Harris, R (on the Application of) v Secretary of State for Justice

MR JUSTICE DOVE:

On 15 October 2007 the Claimant was sentenced to a life sentence with a minimum term of 12 years for murder. His tariff expires on 21 May 2016. During his time in closed conditions he engaged positively with the activities and programmes that were there to assist him and, as a result, in due course consideration was given by the Defendant's officers as to whether or not he should have his case referred to the Parole Board.

On 3 April 2013 one of the Defendant's officers, a Mr Mungar, on behalf of the Defendant, agreed that the Claimant's case should be referred to the Parole Board. The purpose of that referral was to consider whether or not in the Claimant's case his absconding risk and his circumstances were such that he should be moved to open conditions.

On 6 September 2013 Mr Mungar wrote for the purposes of assisting the Parole Board, setting out in particular the position in relation to the Claimant's deportation. He noted that a deportation order had been made in the Claimant's case on 22 June 2010. He then went on to advise as follows:

A panel of the Parole Board convened their hearing, which occurred on 23 October 2013. The deliberations of the Parole Board led to them reaching a decision dated 30 October 2013. In that decision they concluded as follows:

The recommendation of the Parole Board was then passed to the Defendant for a decision in relation to it. The Defendant reached a decision in a letter dated 6 December 2013, which provides as follows:

Turning, therefore, to Annex A, the important passages for the purposes of this case commence at paragraph 4:

The Claimant advanced three bases of challenge to the decision that was reached by the Defendant in this case. Firstly, it is contended by the Claimant that the Defendant failed to give adequate weight to the Parole Board recommendation, bearing in mind the Parole Board's expertise in matters of this kind and, in particular, that it had received oral evidence from the Claimant which enabled an evaluation of him and also enabled findings of fact to be made as a consequence of seeing and evaluating that live evidence.

The second ground of the Claimant's challenge is that the Defendant failed to provide adequate reasons to reject the Parole Board's recommendation in this case.

The third ground of challenge is that the Defendant's decision was irrational. That is, in particular, based on the case of R (Evans) v HM Attorney General and another [2014] EWCA Civ 254, to which I shall allude below in greater detail. The Claimant contends that that case supports the conclusion that the Defendant could not rationally depart from the Parole Board's recommendation. Nothing had changed in the circumstances of the Claimant to justify or gainsay the Parole Board's decision in this case.

Those being the three grounds of challenge, it is nevertheless necessary for me to observe that, during the course of argument, the Claimant sought to develop submissions about the relevant policies published by the Defendant dealing with the decisions which fall to be considered in this case. However, it was made abundantly clear during the course of the argument that the Claimant was not advancing a case based upon legitimate expectation. It was not being said that the Defendant, having created a legitimate expectation through the publication of those policies, was, in this case, acting unlawfully in departing from those promises in the decision which had been reached. Thus it follows that, to my mind, the submissions which were made by both parties as to the effect of the policy are in this case by the by. They do not require me to consider them further. It may be -- and there was a hint of this during Mr Bunting's submissions -- that that might be an issue in another case for another day. But so far as the pleaded case in this action is concerned, the construction of the policies placed upon them by the Claimant and disputed by the Defendant as representing a correct analysis of the law is of little assistance to me. What I need to do, in the light of the authorities, is to decide this case on the basis of the legal principles at stake without having regard to whether or not in this case the policies of the Defendant actually summarise those legal principles.

Section 12(2) of the Prison Act 1952 provides that a prisoner may be lawfully confined in such prisons as the Defendant directs and section 47 of that Act provides for classification of prisoners.

Section 239(2) of the Criminal Justice Act 2003 provides as follows:

Provisions of the Prison Rules, in particular Rule 7, provide a broad discretion to the Defendant in relation to the classification of prisoners. In this case, the Claimant emphasises the importance to a prisoner of transfer to open conditions. To my mind that is perhaps self-evident, but the particular significance which is relied upon by the Claimant in this case is the role that the transfer to open conditions can play as a key step on the pathway for the prisoner to release. That provides, in my view, an important backdrop to the decisions which were being made in this case.

The structure of the decision-making process in this case is also, in my view, of central importance. That structure is that whilst the Parole Board recommends a decision to the Secretary of State, it is for the Secretary of State to decide. The legal principles which arise in circumstances of this kind were set out by Jackson J (as he then was) in the case of R (Banfield) v Secretary of State for Justice [2007] EWHC 2605. At paragraph 28 he summarised, in a manner which was uncontroversial in this case, the central legal principles as follows:

Jackson J noted that the Parole Board recommendation was not binding but, as he observed, it was "obviously an important factor" in coming to a decision.

Jackson J's decision was shortly preceded by the decision of this court in the case of R (Hill) v Secretary of State for the Home Department [2007] EWHC 2164, upon which Jackson J drew in reaching his conclusions. I shall return to the case of Hill shortly.

Following on from the case of Banfield, there is also helpful assistance in this area of the law to be derived from the case of R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB). That case was based on a similar structure of decision, save that it was a different statutory context. That case was one of a small vestige of cases in which the Secretary of State received a recommendation from the Parole Board before he took the final decision in the prisoner's case himself. It was submitted in that case by the Claimant that the Secretary of State could only depart from the Parole Board recommendation if either there was an error of law in that recommendation or additional evidence came to light in order to undermine it. That was a submission which was rejected by the Divisional Court. At paragraphs 51 and 52 of the judgment of Thomas LJ (as he then was), who gave the leading judgment, he observed as follows:

The court went on to consider findings in relation to the Claimant's credibility, which had been overturned by the Secretary of State. The court made the following observation about the distinction to be drawn between findings of fact made by the Parole Board and its assessment of risk:

The subsequent decision in the case of R (Wilmot) v Secretary of State for Justice [2012] EWHC 3139 (Admin) is to similar effect in terms of the legal principles, in particular at paragraphs 43 to 47.

As promised, I return to the decision in the case of Hill, which again in itself reflected the discretion left with the Secretary of State, subject to the application of well-known public law principles, to reach his own conclusion following a recommendation from the Parole Board.

The Claimant in the case of Hill succeeded on the grounds of reasons. In that case the Secretary of State, in reaching a decision to reject the Parole Board's recommendation, had failed to grapple with the reasons provided by the Parole Board. There is, therefore, of course, a duty on the Secretary of State to provide adequate reasons in cases of this kind.

The case also featured within it, as one of the concerns raised by the Claimant, a perceived change of policy, evidenced by statistics about outcomes in relation to the Defendant's acceptance of Parole Board recommendations. Submissions were made by the Claimant along these lines in this case and further factual material adduced in relation to recent decisions by the Defendant in this respect. However, this point was not central to the submissions advanced by the Claimant and I would simply observe at this stage that, in my view, the statistics adduced do not portray a significant change in whether or not recommendations are being accepted as those statistics stand at present and certainly do not begin to portray the kind of picture which the court had in the case of Hill.

In relation to ground three, as I have mentioned above, the Claimant places reliance on the case of Evans. That is a case which concerned the use by the Attorney General of a power given to him by section 53(2) of the Freedom of Information Act 2000 to override a decision of the Upper Tribunal. In that case, the Upper Tribunal had ruled that there should be disclosure of some claimed information and the Attorney General issued a certificate under section 53(2) overriding that decision. Such a certificate could only be issued if the Attorney General "has on reasonable grounds formed the opinion that" there was no failure to disclose within the requirements of the Act. In my view, it is important to appreciate the nature of the submission which was being made on behalf of the Claimant and Appellant in that case before the Court of Appeal. That is recorded in the judgment of the Master of the Rolls at paragraph 21 as follows:

The Master of the Rolls' conclusions on this submission, which were accepted and agreed with by the other judges in the Court of Appeal, can be found at paragraphs 37 and 38 as follows:

For those principal reasons the Court of Appeal struck down the section 53(2) certificate.

As set out above, the Claimant emphasises the expertise of the Parole Board in the assessment of risk and in the appraisal of the questions arising in cases of this kind. Mr Bunting, on behalf of the Claimant, also noted that the Parole Board had been acknowledged by the House of Lords in the case of R (Giles) v Parole Board [2004] 1 AC 1 at paragraph 10 of Lord Bingham's speech as being a judicial body. He further emphasised the facts found by the Parole Board and contended that the Secretary of State has treated the conclusions of the Parole Board unlawfully. The point which was raised about the Claimant's immigration status in paragraphs 5 and 6 of Annex A to the decision, treating it as, in effect, a new point when it was not, was an aspect of the Defendant's irrationality.

In response, on behalf of the Defendant, Mr Weisselberg QC, who appeared on behalf of the Secretary of State, drew attention to the structure of the decision-making process and, in reliance on the case of Banfield, submitted that the Secretary of State had not, in truth, subverted any of the findings of fact of the Parole Board but simply reached a different conclusion on the assessment of risk based on the need for certainty about whether or not the Claimant was to be deported.

Having considered these submissions, my conclusion is that the relative positions of Parole Board and the Secretary of State in this case are of central importance. The Parole Board is expert and, undoubtedly, in many cases performs a judicial function. I have no doubt that Mr Bunting is correct when he observes that the Panel which was convened in this case was very experienced and listened carefully and attentively to the evidence of the Claimant and had particular expertise in the kind of decision which the Secretary of State was to reach on their recommendation.

It is also important to take account of the fact that the Parole Board sees the witnesses and has the benefit of an oral hearing in order to inform its recommendation.

All of these features, along with section 239(2) of the 2003 Act, mean that I am in no doubt that the Secretary of State will want to afford weight to the Parole Board's recommendation. However, as paragraph 28 of the decision of this court in Banfield makes clear, he is not bound by that recommendation. The factual findings may well, in my view, have a significant status; such as, for instance, the findings of credibility in the case of Hindawi, but those facts should be separated from the assessments of judgment about risk.

Ultimately, the court, in my view, will only interfere on conventional public law grounds and the decision in Hindawi was based on the court's view of an irrational overturning of a credibility finding, illustrating one of the potential conventional public law grounds upon which reliance can be placed. In my view, in this case the Secretary of State is not seeking to gainsay any credibility findings that the Parole Board might have reached or any factual findings about the progress which the Claimant has made in closed conditions or his potential intentions on release. What paragraph 7 of the decision of the Defendant in Annex C makes absolutely clear, however, is that it is the Claimant's immigration status and, in effect, that alone which required clarification in this case from the point of view of the Defendant before he could find his way to open conditions. That requirement in the decision of the Defendant is not a matter which disturbs any of the findings of fact of the Parole Board, but is rather an ingredient in the Defendant's assessment of the risk of absconding in the Claimant's case and one which, as a reassessment of risk, of which he was entitled to take account.

I do not read paragraphs 5 and 6 as suggesting that the question of the Claimant's immigration status was being treated by the Defendant as a new matter. The use of the word "now" in paragraph 5 simply relates to the further enquiry that the Defendant had made following the hearing and paragraph 6 makes clear in the first sentence simply that the Defendant is recording the position both before the Parole Board and before him, namely that at the stage of that decision, and indeed the recommendation, the prospects of deportation were unclear. Whilst it is, therefore, correct that this was no change from the position explained by Mr Mungar to the Parole Board, nevertheless it is not, in my view, being treated in these paragraphs incorrectly as a new matter. It is being treated, in truth, as the matter which the Secretary of State has taken into account in a reassessment of the risks leading him to differ from the Parole Board solely in relation to that question of risk which was a matter of judgment for him. He took account of that matter, namely the need for clarity about deportation and it is undisputed that it was a factor that was clearly material to his decision. He reached a different but rational conclusion, in my judgment, in relation to that issue. As a matter of judgment and assessment of risk, he was entitled to reach a different conclusion from the Parole Board, having taken account of their recommendation and his approach was, in my view, unchallengeable based on the legal principles set out in the Banfield case. There is, therefore, no error of law of the kind alleged in ground one.

As set out above, this is a reasons challenge in which the Claimant contends that the Defendant failed to grapple with the reasons provided by the Parole Board for recommending the Claimant's transfer to open conditions. It will probably be obvious from what I have set out above that I consider the reasons given by the Defendant in this case to be clear and, moreover, clear as to the explanation for his difference of conclusion from that of the Parole Board.

The Defendant's decision in this case was not a root and branch disagreement with the conclusions of the Parole Board. In reality, it related to one issue, an issue which had not featured especially large in the Parole Board's assessment of risk, namely the impact on the absconding risk of the present uncertainty about the prospects that the Claimant would be deported. Annex A of the decision set out clearly and sufficiently to my mind why the Defendant had reached a different conclusion on risk and I am unable to accept that the reasons in that respect were insufficient.

As I explained in the summary, this is an irrationality ground based, in particular, on the case of Evans. The Claimant relied on that case to contend that by analogy the disagreement here with the Parole Board, without more, was not a rational basis for the Secretary of State to reach a different conclusion. Mr Bunting drew attention to the three other cases that were referred to in the Master of the Rolls' judgment in the case of Evans. Firstly, R v Warwickshire County Council ex parte Powergen PLC [1998] LGR 617, where following an appeal granting planning permission, at which the Highway Authority had appeared to object to the highway access arrangements, that highway authority refused to enter into an agreement under section 278 of the Highways Act 1980 so as to enable those works to proceed. That refusal to enter into the agreement was regarded by the Court of Appeal as irrational.

The second case, R v Secretary of State for the Home Department ex parte Danaei [1998] 1 WLR 124, was a case where, following a successful appeal in which an asylum seeker's account of the factual circumstances of his case had been accepted, albeit that the appeal was dismissed for other reasons, in a subsequent decision the Secretary of State rejected his account. That rejection was considered irrational, given the earlier acceptance of the factual account in the preceding appeal.

The third case, R (Bradley) v SSWP [2009] QB 114, related to the recommendations of the Parliamentary Commissioner for Administration investigating a complaint and finding maladministration on behalf of a ministry. The relevant minister rejected the Parliamentary Commissioner's findings and her recommendation and that was found to have been irrational.

Having considered both the case of Evans and those three examples, I am unconvinced that those cases assist the Claimant in this case. The case of Evans, for example, was a case where, following the conclusion of a bespoke decision-making body, the executive then subsequently overrode or departed from those conclusions. In those circumstances, the decision of the court in Evans is that clearly the determination of that decision-making body could only be departed from by virtue of demonstrable legal error or a change of circumstances, as opposed to reaching a different but equally rational conclusion.

That is, in my view, a different structure of decision-making to the one with which I am concerned in this case. Here the decision-making body is the Defendant, not the Parole Board, for the reasons I have set out above. The Parole Board makes a recommendation but that is not a determination or an operative decision in relation to the matter. The cases of Ex parte Powergen and Danaei are clear examples of earlier determinations or operative decisions, as opposed to recommendations. The case of Bradley is, to my mind, more complex but it is important to appreciate that that case arose from the specific statutory regime that the Parliamentary Commissioner for Administration inhabits and that is made clear in the judgment of Sir John Chadwick in that case at paragraph 91 as follows:

That passage from the judgment makes plain that that decision has to be viewed in the clear context of legislative attention in which it arose. Thus, in my view, the case of Evans does not change the context for reviewing the Defendant's decision in this case. The context of the case is as set out in Banfield and Hindawi and, for the reasons which I have already given, the Defendant's decision in this case passes those tests.

For all of those reasons, each of the grounds in relation to this case, although eloquently and persuasively put by Mr Bunting, must fail.

MR PRITCHARD: My Lord, I am obliged. The parties have managed to agree an order in the event that the judgment was that way. If I can pass up the order and just explain the terms of the order.

MR JUSTICE DOVE: I hope you also prepared one in case it went the other way as well.

MR PRITCHARD: We did.

MR BUNTING: Before my learned friend hands up the order, my Lord will see that there is a provision given in respect of permission to appeal in that order.

MR JUSTICE DOVE: You don't say.

MR BUNTING: And on that point I do make an application, but I recognise that the terms of my Lord's judgment may count against me.

MR PRITCHARD: My Lord, that's paragraph 4. I was going to draw your attention to it. Paragraph 4 may need to be changed subject to your decision on my learned friend's application.

MR JUSTICE DOVE: That's very helpful of you both to set out the relevant provisions, because I know it's important, particularly for Mr Bunting, to have this order made in an appropriate form. So I am very grateful for you having looked at that and set it out earlier.

MR PRITCHARD: My Lord, in that case I intend to sit down, unless I can assist you further.

MR JUSTICE DOVE: No, there's nothing further you can assist with. Yes, Mr Bunting, why did I get it wrong?

MR BUNTING: In respect of permission to appeal, my Lord, I do advance an application for permission to appeal. It's to protect my lay client's position, given that he's not here today --

MR JUSTICE DOVE: I think he's entitled to go to the Court of Appeal without you having to ask me, but of course that is not to deter you from making your application. But I think the rules changed a couple of years ago. Certainly, if you have another look at order 52, I think you used to have to apply and the Court of Appeal wouldn't consider you until you had applied below, but you don't necessarily need to. But, as I say, I don't deter you from making your application.

MR BUNTING: If my Lord is correct about that, then I'll say no more.

MR JUSTICE DOVE: No, make your application. I don't want to put you off.

MR BUNTING: The application is based on the evidence ground which does raise, in my respectful submission, a new point in respect of a common law protection for prisoners in this context. In my respectful submission, that is a ground with reasonable prospects of success, given that the ground on which my Lord has essentially distinguished Bradley is the same ground on which reliance was made in Evans in the first instance, which was rejected by the Master of the Rolls in that case. In any event, it is my respectful submission that there is some other compelling reason why I should be granted permission to appeal, namely the one of importance in this point, given the large number of prisoners who are regularly affected by decisions of this nature. Unless I can assist you further, my Lord.

MR JUSTICE DOVE: Mr Bunting, it will not surprise you, perhaps, to hear that I am going to refuse your application and if you wish to take it further, by all means, but you will have to take it elsewhere. I am satisfied that the basis for distinguishing between the structure of the decision-making in this case and that which was in the three cases and Evans is sufficiently justified by the reasons that I have already given in my judgment. So I am going to refuse your application.

MR BUNTING: I am obliged.

MR JUSTICE DOVE: Thank you very much. Can I thank you very much indeed and would you also Mr Weisselberg on my behalf for all the help that you have given me in relation to this case. Thank you indeed.

Now, I have a form to complete if somebody has one. It doesn't look like anybody has the application. I have to complete a form in relation to your application -- here is the associate. We've had an application for permission to appeal and I think I have to fill a form in for you, so do you have a copy of it. There's no need for you both to continue to attend while I do this piece of bureaucracy.

MR BUNTING: With regards to a transcript of my Lord's judgment, is it a transcript that will be made available in the usual way --

MR JUSTICE DOVE: It's out of my hands. What happens is it's sent to me for me to have an opportunity to take out the ums and the ers out of it and I will do that as soon as it comes to me. But I am waiting on one that I delivered a little over a week ago, so I don't know how soon it will get to me. But you can rest assured that as soon as it gets into my hands, within 24 or 28 hours it will be away and then I believe they appear on Lawtel, or whatever. So that's how it will emerge, rather than it being sent to you in the same way as a hand down would. It may be if you make enquiries of the shorthand writers, they're able to help too, but you won't get it until I've approved it.

MR PRITCHARD: In relation to the order, would you like a copy emailed to your associate?

MR JUSTICE DOVE: Why don't I sign this one and then you give it to the associate? Presumably you both have copies for your records and you don't need a signed version and then the associate will have a signed version and we're all done.

MR PRITCHARD: Thank you.