Hill, R (on the application of) v Secretary of State for the Home Department

A statutory scheme may reserve to the Secretary of State a discretion to depart from Parole Board advice on a life prisoner’s transfer to open conditions. The discretion must, however, be exercised even-handedly. The decision-maker must either adopt a consistent exceptional-circumstances approach to favourable and unfavourable advice, or consider both types of advice carefully and with a questioning mind.

A decision departing from the Board must engage with its evidence, reasoning, conclusions and material benefits identified. A decision centred on risk which fails to address those matters is irrational. Where reconsideration is ordered, the Secretary of State must consider all relevant material currently available.

The claimant was serving a life sentence. The Parole Board recommended that he be transferred from closed to open conditions after considering evidence from three experts and hearing oral evidence. The Secretary of State rejected the recommendation on three occasions.

The claimant sought judicial review, challenging both the general approach to the Secretary of State’s discretion and the reasoning of the third decision. The central issues were whether the Secretary of State retained a lawful discretion to depart from Parole Board advice, whether that discretion had been exercised rationally and even-handedly, and what relief should follow.

1. Statutory discretion. The statutory scheme required the Secretary of State to refer life prisoners to the Parole Board on release, but did not transfer the decision on categorisation or transfer to the Board. The Board advised and the Secretary of State retained a discretion to accept or reject that advice.
2. Clift. The reasoning in R (Clift) v Secretary of State for the Home Department and Others [2007] 1 AC 484 did not remove that discretion. Unlike the statutory anomalies considered there, the present scheme applied to all life prisoners.
3. Lawful exercise of discretion. The Secretary of State had to exercise the discretion even-handedly. He could accept advice in both directions save in exceptional circumstances, or scrutinise every recommendation carefully and with a questioning mind. The evidence showed a near-automatic acceptance of negative advice but a substantially increased rejection of favourable advice, without an articulated or justified policy.
4. Third decision. The third decision did not properly reflect the evidence or the Board’s conclusions. It failed to grapple with the Board’s preference for the evidence of Dr Hider, the benefits of open conditions, and the recommendation that one-to-one psychotherapy would be better conducted there. Its central focus was risk, despite no adequate basis for departing from the Board’s assessment. The decision was irrational and was quashed.
5. The Secretary of State was ordered to take a fresh decision, considering all material available on the date of the order, and to communicate it in writing by 4 pm on 3 October 2007. The claimant received his costs, subject to assessment.