In September 2008 the claimant was sentenced to an indeterminate period of detention for public protection. In November 2017 the Parole Board considered giving a recommendation that the claimant be transferred to open conditions. The board received written and oral evidence from various professionals who had engaged with the claimant. The professionals were unanimous in their view that the claimant should not yet progress to open conditions and that he needed to demonstrate a significant change in his attitudes and behaviour before he could do so. In its decision letter, the board nevertheless recommended that he be transferred to open conditions. The Secretary of State rejected the board’s recommendation, relying on the applicable policy, Prison Service Instruction (PSI) 22/2015, para 6.4 of which expressly accepted that the discretion not to follow the Parole Board’s recommendation to transfer a prisoner to open conditions might only be exercised within “very limited” parameters. The claimant sought judicial review, claiming that the policy, or its application, was unlawful and lacked sufficient procedural safeguards.
On the claim—
Held, claim dismissed. (1) The Secretary of State’s discretion to depart from the Parole Board’s recommendations was not confined to circumstances in which the recommendation of that body would be liable to successful challenge in the courts by way of judicial review. Rather, the Secretary of State had the discretion to refuse the board’s recommendation without hindrance, provided that due regard and deference was given to the facts considered by the board, and to the board’s expertise (para 54).
(2) Where the board assessed the views of its assembled professionals to consider parole conditions of a prisoner, and the views of those professionals differed, the board had one of two options. If it accepted the majority view, its decision to do so did not require further explanation. But, if it accepted the minority view or preferred the views of some professionals over others, it would normally be incumbent on the board save in obvious cases to provide sufficient reasons for departing from the views of the professionals and to explain how they might address the risks presented by the prisoner. The reasoning had to enable the ultimate decision-maker to understand why the board had rejected the majority view (paras 56, 57).
(3) The Secretary of State was entitled to adopt a policy which enabled the ultimate decision-maker to explore the question whether the board’s recommendation had been reached after a proper evaluation of the evidence and application of the Secretary of State’s Directions. It was open to the Secretary of State to explore the board’s justification for its decision and to form a view as to whether the decision, and the reasoning behind it, was cogent. The policy was not even arguably unlawful or unfair to the prisoner. The Secretary of State was not engaged in a mechanical or mathematical exercise; the board’s departure from the views of all or most of the professionals was just a starting point for subjecting the recommendation to greater scrutiny and at a more senior level. If it was legitimately open on the facts for the Secretary of State to find that the board’s recommendations lacked cogency, the policy provided a clear objective justification for rejecting the board’s advice. Such a rejection had sufficient procedural safeguards. The Secretary of State had rationally rejected the board’s recommendation. Accordingly, the rejection of the board’s recommendation was neither unfair nor unlawful (paras 55–59, 62, 63, 64).
Philip Rule (instructed by Hine Solicitors, Birmingham) for the claimant.
Claire Palmer (instructed by Treasury Solicitor) for the Secretary of State.