Thomas Green, R (on the application of) v Secretary of State for Justice (No 2)

When deciding whether to accept a Parole Board recommendation to transfer an indeterminate-sentence prisoner to open conditions, the Secretary of State remains the primary decision-maker. He may disagree with the Board’s evaluative assessment of risk, but must give appropriate respect to its expertise, take its reasoning into account and explain his departure. Clear, cogent and convincing reasons are required where the Board has a particular advantage, such as making factual findings. The Secretary of State’s Directions to the Board guide the Board and do not themselves prescribe the Secretary of State’s decision-making policy. A decision is unlawful where a material consideration is ignored, including information realistically capable of affecting the outcome.

The claimant, a life prisoner held in Category A conditions, challenged the Secretary of State’s June 2022 decision rejecting the Parole Board’s recommendation that he be transferred to open conditions. The Secretary of State accepted several positive features but relied on the Category A team’s assessment, a prison psychologist’s concerns, and the need for further progression through the closed estate. The claimant alleged failure to apply the published policy and inadequate reasons for preferring one professional assessment over others. The central issues were the extent of the Secretary of State’s discretion, the weight owed to the Parole Board’s recommendation, and whether relevant risk evidence had been considered.

1. Disposition. The claim succeeded. The Secretary of State’s decision was quashed and remitted for a fresh decision.
2. Applicable approach. The statutory framework comprised the Secretary of State’s discretion under section 12 of the Prison Act 1952, the Prison Rules 1999, and the Parole Board’s advisory function under section 239(2) of the Criminal Justice Act 2003. Drawing on R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin), R (on the application of Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB) and related authorities, the court held that the Secretary of State must accord weight to the Parole Board’s recommendation. The weight depends on the matters in issue, the type of hearing, the Board’s findings and the nature of its risk assessment.
3. Where the Parole Board has a particular advantage, such as in making factual findings, clear, cogent and convincing reasons are required for departure. Where the disagreement concerns an evaluative assessment of risk on the same facts, the Secretary of State may substitute his own view, provided that he gives appropriate respect to the Board and reasons for departing from it. There was no heightened duty to give reasons merely because he preferred one professional opinion over others.
4. Paragraph 5.8.3 of the policy permitted rejection where there was not a wholly persuasive case for transfer, including where the recommendation appeared, for good reason, unjustified or inadequately reasoned. The Directions were designed for the Parole Board, not the Secretary of State, and paragraph 3.8.18 required him to ensure that the Board had taken them into account.
5. The absence of an updated HCR-20 risk assessment was a material consideration. It was realistically capable of affecting the outcome and bore on two of the four reasons relied upon against transfer. The Secretary of State failed to take the assessment, or its absence, into account. That conventional public law error vitiated the decision.

First-instance judicial review. The judgment records an earlier challenge to the claimant’s Category A categorisation, dismissed in R (on the application of Green) v Secretary of State for Justice [2023] EWHC 626 (Admin). No appeal is stated.