Sean Allen, R (on the application of) v Secretary of State for Justice

In deciding whether to transfer an indeterminate prisoner to open conditions, the Secretary of State is not bound by a Parole Board recommendation. The decision remains subject to rationality, lawful policy and adequate reasons.

Where the Secretary of State departs from the Board’s recommendation, the decision-maker must engage properly with it, accord it appropriate respect and explain the contrary view. A point-by-point rebuttal is unnecessary, but merely listing reasons against transfer is insufficient. The intensity of reasoning depends on the issue: greater precision is generally required when departing from matters on which the Board has a particular advantage.

Under the 2023 policy, the “wholly persuasive case” criterion is a distinct evaluative requirement. It is not synonymous with the former “essential” criterion.

The claimant, an indeterminate prisoner convicted of murder, was recommended by the Parole Board in 2022 for transfer from closed to open conditions. The recommendation was made under the 2022 Parole Board Directions.

By the time the Secretary of State decided the matter in July 2023, the 2023 Generic Parole Process Policy Framework applied. The decision-maker accepted that the claimant had made sufficient progress and was at low risk of absconding, but concluded that there was no wholly persuasive case for transfer.

The claimant sought judicial review, alleging irrationality and inadequate reasons. The central issue was whether the Secretary of State had lawfully departed from the Parole Board’s recommendation.

1. Claim allowed. The decision refusing transfer to open conditions was quashed and had to be taken again. The court could not conclude that the outcome would necessarily have been substantially the same.
2. Under Criminal Justice Act 2003, s 239(2), the Parole Board advises and the Secretary of State decides. The Secretary of State may depart from the recommendation, and different rational decision-makers may reach different conclusions. The Department’s expertise in prison management and risk assessment must be recognised.
3. That discretion is constrained by common-law rationality and the duty to give adequate reasons. The Secretary of State must engage properly with the Board’s recommendation, accord it appropriate respect and articulate why a contrary conclusion has been reached. A point-by-point rebuttal is unnecessary, but reasons directed only to the merits of refusal, without explaining the departure from the recommendation, are inadequate.
4. The 2022 Directions and 2023 policy could lawfully operate in a transitional mismatch. The applicable policy was the policy in force when the Secretary of State made the decision.
5. The 2023 “wholly persuasive case” criterion was distinct from the former “essential” criterion. It required the Secretary of State to stand back and consider all relevant circumstances after assessing sufficient progress and absconding risk. The Parole Board had no particular advantage on that criterion, but its reasoning remained relevant and required proper engagement.
6. The decision failed to engage with the Board’s reasoning, including its conclusion that open conditions would test the claimant’s risk-management plan. It also failed properly to address the unanimous professional evidence, misattributed the Prison Offender Manager’s evidence to the Community Offender Manager, and did not explain the apparent reliance on the same adjudications both to accept sufficient progress and to reject a wholly persuasive case.
7. Internal disagreement between officials did not itself invalidate the decision. A decision-maker need not justify disagreement with colleagues, but where the decision-maker stands alone against the Board and unanimous professional evidence, more detailed reasons on the disputed issue may be required.