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

On judicial review of a refusal to transfer a life prisoner to open conditions, the Secretary of State remains the decision-maker and may disagree with the Parole Board. However, the Board’s advice must be considered carefully and given weight appropriate to its evidential advantage. The decision must fall within the range of reasonable decisions and contain no demonstrable flaw in reasoning. A refusal is unlawful where it relies materially on an unreasonable interpretation of evidence, particularly an inference that expressions of guilt or survivor’s guilt amount to an admission of the offence, without considering the prisoner’s explanation or engaging with relevant expert evidence. The decision-maker must also identify the further risk-reduction work said to be required and explain why it is needed when professional evidence says that no further work is available in closed conditions.

The claimant, serving a mandatory life sentence for the 1998 murder of his stepdaughter, had maintained his innocence for many years after retracting an admission. Following an oral hearing, the Parole Board recommended transfer to open conditions. It found that the identified risk factors were not live or current, that the claimant had completed available risk-reduction work, and that no further such work was available in closed conditions, while recognising uncertainty arising from his denial.

The Secretary of State rejected the recommendation. She accepted that the risk of absconding was low but concluded that risk was not sufficiently reduced and that there was no wholly persuasive case for transfer. She relied on alleged inconsistencies between the claimant’s denial, his earlier admission, and statements expressing guilt about the victim’s death. The claimant sought judicial review, alleging failure to apply the governing principles and failure to engage with the expert evidence and his explanations.

Claim succeeded. The Secretary of State’s decision was quashed and required to be retaken.

1. The statutory scheme made the Secretary of State the decision-maker on transfer to open conditions under section 12(2) of the Prison Act 1952. Section 239(2) of the Criminal Justice Act 2003 permitted the Secretary of State to seek the Parole Board’s advice. Under Secretary of State for Justice v Sneddon [2024] EWCA Civ 1258, the Board’s advice was not binding, but had to be considered carefully and given weight appropriate to its findings, recommendations and evidential advantage.
2. The absence of an express reference to Secretary of State for Justice v Sneddon did not establish that its principles had been ignored. The present decision principally concerned risk assessment rather than credibility findings following oral evidence. The first ground therefore failed.
3. However, the Secretary of State did not engage with professional evidence that no further risk-reduction work was available in closed conditions. The decision referred to further work and further exploration of the claimant’s stance without identifying what work was contemplated or explaining why it was required, particularly when the evidence indicated that an admission would be unlikely to lead to additional intervention.
4. The principal error concerned the treatment of the claimant’s expressions of guilt. The Secretary of State interpreted them as implying that, had the claimant died while serving in the army, he would not have been able to commit the murder. That interpretation had not been contemplated by the experts or the Board and had not been put to the claimant. His explanation, including the comparable context of survivor’s guilt concerning a fellow soldier’s death, was not considered.
5. The repeated references to alleged inconsistencies showed that they were material to the assessment of risk and to the conclusion that there was no wholly persuasive case for transfer. The interpretation was unreasonable and the approach was not properly balanced. The decision could not stand and had to be quashed and retaken.

First-instance judicial review. Permission was granted by HHJ Keyser KC; no earlier court decision in this judicial review is stated.