Banfield, R (on the application of) v Secretary of State for Justice

The Secretary of State decides whether a life prisoner should be transferred to open conditions. The Parole Board’s recommendation is important and its specialist risk-assessment expertise must be considered, but its advice is not binding.

Procedural fairness may require the prisoner to answer significant fresh material. It does not normally require further representations merely because the Secretary of State draws different conclusions from material already available to the Board and prisoner. A lawful decision will not be quashed as irrational simply because the Board reached a different, rational view of risk and resettlement.

A life prisoner sought judicial review of the Secretary of State’s refusal to transfer him to open conditions. The refusal departed from the Parole Board’s recommendation, made after two hearings, that open conditions would permit realistic testing of his ability to work openly with those supervising him.

The Secretary of State considered the same dossier and hearing material, but concluded that the claimant’s history, recalls, insight into his offending and unresolved risk factors required further work in closed conditions. The claimant alleged procedural unfairness because the reasons raised new matters without an opportunity to respond, and irrationality because professional reports and the Board supported transfer.

1. The claim was dismissed. Transfer to open conditions concerns prison categorisation. It is for the Secretary of State, rather than the Parole Board, to decide. The Board’s advice is important and the Secretary of State must take account of its expertise, but advice on transfer is not binding. This differs from a direction to release under the Crime (Sentences) Act 1997.

2. The court derived five principles from the authorities. The Secretary of State must consider the Board’s recommendation and expertise. The procedure must be fair, and the court is the ultimate arbiter of fairness. Significant material not before the Board may require an opportunity for the prisoner to comment. A different conclusion drawn from material already before the Board does not normally require further representations. A procedurally fair decision remains vulnerable to ordinary Wednesbury irrationality review.

3. The Secretary of State’s six challenged passages drew conclusions from material available to the Board and to the claimant. They did not introduce significant fresh material. The Secretary of State could assess the evidence as a whole after receiving the Board’s reasons. He was not required to disclose a draft decision or invite comments on it before deciding.

4. The court distinguished the release-risk observation in [2006] UKHL 54. Prisoner categorisation remained for the Secretary of State, who could draw on departmental expertise as well as the Board’s advice.

5. The decision was not irrational. The case permitted two rational assessments of the appropriate time for transfer. The Board’s favourable view did not make the Secretary of State’s contrary assessment irrational.

The claim was dismissed. Permission to appeal was refused.

High Court (Administrative Court): The judicial-review claim was issued on 12 April 2007. Permission to proceed was granted on paper on 13 July 2007. The claim was dismissed, and the court refused permission to appeal to the Court of Appeal.