Hall, R (on the application of) v First Secretary of State

Review of a decision affecting a prisoner’s possible move to open conditions remains governed by conventional Wednesbury principles. The court may, however, scrutinise the decision with particular care where liberty is liable to be directly affected. That is not a distinct standard of “super Wednesbury” review. The intensity of review depends on the subject matter and the interests at stake. The Secretary of State need not consult the Parole Board between reviews unless an established policy or fairness requires consultation. Fairness depends on matters including the impact and nature of the material, whether it can be dealt with in writing, and the timing and practicality of a further review.

The claimant was a post-tariff mandatory life prisoner. The Parole Board recommended his transfer to open conditions, but the Secretary of State refused it in August 2004 after considering further security material. Following disclosure of that material and written representations, the Secretary of State maintained the refusal in September 2005. The claimant sought judicial review, challenging the intensity of review, the failure to consult the Parole Board, the rationality of both decisions, and the contention that the claim had become academic after the second decision.

1. Intensity of review. The claim was not governed by the proportionality doctrine applicable where Convention rights are engaged. A decision concerning transfer to open conditions was analogous to a security-classification decision and did not attract Article 5(4) protection. Nevertheless, because liberty could be directly affected, the court had to scrutinise the Secretary of State’s decision with particular care. The applicable test remained Wednesbury reasonableness, applied with regard to the context and what was at stake.
2. Consultation. There was no evidence of an established policy requiring consultation with the Parole Board. Fairness did not require consultation in this case. The material was a narrow category of documentary security material, capable of being addressed through written representations. The claimant had not sought a Parole Board hearing, the issue would be considered at the next review, and requiring an interim referral would be administratively cumbersome.
3. Rationality. The Secretary of State had taken the Parole Board’s and the claimant’s experts’ views into account but was entitled to give greater weight to other evidence. It was rational to conclude that, without effective treatment, the claimant presented a serious risk of serious sexual offending; that the relationship relied upon to reduce the risk could not necessarily be relied upon; and that compliance with restrictions could not necessarily be assumed.
4. Academic issue and disposal. The second decision did not render the claim academic because the claimant sought a rational reconsideration and remained interested in the merits. The application for judicial review nevertheless failed.

First-instance judicial review in the Administrative Court. The application was held not to be academic but was dismissed on the merits.