Karl Oakley, R (on the application of) v Secretary of State for Justice

In deciding whether a prisoner should move from closed to open conditions, the Secretary of State is the primary decision-maker and the Parole Board’s recommendation is advisory. The Secretary of State must engage with it, accord appropriate respect and give rational, sufficient reasons for departing from it. The required justification varies with the issue. Very good reasons may be required where the Board has a particular advantage, such as oral evidence or specialist expertise, but no rigid fact-versus-risk distinction governs. The Secretary of State may consider material not before the Board. A rationally justified requirement for further risk assessment in closed conditions may support refusal, even where the Board considered further work unnecessary. Review concerns the lawfulness of the Secretary of State’s decision, not whether the Board’s recommendation was itself rational.

The claimant, a life prisoner at HMP Erlestoke, challenged the Secretary of State’s decision to reject the Parole Board’s recommendation that he be transferred to open conditions. An earlier refusal had been quashed and remitted for reconsideration by Chamberlain J in R (Oakley) v Secretary of State for Justice [2022] EWHC 2602 (Admin), [2023] 1 WLR 751. On reconsideration, the Secretary of State relied on the need for a Stalking Risk Profile, further consolidation work and concerns about risk management and engagement with probation.

The central issue was whether those reasons provided a lawful and sufficiently justified basis for departing from the Parole Board’s recommendation.

Disposition. The claim was dismissed. The Secretary of State had been entitled to reject the recommendation and had provided sufficient legal justification.

1. Decision-maker and statutory role. Under the Prison Act 1952 and the Criminal Justice Act 2003, the decision to transfer a prisoner to open conditions rests with the Secretary of State. The Parole Board’s function is advisory. Its recommendation is not binding, although it must be considered and given appropriate respect and weight. The relevant question on judicial review is whether the Secretary of State’s decision is rational and sufficiently justified, not whether the Parole Board’s recommendation was itself rational.
2. Required justification. The strength of the reasons required for departure depends on the nature and extent of any particular advantage enjoyed by the Board on the issue in question. The approach in R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB) and R (John) v Secretary of State for Justice [2021] EWHC 1606 (Admin), [2021] 4 WLR 98 was understood in that way. The continuum described in R (Overton) v Secretary of State for Justice [2023] EWHC 3017 (Admin) was accurate. Very good reasons may be required where the Board has a significant advantage, but even where it has no such advantage the Secretary of State must give good reasons and justify his different conclusion.
3. Application. The Parole Board’s conclusion that no further work was required in closed conditions involved assessments of risk, treatment needs and available resources, rather than findings of credibility or past fact. The Secretary of State did not lack a particular advantage on those issues. He was entitled to accept that a Stalking Risk Profile was necessary, given the claimant’s offending history and risk profile, and that it could be undertaken in closed conditions. The recommendation rested on the contrary premise that no further work was required there, so its force was materially reduced. The Secretary of State was also entitled to consider material not before the Parole Board.
4. Anxious scrutiny. In an addendum, the judge observed that “anxious scrutiny” is not a separate psychological standard. The appropriate test is conventional public-law review applied with the care and rigour appropriate to a decision affecting liberty. The discussion of R (Dobson) v Secretary of State for Justice [2023] EWHC 50 (Admin) did not affect the result.

The judgment records that an earlier challenge to the Secretary of State’s refusal was determined by Chamberlain J, who quashed the decision and remitted the matter for reconsideration in R (Oakley) v Secretary of State for Justice [2022] EWHC 2602 (Admin). The present claim concerned the reconsideration decision and was determined at first instance.