13/02/2012 09:39 GMT

Female Prisoner Temporary Release Scheme Was 'Unlawful', High Court Rules

Justice secretary Ken Clarke acted unlawfully when applying rules which allow female prisoners to be temporarily released to spend time at home with their children, a High Court judge said today.

Mrs Justice Lang said Clarke misinterpreted policy, acted in a way which was incompatible with human rights legislation and "fettered his discretion" by applying a blanket policy without considering individual circumstances of prisoners.

The judge ruled against Clarke at a High Court hearing in London after two women prisoners challenged decisions not to allow them to take "childcare resettlement leave".

She ordered that decisions taken about the two women, who were not identified, must be reconsidered.

Lawyers representing Clarke were given seven days to consider an appeal application.

Mrs Justice Lang said childcare resettlement leave was a "type of temporary licence" available to prisoners who had sole caring responsibility for a child under 16.

The judge said it enabled prisoners to spend up to three days - plus nights - at home providing certain conditions are met.

She said men and women prisoners were eligible but the judicial review challenge before her focused exclusively on the position of female prisoners.

The justice secretary was entitled to direct prison governors on relevant factors to consider in accordance with rules - although in practice governors take decisions on his behalf, she said.

Mrs Justice Lang heard legal argument from lawyers representing the two women and Clarke at a hearing last month.

The judge said, in a written ruling handed down today: "In my judgment, the secretary of state acted unlawfully when reviewing and applying his policy on child resettlement leave."

She said Clarke misinterpreted policy by taking the view that child resettlement leave was only ever intended to be available to prisoners close to release.

He had "failed to have regard" to Article 8 of the European Convention on Human Rights - which enshrines a right to respect for private and family life - and acted in a way which was incompatible with Article 8 and with the Human Rights Act.

The judge said Clarke had also fettered his discretion by applying a blanket policy without considering individual circumstances of prisoners.

She said she did not consider it was "unduly onerous" for prison bosses to have proper regard for individual applications for child resettlement leave.

The judge said Clarke should reconsider his decisions on the two women within six weeks but she would consider granting him leave to appeal against her ruling.

Mrs Justice Lang gave details about the two women who mounted the legal challenge but did not identify them.

The judge said one woman was given a 10-year sentence after being convicted of conspiring to import cocaine and was a prisoner at Downview jail in Sutton, Surrey.

She was the sole carer of three children aged between four and 13, said the judge.

The second woman had been given a 14-year sentence after being convicted of importing cocaine and was also at Downview.

She was the sole carer of her 15-year-old daughter, said the judge.