The Secretary of State for Justice v Robert Sneddon

When deciding whether to transfer a prisoner to open conditions, the Secretary of State is the sole decision-maker. A Parole Board recommendation is expert advice, not a binding judicial decision. The Secretary of State may reject even a reasonable recommendation without identifying an error or deficiency, provided that his own decision is rational.

Rationality depends on whether the decision was reasonably open to the Secretary of State and whether the reasoning contains a demonstrable flaw. The Board’s advice must receive careful consideration and contextually appropriate weight. The greater the Board’s comparative advantage on an issue, particularly a credibility finding based on oral evidence, the less likely departure will be rational. There is no separate requirement for a “good” or “very good” reason.

These conjoined appeals concerned decisions by the Secretary of State to reject Parole Board recommendations that Robert Sneddon and Karl Oakley be transferred to open prison conditions under section 12(2) of the Prison Act 1952.

In Mr Sneddon’s case, Fordham J allowed judicial review in R (Sneddon) v Secretary of State for Justice [2023] EWHC 3303 (Admin); [2024] 1 WLR 1894. He held that departure from conclusions on which the Board had a significant advantage required a “very good reason”, while other conclusions required a “good reason”. The Secretary of State appealed.

In Mr Oakley’s case, HHJ Keyser KC upheld the Secretary of State’s fresh refusal in R (Oakley) v Secretary of State for Justice [2024] EWHC 292 (Admin). Mr Oakley appealed, contending that the restrictive approach in Sneddon should govern.

The central issue was the public law standard governing a Secretary of State’s rejection of the Board’s advice.

1. The Secretary of State’s appeal in Sneddon was allowed, and Mr Oakley’s appeal was dismissed. The Secretary of State’s decisions rejecting the respective recommendations were rational. The court was unanimous.

2. Under section 12(2) of the Prison Act 1952, the Secretary of State is the sole decision-maker on transfer to open conditions. He has a two-tier discretion: whether to seek advice from the Parole Board and, if advice is sought, whether to accept it. The Board’s duty under section 239(2) of the Criminal Justice Act 2003 is to advise. Its recommendation is not a judicial decision binding on the executive.

3. The Secretary of State may reject even a reasonable Board recommendation on the basis of his own reasonable assessment. He need not identify an error, deficiency or other fault in the Board’s reasoning. The analogy with an executive override of a court or tribunal judgment in R (Evans) v Attorney General [2015] UKSC 21 was inapplicable.

4. The controlling standard is public law rationality. A decision is unlawful if it falls outside the range reasonably open to the decision-maker or if the reasoning contains a demonstrable flaw. Review focuses on the Secretary of State’s decision, rather than on whether the Board’s recommendation was itself rational.

5. The Board’s expertise and advice must receive careful consideration and contextually appropriate weight. The weight may depend on the Board’s comparative advantage. Departure from a credibility finding based on oral evidence may be difficult to defend, whereas a different assessment of the risks of open conditions may readily be rational. This is a fact-sensitive inquiry, not a bright-line division between fact and evaluation.

6. The “good reason” and “very good reason” requirements adopted at first instance improperly constrained the statutory discretion. They risked making the Board’s advice effectively binding across almost every material issue. Gilbert [2015] EWCA Civ 802 instead established an open rationality review.

7. In Mr Sneddon’s case, the Secretary of State rationally gave greater weight to impression management, minimisation of risk factors, risk-taking behaviour and the demands of intensive monitoring. In Mr Oakley’s case, he rationally required a Stalking Risk Profile to be completed in closed conditions before transfer. The latter assessment was supported by expert material unavailable to the Board.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 1258, allowed the Secretary of State’s appeal in Sneddon and dismissed Karl Oakley’s appeal.
• High Court, Administrative Court: In R (Sneddon) v Secretary of State for Justice [2023] EWHC 3303 (Admin); [2024] 1 WLR 1894, Fordham J held that the refusal to follow the Board’s recommendation lacked a reasonable basis.
• High Court, Administrative Court: In R (Oakley) v Secretary of State for Justice [2024] EWHC 292 (Admin), HHJ Keyser KC upheld the fresh refusal to transfer Mr Oakley.
• High Court, Administrative Court: In R (Oakley) v Secretary of State for Justice [2022] EWHC 2602 (Admin); [2023] 1 WLR 751, the earlier refusal was quashed for inadequate reasons.