Brendon Oxendale, R (on the application of) v Secretary of State for Justice

The Secretary of State decides whether a prisoner should transfer to open conditions, although the Parole Board may provide advice. The Secretary of State may reject the Board’s recommendation where the decision is rationally justified and gives sufficient reasons. The decision-maker may make an evaluative assessment of risk-management in the open estate, even where the Board and professional witnesses reach a different view. The Board’s opinion must receive appropriate respect, but the Secretary of State need not identify further core offending-behaviour work or explain again why every expert opinion is rejected, provided the central issues are addressed. A period in open conditions being beneficial or essential before eventual release does not establish that transfer is justified at the particular time under the applicable criteria.

The claimant was serving an indeterminate sentence for public protection at HMP Ashfield. The Parole Board declined to direct release but recommended transfer to open conditions, finding that residual risk could safely be managed there and that a period in open conditions would assist future risk management.

The Secretary of State rejected the recommendation under the applicable policy criteria, concluding that the claimant had not made sufficient progress in reducing risk and that there was no wholly persuasive case for transfer. The claimant sought judicial review on grounds of failure to consider material matters and irrationality. The central issue was whether the reasons given sufficiently justified departing from the Parole Board’s recommendation.

1. Claim dismissed. The Secretary of State’s decision was rationally justified when read fairly, as a whole and in context.
2. The decision-maker was not required to recite all the evidence or every matter considered. It was sufficient to address the central issues and explain the decision. The decision showed that the Parole Board’s decision and the report writers’ evidence had been considered.
3. The Secretary of State was entitled to make an evaluative assessment of whether the claimant had made sufficient progress to enable safe management in open conditions. The decision identified continuing concerns, including offence-paralleling behaviour, poor compliance, minimisation, lack of openness and honesty, and a disconnect between completed interventions and subsequent conduct.
4. The Secretary of State did not reject factual findings or matters on which the Parole Board had a particular advantage. The disagreement concerned risk assessment on the papers. The Secretary of State was entitled to reach a different view, provided appropriate respect was accorded to the Board and reasons were given for departing from it. The approach in R (Green) v Secretary of State for Justice (No. 2) [2023] EWHC 1211 (Admin) was applicable.
5. The absence of further core risk-reduction work did not make transfer inevitable. There remained actual and continuing concerns about internal self-management, compliance and openness. The Secretary of State could reasonably conclude that those matters should be addressed before transfer, even if the psychologists considered that consolidation could occur in open conditions.
6. The wholly persuasive case criterion provided an independent basis for the decision. The need for proper compliance with the sentence plan and prison discipline was material. The fact that risk could be managed in open conditions did not mean that there was a wholly persuasive case that it ought to be managed there.