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

A Parole Board recommendation to transfer a life prisoner to open conditions is not binding on the Secretary of State. The Secretary of State must consider the Board’s expertise, act fairly and reach a rational decision, but may substitute a different rational assessment of the evidence.

A legitimate expectation requires a sufficiently clear promise or established practice. References to rejecting recommendations only for factual error or “irrationality” did not promise application of the Wednesbury threshold. In context, “irrationality” meant that the recommendation was clearly wrong because it conflicted with the weight of the evidence or failed properly to address identified risks.

The claimant was a discretionary life prisoner detained in closed conditions after expiry of his tariff. The Parole Board recommended his transfer to open conditions after preferring evidence that his risk of serious harm was manageable. The Secretary of State rejected the recommendation because the Board had not adequately addressed the contrary professional evidence, objective risk assessments and the risk that deterioration in open conditions would increase the danger to the public.

The claimant sought judicial review. He argued that the Secretary of State’s stated practice created a legitimate expectation that a recommendation would be rejected only for material factual error or Wednesbury irrationality. The central issues were whether such an expectation existed and whether the rejection was a rational application of the stated practice.

1. The claim was dismissed. The statutory responsibility for deciding whether to transfer a prisoner to open conditions remained with the Secretary of State. A Parole Board recommendation was not binding, although its expertise meant that the recommendation had to be taken into account.

2. The ordinary public law question was whether the Secretary of State’s decision was Wednesbury irrational or procedurally unfair. The court was not required to decide whether the Parole Board’s recommendation was itself irrational. The relevant inquiry concerned the rationality of the Secretary of State’s disagreement with it, consistently with R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin).

3. The evidence did not establish a clear published promise that the Secretary of State would reject a recommendation only where it was irrational in the legal Wednesbury sense. The unpublished internal guidance, public correspondence and descriptions of the practice were not uniform. In context, “irrationality” conveyed that intervention would be rare and confined to recommendations considered clearly wrong because they conflicted with the weight of the evidence or failed properly to address risk factors and evidential conflicts.

4. Even assuming that the stated practice created a legitimate expectation, the Secretary of State applied it rationally. The Board had not adequately engaged with the substantial professional evidence and objective assessments indicating a medium or high risk. It had also failed adequately to address the connection between the acknowledged high risk of failure in open conditions, the resulting stress factors and an increased risk of serious harm.

5. The Secretary of State could rationally conclude that the predicted warning signs might not be detected and acted upon before the risk increased. This concern was especially material because the Board had disavowed consideration of the claimant’s management arrangements and location. The rejection therefore survived review both under the assumed practice and under ordinary public law principles.

The judgment was a first-instance judicial review decision. The judgment records that permission had previously been refused for a separate challenge to the Secretary of State’s rejection of an earlier Parole Board recommendation concerning the claimant.