Adam Swellings, R (on the application of) v The Secretary of State for Justice

When reviewing a Parole Board recommendation for transfer to open conditions, the Secretary of State is not bound by the recommendation but must take it into account and give it appropriate weight. Particular respect is required for factual findings within the Board’s specialist advantage. A departure from such findings requires clear, cogent and convincing reasons. Risk assessment remains an evaluative judgment for the Secretary of State, subject to conventional public law grounds. There is no automatic temporal benchmark rendering a decision unlawful. A prompt decision may be lawful where supported by departmental preparation, relevant expertise and intelligible reasoning.

The claimant, a pre-tariff life prisoner, challenged the Secretary of State’s refusal to accept the Parole Board’s recommendation that he move from closed to open conditions. The challenge alleged an unlawful decision-making approach, inadequate reasons, and irrationality through failure to consider relevant matters. The court considered the statutory advisory role of the Parole Board, the Secretary of State’s policy framework, and the extent to which the Secretary of State could reach an independent assessment of risk.

1. Outcome. The judicial review challenge was dismissed. None of the three permitted grounds was made out.
2. Under Criminal Justice Act 2003, s 239(2), the Parole Board advises the Secretary of State on referred matters concerning early release or recall. It cannot direct a transfer to open conditions. The Secretary of State is therefore not bound by its recommendation, but must consider it and give it due weight.
3. The court adopted the principles summarised in R (Green) v Secretary of State for Justice (No 2) [2023] EWHC 1211 (Admin). The weight required depends on the issue, the type of hearing, the Board’s findings and the nature of the risk assessment. Where the Board has a particular advantage, such as fact-finding, clear, cogent and convincing reasons are required for departure. Risk assessment is an evaluative judgment for the Secretary of State, subject to conventional public law review.
4. The decision-maker lawfully assessed risk by reference to the Board’s findings and gave appropriate respect to professional evidence. The Board’s inability to resolve the restraining-order issue was a non-finding, and reliance on recent police information did not amount to departure from a factual finding.
5. There was no rule that the speed of a decision automatically demonstrated inadequate consideration. The decision-maker had the benefit of a departmental dossier and relevant professional experience. Nor was it irrational to prefer a staged progression through Category C, to give weight to continuing minimisation concerns, or to regard updated risk assessment and refresher work as relevant.
6. The decision letter was intelligible, engaged sufficiently with the material findings, acknowledged the positive evidence and explained the different risk assessment. The claim was dismissed.

This was a first-instance judicial review claim. Permission was refused on paper, but granted on amended grounds at an oral renewal hearing before HHJ Rawlings. The High Court then dismissed the claim.