Zarak McKoy, R (on the application of) v The Secretary of State for Justice

A Secretary of State deciding whether to accept Parole Board advice on transfer to open conditions must give appropriate respect to the Board’s view and reasons for departing. The required reasons depend on the subject of disagreement. Where the Board has a particular advantage, such as resolving oral evidence or expert issues, very good reasons are needed. Where the issue is the Secretary of State’s evaluative judgment about balancing public protection and prisoner interests, the Secretary may reach a different view, provided the reasons are rational and related to the evidence. Relevant facts can themselves explain the conclusion. A published policy is not unlawful merely because it uses a subjective term, where the term has an ordinary meaning and gives the decision-maker a discretion.

The claimant, serving a discretionary life sentence, sought judicial review of the Secretary of State’s decision to reject the Parole Board’s recommendation that he be transferred to open prison conditions before tariff expiry. He alleged that the decision was irrational because it gave inadequate reasons for departing from the Board’s advice, and that the policy permitting departure where there was not a wholly persuasive case was unlawful because the phrase lacked published criteria. Permission to bring the claim had been granted by Mrs Justice Lang. The central issues were the required standard of reasoning for departing from Parole Board advice and whether the published policy was sufficiently transparent.

The claim was dismissed and judicial review was refused on both grounds.

1. Under Criminal Justice Act 2003 section 239(2), transfer to open conditions is a matter connected with early release. The Parole Board advises on suitability, but the decision remains that of the Secretary of State. The statutory framework also permits the Secretary of State to direct transfers between prisons under section 12(2) of the Prison Act 1952.
2. The court applied the approach in R (Oakley) v Secretary of State for Justice [2022] EWHC 2602 (Admin). The decision-maker must identify precisely the conclusions or propositions with which he disagrees. The question is whether the Parole Board has a particular advantage on the issue, in which case very good reasons are needed, or whether the issue involves the Secretary of State’s own judgment in balancing the prisoner’s interests against public protection. In the latter case, the Board’s view deserves appropriate respect but has no presumptive priority.
3. This case concerned the latter category. The Secretary of State agreed with the Board about the facts and the level of risk. His disagreement concerned whether that risk could safely be managed in open conditions. That was within his constitutional responsibility and expertise. The decision letter was sufficient: relevant facts, including continuing aggression, serious-harm risk, recent security incidents and concerns about thinking skills, could themselves constitute reasons for concluding that there was not a wholly persuasive case for transfer. The disclosed casework proforma was not needed to supplement the letter.
4. The policy challenge also failed. The transparency principle in R (Lumba) v SSHD [2011] UKSC 12 and R (on the application of MXK) v Secretary of State for the Home Department [2023] EWHC 1272 (Admin) concerned the need for a policy to be published. Here, the policy was published. The phrase wholly persuasive case had an ordinary meaning and properly encapsulated a discretion, including the ability to reach a different conclusion from the Parole Board on the same facts and risk assessment.

not stated in the judgment.