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

Mr Simon Goldsmith, the Claimant, challenges the decision of the Secretary of State for Justice (dated 3 February 2025) (“the decision”) not to transfer him to an open prison. The decision is challenged on one ground only: it is alleged to be wrong in law and in all the circumstances unreasonable.

The Claimant is a serving prisoner. On 20 December 1999, he was sentenced to life imprisonment with a tariff of six years for two offences of rape and one of false imprisonment in relation to the same victim. The tariff expired on 20 December 2005 and he remains an Indeterminate Sentence Prisoner (“ISP”).

The Claimant’s long history of offending started in 1982. Some offences involved dishonesty (burglary; shoplifting; theft and taking a motor vehicle without consent) while others involved violence including one conviction for causing grievous bodily harm with intent. In 1986, he received a six-year determinate sentence for the rape of a sixteen-year-old girl.

The Claimant is neurodivergent. He has a diagnosis of autism spectrum disorder which affects the way in which he communicates with others.

On entering the prison system in December 1999, the Claimant was classified as a Category A prisoner. On 27 April 2023, after more than 23 years in a Category A prison, the Claimant was designated a Category B prisoner. An Offender Assessment System report (dated 19 July 2023) concluded that the Claimant presented a high risk to the public if in the community and the risk of his committing sexual offences was assessed as “very high”.

On 23 August 2023, the Claimant’s case was considered at an oral hearing by a panel of the Parole Board for England and Wales (“the Board”). The Board was asked to consider whether it was appropriate to direct his release or, if not, to make a recommendation about his suitability for a transfer to an open prison. Evidence was given by the Claimant; his Prison Offender Manager (“thePOM”); the Community Offender Manager (“the COM”); three prison psychologists and two prisoner-instructed psychologists.

The evidence on the question of release was divided. The POM, the COM and the prison psychologists were not in favour of release and instead recommended the Claimant’s incremental move through the closed prison estate. The two prisoner-instructed psychologists recommended release albeit that Dr Craissati gave no definite view on whether he should be released or moved to open conditions. Some of the experts expressed concern that a change in his environment may destabilise the Claimant’s ability to manage and control those factors which heightened the risks he posed. Two particular points arose from the experts’ evidence: first, the Claimant’s success in coping in closed conditions was likely explained by the familiarity and structure of a Category A prison; secondly, given the likelihood that the Claimant would be unsettled by any transfer through the prison estate, there was much to be said for limiting their number.

In its decision of 30 August 2023, the Board declined to release the Claimant but recommended his direct transfer to the open estate. The Board’s recommendation was based on the Claimant’s neurodivergence and its conclusion that fewer transitions in his progress to release would be less destabilising for him.

In his decision of 17 November 2023 (“the November 2023 decision”), the Secretary of State concluded that the Claimant should not be transferred to the open estate. He concluded that two of the three relevant criteria in para. 5.8.2 of the Generic Parole Process Policy Framework (dated 16 August 2023) (“the Framework”) had not been satisfied. In the Secretary of State’s view, the Claimant had made insufficient progress during his sentence in addressing and reducing the risk he presented to a level consistent with protecting the public from harm. There was also no wholly persuasive case for transferring the Claimant, as an ISP, from the closed to the open prison estate.

Three particular reasons were relied upon by the Secretary of State in support of the November 2023 decision. First, the Claimant had spent almost the entirety of his sentence in Category A prisons. Although he had been granted Category B status, at the time the Claimant remained at a Category A prison. For that reason, neither his POM, COM nor the prison psychologists supported his immediate transfer to open conditions because of its potentially destabilising effect. Secondly, the POM was concerned that the Claimant did not yet have sufficient control over his emotions because he had not yet been exposed to many social cues or learned how best to manage them. In the POM’s view, there was a fine line between the evidence of frustration in high security conditions and an actual risk of serious harm in open conditions or on release. Although one prison psychologist noted that the Claimant had refrained from violence in Category A conditions, that restraint may be explained by the structure and the familiarity of his surroundings. Finally, the Claimant’s autism diagnosis led Dr Craissati to conclude that the number of moves through the prison estate should be minimised. On that basis, the Secretary of State concluded that a direct move from category A to D would be overwhelming. There was also insufficient evidence that the Claimant had demonstrated what was described as an “internalised learning from interventions”. The Secretary of State’s view was that the Claimant should first be tested in a lower security, but closed, environment.

The November 2023 decision was challenged in a judicial review claim heard by HHJ Claire Jackson, sitting as a Judge of the High Court, on 12 December 2024. The judge quashed the decision because, in brief, the Secretary of State had given no reasons for her decision not to follow the Board’s recommendation and ordered a fresh consideration: The King (Goldsmith) v. Secretary of State for Justice [2024] EWHC 3464 (Admin). In particular, the judge concluded that the Secretary of State had not explained why, in light of its conclusions about the Claimant’s autism, personality traits and the various risks arising, she had not accepted the Board’s advice. That failure was relevant because the Board had two particular advantages over the Secretary of State in relation to specific questions on risk and the “interlocking matrix” between the Claimant’s diagnosis, personality characteristics and the risks they prompt. The judge placed weight on the fact that the panel had the benefit of an expert member; it had heard and tested the expert evidence and, after due consideration, given a firm recommendation. In these circumstances, the judge found that it was not enough for the Secretary of State simply to rehearse the substance of the Board’s decision in the November 2023 letter. Sufficient reasons were required to explain why she had rejected a diagnostic conclusion reached by the Board and ignored advice about the “interlocking matrix” but none had been provided. The judge’s order was not appealed.

The decision which is the subject of the challenge was made on 3 February 2025. Once more the Secretary of State reached a different conclusion to the Board. In relation to whether the Claimant had 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 licenced temporary release), the Secretary of State identified a lack of confidence that the Claimant had the required skills to deal with any challenging situations that may arise in a Category D environment appropriately. Five particular points were relied upon in reaching this conclusion:

In relation to whether there was a wholly persuasive case for transferring the Claimant, as an ISP, from closed to open conditions, the Secretary of State concluded that although he had been re-classified as a Category C prisoner in October 2023, he had not yet transferred to a Category C prison. There was, therefore, no evidence of a reduction in risk in that environment. Secondly, a period in a Category C prison was an important stage before transfer to Category D. Indeed, the alternative could be particularly destabilising given the Claimant’s diagnosis and needs. For that reason, a gradual transition within the closed estate was considered to be the most appropriate option. Although a lengthy time in a Category C prison may not be necessary, such a move was considered to be in the Claimant’s best interests.

The Secretary of State noted Dr Craissati’s heavy reliance on work done by the Claimant rather than evidence that the learning had been “internalised” and demonstrated. She was concerned that the Claimant continued to be dismissive of the victim’s account of the offence, a reaction which demonstrated a lack of perspective and empathy. That was an important factor in evaluating the Claimant’s violent sexual offending. The Claimant thought that the main cause of his behaviour was the significant stresses he was under at the time of the offence. That point was considered to be an important consideration given the challenges of an open prison.

Although its decision was based on the absence of any outstanding core risk reduction work, the Secretary of State considered that the Board did not sufficiently acknowledge the absence of evidence of the effectiveness of that work and whether it was sustained. On that point, she placed weight on the reports provided by the POM and the COM (dated 19 August and 26 September 2024 respectively) which supported the view that the Claimant should move incrementally through the estate but starting at a Category C establishment. The Secretary of State took into account the suggestion that fewer transfers would most benefit the Claimant but concluded that the risk to the public in an open setting would be too great given the prospect of the Claimant’s unsupervised access in the community.

This claim was issued on 2 May 2025. Permission was refused on the papers by Lieven J on 31 July 2025. The Claimant renewed his application and on 27 August 2025, I granted permission and made directions for a substantive hearing which was listed for 31 October 2025. Counsel for the Secretary of State was unwell and unable to attend the hearing at which Christopher Kennedy KC, sitting as a Deputy Judge of the High Court, adjourned the claim generally with liberty to restore from 2 February 2026. In doing so, Mr Kennedy KC noted that the Board’s advice was more than two years old and, pertinently, that an oral hearing before the Board had been listed on 24 November 2025 at which the question of release or the Claimant’s incremental progress to release would be considered afresh.

The hearing before the Board did not proceed in November 2025. The panel chair considered that an oral hearing was unlikely to be fair or effective. In particular, the chair was concerned that the Claimant’s current POM felt unable to offer a professional opinion and a recommended Psychological Risk Assessment (“PRA”) to inform the Board’s assessment had not been carried out because of the Claimant’s decision not to co-operate with the exercise. Various directions were therefore made for the service of updated reports from the POM and the COM; an updated security report; a PRA (a process with which the Claimant will co-operate); a report from the Claimant’s key-worker at his current prison and any prisoner-commissioned PRA. A fresh hearing before the Board has been listed to be heard on 28 August 2026.

Since the decision, the Claimant has moved twice. On 17 September 2025, the Claimant moved to a Category C prison and he is now subject to a progression regime.

On 22 December 2025, the Claimant applied to restore the claim on two bases: first, the hearing before the Board in November 2025 had not happened and no new date had yet been set; secondly, the Claimant had consistently emphasised the urgency of his claim and the adjournment in October 2025 had been against his wishes. In the circumstances, it would be unfair to defer the Claimant’s claim indefinitely and until the end of the current parole review. The Secretary of State resisted the application on the grounds that the Board’s advice of August 2023 was significantly out-of-date not least because the Claimant had been transferred to a Category C prison. In any event, on 30 April 2026 the claim was restored and a substantive hearing listed on 19 May 2026.

Solely to update the court for the purposes of the hearing, the Secretary of State placed an additional bundle before the court which contained the panel chair’s decision of 17 November 2025, a PRA (dated 1 May 2026) prepared by Catherine Jones, a chartered and registered forensic psychologist and an addendum to the on/post-tariff Parole Custody Report (dated 4 November 2025). The parties agreed that I should read the material de bene esse but it post-dates the decision and so it is irrelevant to the question of its lawfulness.

Section 12(2) of the Prison Act 1952 (“the 1952 Act”) provides:

“(2)

Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.”

Section 47 of the 1952 Act vests a power in the Secretary of State to make rules for the classification of prisoners. In exercise of that power, r. 7 of the Prison Rules 1999/728 (“the Rules”) provides that prisoners shall be classified in accordance with directions of the Secretary of State having regard to specified matters.

Section 239 of the Criminal Justice Act 2003 (“the 2003 Act”) materially provides that:

“239 The Parole Board

…

(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 Chapter 2 of Part 2 of the 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 of securing their rehabilitation …”

The Board’s recommendation was made under the Secretary of State’s Directions to the Parole Board 1 August 2023 (“the 2023 Directions”) which stated that:

“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 thefollowing 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.”

The Secretary of State’s decision of 17 November 2023 was made by reference to para. 5.8.2 of the Framework which provides that:

“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:

a)

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

b)

the prisoner is assessed as low risk of abscond; and

c)

there is a wholly persuasive case for transferring the ISP from closed to open conditions.”

The leading authority on the questions before the court in this case is Secretary of State for Justice v. Sneddon and Oakley [2024] EWCA Civ 1258 (Carr LCJ, Sharp P, and William Davis LJ). The relevant principles can be summarised thus:

In the amended skeleton argument (served on 14 May 2026), the Secretary of State applied to stay the claim or to find that it is now academic. It was submitted by Mr Richard Evans, counsel for the Secretary of State, that the reasons given by Mr Kennedy KC for adjourning the claim generally still hold good. The Board’s advice of 30 August 2023 is now out-of-date. If the claim were to be heard and the decision quashed, it would be inappropriate to make a decision before the Board’s review hearing on 28 August 2026 because the Secretary of State is obliged to consider any further evidence and fresh advice from the Board. In those circumstances, reliance on advice given in August 2023 would be inappropriate. Given the Board will soon consider the Claimant’s case in August 2026, Mr Evans submitted that the better course would be to stay the claim so that the Secretary of State can make a fresh decision, based on up-to-date evidence and fresh advice from the Board, in due course.

In response, Mr Stuart Withers, counsel for the Claimant, asked the court to refuse the application and to proceed with the hearing. It was submitted that as a matter of public law it was necessary to determine the lawfulness of the decision. That process had been unduly delayed by the adjournment of the hearing on 31 October 2025 and the court’s slow response to the Claimant’s application to restore the claim, none of which was attributable to the Claimant or his representatives. It was also argued that the claim was exclusively concerned with the decision’s legality and not with the current continuing parole review process. There was no good reason in law or in practice why the claim should be further delayed to await the Board’s review in August 2026. If the decision were found to be unlawful, it should be quashed. The fact that there may be consequences for the timing of any re-consideration is no justification for not determining the decision’s legality. Mr Withers argued that it is not for the court to “micro-manage” the consequences of a finding of unlawfulness at this stage.

I dealt with the application at the start of the hearing. Although I had some sympathy with the practical force of Mr Evans’ position, I was ultimately persuaded by Mr Withers’ primary argument that, as a matter of public law, the lawfulness of the decision should be decided. Resolution of that question is in no way contingent on the present parole review and I did not understand Mr Evans to suggest otherwise. Should the Claimant succeed, the fact of the forthcoming parole review hearing will be relevant to relief but it is not a bar to deciding whether the decision was lawful.

Mr Withers makes three points in support of the Claimant’s single ground of challenge. First, the decision neither applies nor mentions the principles established in Sneddon. In particular, the decision does not address those points where HHJ Claire Jackson found that the Board had a particular advantage over the Secretary of State, findings which are binding on the Secretary of State and whose absence is said to demonstrate unlawfulness. Secondly, the decision disagreed with the Board’s advice in circumstances in which the latter had a particular advantage not least in relation to the evidence adduced and the submissions made at the hearing in August 2023 and the subsequent reports neither qualified nor undermined the decision. Thirdly, the decision rejected the Board’s advice and ignored the findings of HHJ Claire Jackson. In doing so, it failed to grapple with the Board’s assessment and the Claimant’s progress.

In response, Mr Evans made four submissions: Mr Withers’ first two points appeared to be making the same argument and his final one did not engage at all with the Secretary of State’s reasons or why she had taken a different view from the Board. The fact that the Board heard evidence and submissions conferred no particular advantage on the panel. On the contrary, the Secretary of State took a different view from the Board on a question of judgment and the balancing of private and public interests on which she has an expertise. Secondly, although there is no requirement expressly to cite Sneddon, it is plain that the decision addressed its substance. Thirdly, the Board had no particular advantage over the Secretary of State in relation to the two relevant issues: whether the Claimant had made sufficient progress during the sentence in addressing and reducing the relevant risk to a level consistent with protecting the public from harm and whether there is a wholly persuasive case for transferring the Claimant, as an ISP, from closed to open conditions. The latter was a matter exclusively for the Secretary of State. Finally, the reasons for not following the Board’s advice were rational.

Mr Withers’ first and second points amount to much the same submission, namely that the Secretary of State disagreed with the Board on matters on which HHJ Claire Jackson found that the latter had a particular advantage but failed to explain her reasons for doing so sufficiently or at all.

For the purposes of the decision the Secretary of State was required to consider two questions: whether (a) there has been a sufficient reduction in risk and (b) a transfer to an open prison is justified. It was common ground that the first was a matter on which the Board may advise but the second was exclusively a question for the Secretary of State to decide.

In relation to the first question, as the Lady Chief Justice stated in Sneddon, the weight that the Secretary of State should attach to the Board’s findings and assessment is likely to vary according to whether the Board had a particular advantage over the Secretary of State: para. 36. Where the Secretary of State takes a different view from the Board on an assessment of risk associated with a transfer to open conditions, such a decision “may readily fall within the range of reasonable decisions open to the Defendant”: para. 36.

Here, the decision carefully set out the positive progress made by the Claimant in gaining insight into his offence and demonstrating remorse as well as other matters such as the absence of evidence of physical violence and his honesty. The decision also identified the limits to some of the Claimant’s progress including the inconclusive evidence of his empathy for his victim and whether it was sustained.

The Secretary of State, however, viewed the question of the risk presented by a move to the open estate differently from the Board. In reaching the judgment that the Claimant had not made sufficient progress in addressing and reducing the risk to a level consistent with protecting the public from harm, she placed greater weight on the evidence of the POM (who did not consider that a transfer to open conditions was appropriate) and the COM (who thought that there was a link between the Claimant’s behaviour and the risk of serious harm.) The decision also had regard to the absence of sexually inappropriate or sexually preoccupied behaviour but considered that the degree of control provided by a Category A environment provided some explanation.

The decision also considered the evidence of Dr Craissati, most particularly in the context of any connection between the Claimant’s behaviour (especially his inter-personal and communication skills) and his autism diagnosis. The Secretary of State noted Dr Craissati’s evidence about the Claimant’s rudeness, argumentative conduct and shouting as well as the absence of evidence of physical violence. In the circumstances, she was neither satisfied nor confident that the Claimant had developed the skills to respond “pro-socially” to difficult social situations.

The decision concluded thus:

“On the basis of the evidence in its entirety, the Secretary of State is not yet content this criteria [sic] is met and is instead of the view that focus has been placed, by the Panel, on work completed rather than what has been obtained and internalised from said learning. The Secretary of State, in the knowledge of the report writers’ assessments and recommendations, and the consensus amongst the HMPPS Psychologists, POM and COM that you are not ready or appropriate for the open estate at this juncture is not completed by the Panel’s conclusion and finds this criterion unmet.”

What is strikingly absent from the decision’s consideration of the first question is any substantive reference to, or any sufficient attempt to address, HHJ Claire Jackson’s reasons for allowing the first judicial review. Although the decision’s opening paragraph referred to the quashing of the November 2023 decision and the order to consider matters afresh, there was no reference to the substance of the judge’s reasoning and conclusions at all. Notably, there was no attempt to engage with the judge’s conclusion that the Board had a particular advantage in relation to the link between the Claimant’s diagnosis, personality characteristics and the risks that arise. If the Secretary of State did not consider that the Board had that advantage, the decision did not explain why.

The decision did not explain the rejection of the Board’s conclusions that (a) the Claimant had good insight into his autistic traits which, importantly, were not associated with sexual risk and (b) there was a need to expose him to different social challenges in a less structured environment to prepare him for release. Those conclusions effectively reject the POM’s assessment of the risk posed by the Claimant upon which the Secretary of State placed weight in taking a different view from the Board. These matters are relevant to the nature of the risk posed by the Claimant and the sufficiency of his progress in reducing them. However, notwithstanding HHJ Claire Jackson’s findings, the decision did not sufficiently explain why the Board’s conclusion was rejected and why the Secretary of State attached greater weight to the POM’s evidence.

The decision also did not address the judge’s findings that the Board had had the benefit of hearing the evidence, the advantage of an expert panel member and, after due consideration, had given a firm recommendation to transfer him to open conditions. If the Secretary of State had formed the view that the expert panel member’s involvement gave no particular advantage to the Board, she did not explain her reasoning. Indeed, the point is not addressed at all even though the judge attached some weight to it in quashing the November 2023 decision.

In summing up her reasons for upholding the first judicial review, HHJ Claire Jackson stated that the Secretary of State was required, but had failed, to provide legally sufficient reasons to explain why she had rejected a diagnostic conclusion reached by the Board and its advice about “the interlocking matrix” between the Claimant’s condition and the consequential risks. The lawfulness of the present decision is, in my judgment, vitiated by the same flaw as the first. Having carefully considered the decision, in my judgment, the Secretary of State effectively ignored the judge’s reasoning and conclusions and so they were not addressed. That finding is sufficient to decide the one ground of challenge in the Claimant’s favour.

The claim, therefore, succeeds. As to relief, subject to the parties’ submissions, there should be a declaration that the decision is unlawful and an order quashing it. Given the Claimant was transferred to a Category C prison in September 2025 and is now subject to a progression regime; it is nearly three years since the decision was made and the forthcoming Board hearing on 28 August 2026 at which the relevant and recent evidence will be considered, I am not minded to grant any further relief. I will, however, consider any further representations the parties may wish to make.

Finally, I should like to thank Mr Withers and Mr Evans for their assistance and, in particular, their efficiency and economy at the hearing.