The English High Court has ruled in MP, R(on the application of) v the Secretary of State for Justice that prison authorities acted unlawfully in their restriction of “childcare resettlement leave (CRL)” to prisoners who were due to be released within two years. CRL is a kind of temporary licence that allows prisoners with sole carer responsibilities for under-16 children to spend up to three nights at home.
The claimants in the case had been refused this temporary leave as they were not within two years of their release date and had not been allocated to ‘open conditions’. The Secretary of State had restricted CRL to prisoners who fulfilled those two conditions. The claimants argued that the prison rule providing for CRL – PSO 6300 – did not place a minimum eligibility condition upon the granting of CRL and was intended to be available throughout a prisoner’s sentence. The defendants in response argued that although there were no such eligibility provisions in the relevant prison rule, it did state that prison governors should bear in mind another prison rule which prevented the release of prisoners on a temporary licence. That rule prevented release if it would undermine public confidence in the administration of justice due to the length of the sentence still to be served by the prisoner. The claimants also argued that the restriction amounted to a violation of their Article 8 (private and family life) rights under the ECHR. The defendants on this point argued that Article 8 was only of limited effect in the scenario of a prisoner seeking temporary leave.
Mrs Justice Lang in the High Court agreed with the applicants, holding that PSO 6300 could be applicable to prisoners throughout all of their detention and not just within two years of their release date. On the topic of Article 8, she stated that, “It is well-established that a prisoner does not forfeit his Convention rights in their entirety, including his right to family life, merely because of his status as a person detained following conviction…The initial sentence of imprisonment necessarily interferes with her Art. 8 rights, as it entails a prolonged separation from her family. The interference will be justified under Art. 8(2), as necessary in a democratic society, in the interests of public safety and for the prevention of disorder and crime. However, this does not preclude a subsequent breach of Art. 8 arising from refusal of temporary leave from prison in an appropriate case”. Justice Lang therefore ultimately held that the Secretary of State had unlawfully fettered his discretion as the restrictions had been inflexibly applied and did not involve a consideration of the merits of individual cases.
The appellants both have children under the age of sixteen and made an application for CRL. CRL is governed by prison service rule PS0 6300. However the secretary of state rejected their applications on the basis of a policy “that prisoners should not be allocated to open conditions more than two years from their release date.” The appellants claimed that this breached their rights under Article 8 of the European Convention on Human Rights. They also claimed that as the secretary of state imposed a blanket rule, he had “unlawfully restricted his own discretion.”
The Court granted the application and Lang J stated that the purpose of CRL is to “encourage the maintenance of the parent/child tie and to help prepare the prisoner for the resumption of their parental duties on release. A mother’s relationship with her child will require continual nurturing throughout their separation if family ties are to be maintained.”
Click here to see the judgment.
Click here to see a post by the UK Human Rights Blog.