Reginald Zenshen v Secretary of State for Justice

A Parole Board recommendation to transfer an indeterminate-sentence prisoner to open conditions is advisory, not binding, but must receive appropriate respect. Where the Board has a significant evidential advantage on disputed facts, diagnosis or risk predictions, the Secretary of State needs a very good reason to depart. He may reach a different view on the ultimate evaluative balance only after engaging rationally with the recommendation and material evidence. A decision based on incomplete hearing evidence, material factual misunderstandings or inadequate application of an absconding policy may be irrational. A public-confidence criterion adds no distinct requirement where it merely restates risk. The refusal was quashed and remitted for reconsideration.

The claimant, serving a life sentence with a 30-year minimum term, sought judicial review of the Secretary of State’s refusal to accept a Parole Board recommendation that he be transferred to open conditions for testing before any future release decision. The Secretary of State relied on absconding risk, the need for further consolidation and offence-related work, custodial behaviour, risk reduction and public confidence. Permission was granted on rationality grounds. A separate challenge to an 18-month review period fell away after a 15-month review was offered. The central issue was whether the refusal was lawful when the decision-maker had not obtained the oral evidence heard by the Board.

1. Outcome. The claim succeeded. The Secretary of State’s refusal to accept the Parole Board’s recommendation was irrational and unlawful. It was quashed and remitted for a fresh decision according to law. The court did not decide whether the claimant should be transferred to open conditions or released.
2. Statutory structure. The Parole Board’s functions arise under Part 12 of the Criminal Justice Act 2003 and Part 2 of the Crime (Sentences) Act 1997. Section 239(2) of the 2003 Act gives the Secretary of State a discretion to seek the Board’s advice on categorisation and transfer to open conditions. The recommendation is advisory, unlike certain binding release directions under s.28(6) of the 1997 Act.
3. Weight of the recommendation. Applying the approach in R (Oakley) v Secretary of State for Justice [2022] EWHC 2602 (Admin) and R (Hindawi) v Secretary of State for Justice [2011] EWHC 830, the Board has no presumptive priority, but its recommendation requires appropriate respect. Where the Board has a particular advantage on disputed facts, diagnosis or prediction, very good reasons are required for a different view. The Secretary of State may differ on the ultimate evaluative balance after properly engaging with the recommendation.
4. Application to the evidence. The Board had heard substantial oral and updating evidence which the Secretary of State did not possess. That evidence materially affected the assessment of absconding risk, a gym incident, further offence-related work, consolidation, insight, outstanding risk-reduction work and the need for testing in open conditions. The Secretary of State therefore relied on erroneous or incomplete matters and lacked a proper basis for departure. Under the principle in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, he had not taken reasonable steps to acquaint himself with relevant information.
5. Absconding policy. The policy’s very strong presumption against open conditions for recent or repeated absconders was lawful. Its application required a reasoned assessment of the time since the conduct, its context, subsequent change and the stated exceptions. The decision did not undertake that analysis.
6. Additional matters. The Bailey litigation made it especially important to obtain the hearing evidence because of contemporary uncertainty about what witnesses could say. The speed of the decision was not independently unlawful, although it contributed to concern about cursory consideration. The public-confidence criterion added nothing distinct from risk on the facts of this case.
7. Final conclusion. Applying the modern Wednesbury formulation in R v Ministry of Defence, ex p Smith [1996] QB 517, the decision was beyond the range of responses open to a reasonable decision-maker.

This was a first-instance judicial review. Permission was granted on rationality grounds to challenge the refusal of transfer to open conditions. The separate challenge to the review period fell away after the proposed period was reduced from 18 months to 15 months.