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

The Secretary of State is the sole decision-maker on whether a prisoner should be transferred to open conditions. The Secretary of State has a two-tier discretion: whether to seek advice from the Parole Board and, if advice is sought, whether to accept it. She may reject a reasonable recommendation after making her own reasonable assessment of risk. The relevant question is whether her decision falls outside the range of reasonable decisions or contains a demonstrable flaw in reasoning. Fresh evidence arising after the Parole Board hearing may be considered without obtaining updated advice. The Secretary of State must, however, give adequate reasons and should ordinarily allow the prisoner an opportunity to address significant fresh material.

The claimant, a serving prisoner, challenged the Secretary of State’s rejection of the Parole Board’s recommendation that he be transferred from closed to open conditions. He alleged that the decision lacked adequate reasons and was irrational because the Secretary of State relied on conduct occurring after the Parole Board hearing without referring that material back to the board.

The Secretary of State argued that the claim was academic because a fresh parole review was underway. The court rejected that preliminary objection and considered whether the decision was unlawful on either ground.

1. Academic nature of the claim. Although a fresh review was underway and the Secretary of State would reconsider the claimant’s position, the court should be slow to treat the claim as academic. Refusing such claims too readily could make transfer decisions effectively immune from challenge.
2. Applicable legal framework. Under section 12(2) of the Prison Act 1952 and section 239(2) of the Criminal Justice Act 2003, advice concerning transfer to open conditions falls within the Parole Board’s advisory function. The Secretary of State remains the sole decision-maker. She has a two-tier discretion: whether to seek advice and whether to accept advice obtained. She may reject a reasonable recommendation on the basis of her own reasonable assessment of risk. The question is whether her decision was outside the range of reasonable decisions or involved a demonstrable flaw in reasoning: R (Sneddon) v Secretary of State for Justice [2024] EWCA Civ 1258.
3. Adequacy of reasons. The Secretary of State gave sufficient reasons. She weighed the claimant’s progress and absence of recent physical violence against his abusive and threatening conduct, negative behaviour entries, limited insight, poor compliance and inability to manage conflict. The same reasoning could properly support both conclusions that sufficient progress had not been made and that there was no wholly persuasive case for transfer.
4. Fresh evidence and updated advice. The Secretary of State was entitled to consider events after the Parole Board hearing. The fact that she had sought advice did not require her to obtain further advice when fresh evidence emerged. The two-tier discretion remained applicable. She acted lawfully by disclosing the fresh material to the claimant’s solicitors and inviting representations.
5. Rationality. The Secretary of State was entitled to assess the evidence holistically. The later conduct included a proven threat of violence and further apparent threats, and the earlier evidence also contained threats which the Parole Board had considered. Her conclusion that the transfer criteria were not met was rational. The claim was dismissed.