“It is the duty of the Board to advise the [SoS] with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.”
“The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits: a) 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; b) the extent to which the ISP is likely to comply with the conditions of any such form of temporary release (should the authorities in the open prison assess him as suitable for temporary release); c) the extent to which the ISP is considered trustworthy enough not to abscond; and d) the extent to which the ISP is likely to derive benefit from being able to address areas of concern and to be tested in the open conditions environment such as to suggest that a transfer to open conditions is worthwhile at that stage.”
“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 that there is not a wholly persuasive case for transferring the prisoner to open conditions at this time.”
“…it is clear that the purpose of [5.8.3] is not to widen [the very limited] parameters [for departure from the recommendation of the Board], 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…”; iii) R (on the application of John) v The Secretary of State for Justice[2021] EWHC 1606 (Admin) ;[2021] 4 WLR 98 at [47]: “…generally in this context a finding of fact will concern a conclusion as to past events, whereas an evaluative assessment will entail a prediction as to future eventualities including risk of violence, risk of absconding and ability to manage the same…”; iv) R (on the application of Oakley) v The Secretary of State for Justice[2022] EWHC 2602 (Admin) ;[2023] 1 WLR 751 (Oakley 1) at [51]: “…the correct approach is therefore as follows. When considering the lawfulness of a decision to depart from a recommendation of the Parole Board, it is important to identify with precision the conclusions or propositions with which the [SoS] disagrees. It is not helpful to seek to classify these conclusions or propositions as “questions of fact” or “questions of assessment of risk”
“…the words in question have an ordinary common-sense meaning…they encapsulate a discretion. Certainly they enable the [SoS] to reach a different conclusion from the Parole Board on the same facts and on the basis of the same assessment of risk…”
“(1) Decision-Maker. The primary decision-maker is the SSJ (Hindawi §63; Stephens §22;Prison Act 1952 s.12(2) ). The Parole Board, in recommending transfer to open conditions, is giving advice (2003 Act s.239(2)). (2) Legally Significant Advantage. The Parole Board, in giving advice to the SSJ, has legally significant institutional and due process advantages over the SSJ. These include expertise in assessing the risk posed by individual prisoners (Banfield §28(1); Kumar §6; Stephens §20); and the due process of an expert assessment, immunised from external pressures, operating like a court, sifting and analysing the evidence, with an oral hearing to make relevant findings (Hindawi §50; Green §32). These advantages can make it difficult for the SSJ to show that it is reasonable to take a different view (Gilbert §92). (3) Required Weight. The SSJ is required to accord weight to the recommendation of the Parole Board and the weight required to be accorded depends on the matters in issue, the type of hearing before the Panel, the Panel's findings and the nature of the Panel's assessment (Hindawi §52; Kumar §7; Green §42i). (4) Reasonable Basis. 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, by reference to the matters in issue, the type of hearing before the Panel, the Panel's findings and the nature of the Panel's assessment. The SSJ may reject the Parole Board's reasoned recommendation, provided only that doing so has a reasonable basis ("a rational basis") (Hindawi §§51-52, 73, 81; Gilbert §92; Kumar §7). There can be no substitution of the views of a civil servant for the views of the Parole Board without reasonable "justification" (Kumar §57). (5) Deficiency. The reasonable basis for rejection may lie in something having 'gone wrong' or 'come to light' which undermines the Panel's reasoned assessment. This idea of deficiency is not limited to a public law error (Kumar §54); nor to errors of law or fact or additional evidence having come to light (Hindawi §§49, 51; John 76). Examples of deficiencies would be a Panel assessment: (a) running counter to professional views without a sufficient explanation (Kumar §56; Stephens §24; 2021 GPP Policy Framework §5.8.2[i]: §6 above); (b) based on demonstrably inaccurate information (GPP Policy Framework §5.8.2[ii]: §6 above); (c) failing to apply the correct test or address the correct criteria ( Gilbert §§73-74; Stephens §§29, 32-36; Oakley §25); or (d) appearing to fly in the face of the evidence or the nature of the risks found by the Panel ( Kumar §59). (6) Questions of Significant Advantage. The reasonable basis for rejection will require "very good reason" (Oakley §49, 52) – or "clear, cogent and convincing reasons" (Green §42ii) – in respect of evaluative conclusions on questions where the Panel has a significant advantage over the SSJ. Examples of questions of significant advantage are a Panel assessment: (a) of credibility after oral evidence at a hearing (Hindawi §§96, 111; Oakley §47); (b) of any question of fact from evidence at a hearing (Oakley §52); or (c) of questions of expert evaluation of risk, such as professional diagnosis or professional prediction (Oakley §§48-49). There is no bright-line distinction excluding questions of evaluative assessment, about the nature and level of the risk and its manageability from falling within this category (see Oakley §§48-49, revisiting the discussion in John at §47). (7) Other Questions. For questions other than those of significant advantage, the reasonable basis for rejection will still always require "good reason", because the SSJ must always afford to the Parole Board's evaluative assessments "appropriate respect" (Hindawi §60; Oakley §50; Green §42iii). An example is the ultimate evaluative judgment, "undertaken against the background of the facts as found and the predictions as made by the Parole Board", which balances the interests of the prisoner against those of the public (Oakley §§49-50), as part of the question in Direction §7(a) (§12 above).”
“I cannot accept that analysis. It is materially incomplete. It does not go far enough in recognising the way in which the standard of reasonableness and legally adequate reasons apply. Whether disagreement is “reasonable”, whether there is a reasonable basis to reject a Parole Board recommendation, and what constitutes the sort of good or very good reason which can justify rejection, is a context-specific question to which the key principles (§28 above) apply.”
“However, this submission ignores the distribution of responsibility between the [SoS] and the Board as contemplated by the statute. The [SoS] has the relevant discretion whether to transfer a prisoner to open conditions; he can therefore promulgate his own policy as to how that discretion should be exercised…; he has a discretion whether to seek advice from the Board; and even if he seeks its advice, he is not bound to follow that advice provided there is sufficient good reason not to (see eg [Banfield]). The SoS is not obliged to seek the advice of the Board. Further if the advice given by the Board fails for whatever reason to take into account the relevant policy of the [SoS] governing the question of transfer to open conditions, that is likely to constitute a good reason for the [SoS] to decline to follow the advice.”
“In so far as Mr Hirst sought to suggest that it was irrational for the [SoS] to decline to accept the recommendation of the Board that Mr Gilbert be transferred to open conditions, I do not regard that as a sustainable contention. The [SoS] is entitled not to accept a recommendation, provided he acts rationally in doing so: see Banfield, above at [22] and [28] and R (Wilmot) v Secretary of State for Justice[2012] EWHC 3139 (Admin) ,[47]. In some cases where the [Board] has reached a view on some point which is the same as a point which the [SoS] has to consider and the Board is better placed to make an assessment (eg it finds a relevant fact after hearing oral evidence from witnesses), it might well be difficult for the [SoS] to show that it is rational for him to take a different view; and para. 6.5 of PSI 36/2012 appears to reflect the [SoS’s] recognition of this…”
“(1) The decision of the [SoS] is not lawful if he fails to take into account the recommendation of the [Board] and the fact that the [Board] has particular expertise in assessing the risk posed by individual prisoners. Nevertheless, it is a matter for the [SoS] what weight he assigns to those factors in any given case…”
“However, this said, subject to the public law constraints of fairness and rationality, the courts have long held that it is open to the [SoS] to disagree with any…Board recommendation and to reject that recommendation and the only basis upon which a court on a judicial review will interfere with any such decision of the SoS is on application of those public law constraints. Hence to date the guiding principle in the authorities has been that it is not for the court itself to assess the reasonableness of the …Board to determine whether it can be characterised as irrational in the Wednesbury sense. The court must rather direct itself to the rationality of the [SoS’s] decision; it will not interfere with that decision, unless his decision is to be adjudged irrational in the Wednesbury sense or reached by an unfair process. On this see the formulation of principle by Jackson J in [Banfield] at …[28].”
“As detailed in the July 2023 adjournment note, there are several references in the dossier to stalking behaviour. Mr Oakley admitted to the last Parole Board panel that he had stalked a former partner, particularly by visiting her workplace uninvited. He had denied stalking the victim of the index offence. The panel has reviewed the dossier and continues to believe that an assessment of this behaviour is essential to fully understand the risk presented by Mr Oakley and how to manage this risk particularly given the offending of the index offence when he attended a residential property uninvited.”