Mark Messenger v Secretary of State for Justice

When deciding whether an indeterminate sentence prisoner should move from closed to open conditions, the Secretary of State remains the primary decision-maker. The Parole Board’s recommendation must receive due weight, particularly where it reflects specialist expertise in risk assessment and management. The Secretary of State must nevertheless make an independent assessment and have a good, or in cases involving the Board’s specialist evaluative advantage, very good, reason for rejecting the recommendation.

A disagreement about whether identified risks have reduced sufficiently to justify progression is not irrational merely because the Board reached a different conclusion. The decision-maker may rely on findings made by the Board, including continuing minimisation, limited insight and failure to internalise learning, and may assess their implications for risk differently.

The claimant, an IPP prisoner, sought judicial review of the Secretary of State’s decision refusing to accept a Parole Board recommendation that he progress from closed to open conditions. The Board considered that he had made progress but recommended open conditions so that his learning and risk management could be tested in less secure conditions and his resettlement could be developed.

The Secretary of State accepted the Board’s factual findings but concluded that the claimant continued to minimise his offending, had not sufficiently internalised his learning, and remained capable of presenting risks in future relationships. The central issue was whether the Secretary of State had acted irrationally by reaching a different assessment of risk and by giving insufficient weight to the Board’s recommendation.

1. The claim was dismissed. The Secretary of State was the primary decision-maker on whether the claimant should move to open conditions. Under the applicable policy, acceptance of the Parole Board’s recommendation required sufficient progress in reducing risk, a low risk of absconding and a wholly persuasive case for transfer.
2. The Secretary of State gave due weight to the Parole Board’s recommendation. He did not reject its factual findings. He relied on them in making his own assessment and expressly acknowledged the benefits of open conditions, including testing the claimant’s learning, building relationships with staff at approved premises and developing a resettlement plan.
3. The Secretary of State was entitled to conclude that the claimant’s continuing minimisation, limited insight and failure to demonstrate internalisation of his learning meant that risk had not reduced sufficiently to justify progression. He was also entitled, having regard to his expertise, to treat the claimant’s attitudes towards his children and a possible exclusion zone as relevant to insight, even though the Board had not expressly said that those matters affected insight.
4. The Secretary of State was entitled to take account of the fact that the index offence had been committed in breach of a non-molestation order and bail conditions, notwithstanding the psychological assessment that the claimant was likely to comply with future rules and conditions.
5. The Board’s view that internalisation could be tested in open conditions did not require acceptance. The Secretary of State’s conclusion that the identified risks had not sufficiently reduced amounted to a very good reason for declining the recommendation. The high threshold for irrationality was not met.

Counsel were directed to submit an agreed draft order within 14 days, with written submissions on any consequential matters that could not be agreed.