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

A Secretary of State may lawfully reject a Parole Board recommendation where cogent reasons justify a different assessment of whether a prisoner is suitable for open conditions. The Secretary of State must take the recommendation and the Board’s expertise into account, but decides what weight they receive. A decision is not irrational merely because the case is unusual or because the prisoner has made substantial progress. A mistake of fact requires an existing, objectively verifiable and uncontentious mistake, for which the claimant is not responsible, that materially influenced the decision. A mistake is immaterial where it forms only a small part of a wider package of independently sufficient concerns.

The claimant was serving a life sentence for murder and had exceeded his tariff. The Parole Board recommended transfer to open conditions, notwithstanding outstanding work concerning risks arising in intimate relationships. The Secretary of State rejected that recommendation, deciding that the claimant should remain in closed conditions until he completed relevant offending-behaviour courses and his risk was reassessed.

The claimant sought judicial review. He argued that the decision was irrational on the particular facts, that insufficient weight had been given to his progress and the delay in providing courses, and that it was materially affected by a mistake about the date on which a letter had been received by a probation officer.

1. The claim was dismissed. The Secretary of State’s decision refusing retransfer to open conditions was rational and lawful.
2. Under section 239(2) of the Criminal Justice Act 2003, the Parole Board’s function was to advise the Secretary of State on matters referred to it concerning early release or recall. The Board did not make the categorisation decision.
3. The Secretary of State could not simply ignore the Board’s recommendation. He had to take it into account, together with the Board’s particular expertise in assessing individual prisoners’ risks. It remained for him to determine the weight to be given to those matters. The approach in R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin) was applied.
4. It was rational to require completion of necessary courses before transfer to open conditions where the outstanding work addressed core risks of violence in intimate relationships. The Board’s unusual recommendation did not require acceptance merely because the claimant had behaved well, had progressed through custody, had served eight years beyond tariff, or faced delay in accessing courses.
5. The mistake-of-fact principles stated in E and R v Secretary of State for the Home Department [2004] 2 WLR 1351 were applied. Although there had been a mistake about when a letter was received, the probation officer’s concerns independently included the claimant’s unrealistic expectations, lack of strategies for managing conflict, and lack of openness. The mistake therefore played no material part in the Secretary of State’s decision.