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

This judgment is concerned with one aspect of relief following my earlier judgment dated 26 June 2026 ([2026] EWHC 1626 (Admin)) in which I allowed the Claimant’s claim for judicial review of the Secretary of State’s decision (dated 3 February 2025) not to transfer him to an open prison. For the sake of consistency, I adopt the abbreviations previously used.

In para. 43 of my earlier judgment, I said that, subject to the parties’ submissions, there should be a declaration that the decision is unlawful and an order quashing it. In light of (a) the Claimant’s transfer to a Category C prison in September 2025; (b) the fact that he is now subject to a progression regime; (c) it is now almost three years since the Board’s advice was given and (d) the forthcoming review by the Board of the Claimant’s case, I was not minded to grant any further relief. That provisional view was, however, subject to any further submissions that the parties may wish to make.

Following circulation of the draft judgment, Mr Withers, counsel for the Claimant, said that he would like to make submissions on relief. I therefore directed the Claimant to file and serve a note by 29 June 2026 followed by the Secretary of State’s response on 1 July 2026. Thereafter, relief would be decided on the papers.

The parties agree that the decision should be quashed. The parties also agree that (a) the Secretary of State should pay the Claimant’s reasonably incurred costs, on the standard basis, to be subject to a detailed assessment if not agreed and (b) there should be a payment on account of the Claimant’s costs amounting to 60% of those costs within 14 days of receipt of the schedule of costs. They also agree that the Claimant’s publicly funded costs should be subject to a detailed assessment under the Civil Legal Aid (Costs) Regulations 2013 and CPR 47.18. I shall make those orders.

The parties do not agree the Claimant’s application that the Secretary of State be directed to make a fresh decision within 21 days.

The Claimant accepts that relief is discretionary and it is for the court to grant such relief having regard to the circumstances of the case. The Claimant also submits that the usual effect of a quashing order is that it obliges the decision-maker to consider matters afresh and in a lawful way: R (Imam) v. London Borough of Croydon [2023] UKSC, paras. 41 and 44. On the facts of this case, the Claimant submits that it is appropriate for the Secretary of State to be ordered to make a fresh decision within 21 days. In support, the Claimant relies upon four principal points: first, the Secretary of State is the sole decision-maker and he is not required either to consult the Board or to accept its advice: Sneddon, para. 25; secondly, before making the decision of 3 February 2025 the Secretary of State did not require the Board’s updated advice or further evidence from the Claimant’s POM or COM; thirdly, the supplemental bundle contained material on which the Secretary of State can now decide whether to transfer the Claimant to an open prison; fourthly, there is a substantive advantage in deciding matters as soon as possible given the time that the Claimant has spent “over tariff”, the delay in resolving the claim for judicial review, the absence of certainty that the Board hearing on 28 August 2026 will take place and, if postponed, the further delay in reconvening.

The Secretary of State asks the court not to make the direction sought for three primary reasons: first, the Board’s advice is now significantly outdated and it would be inappropriate for the Secretary of State to make a fresh decision before the Board has carried out a further review. The Secretary of State is entitled, if not obliged, to take into account any fresh evidence before, and up-to-date advice from, the Board. To rely on advice that it is nearly three years old would be incorrect. In particular, one of the material differences between the Board’s advice and the Secretary of State’s decision was whether it was appropriate to transfer the Claimant directly to an open prison or to progress through the other categories. The Claimant has now been transferred from Category B to C establishments. These developments render the Board’s advice of 30 August 2023 outdated. Secondly, the Board’s review is listed to be heard on 28 August 2026 and so any delay before a further decision will be insignificant. Finally, if the Secretary of State were to make a fresh decision now, he would likely withdraw the request for advice from the Board. That would mean that if the fresh decision was negative, the Claimant would not have the benefit of the Board’s review and advice.

Having considered the parties’ submissions, I am not persuaded that it is appropriate to direct the Secretary of State to make a fresh decision within 21 days.

Remedies in public law are discretionary: Imam, para. 42; R (Edwards) v. Environment Agency [2008] 1 WLR 1587, para. 64. The existence of a discretion as to the relief to be granted allows a court which finds that there has been a breach of a public law obligation to decide, in light of all the circumstances of a case, how individual rights and any countervailing public interests should be reconciled. As the Claimant submitted, a quashing order is the usual remedy in public law which obliges the decision-maker to re-take a decision in a lawful way. Where a remedy is discretionary, it is incumbent on the court to exercise its discretion in accordance with principle and to avoid arbitrariness: Imam, paras. 44 and 45.

However, as Lord Sales also held in para. 45 of his judgment in Imam, when deciding in the exercise of its discretion to grant a mandatory order to require a decision-maker to do a particular thing, the court has to have regard, among the other matters identified in the judgment, to the way in which an order may undermine to an unjustified degree the ability of the authority to fulfil functions conferred on it by Parliament and act in the public interest. The effect of this is that the ambit of the court’s discretion whether to grant a mandatory order as opposed to a quashing order may be somewhat greater. To quote Lord Sales once more:

“If the court makes a quashing order or issues a declaration but declines to make a mandatory order, the matter remains in the hands of the public authority which may be best placed to take account of all interests with full relevant information about them. Having said that, the nature of a breach of a legal duty on the authority may be such as to call for the grant of mandatory relief in order to compel the authority to do what it has a clear legal duty to do.”

Here, the Secretary of State’s effective position is that it would be inappropriate for him to make a decision in the Claimant’s case before next month’s review hearing. The Board will have the benefit of up-to-date evidence from relevant witnesses including, presumably, the Claimant himself. It will then be able to advise the Secretary of State, informed by the most recent evidence, on the most appropriate course. In my judgment, it is preferable for the Secretary of State to make a fresh decision with the advantage of the Board’s up-to-date recommendation and not on the basis of almost three-year-old advice. That point is especially pertinent in relation to the important question whether the Claimant can demonstrate that he has “internalised” his learning since August 2023.

I also accept the submission of Mr Evans, counsel for the Secretary of State, that the Claimant’s transfer to a Category C prison in September 2025 renders the Board’s advice of 30 August 2023 outdated in any event.

Mr Withers points out that the Secretary of State has recent information on the Claimant in the form of the PRA (dated 1 May 2026) prepared by Catherine Jones and the on/post-tariff Parole Custody Report (dated 29 April 2026). However, if the court directs a fresh decision within the next 21 days, the Secretary of State would still be obliged to consider the Board’s advice of August 2023. That advice was based on facts that have been overtaken by events, in particular, the Claimant’s transfer to a Category C prison in September 2025. By contrast, if no such direction is given, following next month’s review hearing, the Board’s advice will be informed by a broad range of up-to-date evidence on the Claimant’s case including his response to last year’s move to a Category C establishment.

On the facts of this case, the Secretary of State will be better able to fulfil his statutory function and to consider how best to act in the public interest with the benefit of the Board’s consideration of the most recent relevant evidence. The review hearing will be on 28 August 2026 and so the length of time until hand-down of the Board’s advice and a further decision by the Secretary of State is unlikely to be significant. Put differently, that period is unlikely to be so long as to qualify or extinguish the considerable benefit to both the Claimant and the Secretary of State of having the Board’s up-to-date recommendation. Although the Claimant has relied upon the risk of a postponement of the review hearing, as matters stand, that prospect is neither real nor substantial.

I shall, therefore, make the following order:

Finally, I should like to thank Mr Withers and Mr Evans once again for their assistance.