As prison lawyers will be well aware, the number of cases in which the Secretary of State for Justice (“SSJ”) refused recommendations by the Parole Board for a prisoner’s transfer to open conditions has increased dramatically over the last 12 months. Whereas prior to June 2022, the SSJ accepted the vast majority of recommendations, he has only accepted a small minority of recommendations since then.

The High Court recently considered the SSJ’s reasoning for rejecting open conditions recommendations in two separate cases: R (Wynne) v Secretary of State for Justice [2023] EWHC 1111 (Admin) (Steyn J, 11 May 2023) and R (Green) v Secretary of State for Justice (No 2) [2023] EWHC 1211 (Admin) (Sir Ross Cranston, 22 May 2023). In both cases, the SSJ’s decision was quashed.  Michael Bimmler acted for the Claimant in each case, instructed by Youngs Law (Sarah Blake and Natalie Shotter respectively).

In the case of Wynne, the challenge was brought on Wednesbury irrationality grounds. Mrs Justice Steyn expressly endorsed the review of the authorities undertaken by Chamberlain J in R (Oakley) v SSJ [2023] 1 WLR 751 as well as his conclusions on the law.

On the facts of the case before her, the Judge held that the SSJ had “picked out one aspect of the [Parole Board’s] risk assessment and given no reason for departing from the overall assessment that he can be safely and effectively managed in open conditions” (§66). Furthermore, the SSJ had misquoted part of the Parole Board’s decision letter regarding the Claimant’s description of his arson offence and misunderstood its conclusion (§§71, 75). He had failed to give the requisite very good reasons for departing from the Parole Board’s view on credibility (§75) and his rejection of the Parole Board’s conclusions on the Claimant’s low risk of absconding “lacked any rational foundation in the evidence or logic” (§80). Finally, the SSJ misunderstood the Parole Board’s findings with regards to the Claimant’s alleged tendency to justify his actions (§83).

In conclusion, Steyn J found that the SSJ had overall given no good reason for rejecting the Parole Board’s recommendation and his decision was outside the range of reasonable decisions open to the decision-maker. She drew attention to the “Panel’s depth of analysis, the clarity of their conclusion, and the consensus of opinion amongst the panoply of professional witnesses” as the context against which the SSJ’s decision fell to be considered (§86).

The case of Green (No 2) concerned a Category A prisoner, who had been recommended for open conditions. Mr Green had previously unsuccessfully applied for judicial review of the failure to grant him an oral hearing in his Category A review ([2023] EWHC 626 (Admin), HHJ Walden-Smith, 22 March 2023). In refusing Mr Green’s transfer to open conditions, the SSJ heavily relied on the confirmation of his Category A status as a reason for refusing the transfer to open conditions, as well as on the minority opinion of a prison psychologist who did not consider him ready for progression (three other witnesses, an independent psychologist and two offender managers, had supported transfer to open conditions).

Sir Ross Cranston, who heard the judicial review of the refusal of the Parole Board recommendation, gave the following over-arching guidance (at §42):

In drawing the threads together, it seems to me that the following applies if the Secretary of State is to disagree with the recommendations of the Parole Board for a prisoner’s move to open conditions:

i. the Secretary of State must accord weight to the Parole Board’s recommendations, although the weight to be given depends on the matters in issue, the type of hearing before the panel, its findings and the nature of the assessment of risk it had to make;

ii. on matters in respect of which the Parole Board enjoys a particular advantage over the Secretary of State (such as fact finding), he must give clear, cogent, and convincing reasons for departing from these;

iii. with other matters such as the assessment of risk, where the Secretary of State is exercising an evaluative judgment, he must accord appropriate respect to the view of the Parole Board and he must still give reasons for departing from it, but he can only be challenged on conventional public law grounds such as irrationality, unfairness, failure to apply policy, and not taking material considerations into account.

On the facts of the case, Sir Ross held that the SSJ was “entitled to substitute his own views on risk if he disagreed with the Parole Board on [the assessment of risk]” (§48) and was also entitled to give greater weight to the view of one professional over the views of other professionals (§49). There was no heightened duty on him to give reasons for preferring the prison psychologist’s opinion (§50), nor was he required to himself follow the directions he had given to the Parole Board (§51).

However, the challenge succeeded because the SSJ had failed to take into account that the prison psychologist (on whose opinion he relied) had not updated the HCR-20 risk assessment previously done in 2018, even though significant developments relating to the prisoner’s risk factors had occurred since. Criticism of that failure to update the HCR-20 risk assessment had been expressed by both the Claimant’s Prison Offender Manager, and by his solicitors at the parole hearing, but this was ignored by the SSJ when choosing to give preponderant weight to the prison psychologist’s conclusions. Sir Ross held that the SSJ’s decision was thus vitiated by his failure to take into account a material consideration.

The two judgments in Wynne and Green, while very different on their individual facts, show that decisions by the SSJ to reject Parole Board recommendations deserve careful analysis to see whether there is scope for a challenge on traditional judicial review grounds. While both decisions were still made under the ‘old’ (pre-June 2022) policy framework, irrationality challenges and challenges for other public law error of course remain available (where appropriate) for decisions made pursuant to the post-June 2022 criteria.