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

The Secretary of State may reject a Parole Board recommendation on transfer to open conditions, but must give the recommendation and its reasoning proper weight, act fairly, and reach a rational, adequately reasoned decision. Once a decision accepting the recommendation has been issued, a private reconsideration within the same process, without new evidence or a change in circumstances and without inviting representations, is procedurally unfair. Decision letters must be read as a whole. They need not address every consideration, but must explain the conclusions on the principal controversial issues. A decision is unlawful where it misreads the Parole Board’s reasoning as omitting matters that it expressly considered, and fails to address the central risk-reduction and benefit assessment required by the applicable directions.

This first-instance judicial review concerned a category A life prisoner whose transfer to open conditions had been recommended by the Parole Board. The Secretary of State accepted that recommendation on 13 March 2012, but issued a further decision on 3 April 2012 purporting to rescind the acceptance and refuse the transfer.

The claimant challenged the second decision on grounds including procedural unfairness, irrationality, inadequate reasons, failure to follow the applicable policy and lack of power to reconsider. The central issues were whether the Secretary of State could revisit the first decision and, if so, whether the reconsideration and resulting refusal were lawful.

Claim allowed. The decision of 3 April 2012 was quashed, including both the purported rescission of the earlier decision and the refusal to transfer the claimant to open conditions.

1. Under section 239(2) of the Criminal Justice Act 2003, the Parole Board’s advisory role extends to transfer to open conditions as part of the early-release process. The Secretary of State must consider the Board’s recommendation and reasoning, recognise its expertise and give it appropriate weight. As explained by R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin) and R (Hindawi) v Secretary of State for Justice [2011] EWHC 830, he may reach a different assessment of risk, but only through a fair and proper process, with adequate reasons and a rational conclusion.
2. The applicable directions require a balanced assessment of risk and benefits, with emphasis on progress in reducing risk and changing attitudes and behaviour in closed conditions. The Secretary of State also had to consider the principal issues arising from the Board’s report and the evidence before it.
3. Within this statutory process, reconsidering an issued decision accepting the recommendation by relying on private internal arguments, without inviting representations from the claimant, was procedurally unfair. The court reserved the broader question whether the Secretary of State had power to rescind a lawful decision in the absence of new evidence or changed circumstances. If reconsideration occurred, it had to be procedurally fair. The approach fell within the procedural fairness category identified in Regina v North and East Devon Health Authority, ex p Coghlan [2001] Q.B. 213.
4. The second decision was irrational and inadequately reasoned. It misread the Parole Board’s treatment of the intention to kill, the intelligence concerning the assault in the claimant’s cell, drug use and previous criminal conduct. The Board had considered those matters. The Secretary of State confused disagreement about the weight of evidence with failure to consider it.
5. The Secretary of State’s letter mainly criticised the Board and did not address the principal risk-reduction, behavioural and benefit issues identified in the directions. Under South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953, reasons had to be intelligible and adequate, although they need not address every consideration or argument.
6. The first decision remained extant unless lawfully reconsidered. The Secretary of State had power, but not a duty, to refer the matter back to the Parole Board. The decision could be delegated to authorised officials.

Obiter, the judge noted that a decision-maker considering comparable earlier decisions must have regard to consistency and give reasons for departure, while retaining independent judgment.

First-instance judicial review. Permission was granted on 21 June 2012. No appellate history is stated in the judgment.