Steven Lee Draper, R (on the application of) v Secretary of State for Justice

When deciding whether to accept a Parole Board recommendation that an indeterminate-sentence prisoner be transferred to open conditions, the Secretary of State retains the ultimate decision. The Secretary of State must nevertheless engage fairly and properly with the recommendation, address the relevant evidence and give rational and adequate reasons for departing from it.

A decision may be irrational where it misrepresents or omits material professional evidence supporting transfer, without explaining why that evidence is rejected. Open conditions may properly serve as a period of testing and monitoring before release. Treating that function as impermissible is legally wrong.

The claimant, a life prisoner whose tariff had expired, challenged the Secretary of State’s refusal to accept the Parole Board’s recommendation that he be transferred from closed to open conditions. The Parole Board considered that further testing and monitoring in less secure conditions were needed to inform future release decisions and resettlement planning.

The Secretary of State concluded that open conditions were not essential and that transfer could undermine public confidence. The claimant alleged inadequate reasoning, failure to consider relevant matters and irrationality. The central issue was whether the refusal lawfully departed from the Parole Board’s recommendation.

1. Outcome. The decision refusing transfer to open conditions was quashed. The court invited representations on ancillary orders if agreement could not be reached.
2. The Secretary of State makes the ultimate decision on transfer from closed to open conditions. However, a departure from a Parole Board recommendation must be rational, properly justified and based on proper engagement with the recommendation. The decision-maker need not provide a point-by-point rebuttal, but must address the relevant issues and articulate the reasons for reaching a contrary view. Greater precision is required where the decision-maker departs from primary factual findings than where different secondary inferences are drawn from undisputed facts.
3. The Secretary of State materially misattributed evidence between the community offender manager and prison psychologist. He omitted the community offender manager’s unequivocal view that open conditions were essential, failed to address the prison psychologist’s updated position and ignored the strongly supportive evidence of three other professionals. The decision therefore misrepresented and failed to engage with material evidence. It was based on incoherent reasons and was irrational and inadequately reasoned.
4. The Secretary of State’s statement that open conditions should not be regarded as an opportunity to test a prisoner was wrong as a general proposition. Testing and monitoring in conditions resembling those on release may be an important function of open conditions. The irrationality in the assessment of whether transfer was essential also contaminated the public-confidence assessment.
5. The court declined to add further obiter observations about the meaning of “essential” because the decision was fatally flawed on the facts and reasoning identified.

First-instance judicial review. No prior appellate decision was stated in the judgment.