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

A Parole Board decision is irrational where material findings of fact are unsupported by the evidence and those findings materially influence the assessment of risk. The Administrative Court must apply anxious scrutiny where liberty is at stake, but must respect the Parole Board’s specialist judicial function and must not substitute its own assessment of risk. A material mistake of fact or a conclusion lacking sensible logic or comprehensible justification may satisfy the high threshold for irrationality. Where the decision cannot be justified on the evidence, it should be quashed and the referral reconsidered.

The claimant, a life prisoner, sought judicial review of the Parole Board’s decision dated 30 April 2018 refusing release or transfer to open conditions. Permission to proceed was granted on 4 October 2018. The claim alleged that the Board had relied on findings that the claimant had been antagonistic, displayed anger and threatened the Panel, although those matters were not recorded in the hearing note and were denied by witnesses present.

The Secretary of State and the Parole Board took a neutral stance and did not appear. The central issue was whether the Board’s findings were unsupported by evidence and materially affected its conclusion that continued confinement was necessary for public protection.

1. Statutory function. Under section 28(6) of the Criminal Sentences Act 1997, the Parole Board could direct release only if satisfied that confinement was no longer necessary for public protection. The Board had the specialist judicial function of assessing risk and balancing it against the hardship of continued detention.
2. Reviewing jurisdiction. The Administrative Court was required to exercise anxious scrutiny because liberty was at stake, but the applicable standard remained the high threshold of irrationality under the Wednesbury principles. The court could not substitute its own assessment for that of the Board.
3. Evidence and materiality. The hearing note did not support findings that the claimant had been dogmatic, vehemently antagonistic or accusatory, had displayed an admitted flash of anger, or had threatened the Panel. The evidence from those present was uncontradicted. Those findings were material because the Board relied particularly on the claimant’s testimony when resolving the conflicting psychological evidence and assessing risk.
4. Disposition. A decision based on facts unsupported by evidence was not logically justifiable and was irrational. The Board’s decision dated 30 April 2018 was quashed. The Secretary of State’s referral heard on 23 April 2018 was remitted to the Parole Board for rehearing.

The judge added obiter observations that recording parole hearings would improve the accuracy of the record and assist later review, and expressed concern that the decision might have confused the claimant’s case with another prisoner’s case.

This was a first-instance judicial review claim. Permission to proceed was granted by His Honour Judge Saffman on 4 October 2018. The Administrative Court quashed the Parole Board’s decision and ordered a rehearing of the referral.