It is not that often that first instance judges in judicial review claims disagree as to the approach to be taken in the context of a core question relating to judicial review. When it happens, administrative lawyers are bound to take notice. This has most recently occurred in the context of rationality challenges to decisions taken by the Secretary of State for Justice to reject Parole Board recommendations to release or transfer to open conditions. The most interesting aspect of this recent phenomenon is that the High Court has managed to hand down, on our count, 13 reported decisions over the last two years, before the Court of Appeal has had the opportunity to “resolve” the issue, although a hearing is currently listed before the Court of Appeal in appeals against two of these decisions in October 2024. In this piece, we seek to explain the current position, highlighting areas of agreement and disagreement between first instance judges, and which questions remain, as yet, unresolved.

The law in outline 

Section 12(2) of the Prison Act 1952 gives the Secretary of State decision-making powers to move prisoners during the term of imprisonment. Section 239(2) of the Criminal Justice Act 2003 imposes a duty on the Parole Board to advise the Secretary of State on various matters, including questions as to a prisoner’s categorisation and a prisoner’s suitability (or not) for transfer to open conditions.

Where a decision by the Secretary of State is to reject the Parole Board’s recommendation, the courts have long accepted that their role “is to focus upon the rationality of the decision of the Secretary of State which is being impugned, rather than being distracted by the rationality of the decision of the Parole Board”. The decision-making process, and the public law route of challenge, is therefore very familiar: the Parole Board makes a recommendation, which the Secretary of State will take into account (though they are not bound by it) when making their decision. The Secretary of State’s decision will then be quashed if it is irrational. It is perfectly possible, in respect of the same prisoner, for both a recommendation by a Parole Board to be rational, and a decision to the contrary effect by the Secretary of State to be rational. The Secretary of State is not bound to accept the Parole Board’s recommendation, “provided there is sufficient good reason not to”.

The main issue: where does each body’s competence lie?

Things are not, however, always so simple. The Parole Board may only make recommendations to the Secretary of State, but given the unique position and special competence of the Board, it might be irrational for the Secretary of State to reject some of its recommendations without good reason. In Oakley (No. 1), Chamberlain J explained that “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 Secretary of State disagrees”. This is because the nature of the particular conclusion or proposition will affect the level of scrutiny and standard of review a court will adopt in reviewing the Secretary of State’s decision. In this regard, it has been a longstanding principle that the common law does not apply a single, rigid, test of irrationality. Rather, the standard of review (even when applying a rationality test) depends on context.

Risk vs fact – the “old” distinction?

Prior to Oakley (No. 1), the position, from e.g. Hindawi was that the Secretary of State had to make “a clear distinction… between findings of fact made by the Parole Board and its assessment of the risk”. The findings of facts in Hindawiincluded matters relating to the prisoner’s credibility, the effect of their PTSD on risk of re-offending, and their reasons for failing to cooperate with the risk assessment process. A “very good reason” was needed to depart from findings of fact made by the Parole Board, but the Secretary of State was entitled, relying on these findings, to assess risk for himself, whilst “according appropriate respect to the views of the panel on their assessment of risk”.

In Oakley (No. 1), Chamberlain J explained that he did not find it helpful to differentiate the conclusions or propositions of the Parole Board which the Secretary of State disagreed with as “findings of fact (to which the Hindawi approach applies) or assessments of risk”. Later judgments, e.g. by Eyre J in Overton, have expressed agreement on this point, on the basis that “there is not a bright line distinction” between matters of fact and assessments of risk; rather, there is a “continuum”. 

Particular or significant advantage – the “new” distinction?

Instead, as Chamberlain J puts it in Oakley (No. 1), the “more pertinent question” for a reviewing court is whether the conclusion or proposition which the Secretary of State disagrees with is one in relation to which the Parole Board “enjoys a particular advantage” (at [51], although the Judge also uses the term “significant advantage” [48]). If so, a “very good reason” is needed for departure. This was contrasted with cases which involve exercising judgment to balance private and public interests, in which case the Secretary of State, whilst needing to show appropriate respect, is entitled to take a different view. This typology has been broadly endorsed and applied by other High Court judges (some using “particular advantage” and some using “significant advantage”) in, for example, McKoy, Zenshen, Wynne, and Overton.

However, misgivings about Chamberlain J’s approach were raised in Oakley (No. 2). The case concerned a challenge by the same claimant in Oakley (No. 1), to the reconsidered decision made by the Secretary of State to reject the Parole Board’s recommendation to transfer the claimant to open conditions. This was after Chamberlain J had quashed the original decision and remitted it to the Secretary of State. In this later case, HHJ Keyser KC seemingly expressed agreement with the thrust of Chamberlain J’s basic approach in Oakley (No. 1), but confessed to having “misgivings about his exposition of it”.

HHJ Keyser KC’s main issue arises from the basic proposition, articulated above, that the ultimate question for the court would always be “whether the Secretary of State’s decision is impeachable on public law grounds, not whether the Parole Board’s recommendation is open to criticism on similar grounds”. Whilst Chamberlain J might have been correct in identifying that there is no neat dichotomy between assessments of “fact” and “risk”, according to HHJ Keyser KC, Chamberlain J was wrong to the extent that he suggests there is a dichotomy between matters in which the Parole Board “has a particular advantage” and matters “involving the exercise of judgment requiring the balance of public and private interests”. There may be exercises of judgment not involving the balance of public and private interests, e.g. how to assess different expert opinions, on which the Parole Board cannot be regarded as having a “particular advantage”. Flowing from this, Chamberlain J’s approach may “encourage an undue limitation of the scope of the Secretary of State’s freedom in his decision-making”. 

In Cain and Uddin, judges in two separate first instance decisions expressed disagreement with the doubts raised by HHJ Keyser KC in Oakley (No. 2), over Chamberlain J’s approach in Oakley (No. 1), and expressly indicated a preference to follow the latter, without articulating their reasons. 

In Hahn, Eyre J sought to provide a rationalisation of the differing approaches taken in certain first instance decisions, albeit not in the specific context of Oakley (No. 1) and Oakley (No. 2). His broad analysis was that differing approaches to standards of review was explicable by the fact that the Secretary of State’s decisions in certain cases were made pursuant to different versions of the Generic Parole Process Policy Framework (“the GPPPF”). Under the earlier pre-July 2022 version of the GPPPF, the default position was that the Parole Board’s decision would be accepted; only where specified conditions were satisfied would the recommendation be rejected. On the other hand, in the post-July 2022 version of the GPPPF, the default was that the Parole Board’s decision would not be accepted; only where specified conditions were satisfied would the recommendation be accepted.

There are two fundamental problems with applying Eyre J’s rationalisation to justify the different approaches in Oakley (No. 1) and Oakley (No. 2). First, Eyre J had himself decided the case of  Overton, which involved an application of the later post-July 2022 version of the GPPPF, and  expressed “respectful agreement” with the approach taken by Chamberlain J in Oakley (No. 1) (see [30] of Overton), which involved an application of the earlier pre-July 2022 version of the GPPPF. Second, and more importantly, both Oakley (No. 1) (see [22]) and Oakley (No. 2) (see [11]-[12]) involved application of the same, earlier pre-July 2022 version of the GPPPF. That is to say, Eyre J’s rationalisation that different approaches can be justified by reference to different versions of the GPPPF applying, simply cannot apply here. In the event, other reasons must be found to justify following Chamberlain J’s approach, or aligning with the doubt expressed by HHJ Keyser KC.

In our view, there is in fact no major disagreement between the two judges, as Calver J intimated in Cain (at [58]). As HHJ Keyser KC himself admits at [17] of Oakley (No. 2), he considers that the fundamental distinction is between matters where the “Parole Board enjoys a particular advantage over the Secretary of State… and matters in relation to which the Parole Board does not”. This was the primary point made initially by Chamberlain J at [51]-[[52] of Oakley (No. 1). HHJ Keyser KC is also surely right, and so Chamberlain J is wrong to the extent that he suggests to the contrary, that there can be no dichotomy between matters where the Parole Board enjoys an advantage, and matters involving the balancing of private and public interests. There can only be a relevant dichotomy between the two scenarios identified by HHJ Keyser KC i.e. between matters where the Parole Board has advantage and matters where the Parole Board does not (into the latter of which categories the balancing of private and public interests will likely fall). 

In any case, the most important point to be taken is that all the various first instance decisions, in spite of areas of disagreement, agree that, when assessing the rationality of the Secretary of State’s decision to reject recommendations by the Parole Board, the focus must be on whether the Parole Board enjoys a particular (or significant) advantage over the Secretary of State for the relevant conclusion or proposition. This is a significant departure from the “facts” vs “risk” distinction in the earlier case law. This new distinction has eclipsed the old one: on this all first instance judges agree.

Distinguishing “advantage” from “non-advantage” questions

Given how fundamental the distinction is between areas which the courts have regarded as falling within the category of conclusions or propositions where the Parole Board enjoys “particular advantage” (“advantage questions”) compared to those where they do not (“non-advantage questions”) it may be useful to set out which kinds of question fall into each category. Advantage questions include:

• Generally, findings of fact turning on credibility of witnesses who have given live evidence (Oakley (No. 1) at [47]; Sneddon at [28(6)]);
• Contested questions of diagnoses of illness and explanation of behaviours (Oakley (No. 1) at [48]; Oakley (No. 2)at [17]);
• Credibility assessments, particularly those after oral hearings (Wynne at [75]; Sneddon at [28(6)]).

There is a question as to whether assessments of levels of risk constitute an “advantage question”. In Oakley (No. 1) (at [49]), it was considered that such disputes will often turn on questions of “disputed facts or prediction”, where the Parole Board enjoys the advantage. A similar position was taken in Sneddon (at [28(2)]). However, in Valentine, it was recognised that there may be a tension in considering the Board has an advantage in such circumstances, given prisoner management and responsibility for public safety is within the expertise and experience of the Secretary of State. The proposed way out of this conundrum was a recognition that the assessment of risk was within the Parole Board’s advantage, but determining whether that the risk is sufficient to justify refusal to transfer to open conditions etc was a matter for the Secretary of State.

As to conclusions or propositions which would be said not to fall within the Parole Board’s “particular advantage”, they include:

• Questions of “evaluative judgment”: Sneddon at [28(7)]); Cain at [67]
• “Assessments of risk”: Overton at [27], particularly “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” (Overton at [28])  
• The “management of risk in the context of the prison estate”: Overton at [27]
• Where a question involves no difference in evidence: Cain at [61]
• Where the question involves a balancing of the prisoner’s interests against the public interest: Sneddon at [28(7)]; Cain at [67]
• “Whether a transfer to open conditions would not undermine public confidence in the criminal justice system”. This was considered relevant in Uddin (at [52]), and definitely a matter for the Secretary of State ([53]), though this was considered to “add nothing” in Zenshen (at [79]) as all assessments of “risk” implicitly involved consideration already of this factor.

Where a conclusion or proposition falls within the category of “non-advantage questions”, the Secretary of State, so long they have accorded appropriate respect to the Parole Board’s assessment, is entitled to take a different view. To be sure, public law challenges against these matters will still proceed on rationality grounds. However, the consequence of a conclusion or proposition falling within “non-advantage” category is that there may be “very limited parameters” for the Secretary of State to reject the Parole Board’s assessment: Sneddon (at [29]). 

How much reasoning does the Secretary of State need to provide?

In both advantage and non-advantage cases, the High Court in Oakley (No. 1) (at [51]) explained that the Secretary of State must provide reasons for departing from the Parole Board’s assessment, although the nature and quality of reasons needed may differ. These reasons will depend on the nature and subject matter in question: Overton (at [29]).

For ”advantage questions” , the Secretary of State’s departure will “ordinarily require cogent justification”: Zenshen (at [32]). In this regard, a “genuine engagement with the material factors that arise in the case of the individual prison” must be demonstrated: Zenshen (at [83]). The more the particular conclusion or proposition relates to matters of Parole Board competency, “the more cogent and detailed” the reasoning must be: Overton (at [30]). For “non-advantage questions”, as alluded above, a “good reason”, showing “appropriate respect” to the Parole Board’s decision is still required: Sneddon (at [28(7)].

As to the specific level of reasoning required, the following guidance has been provided:

• A decision letter will often suffice: McKoy (at [46]); Valentine (at [111])
• Where the Parole Board’s reasons are not specifically referred to (Oakley (No. 1) at [57]), “engagement” with the reasoning is usually necessary and sufficient: Overton (at [30]); Swellings (at [50])
• Alternatively, where departing from the Parole Board’s assessment, reasons for doing so should be provided: Wynne (at [85]), although a “point by point rebuttal” is not required: Overton (at [31]).
• In some cases, non-reference to the Parole Board’s reasons is fine so long as it can be implied: Overton (at [31]). This may be particularly, though not exclusively, so in relation to conclusions or propositions in “non-advantage” cases, as the Secretary of State’s reasons for their conclusion may explain why they disagree with the Parole Board: Overton (at [31])

Conclusion

As we have sought to demonstrate, the intimation of more disagreement than there actually is between first instance judges in the context of rationality challenges to rejection of Parole Board recommendations has obscured the quiet revolution that has taken place in the Administrative Court. The introduction of the “particular advantage” vs “no particular advantage” dichotomy by Chamberlain J in Oakley (No. 1), thereafter accepted by a sizeable number of other first instance judges, represents a significant departure from the old “fact” vs “risk” dichotomy which should not be overlooked. It remains to be seen if the Court of Appeal will affirm it.

Gabriel Tan, BCL Candidate, Lady Margaret Hall, University of Oxford.

Lewis Graham, Law Society Fellow in Law, Wadham College, University of Oxford.

(Suggested citation: G. Tan and L. Graham, ‘A Quiet Revolution – Rationality and the Parole Board’, U.K. Const. L. Blog (11th July 2024) (available at https://ukconstitutionallaw.org/))