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The Court of Appeal has given judgment in an important case relating to prisons and transfers to open conditions.

Following various serious incidents in the summer of 2013 and further instances of prisoners failing to return from ROTL and a series of high profile absconds from open conditions during 2014, the Secretary of State for Justice introduced a new policy for prisoners with an abscond history in relation to (a) temporary release and (b) transfers to open conditions.

Mr Gilbert brought Judicial Review proceedings challenging the new policy on a number of grounds.  He succeeded before the Divisional Court ([2015] EWHC 927) which declared the new absconder policy to be illegal in that it was said to be inconsistent with statutory directions given by the Secretary of State for Justice to the Parole Board.  The Divisional Court also found the process that had been used in relation to Mr Gilbert’s case to have been unfair.

The Secretary of State appealed to the Court of Appeal and his appeal has been allowed.  The Court of Appeal found that there had been no inconsistency between the Secretary of State’s directions to the Parole Board and the new absconder policy.  It also found that even if there had been such an inconsistency, it would not have been relevant because the directions to the Parole Board and the new absconder policy were directed at different persons and operate at different points in the management of prisoners through their sentences and the parole system.

The Court of Appeal also rejected a number of additional wide ranging submissions made on behalf of Mr Gilbert to attack the new policy (including allegations that the new policy undermined the role of the Parole Board or represented a breach of Article 5)

The Court of Appeal also found that the process that had been used in relation to Mr Gilbert to have been fair.  He had been given an opportunity to make submissions as to why the new policy should not be applied to him and then made submissions.  Only then did the Secretary of State reach a conclusion.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/802.html

Tom Weisselberg QC and Naina Patel acted for the Secretary of State.

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