Absconding prisoners: the human rights case that wasn't

The High Court ruled yesterday (presumably before the Royal Courts of Justice were evacuated) that a policy barring prisoners from being transfered to open prisons if they have a history of absconding was unlawful.

Those of us reading the account of the case, taken by a prisoner named John Gilbert, that was given in this morning's Daily Mail would do well to read the story carefully. The first line says that this ban was overturned "following a human rights challenge".

But further down in the story, it's mentioned that "the High Court did not rule on the ban's legality under human rights laws".

What the court said was that the policy was inconsistent with another policy—that "most (if not all)" prisoners serving Mr. Gilbert's type of sentence should spend some time in open prisons.

The judges described it as "irrational" for the Parole Board to have to follow two contradictory policies at the same time.

So although Mr. Gilbert had also argued that the policy was contrary to the Human Rights Act 1998, the court simply didn't have to consider that point—he'd already won.

Abolishing the Human Rights Act—a Conservative proposal we'll analyse shortly—wouldn't have changed the outcome of this particular case.