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

A Secretary of State may lawfully depart from a Parole Board recommendation to transfer a prisoner to open conditions where the recommendation concerns an evaluative judgment balancing private and public interests, provided appropriate respect is given to the Board’s view and adequate reasons are given. The question is whether open conditions are essential to inform future release decisions and prepare for possible release, not merely whether work could be undertaken there. A transcript of the Board’s hearing is required only where reasonable inquiry on the particular facts makes it necessary. Where the written material adequately records the relevant evidence and reasoning, reliance on that material may be rational, lawful and fair.

The claimant, a life sentence 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 a period in open conditions was essential to inform future release decisions and prepare him for possible release on licence.

The Secretary of State accepted that no core risk-reduction work remained outstanding but concluded that relevant work concerning high-risk scenarios, consolidation of learning and resettlement planning could beneficially be undertaken first in a Progression Regime. The claimant alleged irrationality, failure to consider relevant matters, breach of the Tameside duty and unfairness, principally because the Secretary of State had not obtained a transcript or invited representations about the oral evidence. The issue was whether the Secretary of State’s different evaluation was lawful on the material available.

1. The claim was dismissed. None of the four grounds of judicial review was established.
2. Under the applicable statutory and policy framework, the Parole Board’s recommendation concerning transfer to open conditions was advisory. The Secretary of State could depart from it, subject to lawful decision-making and the relevant essentiality criterion.
3. Following R (Oakley) v SSJ [2022] EWHC 2602 (Admin), the court must identify precisely the conclusion or proposition with which the Secretary of State disagrees. If the Parole Board has a particular advantage on that issue, a very good reason is required for departure. If the issue involves an evaluative judgment balancing private and public interests, the Secretary of State may form a different view, while giving appropriate respect to the Board’s assessment and reasons. The court regarded that approach as consistent with R (Wynne) v SSJ [2023] EWHC 1111 (Admin), Zenshen v Secretary of State for Justice [2023] EWHC 2279 and R (Green) v SSJ (No 2) [2023] EWHC 1211 (Admin).
4. The disagreement concerned whether support for managing potential high-risk scenarios was better provided immediately in open conditions or first in a Progression Regime. That was an evaluative judgment, not an issue on which the Parole Board enjoyed a particular advantage. The Secretary of State was entitled to prefer the evidence-based benefits identified by the prison psychologist, including consolidation of previous learning, development of resettlement plans, trusted working relationships and testing of pro-social skills and attitudes in a less restrictive regime.
5. The essentiality criterion was not satisfied merely because work could be done as effectively in open conditions. If the relevant work could be done just as well in closed conditions on a Progression Regime, the criterion might not be met, depending on the facts. The potential absence of disadvantage from that route was relevant to the essentiality assessment.
6. The Secretary of State’s inquiries were reasonable. He was entitled to rely on the Board’s decision, the written reports before it and the claimant’s dossier. Applying R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647 at para 70, the court should intervene only if no reasonable decision-maker could have been satisfied that the inquiries made provided the information necessary for the decision. The evidence did not show that the oral evidence materially changed or added to the written reports.
7. Fairness did not require the Secretary of State to disclose a provisional refusal or invite further representations. No fresh material had emerged, no new point had been relied upon, and the Secretary of State had simply reached a different judgment on material considered by the Board. The case was materially different from Zenshen v Secretary of State for Justice [2023] EWHC 2279, where significant oral developments and further progress were unknown to the Secretary of State.
8. The approach in R (Overton) v SSJ [2023] EWHC 3071 (Admin) was followed in substance. The Secretary of State could consider whether further work could be undertaken in closed conditions and whether the prisoner was ready for open conditions. The facts here supported the same conclusion.

The claim therefore failed.