Russell McPhee, R (on the application) v The Secretary of State for Justice

A decision-maker may reject a Parole Board recommendation to transfer a prisoner to open conditions, because the decision remains his responsibility. He must, however, engage properly with the Board’s assessment and give a good, cogent and rational reason for reaching a different conclusion. A bare assertion that risk in open conditions will be unmanageable is insufficient, particularly where the identified risk concerns matters capable of being monitored in open conditions and the Board has accepted that risk can be managed there. The decision-maker must also explain what further work remains to be done in closed conditions where the evidence indicates that progress must be tested and evidenced in less secure conditions.

The claimant, a serving prisoner subject to an imprisonment for public protection sentence, challenged the Secretary of State’s decision not to accept a Parole Board recommendation that he be transferred to open conditions. The Board considered that the claimant’s risk was not yet manageable in the community but was manageable in open conditions, where his compliance, relationships and application of previous learning could be monitored.

The Secretary of State relied on concerns about past recalls, relationship-related risk, compliance and the claimant’s failure to apply course-based learning. The central issue was whether those reasons provided a lawful and rational basis for departing from the Board’s recommendation.

1. The claim succeeded. The Secretary of State’s decision was quashed and the matter was remitted for reconsideration.
2. The decision whether to transfer a prisoner to open conditions belongs to the Secretary of State, not the Parole Board. The Secretary of State must nevertheless take the Board’s recommendation into account and give it appropriate weight. The required justification depends on the nature of the disagreement. In this case, a good reason was required, but not a “very good” reason. The approach was consistent with R (Oakley) v Secretary of State for Justice [2024] EWHC 292 (Admin) and R (Overton) v Secretary of State for Justice [2023] EWHC 3071 (Admin).
3. The Secretary of State was entitled to make his own evaluative assessment of risk and could give different weight to relevant factors: R (Kumar) v Secretary of State for Justice [2019] EWHC 444 (Admin). The management of risk in open conditions also fell within his expertise and responsibility: R (McKoy) v Secretary of State for Justice [2023] EWHC 3047 (Admin).
4. The reasons given did not rise above assertion. The Secretary of State did not explain why risk that was principally associated with intimate relationships could not be managed in open conditions, despite the Parole Board’s conclusion that it could. Reliance on past recalls related mainly to periods of release on licence, rather than temporary release from open conditions, and the decision did not genuinely integrate the claimant’s more recent progress.
5. The Secretary of State also failed to address the distinction between consolidating learning and evidencing its application. The Parole Board considered that the latter required testing in less secure conditions. The decision did not identify what further work remained in closed conditions or how the proposed work would provide evidence of reduced risk. That omission was especially significant because the claimant was substantially post-tariff.
6. The decision therefore lacked a cogent and rational justification for rejecting the recommendation. Reconsideration would necessarily take account of further evidence and any subsequent Parole Board recommendation.