Abdul Khalisadar, R (on the application of) v Secretary of State for Justice

When deciding whether to accept a Parole Board recommendation for transfer to open conditions, the Secretary of State must make her own decision but must engage meaningfully with the Board’s findings, reasoning and conclusions, give them appropriate respect, and follow the applicable policy.

Departure from the recommendation is subject to conventional rationality review, applied with the most anxious scrutiny because liberty is engaged. The question is whether the Secretary of State’s reasons provide a rational and properly justified basis for disagreement. A decision is unlawful where it cherry-picks adverse material, ignores contrary evidence, or fails to address the Board’s reasoning on current risk and progress.

The claimant, an IPP prisoner, challenged the Secretary of State’s refusal to accept the Parole Board’s recommendation that he be transferred to open conditions. The Board considered that his risk could be managed in open conditions, although he was not ready for release, and that further testing and consolidation could take place there.

The Secretary of State rejected the recommendation under paragraph 5.8.2 of the Generic Parole Process Policy Framework. She relied principally on concerns about personality traits, guarded responses, minimisation, possible manipulation and the need for further work in closed conditions.

The central issue was whether those reasons rationally justified departing from the Board’s recommendation.

1. The claim succeeded. The Secretary of State’s decision was quashed and the matter was remitted for a new decision to be made within 28 days.
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 is not bound by the Board’s recommendation, but must have regard to it, engage with its reasoning and conclusions, afford it appropriate respect, and give reasons for departing from it.
3. The applicable policy had to be followed unless there were good reasons to depart from it. The relevant question was whether the Sufficient Progress Criterion was met, leading to the further question whether there was a wholly persuasive case for transfer.
4. Review proceeded on conventional public law grounds, principally Wednesbury rationality. The court examined the rationality of the reasons for rejection, rather than merely asking whether the outcome was unreasonable. Because the decision engaged liberty, Article 5(4) required the most anxious scrutiny.
5. The Secretary of State could disagree with the Board, including on evaluative matters on which reasonable experts might differ. There was no general legal requirement to show that the Board had made a public law error. The reasons nevertheless had to amount to a sufficient and properly justified explanation of the disagreement. The court doubted the usefulness of a rigid distinction between matters requiring very good reasons and matters requiring lesser justification.
6. The decision failed that standard. It relied on selected adverse material while failing to engage with the Board’s rejection of the principal concerns, the absence of a current personality assessment, the psychologists’ agreement that sexual offending was not currently unmanageable, the evidence of progress, and the Board’s conclusion that the identified risks could be managed in open conditions. The reasons therefore did not show genuine engagement with the material factors or a rational basis for departure.