Stephen Alan Wynne, R (on the application of) v Secretary of State for Justice

The Secretary of State may form his own view when deciding whether to accept a Parole Board recommendation for transfer to open conditions. However, the power to depart operates within limited parameters and requires good reason. The decision-maker must identify precisely the matters in dispute, respect the Board’s particular advantage on credibility and oral evidence, and engage with its reasoning. The Secretary of State may balance private and public interests independently, but cannot substitute a civil servant’s view without justification. A refusal is irrational where it misstates the Board’s findings, relies on unsupported inferences, or rejects professional and expert assessments without adequate reasons.

The claimant, a life prisoner approaching expiry of his murder tariff, challenged the Secretary of State’s refusal to accept a Parole Board recommendation that he be transferred to open conditions. The recommendation followed a detailed review and unanimous professional support.

The judicial review raised a single issue: whether the Secretary of State’s decision was irrational in the Wednesbury sense. The court considered the statutory framework, the applicable policy, and the limits on departing from a Parole Board recommendation.

Claim succeeded. The Secretary of State’s refusal to accept the Parole Board’s recommendation was outside the range of reasonable decisions open to him.

1. Under section 12(2) of the Prison Act 1952, the Secretary of State has discretion over the prison to which a prisoner is allocated. Under section 239(2) of the Criminal Justice Act 2003, the Parole Board advises on matters referred to it concerning early release or recall. The Board may recommend transfer to open conditions, but cannot direct a change in security category.
2. The Directions required a balanced assessment of risk and benefit, including progress in reducing risk, likely compliance with temporary release, risk of absconding, and the benefits of testing the prisoner in a less restrictive environment. The Panel correctly identified and applied those factors.
3. Section 5.8.3 of the policy did not permit unrestricted substitution of the Secretary of State’s view for that of the Board. Applying R (Kumar) v Secretary of State for Justice [2019] EWHC 444 (Admin) and R (Oakley) v Secretary of State for Justice [2022] EWHC 2602, the decision-maker had to identify precisely the disagreement, give appropriate respect to the Board’s reasoning, and provide good reason for departure.
4. The Panel had a particular advantage in assessing the claimant’s credibility because it had heard and questioned him for several hours. The Secretary of State misquoted the Panel’s finding that his answers were not entirely convincing. That finding concerned his account of motivation for the arson, not dishonesty. No very good reason was given for rejecting the Panel’s assessment of his trustworthiness.
5. The rejection of the low absconding risk was also irrational. The professional assessments were not based solely on the claimant’s self-report. Historical dishonesty arose in materially different circumstances and did not rationally displace the Panel’s assessment of future risk.
6. The Secretary of State also failed to identify evidence supporting the alleged tendency to justify the murder or to explain why the Panel’s findings on that issue required rejection of the recommendation. The decision, viewed individually and as a whole, lacked good reason.

This was a first-instance judicial review. Permission was granted on 24 November 2022 by Deputy Chamber President Tudur, sitting as a High Court judge. The Administrative Court determined the claim following the hearing on 3 March 2023.