Woody Carrigan, R (on the application of) v Secretary of State for Justice

When deciding whether to accept a Parole Board recommendation to transfer an indeterminate sentence prisoner to open conditions, the Secretary of State must act reasonably and give legally adequate reasons. The 2022 Essential Criterion requires consideration of whether open conditions are essential at this time to inform release decisions and prepare for possible release. That assessment must consider all information and be informed by the prisoner’s progress towards a safe risk level. A further step that could be taken in closed conditions does not automatically prevent the criterion being met. Where the Secretary of State departs from the Board’s assessment, proper engagement and a cogent, rational good reason are ordinarily required. The Secretary of State remains the primary decision-maker and retains decision-making latitude.

The claimant, an indeterminate sentence prisoner serving a life sentence for murder, challenged the Secretary of State’s decision to reject a Parole Board recommendation that he be transferred to open conditions. The Board had declined to direct release but recommended transfer after an oral hearing involving several expert witnesses.

The Secretary of State accepted that there was no abscond-risk problem and no outstanding core risk-reduction work. He nevertheless concluded that a further period of mental-health stability in closed conditions was required before transfer. The central issues were the meaning and application of the 2022 Statutory Directions and Policy Guidance, and the standard of reasoning required when the Secretary of State departs from the Board’s risk assessment.

1. Meaning of the Essential Criterion. Under the 2022 Statutory Directions and Policy Guidance, a period in open conditions must be considered essential at this time to inform future decisions about release and prepare for possible release on licence. The assessment must consider all information and be informed by the extent of the prisoner’s progress towards a risk level consistent with protecting the public in open conditions.
2. The Progress Duty therefore has full traction in applying the acceptance criteria. Concerns about insufficient progress towards a safe risk level may be relied on through the Essential Criterion and need not be framed solely under the public-confidence criterion.
3. The identification of a step which could be taken just as well in closed conditions does not necessarily and of itself mean that the Essential Criterion is unmet. Its application depends on the particular facts. A refusal may be reasonable where necessary work must precede the meaningful benefits of open conditions, but in a case where open conditions are an immediately beneficial precondition to release and the prisoner is safe to be managed there, refusal may be difficult to justify.
4. The Secretary of State remains the primary decision-maker and possesses relevant risk expertise. The Board nevertheless has institutional and due-process advantages, including specialist decision-makers, oral hearings and the testing of expert evidence. Context-specific reasonableness may therefore require proper engagement with the Board’s assessment, appropriate respect, and a cogent and rational good reason for departure. The common-law duties of reasonableness and legally adequate reasons are not displaced by revised statutory directions or policy guidance.
5. On the facts, the Secretary of State had a good reason to depart from the Board’s assessment. The prospect of mental-health deterioration was evidenced and uncontested, it carried potential behavioural risks, and deterioration would be a setback to release prospects. The decision was therefore lawful. The claim for judicial review was refused. The claimant was ordered to pay the defendant’s costs, subject to the stated civil legal-aid qualification, and there was to be a detailed assessment of publicly funded costs.

Not stated in the judgment.