Thomas, R (on the Application of) v The Secretary of State for Justice

The Secretary of State may reject a Parole Board recommendation to transfer a prisoner to open conditions, provided the decision is reached fairly, rationally and after taking the recommendation and the Board’s expertise into account. The Secretary of State is not required to accept the Board’s assessment of risk. A Parole Board hearing live evidence is a factor of substantial weight, particularly on findings of fact, but it is not determinative. Good reasons are required for departing from findings made by a panel that heard the witnesses. Internal guidance does not remove the Secretary of State’s statutory discretion, although any departure from the guidance must remain lawful. Where professional evidence conflicts, assessing the risk posed in open conditions remains a matter of judgment for the Secretary of State, subject to ordinary public law standards.

The claimant, a life prisoner convicted of sexual offences against children, sought judicial review of the Secretary of State’s decision not to accept the Parole Board’s recommendation that he be transferred to open conditions. The Parole Board had held an oral hearing and considered conflicting psychological and probation evidence, including whether the claimant should complete an Extended Sex Offender Treatment Programme.

The Secretary of State concluded that the Board had insufficiently addressed outstanding risk factors and had given excessive weight to the evidence of an independent psychologist. The central issue was whether the Secretary of State’s process and reasons were unlawful, irrational or unfair, having regard to the Board’s expertise and its advantage in hearing live evidence.

1. The claim failed. The Secretary of State had a discretion to reject the Parole Board’s recommendation for transfer to open conditions. The statutory framework did not require such a recommendation to be followed. The Secretary of State had nevertheless to take the recommendation and the Board’s particular expertise into account, and the decision remained subject to ordinary public law standards.
2. The court applied the principles identified in R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin) and R (Wilmot) v Secretary of State for Justice [2012] EWHC 3139 (Admin). The court’s task was to assess the rationality and fairness of the Secretary of State’s decision, not to reassess the Parole Board’s decision as if determining whether it was itself irrational.
3. The oral hearing before the Parole Board was a factor of substantial weight, especially concerning findings of fact and credibility. Following R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB), good reasons were needed before the Secretary of State departed from findings made by a panel which had seen the witnesses. That advantage was not determinative, however, and the Secretary of State was entitled to reach his own rational assessment of risk.
4. The primary facts concerning the outstanding risk areas were not materially disputed. The Secretary of State was entitled to exercise judgment on their significance, the weight to be given to the competing professional opinions, and the risk of transfer to open conditions. He had rational grounds for questioning the Board’s preference for the independent psychologist’s evidence and for considering that risks associated with the claimant’s relationships with younger vulnerable prisoners might have been underestimated.
5. The Secretary of State followed a careful process and considered the Board’s recommendation, its expertise, the live evidence, the conflicting reports and the applicable internal guidance. The guidance was not legally binding and did not eliminate the statutory discretion. The decision was neither irrational nor reached through an unfair process.

This was a first-instance judicial review claim in the Administrative Court. The judgment does not state a subsequent appellate decision.