On Friday 16 August 2024, following the urgent judicial review proceedings and interim relief application brought by the Prisoners’ Advice Service, instructing Philip Rule KC and Mirren Gidda of No5 Barristers’ Chambers, the Secretary of State for Justice agreed to grant early release on compassionate grounds (‘ERCG’) to a prisoner dying of stage 4 cancer and whose prognosis is just 6 weeks or so expected left to live.
The Claimant prisoner had made an application to the Secretary of State for Justice on 16 May 2024 requesting ERCG, as he only had months left to live and the prison was no longer able to manage his complex healthcare needs. The Claimant was by that point deaf, registered blind, mute, and immobile. Probation assessment indicated that he was of low risk to the public given his condition. The Claimant wanted to spend time with his family before he dies.
Despite the urgency of his request, the Secretary of State for Justice did not issue her decision on the Claimant’s application until 9 August 2024, at least mainly as a result of a lack of firm and clear plans for social care, medical and palliative care and arrangements in the community. By that point the Claimant was back in hospital suffering sepsis and bleeding in his trachea. In her full decision, which was provided to the Claimant’s representatives on 12 August 2024, the Secretary of State for Justice stated that she was not satisfied that the Claimant had sufficiently demonstrated that his early release would not put the safety of the public at risk, there was no care plan in place for his release, and the Claimant’s sentencing judge in late 2023 had been aware of his terminal cancer, which was relevant as a decision to approve ERCG should not be based on the same facts that existed at the point of sentencing. The Secretary of State was willing, however, to consider her decision in light of further information.
Philip Rule KC and Mirren Gidda, instructed by Marte Lund and Laura Orger of the Prisoners’ Advice Service, issued urgent judicial review proceedings challenging the Secretary of State for Justice’s decision. This included an application for a court order requiring further information from the Secretary of State for Justice and (crucially) assurances and confirmations from various interested party public authorities with care and medical duties and requiring the Secretary of State to reconsider the Claimant’s application and reach a fresh decision within 24 hours. On 14 August 2024, the Honourable Mrs Justice Foster DBE under the urgent procedure made the Order for interim relief sought (AC-2024-LON-002748). Further urgent correspondence with the Secretary of State then followed, as the Claimant’s representatives provided the clarifications obtained through correspondence with the other public authorities and explained why a Special Purpose Licence for temporary release (obtained on 15 August) was not an adequate solution beyond a few days.
On 16 August 2024, following receipt of the new evidence, the Secretary of State for Justice approved ERCG for the Claimant effective immediately. Her decision means the Claimant will now be able to receive appropriate palliative care and be with his family in his final days or weeks.
Philip Rule KC and Mirren Gidda (practising pupil) are barristers are members of the Public Law Group at No5 Chambers, and of our specialist prison law team.
Philip Rule KC – No5 Barristers’ Chambers
Mirren Gidda – No5 Barristers’ Chambers
Prisoners’ Advice Service is a registered charity, which offers free legal advice and representation to adult prisoners throughout England and Wales regarding their legal, human and healthcare rights, conditions of imprisonment and the application of Prison Law and the Prison Rules. It can also advise women prisoners on matters of Family Law, and foreign national prisoners with issues relating to detention or deportation on Immigration Law.
