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

When the Parole Board recommends a prisoner’s transfer to open conditions, the Secretary of State remains the statutory decision-maker. He must take the recommendation and the Board’s expertise into account, but is not bound by it. He may reach his own assessment of risk, provided the process is fair, the decision is rational and adequate reasons explain any departure.

Findings of fact, including credibility findings, should be distinguished from evaluative assessments of risk. A material change of circumstances or demonstrable error is not invariably required before the Secretary of State may reach a different risk assessment. The applicable standard depends on the statutory decision-making structure. A rule requiring more than mere disagreement in R (Evans) v HM Attorney General and another did not govern this different statutory scheme.

The claimant was serving a life sentence for murder with a minimum term expiring in May 2016. Following positive progress in custody, the Parole Board recommended his transfer to open conditions.

The Secretary of State rejected the recommendation because the claimant was liable to deportation and the uncertainty surrounding his immigration status was considered relevant to absconding risk. The claimant sought judicial review on three grounds: insufficient weight given to the Parole Board’s recommendation, inadequate reasons, and irrationality. The central issue was whether the Secretary of State could lawfully reach a different risk assessment from the Board without a demonstrable error or change of circumstances.

1. Claim dismissed. The Secretary of State was the decision-maker under the statutory scheme. The Parole Board’s role was to advise him under section 239(2) of the Criminal Justice Act 2003. Its recommendation was important but not binding.
2. The principles stated in R (Banfield) v Secretary of State for Justice applied. The Secretary of State had to take account of the recommendation and the Board’s expertise, act fairly, and reach a rational decision. The weight to be given to the recommendation was for him to assess in the circumstances of the case.
3. The Board’s factual findings and evaluative assessment of risk had to be distinguished. The Secretary of State was not challenging the claimant’s credibility or the factual findings concerning his progress and intentions. He was entitled to reassess absconding risk in light of the uncertainty concerning deportation.
4. The decision gave clear and sufficient reasons. It did not amount to a root-and-branch disagreement with the Board. It addressed one issue: the effect of the unresolved immigration position on absconding risk.
5. R (Evans) v HM Attorney General and another did not alter the applicable approach. That case concerned an executive decision overriding an operative determination by an independent tribunal. Here the Parole Board made a recommendation, while the Secretary of State retained the operative decision. The authorities concerning earlier operative determinations, including R v Warwickshire County Council ex parte Powergen PLC and R v Secretary of State for the Home Department ex parte Danaei, were therefore distinguishable. R (Bradley) v SSWP arose under a different statutory regime.
6. The claimant’s application for permission to appeal was refused.