"The Secretary of State should not release under this rule a prisoner serving a sentence of imprisonment if, having regard to:

(a) The period or proportion of his sentence which the prisoner has served or, in a case where paragraph (10) does not apply to require all the sentences he is serving to be treated as a single term, the period or proportion of any such sentence he has served; and

(b) The frequency with which the prisoner has been granted temporary release under this rule. "

the Secretary of State is of the opinion that the release of the prisoner would be likely to undermine public confidence in the administration of justice.

16. Rule 9(10) provides that for the purposes of any reference in Rule 9 as a whole to a prisoner's sentence, consecutive terms shall be treated as a single term if they would fall to be treated as a single term for the purposes of any reference to the term of imprisonment to which a person has been sentenced in Part II of the Criminal Justice Act 1991. The parties are agreed that the default term imposed on the Claimant in the present case should be treated as a consecutive term for present purposes. It follows, in my judgement, that default terms following the imposition of compensation orders are not to be regarded as falling within any special category for the purposes of these temporary release provisions.
17. The Second Defendant has also published guidance to himself and prison governors regarding ROTL. In this context, I am of course referring to PSO 6300 which was initially issued on 29^th November 2005.
18. The relevant portions of that guidance are as follows:-

"Introduction

(i) Purpose

Release on Temporary Licence is the mechanism that enables prisoners to participate in necessary activities, outside of the prison establishment, that directly contribute to their resettlement into the community and their development of a purposeful, law-abiding life.

The decision to allow temporary release must always be balanced by an active consideration, by means of a rigorous risk assessment for maintaining public safety and the public's confidence in the judicial system.

I should interpolate at this stage that the reference to the "public's confidence in the judicial system" must be a reference to the considerations set out in prison Rule 9(5). Thus, the Second Defendant is saying that Rule 9(5) will always be relevant in these cases.

(iv) Types of licence

There are four types of Temporary Release Licence:

• Resettlement Day Release

• Resettlement Overnight Release

• Childcare Resettlement

• Special Purpose

The parties are agreed that the Claimant should be understood as having made applications for Resettlement Day Release, Resettlement Overnight Release and Special Purpose Licence.

(v) Legal authority for temporary releases

Prison Rule 9... provide(s) the authority for temporary release to support appropriate activities. This Prison Service Order provides the policy framework for the purposeful use of temporary release.

(vii) Prisoners who are excluded from release on temporary licence

The following must not be considered for temporary release:

• Prisoners with consecutive default terms for confiscation orders are ineligible for ROTL on the original sentence, but are eligible to be considered purely on the default confiscation order term.

Chapter 5 Classes of Prisoners needing special consideration

5.3 Prisoners detained in default of a confiscation order

Prisoners, who are further detained at the end of their sentence in default of a confiscation order, are eligible to be considered for temporary release provided that they are committed to custody for a sufficiently long period to qualify within the terms of this order. Eligibility is based on the confiscation order only, because the presence of a consecutive confiscation order renders the prisoner ineligible for temporary release during the original determinate sentence. The usual risk assessment must be undertaken, giving additional consideration to the risk of absconding, taking account of the particular circumstances of each case. "

It should also be noted that HM Prison Downview has a local policy which reflects the terms of Clause 5.3 of PSO 6300.

19. The Claimant's application was primarily, but as I have said not exclusively, for a Special Purpose Licence, and here paragraph 2.6 of PSO 6300 is relevant:-

"2.6 Special purpose

This is a short duration temporary release, often at short notice, that allows eligible prisoners to respond to exceptional, personal circumstances and to wider criminal justice needs.

2.6.1 Eligibility

All prisoners, except those who are excluded (see paragraph (vii) of the Introduction section), may apply for temporary release on a special purpose licence. There is no minimum eligibility period. All releases for this type of licence are subject to the normal risk assessment process, including home circumstances report and/or victim's issues where appropriate.

....

2.7 Grounds for special purpose licence

2.7.1 Compassionate

Acceptable grounds for granting a special licence on compassionate grounds are:-

• Visits to dying relatives, funerals or other tragic personal circumstances;

• For prisoners who, on reception, have established general parental responsibility for a child under 16, to deal with emergencies relating to their parental duties. ..."

20. It is clear from all these provisions that Special Purpose Licence is an exceptional category which requires the demonstration of pressing personal circumstances. The grant or refusal of special purpose licence is subject to the overarching principle in paragraph (i) of the Introduction section that the considerations set out in Rule 9(5) of the Prison Rules 1999 are always germane.
21. I note at this stage of my Judgment that it is not the Claimant's submission that Rule 9 of the Prison Rules 1999 is ultra vires the Prison Act 1952. Whereas it is true that temporary release needs to respect family life under article 8 of the Convention, a sub-rule which states, as does sub-rule (5), that ROTL should not be granted if, having regard to the matters set forth in sub-paragraphs (a) and (b), the Secretary of State is of the opinion that such release would be likely to undermine public confidence in the administration of justice, does not violate Article 8. Rule 9(5) is sufficiently flexible in its terms to permit, subject to any further policy, consideration to be given to individual cases. Furthermore, paragraph 2.6 of PSO 6300 is not inimical to article 8 either. The Second Defendant is entitled to promulgate a policy which requires a prisoner to demonstrate exceptional personal circumstances in order to secure ROTL.
22. The rationale behind the policy that prisoners are not eligible for ROTL in the circumstances of this Claimant's case until the default term commences is explained in paragraphs 5-7, in particular, of the Witness Statement of Jane Seddon, dated 12^th September 2008. I set out these paragraphs in full:-

"5. Confiscation orders are imposed in order to recover the financial benefit that an offender has obtained from his criminal conduct and, as such, the sentence imposed in default of payment is the final option of the enforcement process. Confiscation orders are therefore coercive measures that are intended to encourage criminals to make financial amends for their ill-gotten gains, which in some cases can be very substantial indeed.

6. The policy regarding eligibility for temporary release for prisoners with confiscation orders is intended to ensure that public confidence in temporary release would not be undermined. In imposing a confiscation order, the sentencing Court has determined that an offender has the funds to pay the outstanding amount from the proceeds of their crime. A decision not to pay the debt is therefore considered to be a personal choice the offender has made based on his or her judgement as to the relative costs and merit of paying the debt or serving the time in custody. The Secretary of State therefore considers that prisoners should not be encouraged to serve the period in default rather than pay the debt. Therefore, the policy that prisoners with consecutive terms for default on confiscation order should normally not be granted the privilege of temporary release on their original sentence acts as an incentive for the prisoner to pay the sum owed. Once the prisoner is serving the period in default itself, the Secretary of State considers that the disincentive of ineligibility for ROTL is less effective and is outweighed by the need for effective resettlement outcomes. Prisoners are therefore eligible for ROTL during the actual default term.

7. In summary, the policy provides an incentive for the prisoner to pay the amount due so that they are able to take up the resettlement opportunities afforded by temporary release on the instant criminal sentence. Offenders can choose to pay the confiscation order and so avoid serving the term in default. The policy therefore seeks to ensure that the coercive nature of the default term is not undermined by routine temporary releases. The policy also reflects the increased potential risk of abuse of temporary release or failure to return presented by offenders who are considered by the Court to have significant funds hidden but available outside prison. "

23. Again, I have no difficulty with this rationale in the vast majority of cases. That said, it is possible to take issue with certain aspects of this evidence. The penultimate sentence of paragraph 6 refers to the need for effective resettlement outcomes; it is silent as to any balancing exercise which will need to be carried out in the context of Special Purpose Licence. There, the considerations are different, because any compassionate circumstances of an individual case are logically capable of arising before the default term commences. Even assuming that this evidence is intended to relate to all species of ROTL, Ms Seddon has been careful to explain that ROTL should not normally be granted in default sentence cases. That is well understood, but the question arises as to whether, as a matter of fact, the Second Defendant reserves to himself a residual or exceptional discretion. Paragraph 9 of Ms Seddon's Witness Statement says that he does:-

"As set out in the Defendant's detailed Grounds of Defence, it is always open to the Secretary of State to exercise his discretion to act outside the policy and consider an application for ROTL from a prisoner who would ordinarily be excluded from ROTL. A decision to act outside the policy would depend upon the individual circumstances of the case, however such cases are rare. "

24. Taking this evidence at its face value at this stage, Ms Seddon is careful to explain that examples of departure from the policy are rare. The only example given is the case of Maxine Hemmings which is also addressed in the Witness Statement of Simon Creighton, dated 5^th September 2008, and is revealing. Ms Hemmings was an unusual case, in that the default period was extremely short. She was consistently declared to be ineligible for ROTL on account of having been granted a default term. The Parliamentary Under-Secretary of State asserted that her hands were tied and that no discretion existed outside the policy. Eventually, Ms Hemmings issued judicial review proceedings on 18^th July 2008, and on 4^th August 2008 the Second Defendant stated that he would disapply the prohibition of PSO 6300 to her case. As I have said, I have not been furnished with examples of any other cases.
25. The Second Defendant's residual discretion to disapply PSO 6300 is not set out in any part of that Prison Service Order. In practice, routine decisions to grant or refuse ROTL are made by prison governors and not by the Secretary of State. The former will be applying the policy articulated in PSO 6300 and not any residual discretion. It will only be in cases when the Secretary of State for Justice is asked to consider the matter that any residual discretion will be capable of arising. This is what happened with Maxine Hemmings. In reality, it is also what happened in the present case because the Duty Governor at Downview Prison was instructed by the Secretary of State, following the hearing on 16^th July 2008, to decide whether or not to treat the Claimant as eligible on an exceptional basis. Paragraph 9 of Ms Seddon's Witness Statement is careful to explain that the residual discretion is possessed by the Secretary of State for Justice; she does not say the governors either own or exercise it. It is also relevant to observe that PSO 6300 does not expressly state that governors' decisions may, on application, be reviewed by the Secretary of State; or, alternatively, that governors should refer applications outside the policy to the Secretary of State for determination.
26. I have already observed that the primary, albeit not the sole, focus of the Claimant's application for ROTL is the special purpose licence provisions of paragraph 2.6 of PSO 6300, which bring into play considerations under article 8 of the Convention. The Claimant did apply for other forms of ROTL, namely resettlement day leave and resettlement night leave. The Second Defendant's position remains that she is not eligible for these categories of leave until she has completed the relevant portion of her default sentence. The purpose of resettlement leave is to prepare prisoners for resettlement in the community, and there is logic in the contention that this should not start until a portion of the relevant sentence has been served. In any event, article 8 considerations are only very weakly in play in this context. It is true that the decision letter, dated 18^th July 2008, has rejected applications for ROTL on all the bases advanced, but in my judgment the Claimant's case cannot succeed as regards her applications for resettlement leave if it should fail on the issue of special purpose leave. For that reason I shall confine my Judgment to a consideration of the issues arising in the context of the application for Special Purpose Leave.

Fettering of Discretion; the Common Law and Article 8 of the Convention

27. In my judgment, the guiding principles are well established. The leading case at common law remains British Oxygen v Board of Trade [1971] AC 610, where Lord Reid stated (at page 65D) as follows :-

"A Ministry or large authority may have to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say. "

28. In R v Secretary of State for the Home Department ex parte Venables and Thompson [1998] AC 407, Lord Browne-Wilkinson explained:-

"These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases... but the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful."

29. Aside from the general principle, which is extremely well-established in our public law, I was referred by Ms Dubinsky to a number of authorities which have served to develop and apply that principle to more complex factual situations. I clearly need to address the extent to which those authorities avail the Claimant's particular case.
30. The first of these authorities is R v Warwickshire County Council, ex parte Collymore (Judge J, unreported, 5^th May 1994). In that case the court was concerned with an application for a discretionary award in an educational context. The local authority's policy or system was to refuse applications in like case to the applicant for judicial review pursuant to a general policy, and to allow appeals by way of review in any cases where exceptional circumstances to justify an award were advanced. Mr Justice Judge (as he was then) found that this practice had not been "cobbled together" to meet the circumstances of Ms Collymore's case, and that the case before him was distinguishable from the sort of situation which obtained in ex parte Tilley where the position was that (a) the local authority did apply a blanket policy, and (b) that policy was not "saved" by the adduction of evidence which showed that the local authority did depart from that policy on occasion. This was evidence of an adventitious practice, not evidence of any policy or system which paralleled the state of affairs obtaining in the circumstances of the Collymore case itself. Furthermore, it is noteworthy that in the Collymore case Mr Justice Judge also observed that a policy or settled practice which only admitted of exceptions if the circumstances were "most extraordinary" would be tantamount to constituting a blanket policy of refusal, because the threshold for exceptional consideration would be set too high. (Another example of a case to which I was referred and where the threshold was set unrealistically high is R v North West Lancashire HA. ex parte A [2000] 1 WLR 977 (see in particular Auld LJ at 992G-993H))
31. The second of these authorities is R v London Borough of Bexley. ex parte Bridget Jones (Leggatt LJ, unreported, 29^th April 1994). This was another educational grant case where the issue in the judicial review proceedings was whether the local authority had a legally adequate review procedure to deal with exceptions. Leggatt LJ ruled in the circumstances of that case that it did not, because the evidence before the court tended to show that the exceptions procedure arose for the first time in the context of the very application for judicial review which was under consideration, and that there was no convincing evidence that the Respondent had an exceptions procedure worth its name. In my view this was a paradigm case of an exceptions procedure which had been "cobbled together", to borrow Mr Justice Judge's phrase, to meet the forensic exigencies of the judicial review proceedings.
32. The third of these authorities was R(Cannan) v SSHD and another [2004] Prison LR 124. In my judgment this case, aside from its directly applicable prison context, is the most apposite for the purposes of the Claimant's submissions. The following passage from the judgment of Sedley LJ is particularly in point:

In such a situation a policy is a legal and practical necessity in order to ensure that the powers of control are applied lawfully and consistently as between prisoners but with due regard for particular circumstances. In the prison system, however, policies are typically, and understandably, promulgated in the form of orders. This makes it important that the flexibility which every lawyer knows is built into a policy should be spelt out so that officers and prisoners understand it, and should not be left to implication or mere ad hoc discretion.

33. I was also referred, in similar vein, to the decision of the Court of Appeal in the case of R(P and O) v SSHD [2001] Prison LR 297, in particular paragraphs 99-106. Ms Dubinsky submits that the dicta from these two decisions are almost tailor-made to suit the instant case, and (foreshadowing my conclusion on one of the key issues which I must address at a later stage in this judgment) I fully agree.
34. The Carman case was also prayed in aid by Ms Dubinsky in support of a further submission relating to article 8 of the Convention. In the circumstances of that case, the Court of Appeal held that an "exceptional circumstances" threshold might offend against article 8 to the extent that it was too blunt an instrument to permit a proper proportionality exercise to be conducted on the facts of individual cases. In other words, it was possible to envisage cases which (a) were not exceptional, but (b) where the interference with the prisoner's rights could not be justified as proportionate.
35. Ms Dubinsky advanced separate submissions under article 8 of the Convention. I have already touched on one of those submissions (see paragraph 34 above), but I need also to refer to the well-known decision of the Grand Chamber of the ECtHR in Dickson v UK (2007) 24 BHRC 19. Two paragraphs of the judgment are particularly relevant:

68. Accordingly, a person retains his or her convention rights on imprisonment, so that any restriction on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or (as accepted by the applicants before the Grand Chamber) from an adequate link between the restriction and the circumstances of the prisoner in question. However, it cannot be based solely on what would offend public opinion.

82. ... in particular, and having regard to the judgment of Lord Phillips MR in Mellor and of Auld LJ in the instant case, the policy placed an inordinately high 'exceptionality' burden on the applicants when requesting artificial insemination facilities. They had to demonstrate, in the first place, as a condition precedent to the application of the policy, that the deprivation of artificial insemination facilities might prevent conception altogether (the starting point). Secondly, and of even greater significance, they had to go on to demonstrate that the circumstances of their case were 'exceptional' within the meaning of the policy (the finishing point). The court considers that even if the applicants' article 8 complaint was before the Secretary of State and the Court of Appeal, the policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary of State or by the domestic courts in their case, as required by the convention.

The Parties' Submissions

36. I have been greatly assisted by the Skeleton Arguments lodged by Counsel, their oral submissions, and by Ms Dubinsky's speaking note. For the purposes of this judgment I propose to set out only a summary of the parties' cases as more fully developed before me both orally and in writing.
37. Ms Dubinsky for the Claimant submitted that the ROTL policy was unlawful at common-law for a number of related reasons:

(i) PSO 6300 was on its face a blanket policy. It contained no reference to the possibility of exceptions to it.

(ii) The instant case was very similar to ex parte Bridget Jones. Putting the matter at its lowest, there was no adequate procedure for entertaining exceptional consideration of cases outside the policy, or of notifying prisoners and those advising them that such a procedure even existed.

(iii) To the extent to which the Second Defendant did reserve to himself an exceptional discretion to depart from the policy, he had effectively created a double-exceptionality test (or, put another way, an exceptionality threshold or gateway to the exercise of a discretion which was itself exceptional), and this was itself objectionable as raising the bar too high.

(iv) The exceptional policy (as per paragraph 9 of Ms Seddon's witness statement) was so unclear as to be unlawful.

(v) To the extent that the First Defendant's decision-letter dated 18^th July 2008 does recognise, or predicate, the existence of an exceptional discretion, it is legally flawed for the reason advanced under sub-paragraph (iii) above, and is in any event defective in law because it was made against the backdrop of an unlawful policy.

38. As for the Claimant's case under article 8 of the Convention, to the extent to which it differed from her case at common-law, strong reliance was placed on Carman and Dickson.
39. Ms Busch for the Defendants submitted that this was not a true example of a fettering of a discretion case at all. The Second Defendant had reached the conclusion under rule 9(5) of the Prison Rules 1999 that public confidence in the administration of justice would be undermined if prisoners were routinely made eligible for ROTL in this sort of case. It followed that there was no discretion under rule 9(1) which was logically capable of being fettered. Ms Busch further submitted that the First Defendant's decision-letter dated 18^th July 2008 was clearly premised on the existence of an exceptional discretion which fell to be exercised, and in the absence of an irrationality challenge which in any event would fail, had it been made, I should be extremely cautious indeed before opining unnecessarily as to the lawfulness or otherwise of PSO 6300.

Discussion

40. I am grateful to both Counsel for their clear, succinct and helpful submissions.
41. My point of departure is not to consider the legality or otherwise of the First Defendant's decision-letter dated 18^th July 2008 but rather the lawfulness of the Second Defendant's ROTL policy to the extent that the Claimant challenged it.
42. To the extent that his policy is to be found in PSO 6300 and nowhere else, I have no hesitation in concluding that it is unlawful at common-law as amounting to a fettering of discretion by the Secretary of State, both of himself and his prison governors. The policy is blanket in its terms and permits of no exceptions. It therefore inhibits consideration being devoted to the circumstances of individual cases, and in that respect is also inimical to article 8 of the Convention.
43. I reject Ms Busch's submission that the effect of the Second Defendant's assessment under rule 9(5) of the Prison Rules 1999 is to prevent there being any discretion to be exercised, let alone to be fettered, under rule 9(1). As paragraph 6 of Ms Seddon's witness statement makes plain, the Second Defendant has concluded that normally the rule 9(5) considerations in cases such as the present militate against the grant of ROTL. This in terms leaves open the possibility of the relevant discretion being exercised under rule 9(1) in exceptional cases. Were it otherwise, and were the Second Defendant to have formed the judgment that the rule 9(5) considerations in cases such as the present always or systematically militated against the possibility of ROTL being granted, then the Second Defendant would in my judgment have fettered his discretion at this anterior stage.
44. The Claimant does not go so far as to submit that paragraph 9 of Ms Seddon's witness statement, testifying to the existence of an exceptional discretion in the hands of the Second Defendant, is untrue. However, she is no doubt sceptical about it, and -particularly in view of the history of the present case as much as the history of the similar case of Maxine Hemmings - is entitled to hint that it possesses somewhat of a "rabbit out of the hat" quality. I have already referred to the decisions of Judge J (as he then was) and Leggatt LJ where this self-same point was made, deploying a different metaphorical turn of phrase.
45. Notwithstanding these reservations, in my judgement paragraph 9 of Ms Seddon's witness statement should be taken at its face value. Ms Dubinsky did not contend that I should do otherwise, and I agree with her sensible approach. Secretaries of State always possess a discretion to depart from relevant policies. It is somewhat surprising that the Under-Parliamentary Secretary of State whose correspondence I have seen in the case of Maxine Hemmings was entirely unaware of its existence. But that omission does not in itself persuade me that such an exceptional discretion does not exist. It plainly does, paragraph 9 of Ms Seddon's witness statement reflects it, and I so find.
46. So, we have a state of affairs in which PSO 6300 is expressed in absolute and rigid terms and yet the Second Defendant has an exceptional discretion which he may choose to exercise, on application, outside the terms of PSO 6300 altogether. Where does that leave the legal analysis?
47. In my judgement, the Claimant's submission that PSO 6300 is legally defective because it contains no reference to any exceptional discretion is well-founded. Decisions in this area are routinely made by prison governors and not by the Secretary of State. As matters stand, prison governors will routinely apply the letter of PSO 6300 and reject applications for ROTL in this sort of situation on the ground that the prisoner is not eligible. Ms Seddon has been careful to advise the court that the exceptional discretion is exercised by the Secretary of State: she does not claim that it is, or should be, exercised by prison governors. Furthermore, prisoners and those advising them are not informed in sufficiently clear terms that, in the event of refusal by the prison governor, application may be made to the Secretary of State on an exceptional basis.
48. These are clear procedural flaws which fall foul of the principles articulated in the cases which I have reviewed, in particular the dicta of Sedley LJ in Carman.
49. It is not for this court to advise the Second Defendant as to how to proceed, but the options are logically two-fold. PSO 6300 must be amended in one of two ways. If the Second Defendant wishes that the exceptional discretion should be exercised by prison governors, then this should be made explicit, so that the latter know what to do. If, on the other hand, the Secretary of State prefers to leave decisions of this type to himself (either at first instance or on a review basis), the PSO 6300 must say so. All relevant decision-makers as well as those directly affected by these decisions must know what the position is.
50. I also need to address Ms Dubinsky's submission that paragraph 9 of Ms Seddon's witness statement creates a double-exceptionality criterion which is impossible of practical fulfilment.
51. I am not persuaded that this is what paragraph 9 of Ms Seddon's witness statement either articulates or implements, nor am I persuaded (although I will revert to this in due course) that the First Defendant's decision dated 18^th July 2008 betrays such an approach. In a default sentence case such as the instant case, the rule 9(5) considerations will normally militate against the grant of ROTL. I have already explained that I have no difficulty with anything Ms Seddon says at paragraphs 5-7 of her witness statement, as a general rule. This means that in a default sentence case the special, compassionate circumstances must press or weigh more heavily before special purpose licence ROTL is likely to be granted. This is not an example, in my judgement, of the Second Defendant having to be satisfied that a case is exceptional even before an exceptional discretion is sought to be invoked. Rather, the Second Defendant considers the claim in the round and assesses whether the overall circumstances are such that it is appropriate for consideration under the special purpose licence provisions of the ROTL policy.
52. I would tend to agree with Ms Dubinsky that the imposition of a two-tier exceptionality requirement would set the bar too high and in so doing infringe both the common-law and article 8 of the Convention. But, for the reasons I have given I do not conclude that this is what paragraph of Ms Seddon's witness statement means or, more importantly, what has happened in the instant case on 18^th July 2008. When the Second Defendant comes to revise PSO 6300 in the light of this judgment, no doubt he will seek to make the matter crystal-clear in view of the guidance I have given.
53. Turning the matter on its head, Ms Dubinsky's submission under this rubric proves too much. If she is right about so-called double-exceptionality, then in my view the Second Defendant would have to treat default sentence prisoners in the same way as all other prisoners. Although the Claimant is astute to concede that the Second Defendant would lawfully be entitled to treat default sentence prisoners differently from other prisoners (and the Claimant also rightly says that it is not for her to devise policy), I for my part cannot envisage or notionally draft a policy which - if the premise underpinning the Claimant's submission is correct - is not caught between Scylla and Charibydis. Either such a policy would be flawed for double-exceptionality, or it must treat default term prisoners in exactly the same way as all others.
54. I therefore conclude that the Second Defendant's ROTL policy is unlawful to the extent that PSO 6300 does not reflect and make explicit the existence of an exceptional discretion as set forth in paragraph 9 of Ms Seddon's witness statement.
55. Having addressed, as in my view I was duty-bound to, the legal merits of the Second Defendant's policy, I turn to consider the Claimant's challenge to the First Defendant's decision-letter dated 18^th July 2008.
56. First of all, the Claimant submits that she is entitled to have her application determined within the terms of a lawful policy, and at this stage of the analysis she would add that I have just decided that the Second Defendant's policy is unlawful to the extent I have indicated.
57. Attractive as that submission sounds, I must reject it. I have concluded that the flaw in the Defendant's position before me is that paragraph 9 of Ms Seddon's witness statement has not been woven into formal policy. Accordingly, unless corrected there is a real risk that future decisions in this domain will be taken by prison governors on the same footing as before, namely that they have no discretion. And there is also a real risk (again, putting the matter at its very lowest) that prisoners and those advising them will not be aware that the Second Defendant possesses an exceptional discretion. However, on 16^th July 2008 Ms Busch told Walker J that the Defendants would consider this Claimant's case outside the policy, and the terms of the decision-letter of 18^th July 2008 make it clear that this is indeed what happened. So, notwithstanding that PSO 6300 is cast in adamantine terms, the Defendants broke themselves free from the shackles of that self-denying ordinance and decided the application for ROTL on the basis that an exceptional discretion existed.
58. In my judgment, Ms Dubinsky's submission that the Claimant is entitled to have her case decided against the backdrop of a lawful policy would only be well-founded if she were able to demonstrate some other flaw in Ms Seddon's witness statement or in PSO 6300 which must have infected the decision of 18^th July 2008. In the alternative, Ms Dubinsky seeks to persuade me that this decision-letter is in any event legally defective because its reasons are opaque and it does impose some sort of double-criterion or exceptionality gateway which was/is practically impossible of fulfilment.
59. I have already concluded that the Claimant cannot demonstrate some other flaw in Ms Seddon's witness statement or in PSO 6300 itself. But I need to address Ms Dubinsky's submissions devoted to challenging the letter of 18^th July 2008.
60. The Claimant submits that the Duty Governor did apply the sort of double-exceptionality test which, as I have found under paragraphs 30 and 35 above, would objectionable in terms of both the common-law and the Convention. She relies on the passages in the letter which she submits suggest that the focus was not on the merits of the application for ROTL as such, but rather on whether sufficiently compelling or exceptional circumstances had been demonstrated to warrant a departure from policy. Furthermore, the final sentence of the letter states in clear terms that the Duty Governor is not prepared to give substantive consideration to the Claimant's ROTL application, suggesting that her application had failed on some gateway or anterior stage.
61. I agree that the letter could have been more tightly drafted. From a lawyer's perspective, there are indications in the letter that the First Defendant might have been asking himself a threshold question (namely, has the Claimant demonstrated an exceptional case), and has dismissed the application for ROTL solely and simply on the basis that such a threshold has not been attained. Ultimately, however, I am not persuaded that the Duty Governor has applied such an approach. When I re-read the whole of the letter, it is clear to me that its author has addressed the merits of the Claimant's application for ROTL. Having considered the circumstances of the Claimant's case, the Duty Governor has concluded - without going through all the metaphorical hoops of PSO 6300 - that there is nothing exceptional or unusual about the circumstances of her case. This can only be a reference to the Claimant's circumstances as they existed in July 2008. In my judgement, this is hardly a surprising conclusion. Whereas the Claimant's personal and family circumstances gave rise to serious concern in May 2008, they had changed considerably for the better by July. With respect to Ms Dubinsky's compelling arguments, and without prejudice to the fact that it is not my view which counts but that of the Second Defendant, the merits of the claim for special purpose leave largely disappeared by July 2008. The Claimant's witness statement in these judicial review proceedings puts forward a number of reasons why she should see her children. I can fully understand the human dimension of this case, but the grounds which are put forward no longer carry particular weight in the context of paragraph 2.6 of PSO 6300.
62. I therefore interpret the Duty Governor's approach as follows. He has paid attention to the gravamen of the Claimant's application for special purpose licence in particular. The applications for other forms of ROTL were not specifically addressed, although I have expressed a view about those under paragraph 26 above. The Duty Governor has screened or sifted the application, giving consideration as I have said to its prima facie merits, and has considered that there is nothing unusual or exceptional about it. In essence, without going through all the requirements laid down in the PSO, the Duty Governor has rejected the application on its merits. The Duty Governor might have said in terms that in a case such as the present the rule 9(5) public interest considerations weigh more tellingly against grant, and that the personal and family circumstances of the case need to be all the more compelling; but the fact that he did not hardly avails the Claimant: if anything, the Duty Governor has applied a lower test. The reference to the giving of no substantive consideration to the application to ROTL in the final sentence of the letter is a reference to the fact that in the circumstances of this case there has proved to be no need to make decisions on all aspects of the ROTL application as laid down in the policy.
63. It follows that I must reject the Claimant's submission that the letter of 18^th July 2008 is susceptible to judicial review.
64. I have already pointed out that the letter might have been better worded. When governors or the Secretary of State come to make these decisions in the future, express consideration should be given to whether the rule 9(5) considerations, which I agree are capable of weighing more heavily in a default sentence case than in the paradigm case, are outweighed by the merits of the application which is being advanced. Inevitably, this will entail some consideration being given to the underlying merits of that application. That consideration may be given on a screening or sifting basis; it need not be as full and detailed consideration as would apply in a case where the eligibility criteria in the policy have been satisfied. If, on such a basis, the claim as advanced clearly does not meet the requirements of paragraph 2.6 of PSO 6300, then the decision-maker need go no further. If, on the other hand, it may meet those requirements, then the decision-maker will need to weigh up the individual merits of the claim against the public interest considerations set forth in rule 9(5) of the Prison Rules 1999, and form a view.

Conclusion

65. It follows from my narrative judgment that I cannot conclude that the decision-letter of 18^th July 2008 is legally flawed on any of the bases advanced by the Claimant, although I have concluded that the Second Defendant's policy is flawed because it fails to make it clear to prison governors and applicants for ROTL that decision makers will entertain applications on an exceptional basis outside the policy. It should be emphasised that my criticisms of the Second Defendant's policy must be confined to the circumstances of this particular case, namely those of default term prisoners. I note, for example, that Category A prisoners are not eligible for ROTL at all. I should not be interpreted as expressing a view one way or the other as to whether this is a lawful policy. Ms Dubinsky was careful to make no submissions about it.
66. The issue arises as to whether I should grant any form of declaratory relief to the Claimant to reflect these foregoing conclusions.
67. I am reminded that the Court does have jurisdiction to grant judicial review of extra-statutory policies: see Gillick v DHSS and another [1985] AC 830. Ms Dubinsky submits that this jurisdiction should be exercised in the instant case for the following reasons. Her client will be making ROTL applications in the future and is entitled to lawful consideration of those applications. If the Court does not grant declaratory relief, there is a danger that prison governors, and perhaps even the Secretary of State himself (see what happened in the case of Maxine Hemmings), will continue to make unlawful decisions. Furthermore, there are advantages in the Court spelling out the consequences of its judgment in the form of explicit orders.
68. Ms Busch urges me to be cautious. My judgment should be confined to the circumstances of this particular case, and I should not stray off-piste into areas where it is not strictly necessary to go. Furthermore, the Claimant has now received a lawful decision in the form of the letter dated 18^th July 2008, and that effectively disposes of this application for judicial review. The case of Gillick is distinguishable because there the only decision which could be challenged was the policy itself.
69. In the end, I am persuaded that Ms Busch's submissions are correct. Moreover, I do not consider that it is necessary for me to order declaratory relief for the following succinct reason. I have set out the respects in which PSO 6300 is unlawful both at common-law and under article 8 of the Convention. I would expect the Secretary of State to respond to this judgment in one of two ways. Either the Secretary of State should amend the policy, and set out in explicit terms the existence of an exceptional discretion; or, alternatively, the Secretary of State should take the view that my judgment is incorrect and take steps to appeal it.
70. I appreciate that in the absence of formal declaratory relief it may be difficult for any appeal to be brought by the Defendants. Accordingly, I am prepared to receive further written submissions from the parties, in particular Ms Busch, as to whether I should grant declaratory relief for the purpose of facilitating such an appeal. That said, I should however make two final matters clear. First, the Claimant does not require the grant of declaratory relief for that purpose. Secondly, I should not be interpreted as encouraging an appeal or in any way prejudging the merits of any application for permission to appeal.
71. Subject to the above, this application for judicial review is dismissed.