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

A statutory decision-maker who may reject a specialist tribunal’s parole recommendation must use a fair procedure and reach a rational decision. Where an oral tribunal has made findings of fact and credibility after hearing witnesses, especially where credibility is central to future-risk assessment, very good reasons are needed to depart from those findings.

A minister deciding personally must receive a balanced submission. A one-sided case prepared by officials who unsuccessfully advocated the contrary result before the tribunal does not fairly equip the minister to reject the tribunal’s findings. An irrational rejection of those findings vitiates the consequential risk assessment.

The claimant was serving a determinate 45-year sentence for an attempted terrorist bombing. He was liable to deportation to Jordan on release. In 2009 a Parole Board panel, after an extensive oral hearing, found him credible and assessed his remaining risk as minimal and manageable on deportation.

At the material time, Criminal Justice Act 1991, s.35(1) permitted the Secretary of State to reject that recommendation. The Secretary of State did so, principally because he rejected the panel’s assessment of the claimant’s credibility and risk. The claimant sought judicial review for procedural unfairness and irrationality.

The central issue was whether the Secretary of State had been fairly and rationally placed in a position to overturn credibility findings made by a panel which had heard the evidence.

1. The judicial review succeeded. The Secretary of State’s refusal of parole was quashed. Although, under Criminal Justice Act 1991, s.35(1), he was then the statutory decision-maker and could reach his own assessment of risk, he had to do so through a fair process and on a rational basis. The court followed the domestic position confirmed in R (Black) v Secretary of State for Justice [2008] UKHL 1.

2. The Secretary of State had to distinguish the Parole Board’s findings of fact from its ultimate assessment of risk. Credibility was central to the latter assessment. Since the panel had held an oral hearing to resolve matters that papers could not resolve, and had seen and heard the claimant, very good reasons were required before its credibility findings could be displaced. The absence of transcripts and the volume of evidence made a reliable contrary assessment particularly difficult.

3. The procedure was unfair. The Secretary of State received a submission advancing only reasons to reject the panel’s recommendation. It did not set out the countervailing evidence and arguments necessary for a balanced decision. Officials who had conducted the case against release before the panel also played a substantial part in preparing the proposed rejection. Their participation added to the unfairness because they did not approach the issue with an open mind.

4. The decision letter did not give rational reasons for rejecting the panel’s credibility findings. It mischaracterised or summarily rejected findings concerning earlier conduct, alleged inconsistencies, post-traumatic stress disorder and cooperation with risk assessment. That defective credibility conclusion infected the assessment of future terrorist risk, political evidence and supervision in Jordan.

5. The court did not decide the separate domestic effect of the Strasbourg decision in Clift v United Kingdom. It considered that question one for the Supreme Court. Consequential relief, including whether the decision could be retaken, was reserved for further submissions.

This was a first-instance judicial review. The judgment describes earlier parole reviews and separate challenges concerning the statutory scheme, but states no appellate history of the 2009 refusal under challenge.