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

When deciding whether to depart from a Parole Board recommendation, the Secretary of State must identify precisely the conclusion in dispute. A conclusion on which the Board has a particular advantage, including one reached by an expert panel after hearing expert evidence, may be rejected only for very good reason. An evaluative judgment balancing the prisoner’s interests against public protection receives appropriate respect, but the Secretary of State may form a different view.

Failure to cite applicable directions does not justify departure where the Board nevertheless applies the correct test and considers every mandatory factor. A decision requiring work in closed conditions is inadequately reasoned if it fails to engage with the Board’s evidence-based conclusion that suitable work is unavailable there. Post-decision evidence may elucidate existing reasons but cannot generally supply new ones.

The claimant, a life prisoner diagnosed with autism spectrum disorder, sought judicial review of the Secretary of State’s refusal to accept a Parole Board recommendation that he be transferred to open conditions. The Board had heard oral and expert evidence and concluded that he could be managed safely in open conditions, that suitable further work could not be undertaken in the closed estate, and that relevant intervention would be available in open conditions.

The Secretary of State considered that further work on coping strategies, stress tolerance and emotional regulation should precede transfer. The central issues were the degree of respect owed to the Board’s conclusions, whether the Secretary of State had adequately justified departure, and whether evidence created after the decision was admissible.

1. The claim succeeded. The refusal decision was inadequately reasoned and therefore unlawful. It was quashed, and the matter was remitted to the Secretary of State for reconsideration on up-to-date information and in accordance with the judgment.

2. Post-decision evidence concerning work subsequently considered available in closed conditions was inadmissible on the merits. In a challenge to a discrete decision, evidence may elucidate reasons already given but may not generally supply wholly new reasons. Such evidence could in principle affect relief, but it fell far short of showing under section 31(2A) of the Senior Courts Act 1981 that a substantially different outcome was highly unlikely.

3. The proper approach is to identify precisely each conclusion from which the Secretary of State departs. Classification merely as a finding of fact or an assessment of risk is unhelpful. The pertinent question is whether the Board possessed a particular advantage, such as having heard oral evidence or having expert members assess disputed expert material. A departure from such a conclusion requires very good reason. By contrast, an ultimate evaluative judgment balancing the prisoner’s interests and public protection attracts appropriate respect but no presumptive priority over the Secretary of State’s view. Reasons must be given in either situation, although their required nature and quality differ.

4. The Board’s conclusion that no suitable further work could be undertaken in closed conditions was a conclusion on which it enjoyed a particular advantage. It followed consideration of expert evidence by a partly expert panel and questioning of the witness who disagreed. Very good reason was therefore required to reject it.

5. The Board’s failure expressly to cite the Secretary of State’s Directions supplied no such reason. Although failure to follow directions may justify departure where it produces a misdirection or omission of a mandatory consideration, the Board had considered the claimant’s progress, disciplinary history, behaviour, public-protection risk and suitability for open conditions. Its conclusion about the absence of suitable provision in this particular case was consistent with the general observation that the main risk-reduction resources existed principally in the closed estate.

6. The decision letter stated that further work should occur before transfer but did not engage with the Board’s evidence-based conclusion that the necessary work could not be undertaken in closed conditions. It disclosed no proper basis for doubting that conclusion. A mandatory order compelling acceptance of the recommendation was inappropriate because the defect was inadequate reasoning, and the transfer decision had to be retaken using current information.

This was a first-instance claim for judicial review. Permission to apply for judicial review was granted by Steyn J on 13 June 2022. The High Court quashed the Secretary of State’s refusal to accept the Parole Board recommendation and remitted the matter for reconsideration.