Absconding prisoner policy unlawful
Justice Secretary Chris Grayling's policy of excluding prisoners from being transferred from closed prisons to more lenient open prison conditions if they have a history of absconding has been declared unlawful by the High Court.
The policy was introduced following high-profile media reports last year of prisoners with a history of violence absconding while on release on temporary licence (ROTL) from open prison.
Among them was Michael Wheatley, a fugitive armed robber nicknamed the Skull Cracker.
Mr Grayling publicly announced last May that the Government was "tearing up the system as it exists at the moment" and introduced his absconder policy.
But two senior judges at London's High Court have ruled that excluding transfers - save in exceptional circumstances - for prisoners "with a history of abscond, escape or serious ROTL failure" is inconsistent with his own directions to the Parole Board.
The long-standing directions state that "a phased release" from closed to open prison is necessary for most inmates serving indeterminate sentences "in order to test the prisoner's readiness for release into the community".
Lord Justice Bean, sitting with Mr Justice Mitting, gave the Justice Secretary permission to appeal against the court's ruling.
The Prisoners' Advice Service, a charity offering free legal advice and support to adult prisoners, described the absconder policy as a "knee jerk reaction" by Mr Grayling.
The charity said in a statement: "The Secretary of State's contention that he is entitled to ignore and contradict his own policy guidance demonstrates either his ignorance or flagrant disregard for basic legal principles of consistency and transparency in public decision making.
"The so called 'absconder policy' was introduced as a knee jerk reaction to negative press reports without adequate consideration for either existing policies, or its impact on the prisoners whose progression to open conditions was abruptly prevented."
The policy was introduced after press reports early last year of prisoners absconding.
High in the headlines was the case of Michael Wheatley, a fugitive armed robber who was nicknamed the Skull Cracker.
Wheatley, who had been given 13 life sentences but was eligible for release after eight years, had been on the run after leaving Standford Hill open prison in Kent on day release and failing to return.
He was arrested alongside another man in Tower Hamlets, east London, after an armed robbery at a Chelsea Building Society branch in Sunbury-on-Thames, Surrey.
The Ministry of Justice announced there would be an appeal.
A spokesman said: "The fundamental principles of the policy are not unlawful.
"The court found there was inconsistency with the implementation.
"Our position remains that temporary release can be an important part of rehabilitating offenders but not at the cost of public protection.
"We are appealing this decision."
Mr Grayling's critics say the scope of his policy was flawed because it was too wide and caught less serious cases of absconding, including that of John Gilbert, who brought today's legal challenge. A number of other cases are pending.
Gilbert failed to return to his open prison after a permitted absence after missing his last train on a Sunday evening. He returned himself to custody the following morning.
He was sentenced in April 2008 to imprisonment for public protection (IPP) after pleading guilty to wounding with intent to cause grievous bodily harm.
He was told he must serve a minimum term of three years and 265 days before he could be considered for release.
His tariff expired over three years ago but he remains detained until the Parole Board considers it is safe to release him back into the community.
In November 2012, the board recommended his transfer to open conditions, and the transfer took place to Standford Hill open prison at Sheerness, Kent, where the main focus is for prisoners to work out in the community.
Gilbert's sentence plan included provision for town visits with progression to home leave on release on ROTL.
For about five months he complied with open conditions and had three separate days of ROTL without incident.
But he missed the last train back to prison on June 2 2013. He surrendered to custody the following morning at Eastbourne police station, but later the same month he was returned to closed conditions.
A Parole Board panel recommended sending him back to open prison last July.
The panel said Gilbert was "assessed as a high risk of serious harm to the public and this is unlikely to be reduced until you have been tested in the community".
The panel found that the circumstances of his absconding "were not an attempt to escape, but represent a minor error of judgment".
A month later Gilbert was refused a transfer under the absconder policy.
At the High Court, Tom Weisselberg QC defended the Justice Secretary against Gilbert's claim that his absconder policy directions to the board were unlawful.
But the judges ruled it was "irrational" for Mr Grayling to have two policy documents in force at the same time which were inconsistent and ordered him to reconsider Gilbert's case.
Mr Weisselberg argued the Justice Secretary had the power "to ignore or contradict" his own policy directions as they were "not directions to him but by him" and they did not bind him.
The judges said the argument was "striking" and Mr Grayling "could indeed amend or revoke" the directions.
"But so long as they remain in force, they are binding on the board and also binding on the Secretary of State, in the sense that he cannot lawfully tell the board to ignore them or his officials to frustrate them."