Mr McAtee challenged a decision to move him from open conditions back to closed conditions following the introduction of a new policy for prisoners with an abscond history in relation to (a) temporary release and (b) transfers to open conditions (considered in R (Gilbert) v Secretary of State for Justice  EWCA Civ 802) (“the Decision”). The transitional measures stated that prisoners currently in open conditions would be allowed to remain in open conditions notwithstanding any prior history of abscond.
The High Court found that there was no inconsistency between the Decision and the published policy as the transitional measures were never published and in any event they did not preclude a review of the status of prisoners such as Mr McAtee in light of a decision to give greater weight to abscond history when assessing risk. Nor was there any inconsistency between the Decision and the Secretary of State’s previous decision to accept the recommendation of the Parole Board that the Claimant was suitable for open conditions since, again, the Secretary of State was entitled to review Mr McAtee’s status in open conditions in light of his new approach to risk. However, Mr McAtee should have been told that the Secretary of State was giving greater weight to abscond history when assessing risk.
The High Court also found that there was no breach of the Article 5 ECHR public law duty to provide systems and resources necessary to afford prisoners a reasonable opportunity to demonstrate that they are no longer dangerous, nor the Article 5 ECHR ancillary duty to provide an individual prisoner with a reasonable opportunity to rehabilitate himself and demonstrate to the Parole Board that he no longer represents an unacceptable danger to the public and is safe to be released. At most, Mr McAtee could complain of a very limited delay of approximately 6 months between the date of his transfer back to closed conditions and when he was offered the opportunity to be assessed for the progression regime which was to operate as an alternative to open conditions. During this time, Mr McAtee was offered the opportunity to make representations on whether he fell within the exceptional circumstances criteria of the new policy to allow him to be considered for open conditions but he chose not to do so. He subsequently declined a position on the progression regime, the adequacy of which was not challenged. In the circumstances, there were no Article 5 ECHR breaches.
The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1019.html
Tom Weisselberg QC and Naina Patel acted for the Secretary of State.