Robert Sneddon v Secretary of State for Justice

The Secretary of State may reject a Parole Board recommendation to transfer an indeterminate sentence prisoner to open conditions, but only on a reasonable basis and with appropriate respect for the Board’s institutional and procedural advantages. The required strength of the reasons depends on the issue. A very good, or clear, cogent and convincing, reason is needed to reject findings or evaluative conclusions on matters where the Board has a significant advantage, such as credibility, factual findings and expert risk assessment. Other disagreements require good reason. The decision-maker need not recite these principles, but the reasons must satisfy them in substance. A decision is unlawful where it omits material Panel findings or misapprehends the Panel’s assessment. The claim therefore succeeded and the decision was quashed and remitted.

The claimant, an indeterminate sentence prisoner, challenged the Secretary of State’s rejection of a Parole Board recommendation that he be transferred to open conditions. The recommendation followed an oral hearing and detailed consideration of professional evidence. The Secretary of State relied on the 2021 policy framework ground that there was not a wholly persuasive case for transfer.

The claimant argued that R (Kumar) v SSJ [2019] EWHC 444 (Admin) established a binding legal test for that policy ground. The central issues were the proper legal framework for rejecting a Parole Board recommendation and whether the Secretary of State’s reasons had a reasonable basis.

1. Outcome. The judicial review claim succeeded. The Secretary of State’s decision of 22 December 2022 was quashed, and the question of transfer to open conditions was remitted for a fresh decision within 28 days. Costs followed the event.
2. Statutory and policy framework. Under section 239(2) of the Criminal Justice Act 2003, the Parole Board advises the Secretary of State. Section 239(6) permits directions to be given to the Board. The Secretary of State remains the primary decision-maker, while the Board’s recommendation has legally significant institutional and due-process advantages. The relevant assessment concerned the four factors in the Directions: progress in reducing risk, likely compliance with temporary release, trustworthiness against absconding, and the benefit of testing the prisoner in open conditions.
3. Kumar and the applicable standard. The passage at paragraph 53 of R (Kumar) v SSJ [2019] EWHC 444 (Admin) did not establish a mandatory formula which the Secretary of State had to recite or answer. It described the lawful middle way between treating the Board’s recommendation as binding and permitting substitutionary disagreement. The controlling question remained whether the rejection was reasonable in context and supported by legally adequate reasons.
4. Reasonableness and reasons. The Secretary of State must give the Board’s recommendation appropriate weight. A reasonable basis may arise from a deficiency in the Panel’s assessment, including inaccurate information, failure to apply the correct criteria, inadequate explanation for departing from professional views, or an assessment which appears to fly in the face of the evidence. Where the Panel has a significant advantage, such as in assessing credibility, factual evidence heard orally, or expert risk evaluation, very good reasons are required. Other disagreements still require good reason and appropriate respect.
5. Self-direction. There is no public-law duty to identify the governing principles expressly. The question is whether the reasons meet the legal standards in substance. Express recognition of the principles may assist the reviewing court, but its absence is not itself determinative.
6. Application. The Secretary of State failed to record or address the Panel’s finding that there was little evidence that past risk-taking remained a current concern. The decision also misunderstood the Panel’s reference to intense monitoring. The Panel had meant professional monitoring in open conditions, supported by unanimous professional evidence, not monitoring dependent on the claimant’s partner, whom it had not treated as a protective factor. No good, still less very good, reason was given for rejecting that assessment.