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

The Secretary of State may reject a Parole Board recommendation to transfer an indeterminate sentence prisoner to open conditions, provided the decision is procedurally fair and rational. The Parole Board’s expertise requires appropriate weight, but classification remains a matter for the Secretary of State. A prisoner liable to deportation may be considered for open conditions where appeal rights are not exhausted, although the applicable policy creates a presumption against transfer unless the risk of absconding to frustrate deportation is very low. Article 5(4) is not engaged merely by delay in deciding whether to accept a recommendation where judicial review and Parole Board processes remain available. Breach of the 28-day decision-making policy does not, without more, establish arbitrary detention or justify damages.

The claimant was an IPP prisoner whose tariff had expired. The Parole Board could not order his release but recommended transfer to open conditions. The Secretary of State rejected that recommendation after considering the claimant’s immigration history, liability to deportation and risk of absconding. The decision was issued outside the 28-day period required by PSI 22/2015.

The claimant sought judicial review on procedural fairness and European Convention on Human Rights grounds. He argued that the Secretary of State relied on matters not put to him and that delay had prolonged his detention and impeded sentence progression. The central issues were whether the decision-making process was unfair, whether the delay breached Articles 5(1) or 5(4), and what consequence followed from breach of the applicable policy.

1. Claim dismissed. The Secretary of State breached PSI 22/2015 by failing to issue his decision within 28 days, but the claimant established no unlawful detention, Convention breach or entitlement to damages.
2. There was no procedural unfairness. The claimant’s immigration history and status had been provided to the Parole Board in advance, and the Parole Board was aware that absconding was a significant issue. The Secretary of State did not rely on significant material outside the material before the Board. There was no legal obligation to attend the hearing, and the information supplied discharged the obligation of co-operation.
3. The principles in R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin) applied. The Secretary of State had to take account of the Parole Board’s recommendation and expertise, but classification remained his responsibility. The court would interfere with the substance of the decision only on ordinary irrationality grounds.
4. The claimant was liable to deportation and was eligible to be considered for open conditions because he was not appeal rights exhausted. Under PSI 37/2014, however, the presumption was against transfer unless he presented a very low risk of absconding to frustrate deportation. The Secretary of State was entitled to consider that risk together with the risk to the public from reoffending.
5. Article 5(4) was not breached. Judicial review and Parole Board review remained available to challenge the lawfulness and necessity of detention. Article 5(1) was also not breached. The continued detention was based on the unchallenged Parole Board finding that the claimant posed a high risk of serious harm, and the threshold for arbitrariness was exceptionally high.
6. The delay caused disappointment and frustration, but it did not extend the claimant’s detention or impose a more restrictive regime than the decision made on time would have produced. The application for judicial review, the declaration and the claim for damages or other relief were dismissed.