Allan Overton, R (on the application of) v Secretary of State for Justice

The Secretary of State may rationally reject a Parole Board recommendation to transfer an indeterminate-sentence prisoner to open conditions. The decision must genuinely engage with the Board’s assessment and explain the contrary conclusion. The required cogency depends on the Board’s particular advantage: departure from findings closely connected with past facts requires stronger reasons than disagreement over predictive, policy or public-interest judgments.

A published policy governing a discretionary power need not list every underlying consideration or prescribe their weight. Publication is sufficient where the stated criteria prevent arbitrary decision-making, enable meaningful representations and permit scrutiny of the resulting decision. The rule of law does not require successive layers of criteria amounting to reasons for reasons.

The claimant was serving an indeterminate sentence of imprisonment for public protection. His tariff had expired, but he remained detained and continued to deny the offences. The Parole Board recommended his transfer to open conditions. The Secretary of State rejected that recommendation because further risk-reduction work remained possible in closed conditions and a transfer would undermine public confidence in the criminal justice system.

The claimant sought judicial review on two grounds. He contended that the decision was irrational and failed properly to engage with the Parole Board’s reasoning. He also argued that the public-confidence criterion was applied unlawfully because no subsidiary policy or defined criteria governed its assessment.

1. The claim was dismissed. The Secretary of State had adequately engaged with the Parole Board’s recommendation, and both grounds of challenge failed.
2. The decision whether to transfer a prisoner from closed to open conditions belonged to the Secretary of State. He could reach a conclusion contrary to a rational Parole Board recommendation, provided that he genuinely engaged with the material factors, gave sufficient reasons and reached a rational decision. The decision letter had to be read fairly, realistically and as a whole. Its subject matter nevertheless required an appropriate degree of careful thought because open conditions materially alter the circumstances of detention: paras 25–31.
3. The required quality of reasons depended on the nature of the disagreement and any particular advantage enjoyed by the Parole Board. A departure closely connected with findings about past facts ordinarily required more cogent and detailed reasons. A predictive, policy or public-interest assessment required less intensive reasoning, although reasons remained necessary. The Secretary of State did not need to provide a point-by-point rebuttal where his own reasons sufficiently disclosed why he reached a contrary evaluative conclusion: paras 29–31.
4. The requirement that time in open conditions be essential involved timeliness and preparedness. The prisoner had to require open conditions before safe release could be assessed and had to have progressed sufficiently for the remaining risk to be managed there. The criterion was not satisfied where further offending-behaviour or risk-reduction work could be performed in closed conditions, unless it could be performed as effectively in the open estate: paras 33–34.
5. The Secretary of State rationally treated the claimant’s continued denial as a voluntary obstacle to further risk-reduction work. Decision-makers had to proceed on the basis that the convictions were correct. A denial could be highly relevant to risk but could not, without more, determine release. The Secretary of State could also rationally conclude that the continuing risk of serious sexual harm was incompatible with transfer and that transfer would undermine public confidence: paras 32 and 35–44.
6. Section 5.8.2 of the published Generic Parole Process Policy Framework sufficiently governed the discretion under section 12(2) of the Prison Act 1952 and rule 7 of the Prison Rules 1999. The rule of law did not require a further published list of every factor potentially relevant to public confidence or the weight each factor should receive. The published criteria prevented arbitrary decision-making, informed affected prisoners and enabled judicial scrutiny: paras 49–55.

This was a first-instance judicial review claim. Permission to seek judicial review of the Secretary of State’s decision had been granted by HH Judge Lambert.