Charles Smith, R (on the application of) v The Secretary of State for Justice

The Secretary of State is the decision-maker on whether to accept a Parole Board recommendation for transfer to open conditions. The recommendation is advice, not a provisional decision, and there is no presumption that it will be accepted. The Secretary of State must consider it carefully, together with the statutory and policy framework, but may reach a different assessment of risk or suitability.

Judicial review asks whether the decision as a whole was irrational. In a category review, the question whether an oral hearing is required is one of fairness, not rationality. Fairness may require a hearing where there is a real and live dispute on an important issue bearing directly on the relevant risk. Disputes concerning risk in open conditions may be immaterial where the review concerns risk if the prisoner unlawfully escapes.

The claimant, a serving Category A prisoner, brought two applications for judicial review. The first challenged the Secretary of State’s decision not to accept a Parole Board recommendation that he be transferred to open conditions. The second challenged the decision to determine his category review without an oral hearing.

The Parole Board considered that the claimant had reduced his risk sufficiently for open conditions, but the Secretary of State concluded that there was no wholly persuasive case for transfer, particularly given disagreement among experts and the claimant’s position on PIPE training. The category review concerned the risk posed if the claimant escaped and was unlawfully at large. The central issues were whether the open-conditions decision was irrational and whether fairness required an oral hearing.

1. Open conditions decision. The Secretary of State was the sole decision-maker under section 12(2) of the Prison Act 1952. The Parole Board’s recommendation was advice which had to be considered with care and given appropriate weight, but it was not a provisional decision which had to be adopted unless good reasons for departure were shown. The Secretary of State was required to apply the General Parole Process Policy Framework.
2. The question was whether the decision as a whole was rational. That required consideration of whether it fell outside the range of reasonable decisions open to the decision-maker and whether there was a demonstrable flaw in the reasoning. The Secretary of State was entitled to take account of the disagreement between authoritative experts about the necessity of PIPE or comparable work. In those circumstances, he was entitled to conclude that there was no wholly persuasive case for transfer. The decision was not irrational.
3. Oral hearing. The decision whether to hold an oral hearing in a category review was a public law decision assessed for fairness, not rationality. The relevant guidance in PSI 08/2013 embodied the applicable fairness principles. A hearing was not automatically required merely because the prisoner was post-tariff, had spent a long time in Category A, or had never previously had one. The question remained whether the relevant factors, considered together, made a hearing fair.
4. The Parole Board and CART addressed different risks. The Board considered the risk in open conditions, with the associated regime, supervision and support. CART considered the risk to the public if the claimant escaped and was unlawfully at large. The disputes arising from the Board’s recommendation concerned the former context and did not go directly to the risk relevant to CART. They therefore were not important or significant disputes for the purposes of the oral-hearing guidance. The refusal to hold a hearing was fair.
5. Both applications for judicial review were dismissed.

The judgment was a first-instance decision of the Administrative Court. The two judicial review applications had been granted permission and ordered to be heard together by Hill J.