Dean Dobson, R (on the application of) v Secretary of State for Justice

A decision on ROTL must satisfy Rule 9(4) of the Prison Rules 1999; transfer to open conditions does not itself establish entitlement to temporary release. The published ROTL policy creates important procedural duties: the prisoner must receive full written reasons for refusal and, on request, the information taken into account, subject to stated exceptions. Failure to provide those materials before an appeal can amount to procedural impropriety where it deprives the prisoner of an informed opportunity to make representations. Relief should not be refused unless the outcome was inevitable or highly likely to be no different. ROTL decisions engage anxious scrutiny, although the high threshold for unreasonableness remains. Maintained innocence is not an automatic bar to progression, but lack of insight and risk may be considered.

The claimant, an IPP prisoner in open conditions, sought judicial review of a refusal of resettlement day and overnight release on temporary licence. An acting deputy governor refused the applications, and a deputy governor rejected his internal appeal on 8 July 2021. The claimant alleged that he had not received the written refusal reasons or the ROTL risk-assessment documents before appealing. He also challenged the decision as unreasonable in light of his transfer to open conditions and his maintained innocence.

The court additionally considered the defendant’s delay objection, procedural defaults, costs, and whether anxious scrutiny applied to ROTL decisions.

The claim succeeded on procedural fairness. The unreasonableness ground failed. The decision of 8 July 2021 was quashed and the ROTL application was remitted to a different decision-maker for fresh consideration, with an opportunity for the claimant and his representatives to make informed representations.

1. The court found on the documentary evidence that the claimant had not received either the ROTL Decision Notice or the ROTL Risk Assessment before the impugned appeal decision. They were first provided in the defendant’s judicial review bundle nearly 14 months later.
2. The published ROTL policy required the offender to be notified through the ROTL-DEC form, to receive full written reasons for refusal, and, on request, to receive all information taken into account, subject to specified derogations. These requirements were binding procedural protections. The failure to provide the reasons and requested documents before the appeal was a procedural impropriety and rendered the decision procedurally unfair.
3. The court applied the materiality principles stated in R (Grinham) v Parole Board [2020] EWHC 2140 (Admin). Relief should not be refused merely because the same outcome might have resulted. On the facts, the court could not conclude that the outcome was inevitable or highly likely to have been no different. The undisclosed material could have enabled more informed representations.
4. Anxious scrutiny applied because ROTL is a form of release on licence and a material stage in the transition towards release. The structured approach described in R (Wells) v Parole Board [2019] EWHC 271 (Admin) remained an application of conventional public law principles. The decision-maker’s conclusion was to be tested against the evidence, asking whether it followed from the evidence or involved an unexplained evidential gap or leap in reasoning.
5. The claimant’s maintained innocence was not treated as an automatic bar to progression. The decision could properly consider the wider concerns about lack of insight, risk management, previous returns to closed conditions, and failure to complete relevant interventions. The reasonableness challenge therefore failed.
6. The transfer decision to open conditions did not itself satisfy the separate Rule 9(4) test for ROTL, which required a full risk assessment. However, the offender managers’ view that no further intervention needed to precede ROTL was not legally irrelevant.
7. The defendant’s delay objection failed. The claimants’ solicitors had taken prompt steps within three months, there was no prejudice or detriment to good administration, and any necessary extension would have been granted. The defendant’s repeated procedural defaults justified reflecting them in the costs order. The defendant was ordered to pay indemnity costs up to 29 July 2022 and standard costs thereafter.

Permission to apply for judicial review was granted by Choudhury J on 11 February 2022. This was a first-instance judicial review; no appellate history is stated.