BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Administrative Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Allen, R (On the Application Of) v Secretary of State for Justice [2024] EWHC 2370 (Admin) (26 September 2024) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2024/2370.html Cite as: [2024] WLR(D) 434, [2024] EWHC 2370 (Admin) |
||
[New search] [Printable PDF version] [View ICLR summary: [2024] WLR(D) 434] [Help]
KINGS BENCH DIVISION
ADMINISTRATIVE COURT
Bull Street, Birmingham |
||
B e f o r e :
(Sitting as a Judge of the High Court)
____________________
| THE KING (on the application of) SEAN ALLEN |
Claimant |
|
| - and - |
||
| SECRETARY OF STATE FOR JUSTICE |
Defendant |
____________________
Mr Richard Evans (instructed by The Government Legal Department) for the Defendant
Hearing date: 11th September 2024
____________________
Crown Copyright ©
HHJ TINDAL:
Introduction
a. Firstly, it was one of the first decisions by the Defendant under the new policy introduced on 17th July 2023 – indeed, one of only three decisions so far on that new (and still current) policy Counsel or I have found. The key provision in the Defendant's Generic Parole Process Policy Framework ('GPPPF') as amended from July 2023 ('GPPPF 2023') is paragraph 5.8.2:
"The Secretary of State (or an official with delegated responsibility) will accept a recommendation from the Parole Board ([to] approve an [Indeterminate Sentence Prisoner i.e.] ISP for open conditions) only where: [i] the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm…; and [ii] the prisoner is assessed as low risk of abscond; and [iii] there is a wholly persuasive case for transferring the ISP from closed to open conditions."
(I add Roman numerals for clarity). The statutory Directions to the Parole Board amended on 1st August 2023 only permit it to recommend transfer to open conditions where it is satisfied criteria [i] and [ii] are met, therefore [iii] - the 'wholly persuasive case criterion' - is for the Defendant alone.
b. Secondly, whilst the Defendant made the challenged decision under GPPPF 2023, the Parole Board's recommendation had been under its 2022 statutory Directions which had criterion [ii] (the 'absconding criterion') with criteria [i] (the 'sufficient progress criterion') as a background factor only. The other mandatory criterion in the 2022 Directions was: 'a period in open conditions is considered essential to inform future decisions about release…' ('the essential criterion'). The Defendant's 2022 version of the GPPPF ('GPPPF 2022') had the 'absconding' and 'essential' criteria and a third criterion the Parole Board did not consider, deleted in July 2023: 'transfer to open conditions would not undermine public confidence in the Criminal Justice System' (the 'public confidence criterion'). So, this case also considers 'transitional mismatch' between the GPPPF and Parole Board Directions.
c. Thirdly, this case raises an apparently new point I have only seen in passing in one other case in the many on 'open conditions': 'internal disagreement': where different Ministry of Justice officials reach different conclusions on transfer and the impact on the rationality of and reasons for the decision.
"I have in the present case had the following portfolio of cases to consider. R(Banfield) v SSJ [2007] EWHC 2605 (Admin) (10.10. 07, Jackson J); R(Hindawi) v SSJ [2011] EWHC 830 (Admin) (1.4.11, DC); R(Adetoro) v SSJ [2012] EWHC 2576 (Admin) (26.9.12, HHJ Gilbart QC); R(Wilmot) v SSJ [2012] EWHC 3139 (Admin) (9.11.12, King J); R(Gilbert) v SSJ [2015] EWCA Civ 802 (23.7.15, CA); R(Kumar) v SSJ [2019] 4 WLR 47 (28.2.19, Andrews J); R(John) v SSJ [2021] EWHC 1606 (Admin) (14.6.21, Heather Williams QC); R(Stephens) v SSJ [2021] EWHC 3257 (Admin) (2.12.21, Whipple J); R(Oakley No.1) v SSJ [2023] 1 WLR 751 (17.10.22, Chamberlain J); R(Wynne) v SSJ [2023] EWHC 1111 (Admin) (11.5.23, Steyn J); R(Green) v SSJ [2023] EWHC 1211 (Admin) (22.5.23, Sir Ross Cranston); R(Zenshen) v SSJ [2023] EWHC 2279 (Admin) (15.9.23, Dexter Dias KC); R(McKoy) v SSJ [2023] EWHC 3047 (Admin) (1.12.23, UTJ Elizabeth Cooke); R(Overton) v SSJ [2023] EWHC 3071 (Admin) (7.12.23, Eyre J); R(Sneddon) v SSJ [2024] 1 WLR 1894 (21.12.23); R(Oakley No.2) v SSJ [2024] EWHC 292 (Admin) (14.2.24, HHJ Keyser KC); R(Cain) v SSJ [2024] EWHC 426 (Admin) (29.2.24, Calver J); R(Uddin) v SSJ [2024] EWHC 696 (Admin) (27.3.24, HHJ Walden-Smith); and R(McPhee) v SSJ [2024] EWHC 1247 (Admin) (23.5.24, HHJ Keyser KC). I can also add these two more recent cases: R(Valentine) v SSJ [2024] EWHC 1534 (Admin) (20.6.24, HHJ Carmel Wall); and R(Hahn) v SSJ [2024] EWHC 1559 (Admin) (24.6.24, Eyre J). In recent cases this Court has been made aware of the fact that appeals in Sneddon and Oakley (No.2) mean those cases are heading for authoritative resolution at higher judicial altitude."
a. Firstly, as Eyre J said in R(Hahn), which Parole Board Directions apply to its decision and which version of the GPPPF applies to the Defendant's decision are important. Building on analyses of Eyre J in R(Hahn) and Fordham J in R(Sneddon), I will summarise their 'genealogy': the crucial changes under Parole Board Directions and the GPPPF and predecesssors since 2012 and the cases in Fordham J's list in R(Carrigan) relevant to each. That will guide me to which authorities are of relevance here to the Defendant's decision under the 2023 GPPPF rejecting the Parole Board's recommendation (or to use the concept in statute - s.239(2) Criminal Justice Act 2003 - its 'advice') decided under the Parole Board's 2022 Directions.
b. Secondly, the difficulty with the sheer volume and pace of the case-law in this field is that inevitably, some get missed. Even Fordham J's invaluable review of the authorities in R(Carrigan) understandably did not include R(Draper) the day before, or R(O'Dell) v SSJ [2023] EWHC 899, a decision of HHJ Wall from April 2023, which does not appear on Westlaw or BAILII but was cited to me, as was R(Swellings) v SSJ [2024] EWHC 771 (Admin) from HHJ Simon in April 2024 (for fear of parochialism, the latter both Birmingham cases). Indeed, R(O'Dell) was not cited in but is relevant to Fordham J's analysis of R(Kumar) in R(Sneddon); itself argued on 7th December 2023: the day Eyre J handed down his judgment in R(Overton), so understandably neither cited the other. This perhaps explains why in other cases, Counsel have cited them as rival authorities when in fact, as Eyre J explained in R(Hahn), they related to different versions of the GPPPF. Furthermore, R(Hahn), R(Overton) and indeed R(Swellings) illustrate how rationality and reasons challenges can overlap, as they do in the present case.
c. Thirdly, as Chamberlain J said in R(Oakley No.1) at [51]: 'it is important to identify with precision the conclusions or propositions with which the Secretary of State disagrees'. I have underlined that phrase because this applies not just to individual Parole Board propositions or findings e.g. 'findings of fact' and 'evaluations of risk'. In R(Oakley No.1), in what Tan and Graham in their article call 'a quiet revolution', Chamberlain J rejected that binary distinction in the expertise of the Parole Board and Defendant in favour of a general one between issues on which the Parole Board does or does not enjoy a 'particular advantage' over the Defendant, which I discuss by reference to Turner J's summary in R(Draper). I will try to link that to the particular policy criteria being applied, especially under GPPPF 2023 and the 'wholly persuasive case' criterion central on which the Parole Board expresses no view. That is the position in this present case, so the 'wholly persuasive case' criterion is crucial, as it was in another case on GPPPF 2023, R(Valentine) (but it was not in the other case on it R(Williams)).
In this judgment, after setting out the factual background and details of the relevant decisions, followed by the law (including the statutory framework, policy iterations, principles in the authorities, 'internal disagreement' and 'wholly persuasive case') I will turn to my conclusions and finally a postscript.
Factual Background and Decisions
"This does not mean you will be released [probably: at that time]. You would only be released if the Parole Board thought it safe to release you."
"7.7 When considering Mr Allen's abscond risk, I have reviewed the push and pull factors associated with absconds from open conditions and conclude [he] is not at an increased risk of absconding in open conditions.
7.8. With the new open test, I have reviewed whether a progressive move to open conditions would be essential for Mr Allen. Whilst not making a comment on whether it is essential for Mr Allen to progress to open conditions I note that progression to open conditions is his sole progression route given he is pre-tariff. Mr Allen has completed all his core risk reduction work and has appropriately engaged in further treatment work throughout his sentence. Further treatment is unlikely to see a measurable reduction in his future risk of violence. He is an Enhanced IEP status prisoner and progression to open conditions could allow professionals to strengthen aspects of his risk management plan, through RoTLs [release on temporary leave], ahead of his eventual release into the community. The RoTL scheme could help to mitigate future risk whilst allowing Mr Allen to test his communication skills, perspective taking, and emotional control, in new situations whilst maintaining the support of professionals in a custodial environment.
[And in the Executive Summary] In my opinion the treatment Mr Allen has completed to date has been sufficient in addressing the risk factors, and it is unlikely that additional programme work would result in any further risk reduction. He should continue to seek support from professionals to consolidate his learning from the Enhanced Thinking Skills (ETS) programme through engagement with his Prison Offender Manager (POM), chaplain, and the Belong charity [his mentor]."
"It is my assessment as noted within my previous reports that Mr Allen is ready for a move to open conditions. In my assessment there is no further core risk reduction work for him to complete in closed conditions. I have discussed open prisons with Mr Allen, and he would like to be close to family to work on rebuilding family ties after a long time in custody and access an establishment he can achieve the education, training and employment (ETE) goals he has set for himself…Regarding abscond risk I assess this to be low. Mr Allen has attended various hospital appointments and no behavioural concerns have been raised. I have no evidence at this time to suggest he is at risk of abscond….
In my assessment given..Mr Allen has been in custody from a young age a move to open conditions is necessary prior to release for him to be tested in a less restrictive environment and for Mr Allen to further evidence use of learning and skills to effectively manage his risk. Time in open conditions will provide an opportunity to monitor Mr Allen in an environment where he can test and evidence his internal and external protective factors…."
The Claimant's mentor also strongly supported his transfer to open conditions:
"Sean has made such noticeable progress, he's clearly matured a lot and has a real and true understanding of the impact of his index offence. Sean has clear focus and knows the consequences of his actions which helps him manage his emotions well under some very testing circumstances."
"2.10 The POM had worked with Mr Allen from November 2020, and she identified some changes, including a more positive attitude, development of good insight into his thinking, behaviours, and the impact of them; no longer being easily influenced and led, but being more mature and assertive; improved engagement with the regime; good reports from work; and behavioural compliance. She noted he can still struggle when he perceives staff inconsistency, or… does not believe the rules or procedures are being properly applied and whilst he can still express frustrations, he is better able to address his concerns through appropriately assertive communication.
2.11 The psychologist noted that there had been a stepping-down of anti-authority behaviours (with much less frequent 'push-backs'); increasing maturity; and that he had become more assertive.
2.12 Having been in custody for around 16 years…Mr Allen is somewhat institutionalised..[F]ollowing the death of his grandfather [h]e had utilised support from his keyworker, POM, and the Chaplaincy; and his behaviour had not deteriorated during that difficult period.
2.13 Professionals identify a reduction in risk through the completion of interventions; evidence of pro-social engagement in the regime; positive peer, and increasingly positive and more mature professional relationships; no recent aggressive or violent conduct; and no substantiated indications of involvement with alcohol; or recent misuse of drugs (he admits he has misused cannabis [in prison], but last did so more than 12 months [ago]…
3.2 Professionals recognise that he has come to view himself as increasingly prosocial, and professionals now identify him as behaviourally compliant.
3.3 From their reports…and evidence at the hearing….the psychologist and both the prison and community offender managers identified that a gradual approach to release should be taken through open conditions. This was to enable testing, consolidation of skills, manageability and compliance, the development of a resettlement plan and re-establishing family/pro-social relationships, and to test the risk management plan."
"3.5 Mr Allen has support in the community from family members. He is keen to demonstrate to his mother and other family members that he has changed….[A]side from his grandparents Mr Allen has no cause to return to the London area and risk meeting criminal associates from his past….
3.8 Because of the nature of the index offending, and the lack of testing of the associated relevant risk factors, the panel identifies that Mr Allen poses a risk. The panel also accepts that serious offending could occur, but was unlikely to be imminent. The panel was persuaded by the evidence of the need for testing outside closed prison conditions.
3.9…[Mr Allen] is assessed by Probation as a low risk of serious recidivism (RSR) [and] medium risk of serious harm to the public. The panel considers these assessments reflect his (very limited) offending history, and his identified risk factors. Consequently the panel accepted these assessments..
4.2 Mr Allen is still pre-tariff, and will not be eligible to be released before 15 November 2024. The panel carefully considered the evidence offered by Mr Allen, and the evidence from the psychologist, the POM, and the COM. The panel was persuaded by the progress made, and the need for Mr Allen to undertake some testing, in custody, in less secure conditions.
4.3 The panel recognises Mr Allen's improved general behavioural compliance, but is concerned that he needs to be tested; and to ensure that the identified risk factors are known and understood; and that other risk factors do not emerge…..
4.4.3.1 Each of the professional witnesses gave evidence…that, a period in open conditions was essential….to inform future decisions about release. All were of the opinion release could not be supported until Mr Allen had provided evidence from testing within an environment or lesser security and greater responsibility and freedom including periods within the community, showing he could apply learning and skills, in a less restricted environment.
4.4.3.3…..[I]f Mr Allen was directly released without a period within open prison conditions he could be overwhelmed, and experience difficulties in coping. The professional witnesses agreed from his perspective, a successful period in open conditions was essential as precursor to release.
4.4.3.4 The panel reached the clear conclusion from the evidence of the professionals and Mr Allen that, a period in open conditions was essential to enable the professionals to develop a sustainable risk management plan capable of supporting his release. The panel also concluded that a period in open was essential to provide Mr Allen with the experience of being in the community, with the safety and support of open prison conditions, in order for him to build a sound and sustainable plan for release.
4.4.3.5 After careful analysis the panel reached the clear conclusion that Mr Allen has made sufficient progress in addressing his risk and reducing it sufficiently to protect the public from harm in circumstances where he may be released into the community unsupervised on temporary licence…..
The panel further concluded from the clear evidence in the case that a period in open conditions was essential both in order to provide the professionals with evidence that they need to best inform the risk management plan before he can be released, and to enable Mr Allen to prepare himself for release. The panel was satisfied that Mr Allen presents a minimal risk of absconding if he were transferred into open conditions….
4.5 The panel identified that by his behavioural compliance and the completion of appropriate accredited and non-accredited interventions, Mr Allen had demonstrated sufficient reduction in risk; and that he was likely to comply in conditions of lesser security. The panel identified that there were clear needs and benefits from a public protection perspective of him being tested in open prison conditions. This would enable risk factors to be confirmed and tested; and would enable any concerns around alcohol or drugs, behaviours and thinking skills to be tested in conditions of lesser security and lower supervision. There are also personal benefits from such testing, a gradual transition to the community, and the building of family ties and a pro-social network.
4.6 Consequently, the panel now assess that Mr Allen's risks are such that a progressive move to open prison conditions is appropriate. This will enable him to develop pro-social networks, build and test family relationships, test temptation from alcohol (and drugs), test compliance and manageability, and the effectiveness of the risk management plan. The panel recommends to the Secretary of State that Mr Allen progresses to open prison conditions." (Original bold).
"From their reports prior to the hearing and their evidence at [it]. it was evident that the witnesses identified that a gradual approach to release should be taken through open conditions. This was to enable testing, consolidation of skills, manageability and compliance, the development of a resettlement plan and re-establishing family/pro-social relationships, and to test the risk management plan."
"Criteria 3: there is a wholly persuasive case for transferring the ISP from closed to open conditions.
Mr Allen has been in custody since the age of 19 and has done most of his growing up and emotional development in custody. He has completed all core risk reduction work that is considered necessary to manage his risk. There are no behavioural concerns, and he is enhanced on the IEP scheme. Mr Allen has support in the community from family members. He is keen to demonstrate to his mother and other family members that he has changed.
All professionals feel that a period in open is essential to inform future decision on release. It would also allow development of a robust risk management plan and work towards release. The panel considered that were Mr Allen to be released without a period within open prison conditions he could be overwhelmed and experience difficulties in coping. The professional witnesses agreed that a successful period in open conditions was essential as a precursor to release.
Mr Allen's tariff expires in November 2024, meaning that should he transfer to open conditions, he would have approximately 16 months to demonstrate continued compliance with the regime, evidence the skills he has learned in a less secure environment, develop relationships with professionals and test personal relationships under temporary licence. He has been in custody for a significant period of his life and a gradual integration would be of benefit to him. From the information available to me, I am content that there is a wholly persuasive case for transferring Mr Allen to open conditions at this stage.
Summary
Having reviewed the information available to me, for the reasons set out above, I am satisfied that the test for open conditions has been met. Therefore, I recommend that the Parole Board's recommendation to transfer Mr Allen is accepted."
"Mr Allen has worked positively with a mentor and will continue to do so throughout his sentence. He has evidenced developing maturity and has been increasingly settled and compliant over recent years.
Despite having completed interventions, in 2017 Mr Allen assaulted an instructor by 'pushing him back' and in 2019 he was adjudicated for assaulting a prison officer. The one-to-one work completed in 2021 was aimed at addressing this behaviour and reports state that he has evidenced developing maturity and has been increasingly settled and compliant over recent years. Report writers evidence a reduction in risk through 'the completion of interventions, evidence of pro-social engagement in the regime, positive peer and increasingly positive more mature professional relationships, no recent aggressive or violent conduct and no substantiated indications of involvement with alcohol or recent misuse of drugs.
I agree that the ['sufficient progress'] criteria has been met, as Mr Allen has evidenced progress in addressing and reducing risk, specifically, in the last couple of years. However, it is noted that there were still risk-related concerns after he had completed the majority of interventions.
There is no information to suggest that Mr Allen poses a risk of abscond and therefore, I agree that this criteria has been met."
However, Ms Whyte went on to disagree with Mr Bainbridge on the 'wholly persuasive case' criterion, in this analysis repeated in full in the decision-letter:
"The decision details that throughout Mr Allen's sentence, he has accrued 30 proven adjudications and a significant volume of concerning intelligence, particularly relating to involvement with drugs and negative attitude to prison staff. His last adjudication was in July 2021 for cutting his television speaker wires. He admitted to the panel that he has had three mobile phones throughout his sentence. Positively, he achieved Enhanced Status on the IEP scheme in May 2020.
The COM noted that he can still struggle when he perceives staff inconsistency, or when he does not believe the rules or procedures are being properly applied and, whilst he can still express frustrations, he is better able to address his concerns through appropriately assertive communication. The psychologist noted that there had been a stepping-down of anti-authority behaviours (with much less frequent 'push-backs'); increasing maturity; and that he had become more assertive. This demonstrates positive progress and would indicate that the engagement with his mentor continues to help him.
Mr Allen is pre-tariff, with his tariff expiring in November 2024. He has been in custody since he was 19 years old and there is the potential that he has become institutionalised. In my assessment, whilst he is pre-tariff, he can continue to develop his emotional management and coping skills whilst in the security of closed conditions. He should evidence a further period whereby he can comply with the prison regime and rules, instances of emotional management, asking for support and positive custodial behaviour.
I agree that given the length of time Mr Allen has spent in custody, a gradual reintegration into the community would be beneficial to him. However, based on the rationale above, I do not conclude that there is a wholly persuasive case for transferring Mr Allen to open conditions at this stage."
"Ordinarily, a rejection would not be sent to you as I have been delegated to make that decision. However, as we are early into the process, I wanted to run this case by you as, having discussed it with Ian [Ian York, the Head of Public Protection Casework Section], I have disagreed with Daniel's recommendation and have concluded that we should reject the Parole Board's recommendation for the reasons outlined in the proforma. I would like to check you are content with this decision before the letter is issued."
In response to that apparently clear email, Mr Davison asked for a copy of the proforma and then at 9.11am on 26th July, he gave an apparently clear answer:
"Thank you, Julia. This is one of the more clearcut cases, with strong evidence that Mr Allen's risk has reduced to a level commensurate with being held in open conditions and that his risk of abscond is low. I see nothing which might lead me to question whether there is a wholly persuasive case for transferring Mr Allen to open conditions. I approve the Board's recommendations. Regards, Gordon."
However, Ms Whyte did not take no for an answer and responded at 9.21 am:
"Apologies, I just want to double check so I can advise the case manager in drafting the decision letter. Having discussed this case with Ian, I had recommended it was rejected based on there not being a wholly persuasive case, whereas Daniel had recommended it was accepted. I found this to be finely-balanced case but based my decision on the number of adjudications (last one in 2021), him being pre-tariff and the COM confirming he still struggles with boundaries and managing frustrations. Apologies if you had considered all of this already, I just wanted to make sure. Thanks, Julia."
Just over half-an-hour later at 9.57 am, Mr Davison performed a volte-face:
"I think I must have replied to the wrong case ! Sorry, I have just re-read the analysis and I can see that his passage has been difficult and he is pre-tariff. I agree that we should reject the Board's recommendation…."
"In terms of the decision in principle, issues of re-categorisation are for the Defendant, and therefore, the decision is one that is open to it to make. However, simply because the decision is one that can be made, that decision must still be justified and reasoned so that it is reasonable. The position in my opinion is a clear 'unreasonable departure' from the decision of the Parole Board and is therefore irrational."
As the three-month deadline in CPR 54.4 was close, the Claimant's solicitors issued this claim on 20th October 2023. In the Statement of Facts and Grounds drafted by Mr Buckley who appears for the Claimant, the only ground of challenge is irrationality, but in terms overlapping with insufficient reasons:
"The established line of authority is clear….the Defendant does not have to follow the recommendation, it can take any decision it wants to take, but that does not mean that [it] is not obligated to justify why it is departing from the recommendation. It is on this point that the Defendant has failed in that no justification has been provided, the Defendant has entirely failed to engage with the decision of the Parole Board and say why there is a divergence of position, over and above listing certain facts and certain findings made. For the impugned decision to stand, it is submitted that there must be a relevant level of justification given as to why that different conclusion has been reached, and justification as to why the findings of the Parole Board have been rejected. It is submitted to not be enough to simply find that they have been so rejected, particularly where the Defendant accepts, seemingly in principle that "given the length of time you have spent in custody, a gradual reintegration into the community would be beneficial to you." Further…the Defendant has not rejected the recommendation on the basis of the first criterion and therefore, this is deemed to have been satisfied: 'the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community'. Accordingly, the impugned decision is not one that has been taken on the basis of risk and its manageability within the Open Estate….. In sum, the Defendant has failed to articulate why, with sufficient clarity, the decision of the Parole Board has been rejected."
The Summary Grounds of Defence of 15th November 2023 are in similar terms to its Detailed Grounds of 24th May 2024, neither drafted by Mr Evans, (the latter with a statement from Ms Whyte). Each Defence made three points. Firstly, the Decision accepted the Parole Board's findings of fact but disagreed on the 'wholly persuasive case' criterion the Board correctly did not consider. Secondly, the Decision adequately justified any departure from the Parole Board's decision. Thirdly, the Claimant's criticisms of the Decision were simply disagreement with it. Despite that, on 23rd April 2024 HHJ Rawlings granted permission on the basis: 'It is arguable the Defendant has given insufficient reasons for departing from the Parole Board's recommendation'. Counsel agree that there is a substantial overlap between rationality and reasons in the law in this field, to which I now turn.
Law
Stable Statute: The Legislative Framework
"As soon as— (a) a life prisoner to whom this section applies has served the relevant part of his sentence [i.e. the tariff]; and (b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence." (my bold)
By contrast, the respective roles of Parole Board and Secretary of State with re-categorisation of Life Sentence prisoners is quite different, as illustrated by s.239 Criminal Justice Act 2003 ('CJA') (my bold):
"(1) The Parole Board is….a body corporate and as such is…(b) to have the functions conferred on it by this Chapter in respect of fixed-term prisoners and by [s.28] of the [1997 Act] in respect of life prisoners….
(2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners…
(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under [s.28] 1997 Act; and in giving any such directions the Secretary of State must have regard to— (a) the need to protect the public from serious harm from offenders, and (b) the desirability of preventing the commission by them of further offences and securing their rehabilitation."
So, whilst the Defendant under s.28 of the 1997 Act must release a Life Prisoner if the Parole Board directs it, under s.239(2) CJA 2003, the Parole Board only advises the Defendant on 'matters to do with early release of Life Prisoners', which includes re-categorisation from closed to open prison conditions before release.
"[Prisoners]…shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and [for] convicted prisoners, furthering the purpose of their training and treatment."
As Ms Whyte explains in her statement, there are four categories of prison for adult male prisoners in descending order of security: A, B, C and D. Categories A-C are 'closed' prisons without (at least supervised) access to the community. By contrast, Category D 'open prisons' enable prisoners, subject to proof of suitably sufficient reduction of risk, to be eligible for time in the community (Release on Temporary Licence or 'ROTL') in preparation for release on licence.
Changing Policy: Secretary of State Policies and Directions 2012-2023
"The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are: [either] the panel's decision is inaccurate [or] the panel have acted irrationally, for example by recommending transfer to open conditions when most of the reports and especially the offender manager's report and psychologist report favour retention in closed conditions."
"As a general matter, it is not irrational or unfair to expect the Board to comply with Directions issued to it while at the same time the Secretary of State promulgates and follows his own distinct policy as to how he will exercise his own statutory discretion whether to transfer a prisoner to open conditions, taking due account of whatever the Board might say."
Therefore, if there is a 'transitional mismatch' between the iteration of the Directions which the Parole Board applies in recommending open conditions and the version of the policy in force at the time of the Defendant's decision, it is entirely lawful to apply the latter. That was the approach taken recently on a mismatch between 2022 Parole Board Directions and GPPPF 2023 in R(Valentine) and R(Williams). Mr Buckley accepted – indeed submitted - it was correct and I agree.
"The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are that the panel's recommendation: either goes against the clear recommendations of report writers without providing a sufficient explanation as to why; or is based on inaccurate information. The Secretary of State may also reject a Parole Board Recommendation where he does not consider there is a wholly persuasive case for transferring the prisoner to open conditions at this time."
As Fordham J explained in R(Sneddon) at [8] (as augmented by his analysis in R(Carrigan) at [46]), para 6.4 PSI 22/2015 did three relevant things. Firstly, it kept the structure of PSI 36/2012 in that the 'default position' was that the Defendant would follow the Parole Board's recommendation except within 'very limited parameters'. Secondly, it re-wrote the two exceptions in para 6.5 PSI 36/2012: one turned from 'the panel's decision is inaccurate' to 'the recommendation is based on inaccurate information'; the other turned from 'the panel have acted irrationally' 'for example' by going against the recommendation of 'most of the report writers and especially the POM and psychologist' to the Parole Board went 'against clear recommendation of the report writers without sufficient explanation why'. Thirdly, this slight tightening of the two existing exceptions was counter-balanced by a new third exception if the Defendant did 'not consider that there is a wholly persuasive case for transfer to open conditions at this time'. This was the genesis of the criterion in issue in this case and I return to the analysis of it in R(Kumar) in February 2019 as it is relevant to interpretation of the 'wholly persuasive case' criterion here.
"5.8.2 PPCS may consider rejecting the Parole Board's recommendation if the following criteria are met: The panel's recommendation goes against the clear recommendation of report writers without providing a sufficient explanation as to why; or, the panel's recommendation is based on inaccurate information.
5.8.3 The Secretary of State may also reject a Parole Board recommendation if it is considered there is not a wholly persuasive case for transferring the prisoner to open conditions at this time."
Cases decided under GPPPF 2020 include R(Stephens) decided by Whipple J (as she then was) and R(John) decided by Ms Williams QC (as she then was). Deletion of 'very limited parameters', which Fordham J in R(Sneddon) at [9] later suggested had not made any difference, was not discussed in R(Stephens) or R(John) and not suggested to change the test by the Defendant before Steyn J in R(Wynne) ([46])
"The Secretary of State (or an official with delegated responsibility) will accept a recommendation from the Parole Board (approve an ISP for open conditions) only where: [i] the prisoner is assessed as low risk of abscond; and [ii] a period in open conditions is considered essential to inform future decisions about release and to prepare for possible release on licence into the community; and [iii] a transfer to open conditions would not undermine public confidence in the Criminal Justice System." (my bold).
A month earlier (I take the dates from R(Draper) at [12]-[13]), the Defendant issued new statutory Directions to the Parole Board, which innovated by first setting out the test which the Defendant would apply then this test for this Board (applied here):
"2. Before recommending the transfer of an [Indeterminate Sentence Prisoner i.e.] ISP to open conditions, the Parole Board must consider:- (i) all information before it, including any written or oral evidence obtained by the Board; (ii) the extent to which the ISP has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the ISP in open conditions may be in the community, unsupervised, under licensed temporary release; (iii) whether the following [two] criteria are met: • the prisoner is assessed as low risk of abscond; and • a period in open conditions is considered essential to inform future decisions about release and to prepare for possible release on licence into the community.
3. The Parole Board must only recommend a move to open conditions where it is satisfied that the two criteria (as described at 2(iii)) are met."
a. Firstly, what Eyre J in R(Hahn) at [30] called 'the default position' changed - from GPPPF 2021 where the Defendant could only reject a Parole Board recommendation for transfer if certain conditions were satisfied; to one in GPPPF 2022 where it could only accept it if certain conditions were satisfied - what Fordham J in R(Carrigan) at [46] called 'policy-reorientation'.
b. Secondly - and due to that - the Defendant's conditions for rejection changed substantially from what I have called 'threshold failings' in the Parole Board decision (inaccurate information, contrary to recommendations, 'not wholly persuasive') in GPPPF 2021 to what may be called 'threshold requirements' for transfer for both the Parole Board under its 2022 Directions and then the Defendant under GPPPF 2022: the 'absconding' and 'essential' criteria.
i. 'The absconding criterion' derives from 'the absconder policy' in R(Gilbert) which is reflected in the continuing need for 'exceptional circumstances' if there is a previous absconding as there. But the 2022 'absconding criterion' is wider, including evidence of escape attempts and risk of escape as in R(Zenshen) under GPPPF 2022.
ii. 'The essential criterion' was explained by Eyre J in R(Overton) at [33]-[34] as not simply meaning it would be 'essential' for the ISP to be in open conditions at some point, as it was rare for ISPs to be released from closed conditions, so the need for further work was also relevant. In R(Cain) at [65], Calver J suggested 'the essential criterion' could not be met if the further work could be done just as easily in closed as open conditions. In R(Carrigan) at [14]-[30], Fordham J analysed 'the essential criterion' as meaning a move to open conditions is essential 'at this time'. 'The essential criterion' was also considered in R(Draper) and linked to the approach of Steyn J to 'no wholly persuasive case' in R(Wynne) - I return to that.
c. Thirdly, para. 5.8.2 GPPPF 2022 added a third cumulative 'threshold requirement' that only the Defendant considered, not the Parole Board – 'the public confidence' criterion. The suggestion in R(Zenshen) at [79] that 'it added nothing' (albeit made after GPPPF 2023 was in force and removed the criterion) has not found favour. In R(Uddin) at [52]-[54], HHJ Walden-Smith suggested that 'public confidence' was an issue of judgment for the Defendant alone. That is also how Eyre J in R(Overton) at [42]-[43] approached it - indeed Mr Buckley (also for the Claimant there) accepted the Parole Board went beyond its remit in even expressing a view about it.
"The Secretary of State (or an official with delegated responsibility) will accept a recommendation from the Parole Board ([to] approve an ISP for open conditions) only where: [i] the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm…; and [ii] the prisoner is assessed as low risk of abscond; and [iii] there is a wholly persuasive case for transferring the ISP from closed to open conditions." (my numerals).
As noted above, the decision in this case on 31st July 2023 was one of the first open condition decisions by the Defendant under GPPPF 2023, between it coming into force on 17th July and the day before the implementation on 1st August 2023 of new statutory Directions to the Parole Board, which stated para 5.8.2 GPPPF 2023 then:
"2. Before recommending the transfer of an ISP to open conditions, the Parole Board must consider i. all information before it, including any written or oral evidence obtained by the Board; ii. whether the following criteria are met: - the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community, unsupervised under licensed temporary release); and - the prisoner is assessed as presenting a low risk of abscond.
3. The Parole Board must recommend a move to open conditions only where it is satisfied that the two criteria (as described at 2(ii)) are met."
In the present case, even though the Parole Board had made its recommendation under the 2022 Directions on the 'absconding' and 'essential' criteria and so there was what I have called a 'transitional mismatch' between its decision criteria and the new policy the Defendant applied, that is perfectly lawful given R(Gilbert). Indeed, Mr Buckley candidly accepted (consistent with the Prison Reform Trust blog) that the 2023 criteria are rather less strict than the 2022 ones. The 'absconding criteria' is the same and in R(Williams), Mr Mercer KC went back to R(Gilbert) in analysing it, albeit not concerned with 'exceptional circumstances'. R(Valentine) is closer to this case and considers the return of the 'wholly persuasive case' criterion I consider below. Those seem to be the only other two cases so far on GPPPF 2023.
"There has not simply been a reversal of the default position but rather the criteria to be considered are different. In light of that, it is not surprising that the approach to be taken by the court to those different considerations has been expressed in different terms. Moreover, judgments articulating the approach to be taken when considering the rationality of decisions taken under one version of the GPPPF are of no more than limited assistance in determining the approach to be taken to assessing the rationality of decisions taken under a different version."
Perhaps inevitably, there is not even judicial unanimity on this question, as Fordham J expressed a different – although not irreconcilable – view in R(Carrigan) at [58]:
"I accept of course that the SSJ enjoys a latitude in the shaping of statutory directions and policy guidance. I would not, however, accept that the public law significance – for the SSJ's duty to act reasonably – of the Board's assessments is no more and no less than whatever policy or statutory directions have been promulgated by the SSJ. If policy guidance said the SSJ could 'disagree' with the Board, public law would I think read-in 'provided that the SSJ acts reasonably'…. I do not think, in conferring the statutory power to make statutory directions, Parliament is to be taken as permitting abrogation of the basic common law duties of reasonableness and legally adequate reasons. None of the changes in the statutory directions or policy guidance have, moreover, purported to abrogate those duties."
Stable Principles: Authorities on rationality and reasons in 'open conditions' cases
"The Secretary of State has the relevant discretion whether to transfer a prisoner to open conditions…[H]e has a discretion whether to seek advice from the Board… [E]ven if he seeks its advice, he is not bound to follow that advice provided there is sufficient good reason not to do so."
"The Secretary of State, department and agencies are also experts in management of prisoners in the prison estate, including assessing prisoner risk when…relevant to the wide range of decisions which such management may involve. The statutory regime recognises this. They do not require input from the Board for every decision they have to make, including those in relation to which prisoner risk may be a significant factor."
In R(Kumar) at [10], Andrews LJ referred to another decision of Sales LJ as he was in R(Hassett) v SSJ [2017] 1 WLR 4750 (CA) also emphasising this expertise of the Defendant on re-categorisation within the closed prison estate, where the Parole Board are not involved at all. (R(Hassett) was followed in a case this summer: R(Clarke) v SSJ [2024] EWCA Civ 861). In short, the Secretary of State routinely makes decisions about re-categorisation with or without the Parole Board. The key reason advice is obtained in ISP cases is because under s.28 of the 1997 Act, it will be the Parole Board who will eventually decide on release and transfer to open conditions is preparation for that: see R(Overton) at [33]. As Fordham J pointed out in R(Carrigan) at [50], this was consistent in the authorities even before R(Gilbert).
"The [Defendant] is entitled not to accept [the Board's] recommendation provided he acts rationally in doing so…R (Wilmot)…[But] in some cases where the Parole Board has reached a view on some point which is the same as a point which the Secretary of State has to consider and the Board is better placed to make an assessment (e.g. it finds a relevant fact after hearing oral evidence from witnesses), it might well be difficult for the Secretary of State to show that it is rational for him to take a different view."
"...What [the Defendant] must demonstrate is a genuine engagement with the material factors that arise in the case of the individual prisoner…" serving an indeterminate sentence. He can reach a different decision to the Panel. But his basis for departure must be rational and properly justified."
"Common law reasonableness is the controlling legal standard for deciding in the context and circumstances of the case whether the SSJ has accorded the required weight to the panel's recommendation and assessment…The SSJ may reject the Parole Board's reasoned recommendation, provided only that doing so has a reasonable [or] rational basis…There can be no substitution of the views of a civil servant for the views of the Parole Board without reasonable justification."
"It is self-evident [the Defendant] should and would accord weight to the recommendation of the Parole Board. However, the weight…must depend on the matters in issue, the type of hearing before the panel, its findings and the nature of the assessment of risk it had to make."
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved."
However, in this field, reasons and rationality entwine, as shown in the last point.
"i. the Secretary of State must accord weight to the Parole Board's recommendations, although the weight to be given depends on the matters in issue, the type of hearing before the panel, its findings and the nature of the assessment of risk it had to make;
ii. on matters in respect of which the Parole Board enjoys a particular advantage over the Secretary of State (such as fact finding), he must give clear, cogent, and convincing reasons for departing from these;
iii. with other matters (such as assessment of risk), where the Secretary of State is exercising an evaluative judgment, he must accord appropriate respect to the view of the Parole Board and still give reasons for departing from it, but he can only be challenged on conventional public law grounds."
Indeed, when discussing R(Oakley No.1) in R(Overton) at [30], Eyre J went further:
"[T]here is not a bright line distinction between matters of fact on the one hand and assessments of risk or judgements as to public interest on the other. Rather there is a continuum. The Secretary of State is free to differ from the Parole Board in relation to a matter at any point on the continuum. However, the more intensely connected with determination of past matters of fact the issue is, then the more cogent and detailed will be the reasoning which will need to be shown to demonstrate that the Secretary of State has properly considered the point and that he has properly taken account of such advantages as the Parole Board had in determining the point. Conversely the more predictive and/or policy/public interest related the issue then the less intense the reasoning required will have to be though reasoning there will still need to be."
I very respectfully wholeheartedly agree with this analysis, which also leads back to a point Fordham J raised in R(Sneddon): whether 'reasoned disagreement' is enough for the Defendant to depart from the Parole Board's recommendation. In R(Sneddon) at [30]-[31] and R(Carrigan) at [48]-[49], Fordham J suggested that 'reasoned disagreement' would ignore that R(Oakley No.1) showed for some issues disagreement required 'very good reasons' rather than just 'adequate reasons'. That would certainly be true of 'barely reasoned disagreement'. However, as Fordham J went on to note in R(Carrigan) at [55]-[56], Sales LJ in R(Gilbert) at [73] (quoted above) had adopted a test of 'sufficiently good reason' not to follow the Board's advice. If one applies R(Gilbert) to Eyre J's 'continuum' in R(Overton), any binary distinction in the principle resolves into one of 'sufficiently reasoned disagreement' - which will, as ever, depend on the particular facts and point of disagreement.
Changing Minds: 'Internal Disagreement' within the 'Secretary of State'
a. Firstly, whilst it does not arise in the present case, para.5.8.4 GPPPF 2023 assigns the Head of Public Protection Group (currently Mr Davison) as 'the decision-maker' for re-categorisation of a Category A prisoner whom the Parole Board has recommended for open conditions (and requires him to consult another official). So, if the decision-maker were someone else, that could offend 'the Carltona principle' and without good reasons an unlawful breach of policy (see R(Lumba) v SSHD [2012] 1 AC 245 (SC) at [26]).
b. Secondly though, I accept Mr Evans' submission that para.5.8.2 GPPPF 2023 simply states 'The Secretary of State (or an official with delegated responsibility)' will make the decision. Outside of Category A prisoners in para 5.8.4, a particular post-holder is not required to do so. Provided the decision maker has internal 'delegated responsibility', 'the Carltona principle' applies. (On her evidence, Ms Whyte did and indeed, she described herself to Mr Davison at the time as 'the delegate'). Moreover, whilst a decision-maker must justify disagreement with the Parole Board as discussed above, I accept that they do not have to justify their disagreement with their colleagues, nor should the Court be dragged into weighing the respective personal expertise or seniority of any disagreeing officials.
c. Thirdly, I accept the mere fact of 'internal disagreement' does not in itself vitiate or even necessarily weaken a final decision. After all, as noted above with R(Draper) point (vii) in R(Overton) at [28], Eyre J said:
"In many cases it will be possible for different persons rationally to take different views (sometimes radically different views) as to the same assessments. This will be particularly so in the case of assessments as to the level of future risk; as to the acceptability of a particular level of risk; and as to the appropriate way forward for a particular prisoner. These are matters of judgement and in many cases they will turn on the view taken as to the likelihood of a number of future events: a matter as to which there will very rarely if ever be a single unquestionably correct answer."
As Mr Evans said, if true of differences of opinion between the Defendant and the Parole Board, there is no reason why it should not apply to differences of opinion between officials within the Ministry of Justice.
d. Fourthly though, in analysing 'the decision' under challenge, it is legitimate not only for the Defendant, but also the Claimant, to rely on the proforma. Whilst Eyre J in R(Overton) at [23] was wary of allowing the Defendant to rely on the proforma to bolster the reasoning in the decision letter, he accepted it pre-dated the decision, so it was not inadmissible retrospective justification (see R v Westminster CC exp Ermakov [1996] 2 All ER 302, noted by Steyn J in R(Wynne) at [55]). Moreover, in R(Valentine) at [98], HHJ Wall pointed out that in R(Overton), Eyre J was not referred to R(Electronic Collars Manufacturers Association) v Secretary of State for the Environment, Food and Rural Affairs [2021] EWCA Civ 666, where the Court of Appeal held at [95] it is perfectly permissible to construe a decision letter in the light of internal preparatory material to it (see also R(Williams) at [34]-[35]). However, that is a double-edged sword. A proforma may not only bolster the Defendant's reasons in the decision under challenge, it may reveal inconsistencies or omissions in it, and/or 'internal disagreement'.
e. Finally, whilst a decision-maker does not have to justify the fact of 'internal disagreement', nor does it intrinsically weaken the decision, there may be some cases where the subject of the internal disagreement is relevant and might require more detailed reasoning in the decision. In R(Wynne), whilst 'internal disagreement' was not relied on by Steyn J as relevant to rationality or reasons, nor did she see it as in principle irrelevant. She found the decision failed to give sufficient rational reasons to depart not only from the Parole Board's recommendation, but also from the unanimous views of the report-writers. I agree with Mr Buckley's submission that where there is unanimity among the report writers for open conditions that is recommended by the Parole Board and an expert official within the Defendant agrees, if the decision-maker disagrees, then their ordinary duty to give reasons as explained above (as opposed to anything like 'very good reasons' in a 'particular advantage' case on the R(Oakley)/R(Sneddon) approach) may require them to go into more detail. This is not more detail about the fact that a colleague disagrees, but more detail on the point on which they disagree with their colleague, the Parole Board and unanimous report writers. In other words, if a decision-maker knows they 'stand alone' on an issue, they may need to give more detailed reasons for their view about that issue.
'The Same, But Different': The Return of 'Wholly Persuasive Case' in GPPPF 2023
"The Secretary of State (or an official with delegated responsibility) will accept a recommendation from the Parole Board ([to] approve an ISP for open conditions) only where: [i] the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community, unsupervised under licensed temporary release); and [ii] the prisoner is assessed as low risk of abscond; and [iii] there is a wholly persuasive case for transferring the ISP from closed to open conditions."
a. 'Low risk of abscond' is perhaps the most self-explanatory of the criteria. However, it does not just apply to ISPs with 'a history or recent or repeated absconding'. As in R(Gilbert), there are bespoke 'exceptional circumstance' criteria for them to be only eligible for transfer to open conditions under para 5.8.5 and 5.8.6 GPPPF 2023 with 'compelling circumstances beyond control' 'absolute necessity' or 'manifest unfairness'. So, when the Parole Board and Defendant assess whether there is a 'low risk of abscond', the issue is not just whether there is an absconding history, but abscond risk more generally. Ultimately, on this issue, Mr Mercer KC concluded in R(Williams) on GPPPF 2023 at [26] that given R(Gilbert), the Parole Board does not generally have 'particular advantage' in assessing absconding risk.
b. 'Sufficient Progress', as is clear from its full statement, is not simply a comment on the ISP's progress in general, but specifically relates to the risk to the public from him being in the community on temporary release. As noted above, this has long been one of the factors the Parole Board had to consider in statutory Directions (but was not previously a 'threshold requirement'). In the Directions applying in R(Oakley) and R(Sneddon), its near-equivalent was para.7(a) and indeed both considered it specifically:
i. In R(Oakley) at [50]/[55], Chamberlain J said 'sufficient progress' was 'an evaluative question' linked to whether the prisoner 'could be safely managed in open conditions'. It was not just an evidential dispute, but a judgment about risk, balancing interests of the prisoner against the public. So, the Defendant only had to show 'appropriate respect' not 'very good reasons' to depart from the Parole Board.
ii. Likewise, in R(Sneddon) at [28(7)], following R(Oakley), Fordham J gave Direction 7(a) (i.e. the 'sufficient progress' factor as opposed to criterion as it was then) as an example of a question on which the Parole Board did not have 'particular advantage' over the Defendant.
In short, both the absconding' and 'sufficient progress' criteria are 'evaluative questions' which relate to the risks a prisoner poses in open conditions, especially on temporary release – i.e. the risk of absconding or the risk of harm to the public. So, unless those risk thresholds are met, a prisoner will not be eligible for open conditions, even if there is no more work that can be done in closed conditions (as in R(Oakley), or even if open conditions would be 'essential' to inform future decisions about release, although those factors are relevant to 'sufficient progress'.
"Bearing in mind [the 'not wholly persuasive case' criterion] follows an express acknowledgment of the 'very limited parameters' for departure from the recommendation of the Board, it is clear [its] purpose…is not to widen those parameters, but to preserve the ability of the Secretary of State...to exercise his discretion to reject a recommendation which does not strictly fall within either of the preceding grounds, but which appears to him (for good reason) to be unjustified or inadequately reasoned."
Yet it is important to point out that Andrews J was there not taking a literal interpretation to 'not wholly persuasive case', but a restrictive interpretation of that phrase given its then restrictive contextual setting within that policy with 'very limited parameters'. Nevertheless, even there, as HHJ Wall pointed out in O'Dell at [54]-[65], in R(Kumar) at [54], Andrews J expressly rejected the submission that the criterion as she had interpreted it was limited to cases where the Parole Board had committed Public Law error, indeed Andrews J added:
"The [Defendant] may lawfully disagree with the..Board's view ascrib[ing] different weight to material factors in the risk/benefit balancing exercise."
In R(Sneddon) at [26]-[27], Fordham J suggested that in [53] of R(Kumar), Andrews J had tried to steer a 'middle way' between the Parole Board's view being binding (it was not) and the Defendant being free to substitute its own judgment (which it could not). This and para.5.8.2 GPPPF 2021, then focussing on inaccurate information and insufficient explanations by the Parole Board, led Fordham J at [28(5)] of R(Sneddon) to focus on 'deficiencies' in the Board's decision falling short of Public Law error. It will be for the Court of Appeal to consider the meaning of GPPPF 2021. But, following the 'policy-reorientation' in GPPPF 2022 discussed above and the re-writing of the criteria again in para 5.8.2 GPPPF 2023, the focus is now clearly not 'deficiencies' in the Parole Board's decision (but they would obviously remain a 'good reason' to depart from it: as HHJ Wall found in R(Valentine)). Now the Defendant will only accept a recommendation for open conditions if the threshold requirements of 'low abscond risk' and 'sufficient progress' are met and there is a 'wholly persuasive case' for open conditions. In my judgement, para 5.8.2 of GPPPF 2023, can now be interpretated naturally in the sense I have tried to describe at paragraph 54 of this judgment, rather than more restrictively as Andrews J did in R(Kumar) in its very different policy setting of PSI 22/2015. That very different setting of the phrase in the policy excludes anything like the 'Barras' principle in statutory interpretation that a particular judicial interpretation has been adopted in a new rule (see R(N) v Lewisham LBC [2015] AC 1259 (SC)) Having said that, if applying this new approach, the Defendant disagrees with the Parole Board's recommendation, it will find it 'unjustified' in a sense, even without a 'deficiency'.
Submissions and Conclusions
"…As is his right, the Secretary of State has reached a different conclusion to that of the Parole Board panel. The Secretary of State had in mind when reaching this conclusion his published criteria and found the following criteria was not met: • There is a wholly persuasive case for transferring the ISP from closed to open conditions.
The Secretary of State notes you have demonstrated the following positive progress: • You have completed Enhanced Thinking Skills (ETS), the Sycamore Tree (victim awareness), and facing up to conflict, to address your risk and engaged well within these interventions.
• In recent years, you have evidenced developing maturity, and have been increasingly settled and compliant. You achieved the Enhanced level of the IEP in May 2020.
The following evidence is considered to support the conclusion that the criteria in the Open Conditions Test is not met: There is a wholly persuasive case for transferring the ISP from closed to open conditions.
• The decision details that throughout your sentence, you have accrued 30 proven adjudications and a significant volume of concerning intelligence, particularly relating to involvement with drugs and negative attitude to prison staff. Your last adjudication was in July 2021 for cutting your television speaker wires. You admitted to the panel that you have had three mobile phones throughout your sentence. Positively, you achieved Enhanced Status on the IEP scheme in May 2020.
• The COM [sic – see below] noted that you can still struggle when you perceive staff inconsistency, or when you do not believe the rules or procedures are being properly applied and, whilst you can still express frustrations, you are better able to address your concerns through appropriately assertive communication. The psychologist noted that there had been a stepping-down of anti-authority behaviours (with much less frequent 'push-backs'); increasing maturity; and that you had become more assertive. This demonstrates positive progress and would indicate that the engagement with your mentor continues to help you.
• You are pre-tariff, with your tariff expiring in November 2024. You have been in custody since you were 19 years old and there is the potential that you have become institutionalised. The [Defendant] assesses that whilst you are pre-tariff, you can continue to develop your emotional management and coping skills whilst in the security of closed conditions. You should evidence a further period whereby you can comply with the prison regime and rules, instances of emotional management, asking for support and positive custodial behaviour.
• The [Defendant] agrees given the length of time you have spent in custody, a gradual reintegration into the community would be beneficial to you. However, based on the rationale above…does not conclude there is a wholly persuasive case for transferring you to open conditions at this stage.
The [Defendant] therefore confirms that it is necessary for you to remain in a closed prison environment and continue to work towards evidencing a reduction in your risk in preparation for your next parole review. You are encouraged to work with staff supervising you to understand what is required of you in the lead up to your next review to assist your progression and to explore the options available to you."
The rest of the decision-letter explained the arrangements for the next parole review with the target for consideration by the Parole Board in November 2024.
"[T]o target Parole Board and HMPPS resources effectively, the Secretary of State only refers those pre-tariff cases to the Parole Board where there is a reasonable prospect of the Board making a positive recommendation."
A decision-maker's refusal to transfer a prisoner to open conditions based solely or predominantly on his pre-tariff status would be problematic as he would only have been referred to the Parole Board in the first place if the Defendant considered there was a 'reasonable prospect' of a positive recommendation despite pre-tariff status. However, in the present case, it is clear Ms Whyte's decision was not based solely or predominantly on the Claimant's 'pre-tariff' status. Not only is that only one of the factors she explicitly took into account in the decision, even in her own private email to Mr Davison on 26th July 2023 querying his apparent disagreement with her (which she quoted in her witness statement), Ms Whyte said she 'found this to be finely-balanced case, but based her decision on the number of adjudications, him being pre-tariff and the COM confirming he still struggles with boundaries and managing frustrations'. So, pre-tariff status was plainly only one of three key points.
"Consequently, the panel now assess that Mr Allen's risks are such that a progressive move to open prison conditions is appropriate. This will enable him to develop pro-social networks, build and test family relationships, test temptation from alcohol (and drugs), test compliance and manageability, and the effectiveness of the risk management plan." (My emphasis)
a. If Ms Whyte did indeed intend to refer to the opinion of the COM not the POM, then it follows that, just as with the Board's reasoning, she did not address at all the POM's opinion, indeed consistent support for open conditions. As in R(Draper) itself, the decision-maker's misattribution of an opinion to one professional rather than another weakens the rationality of the decision if it means that opinion is not properly considered. As Turner J said in R(Draper), a similar failure to address the report writers' opinions led to the decision in R(Wynne) being quashed by Steyn J - and the fact she was dealing with GPPPF 2021, not GPPPF 2022 as he was, did not alter that. I very respectfully agree: this point applies whatever the policy criteria.
b. Alternatively, Mr Buckley fairly suggested that Ms Whyte may well have just made a typo and meant the POM. However, if so she did 'cherry-pick' the POM's view in that whilst the POM said the Claimant 'still struggles with boundaries and managing frustrations', she still supported his move to open conditions, which Ms Whyte did not mention. Moreover, she then did not engage with what Mr Buckley suggested were the answers of the COM to questions asked by the Case Manager back in November 2022. The COM had said the only work that remained was with the mentor that did not have to be done in closed conditions and that 'it was consolidation work only' and there were no assessments required before open conditions. Ms Whyte did not address the COM's observations when making her point that whilst the Claimant was 'pre-tariff he could continue to develop emotional management and coping skills whilst in the security of closed conditions'.
In any event, on this point, even leaving aside the 'COM/POM' error, whilst unlike them, Ms Whyte did not misattribute the psychologist's opinions, in reaching that particular conclusion on the value of continued work in closed conditions, Ms Whyte failed to address the psychologist's conclusion that: "In my opinion the treatment…completed to date has been sufficient in addressing the risk factors and it is unlikely that additional programme work would result in any further risk reduction." Therefore, Ms Whyte's conclusion that a further period in closed conditions would enable the Claimant to 'continue to develop emotional management and coping skills' did not acknowledge the professional opinion of the psychologist that this was unlikely further to reduce risk. If she believed that was irrelevant or wrong, then Ms Whyte should have explained why. This would be an entirely separate ground to quash her decision aside from her effectively non-engagement with the Board's reasoning. Therefore, whilst Mr Evans submitted that Ms Whyte had not disagreed with the findings or opinions of the report writers, simply reached a different rational view, in fact she did not properly engage with their unanimous opinions.
Moreover, whilst it is now unnecessary to rely on it, Ms Whyte's failure to address properly the report writers' unanimous support of the Claimant's transfer to open conditions is aggravated by the fact her colleague Mr Bainbridge had specifically flagged up this unanimity. He said 'The professional witnesses agreed a successful period in open conditions was essential as a precursor to release' and suggested a transfer to open conditions now would give 16 months before the Claimant was eligible for release to test the Claimant and plan properly for that. Whilst I have accepted Mr Evans' submission that Ms Whyte did not have to explain why she disagreed with Mr Bainbridge, the fact that he endorsed the unanimous view of the report writers highlighted that unanimity and underlined the importance of her giving sufficient reasons to explain her disagreement with their unanimity. But, as I have explained, Ms Whyte did not give sufficient explanation of her disagreement.
Postscript
