A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person whose case falls within the scope of the policy is only entitled to have whatever policy is lawfully in place at the relevant time applied to him. A Secretary of State is entitled to change his policy.
It is proper for an authority to adopt a general policy for the exercise of such an administrative discretion, to allow for exceptions from it in ‘exceptional circumstances’ and to leave those circumstances undefined.
Scarman L said: ‘It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the legislative provisions . . the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper or even to prevent, changes of policy.’ and ‘the Secretary of State has clearly to consider other aspects of the early release of a prisoner serving a sentence of imprisonment. Deterrence, retribution, and public confidence in the system are factors of importance. The Parole Board, through its judicial and other members, can offer advice on these aspects of the question. But neither the board nor the judiciary can be as close, or as sensitive, to public opinion as a minister responsible to Parliament and to the electorate. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice.’
Scarman, Diplock, Roskill, Brandon, Brightman LL
[1985] AC 318, [1984] 3 WLR 1159, [1984] 3 All ER 801
England and Wales
Citing:
Approved – CREEDNZ Inc v The Governor General 1981
(New Zealand) The court looked at those considerations which a decision maker can choose for himself whether or not to take them into account. Cooke J said: ‘what has to be emphasised is that it is only when the statute expressly or impliedly . .
Cited by:
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Flynn, Meek, Nicol and McMurray v Her Majesty’s Advocate PC 18-Mar-2004
PC (High Court of Justiciary) The applicants had each been convicted of murder, and complained that the transitional provisions for determining how long should be served under the life sentences infringed their . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Hindley HL 30-Mar-2000
The prisoner, sentenced to life imprisonment with a whole life tariff for the murders of children, now appealed against the imposition of the whole life tarriff.
Held: The appeal failed. It was possible for a Home Secretary to set a whole life . .
Mentioned – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – North West Lancashire Health Authority v A D and G CA 29-Jul-1999
A decision not to fund gender re-assignment surgery was operated as a blanket policy without proper regard for individual cases and so was unlawful as an effective fetter on the discretion which the Health Authority was obliged to exercise. A lawful . .
Cited – Rogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
Cited – Rogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
Cited – Lambeth London Borough Council v Ireneschild CA 16-Mar-2007
The tenant held a secure tenancy of a first floor flat of the Council. She was severely disabled and argued that the danger of injury meant that she should be allowed to occupy the empty ground floor flat. She complained at the way the authority had . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Cited – Oxfam v Revenue and Customs ChD 27-Nov-2009
The charity appealed against refusal to allow it to reclaim input VAT. It also sought judicial review of the decision of the Tribunal not to allow it to raise an argument of legitimate expectation. The charity had various subsidiaries conducting . .
Cited – AC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening Admn 25-May-2010
The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Cited – Cross, Regina (on the Application of) v Governor HM Young Offenders Institute Thorn Cross Admn 20-Jan-2004
The claimant prisoner challenged the governor’s refusal to release him on the home detention curfew scheme. Henriques J said: ‘no risk assessment is necessary in cases where a prisoner has committed a presumed unsuitable offence. It is only if there . .
Cited – Young, Regina (on The Application of) v Governor of Her Majesty’s Prison Highdown and Another Admn 6-Apr-2011
The claimant complained that he had not been considered for early release on Home Detention Curfew because the policy refused to allow those convicted of knife crimes to be so considered, and: ‘the failure to include other offences in the list of . .
Cited – Monica, Regina (on The Application of) v Director of Public Prosecutions Admn 14-Dec-2018
Deception as to identity did not undermine consent
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .
Lists of cited by and citing cases may be incomplete.
Administrative, Prisons
Updated: 16 January 2022; Ref: scu.187440
