Noye, R (On the Application Of) v Secretary of State for Justice

When deciding whether to transfer an indeterminate-sentence prisoner to open conditions, the Secretary of State must consider the Parole Board’s recommendation and expertise, conduct the required balancing exercise, and act rationally and fairly. The Secretary of State may reach a different assessment of future risk, but must generally respect factual findings made by a Parole Board panel which heard oral evidence. Departure from such findings requires good reason. A failure to follow civil servants’ advice is not itself unlawful, although that advice may be relevant to rationality. Where the Secretary of State unlawfully departs from a material factual finding, relief will be refused only if it is highly likely that the outcome would have been substantially the same.

The claimant sought judicial review of the Secretary of State’s refusal to accept the Parole Board’s recommendation that he be transferred to open conditions. The recommendation followed an oral hearing and a finding that he had made significant progress in changing his attitudes and addressing his behaviour, although risks remained.

The Secretary of State relied on the claimant’s minimisation of his offending, his history of violence, the risk of absconding and the need for further work. The central issue was whether he had lawfully departed from the Parole Board’s factual findings and whether any error could be disregarded under section 31(2A) of the Senior Courts Act 1981.

1. The claim succeeded. The Secretary of State’s decision of 5 November 2015 was quashed. A fresh decision was required on whether to transfer the claimant to an open prison.
2. The principles identified in Banfield [2007] EWHC 2605 (Admin) applied. The Secretary of State had to take account of the Parole Board’s recommendation and expertise, use a fair procedure, disclose significant new material where fairness required it, and reach a rational decision. He was not obliged to follow the advice of his civil servants, although that advice could be relevant to rationality.
3. The Secretary of State was entitled to assess future risks differently from the Parole Board. The assessment of whether the claimant would abscond was an assessment of future risk, rather than a finding of fact. The Secretary of State could therefore disagree with it without the special constraint identified in Hindawi [2011] EWHC 830 (QB).
4. However, the Parole Board’s conclusion that the claimant had made significant progress in changing his attitudes to violence was a factual finding reached after an oral hearing and after testing the evidence. Under Hindawi, the Secretary of State required good reason to depart from it. The only reason given was the claimant’s minimisation of his culpability through his appeals. That matter had already been considered by the Parole Board and could not justify the departure.
5. The error infected the Secretary of State’s assessment of both future violence and absconding. It was possible that a lawful decision would have reached the same result, but it was not highly likely that it would have done so. Relief therefore could not be withheld under section 31(2A) of the Senior Courts Act 1981.

This was a first-instance judicial review. Permission was granted by Dingemans J on 1 July 2016. No appellate history was stated.