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

The Secretary of State retains the ultimate discretion whether to transfer an indeterminate-sentence prisoner to open conditions. A Parole Board recommendation must receive appropriate weight, particularly where it follows an oral hearing, but it is advisory and does not confine that discretion to cases in which the recommendation would be judicially reviewable.

A lawful policy may permit closer scrutiny where the Board departs from the informed views of risk professionals without cogent explanation. It must respect the Board’s fact-finding and credibility assessments. Procedural fairness does not ordinarily require further representations where the prisoner has already participated before the Board and the Secretary of State decides on the same material.

The claimant, serving an indeterminate sentence of detention for public protection, sought judicial review of the Secretary of State’s refusal to implement the Parole Board’s recommendation that he be transferred to open conditions.

The Board had made its recommendation after an oral hearing, despite unanimous professional reports that the claimant should remain in closed conditions and undertake further psychological work. Acting under Prison Service Instruction 22/2015, the Secretary of State concluded that the Board had not sufficiently explained its departure from that evidence.

The claimant challenged both the lawfulness of the policy and the fairness of deciding not to accept the recommendation without giving him a further opportunity to make representations.

1. The claim for judicial review was dismissed. The Secretary of State’s decision not to transfer the claimant to open conditions was rational, lawful under the applicable policy, and procedurally fair.

2. Prison Act 1952, section 12 leaves prison categorisation to the Secretary of State. Under Criminal Justice Act 2003, section 239(2), the Parole Board advises on progression to open conditions but does not direct it. The Secretary of State must consider the Board’s recommendation and give proper weight to its expertise, including the advantages of an oral hearing. He may nevertheless assign different weight to the relevant risk and benefit factors.

3. The policy’s stated limited grounds for rejecting a recommendation were lawful. Its reference to a case not being wholly persuasive did not create a broad power to substitute an official’s view for that of the Board. Properly read, it allowed the decision-maker to test whether the Board had evaluated the evidence and applied the Secretary of State’s Directions cogently. The policy was not rigid: disagreement with all or most report writers triggered closer and senior scrutiny, rather than a mechanical rule requiring majority professional support.

4. The policy also preserved the proper respect due to the Board’s oral fact-finding. The Secretary of State had to consider the same material, the Board’s findings, and relevant oral evidence recorded in its decision. A departure from factual or credibility findings made after an oral hearing would require good reason.

5. On the facts, the Board had recommended open conditions contrary to unanimous professional evidence and had not adequately explained why a direct transfer was preferable to further work in closed conditions or a psychologically informed planned environment. The Secretary of State was entitled to regard the recommendation as insufficiently justified and to reject it.

6. There was no procedural unfairness or breach of Article 8 rights. The claimant had given evidence before the Board, his representatives had made written representations, and the Secretary of State relied on no new material. Further written or oral representations could not cure any gap in the Board’s reasoning.

not stated in the judgment.