On 28 October 2024, the Court of Appeal handed down its eagerly-awaited judgment in Oakley and Sneddon v Secretary of State for Justice, concerning the proper approach to cases where the Secretary of State rejects advice from the Parole Board to transfer prisoners to open prison conditions. 

As the Court recognised, there has recently been an “accretion of first instance decisions applying potentially very difficult approaches” in such cases. I have previously, along with Lewis Graham, written a blog post on a number of these decisions, where we sought to identify areas of agreement and disagreement between the judges. Amongst other things, we identified that the most important point to be taken from the various first instance decisions was that there was a general agreement 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 advantage over the Secretary of State for the relevant conclusion or proposition (the “particular advantage” test). This was a significant departure from the “facts” vs “risk” distinction which had seemingly come to fruition in the earlier case law. 

The Court of Appeal’s decision in Oakley/Sneddon involves, in a roundabout way, approval and adoption of the “particular advantage” test, but otherwise contains a fundamental repudiation of other aspects of reasoning endorsed in the various first instance decisions, particularly the notion that the Secretary of State must show “good” or “very good” reason for departure from the Parole Board’s recommendations in certain cases. In this piece, I seek to identify precisely what the Court of Appeal now says is the correct approach and offer a critique of its decision.

The “starting point”: the Secretary of State as the sole decision-maker

The Court of Appeal’s analysis begins with what they refer to as the “obvious” starting point, that the Secretary of State is not just the primary, but sole decision-maker per s.12(2) Prisons Act 1952 : “Parliament could have removed the decision-making power from the SoS, or shared it between the SoS and the Board, but it chose not to”, ([24]). The advice that the Secretary of State receives from the Parole Board in respect of transfers to open conditions is “just that: advice” ([29]). In this regard, the Secretary of State is entitled to reject even reasonable recommendations from the Parole Board, on the basis of their own (reasonable) but different assessment. The Secretary of State need not identify any deficiency in the Parole Board’s reasoning to reject it; it is the Secretary of State’s reasoning under scrutiny in a claim for judicial review, not the Board’s ([30]).

Where impugned for irrationality (i.e. Wednesbury unreasonableness) in a claim for judicial review, the reasonableness of the Secretary of State’s decision must be determined in the context of the legislative scheme, where the Secretary of State is the sole decision-maker ([35]). Attempts to identify “key principles” (which is exactly what Fordham J tried to do in his first-instance judgments in these matters) given the context-dependent nature and “elasticity” of reasonableness, is, said the Court, “unlikely to be helpful” ([36]).

Endorsing the assessment of “particular advantage” but rejecting the requirement for “good or very good reason”

The above notwithstanding, the Court endorses in part what we referred to in our earlier piece as the “quiet revolution”: namely the move towards the “particular advantage” test, and away from the older test which distinguished findings of fact (where very good reasons would be needed to depart – see Hindawi) from an assessment of risk (to which lesser weight attaches). As the Court says at [36]:

“In general, the weight that the SoS ought reasonably to give to the findings or assessments of the Board is likely to vary according to whether or not the finding or assessment was one in respect of which the Board held a particular advantage over the SoS. Thus, disagreement by the SoS with a finding of credibility made by the Board after a hearing involving oral evidence may be difficult to defend as reasonable. By contrast, disagreement with the Board’s assessment of risk associated with a transfer to open conditions may readily fall within the range of reasonable decisions open to the SoS. Put very simply, the greater the advantage enjoyed by the Board over the SoS on any particular issue, the less likely a decision of the SoS to depart from that finding or assessment will be rational. But what is and is not reasonable will turn on the facts of each case.”

However, the CA rejected the notion that where the Parole Board enjoys a particular advantage in respect of a particular finding or assessment, that “good” or “very good” reason is needed to depart from said finding or assessment ([37]). This was the analysis adopted by Chamberlain J in Oakley No. 1 ([51]) and more prominently Fordham J in Sneddon ([28(6)]).

Rather, bearing in mind the legislative scheme’s identification of the Secretary of State as sole decision-maker, where the Parole Board enjoys a particular advantage, the upshot is only that it is “less likely a decision of the SoS to depart from that finding or assessment will be rational” ([36]). In this regard, although the Court of Appeal’s earlier decision in Gilbert – which the Court in this case said at [37] was an “authority on point” – references the need for “sufficient good reason”, this, according to the Court, “did no more than reflect the fact that the public law rationality test will inevitably involve taking account of the Board’s findings and views, and according them due respect” ([40]).

The Court acknowledged that this distinction – between the focus of the analysis being on whether “good” or “very good” reason is required to depart, or simply whether the Secretary of State’s decision is rational – may be “narrow”, but was nevertheless important: “Otherwise, the SoS’s discretion is fettered in a manner not contemplated by Parliament.” ([45]).

Critiquing the Court of Appeal’s Judgment

1. The contradiction between endorsing the “particular advantage” approach whilst rejecting a focus on “good/very good reasons”

As reflected by the Lady Chief Justice’s concerns during the oral hearing of the appeal, the Court stressed at the outset of its analysis that “it is important not to over-complicate” ([23]). In this regard, it was raised several times during oral argument that seeking to provide a “gloss” on irrationality which requires “good” or “very good” reason in particular cases would complicate matters where simplicity was preferable.

However, in my view, the Court of Appeal’s preference for simplicity in this area risks providing insufficient guidance to first instance courts on how to perform its task in such cases (i.e. where the Secretary of State rejects the Parole Board’s recommendations for transfer to open conditions). In particular, there is a particular aspect of the Court of Appeal’s judgment which leads to contradictory reasoning: its simultaneous endorsement of the “particular advantage” approach, and rejection of the “good/very good reasons” approach.

As noted above, the Court at [36] explicitly endorsed the view that the weight which the Secretary of State should accord a Parole Board’s finding or assessment depends on whether the Parole Board enjoyed a particular advantage over that finding or assessment. So, for example, as the Court itself identifies, disagreement with a Parole Board’s finding of credibility may be difficult to defend as reasonable, whilst disagreement with an assessment of risk may readily fall within the range of reasonable decisions open to the Secretary of State.

Yet, having itself provided an example each of conclusions where the Parole Board enjoys particular advantage (“advantage questions”) and one where the Parole Board does not (“non-advantage” questions), the Court then at [45] considered that “it is difficult to identify any material aspect of the Board’s likely considerations that would not fall into” a category where “the SoS could only disagree with “very good” reason”, based on the examples given in Sneddon.  

To be fair to the Court, what it appears to be saying at [45] is that the three types of case identified by Fordham J at [28(6)] in Sneddon are overinclusive, rather than suggesting that there is in fact no scenario which would not engage “advantage questions” requiring “very good reason” to depart. There are two responses to this.

First, Fordham J himself in Sneddon identifies at [28(7)] an example of an “other question” which, using the terminology used in this post, is a non-advantage question. In particular, he identifies “the ultimate evaluative judgment, “undertakenagainst 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” as only requiring a “good”, rather than “very good”, reason to depart.

Second, this criticism by the Court misses the point. As a matter of principle, the central question is whether there exist findings or assessments by the Parole Board which are within its particular advantage – not whether Fordham J correctly identifies the categories of such cases – to which the answer is an obvious “yes”. 

The categories proffered by Fordham J may well be overinclusive, but as the Court itself identifies at [36], there are undoubtedly cases where a Parole Board’s assessment engages a non-advantage question, for example “the Board’s assessment of risk associated with a transfer to open conditions”. Indeed, this exact example was amongst the non-exhaustive list of six conclusions or propositions which could not be said to fall within the Parole Board’s “particular advantage” identified in the earlier blog I wrote with Lewis Graham. They were:

• “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 of this factor.

It is unfortunate that counsel for the claimants in the Court of Appeal was, according to the Court ([45]), unable to provide such examples when asked to do so during oral argument. It is equally unfortunate that the Court did not see fit to fill in the blanks itself.

Of course, the argument in this section does not directly address why the Court of Appeal was wrong to reject the “good/very good” reason test (I address this in the next section). However, it does show that the Court of Appeal’s criticism of Fordham J’s judgment fails to engage with the nub of the issue: are there categories of case which do properly engage non-advantage questions, in relation to which a “very good” reason would not then be required?

Because there do exist such categories of case, this aspect of the Court of Appeal’s analysis – which only looks narrowly at the categories identified by Fordham J – ultimately misses the point.

• Misunderstanding the nature of irrationality analysis

There remains the Court’s identification of an apparent practical difficulty in applying the approach advanced by Fordham J in Sneddon, namely the apparent distinction between cases requiring “good” and “very good” reason. Based on Fordham J’s judgment in Sneddon ([28(7)]), in respect of advantage questions, “very good” reason was required, whereas only a “good reason” was required for non-advantage questions. In the Court’s view, this position “produces an unreal and artificial result, far removed from a requirement of reasonableness” ([46]).

The exact benchmark of “good” vs “very good” reason may well be fairly criticised. However, it is difficult to see how the proposition that “good/very good” reasons are needed to justify the Secretary of State’s departure from the Parole Board’s conclusions for advantage questions, in comparison to non-advantage questions, can be impugned, as the Court does. The Court’s underlying concern seems to be the wish to avoid the “good/very good” reason test being used as a “threshold higher than rationality” ([39]), rather than an absolute position that no reasons are needed in such cases.

In this regard, the Court’s own conclusions, after its application of the law to the facts in Sneddon and Oakley (No. 2) in the instant case, are instructive. At [64], for example, the Court states, having reviewed the analysis of HHJ Keyser KC in Oakley No. 2, that: “In conclusion, the SoS gave sound reasons for the decision not to transfer, having given proper weight and consideration to the Board’s advice” (emphasis added). It is difficult to see how an apparent reluctance ([44]) to consider whether there was “good” or “very good” reason to depart from the Parole Board’s finding or assessment can assist a court to sensibly engage with the ultimate question of whether the Secretary of State’s decision was rational – this is the precise reason why, in my view, the Court of Appeal’s rejection of the “good/very good” reason test is wrong in principle.

The concern that a “good/very good” reason test may impose a “threshold higher than rationality” seems to me to be misplaced and misunderstands the nature of irrationality analysis. Where the impugned public authority decision is, as is the case here, one which involves departure from the recommendation/advice of another body (in this case, another public authority), the focus of any irrationality analysis must necessarily, and logically, be on the challenged public authority’s reasons for departure. In the Court’s own terms ([35]), the impugned decision cannot be analysed “in the abstract”. 

• Weakening the intensity of review 

The Court of Appeal’s decision ultimately rests on a concern that the intensity of review of the Secretary of State’s decision should not be too high, given their position as the sole decision-maker. This is a valid concern. In this regard, it may be fair to question the bar set by Fordham J in Sneddon, which requires not just “very good reason” for advantage questions, but also “good reason” for non-advantage questions ([28(7)].

However, the complete rejection of the “good/very good reasons” approach throws the baby out with the bathwater. A judicial approach which claims not to permit assessment of (though not necessarily prohibiting engagement with) whether the Secretary of State provides “good/very good reasons” when assessing whether the Secretary of State’s decision is irrational risks: (i) a confused approach which does exactly what it says a court should not do (as reflected in the Court’s own application of the law to the facts in the instant case shows); or (ii) an analytically inadequate and abstract approach which does not focus on the Secretary of State’s reasons for departure, when that is the essence of assessing rationality in this context.

Conclusion

The Court of Appeal has rejected the claimants’ application for permission to appeal to the Supreme Court in the instant case. However, as I have sought to demonstrate, there are fundamental flaws in the Court’s reasoning which not only has likely implications for the ability of future judicial consideration of the approach in cases similarly involving Secretary of State rejections of Parole Board recommendations for transfer to open conditions, but also the robustness of how a judicial review court generally engages with questions of rationality relating to public authority decision-making. It is hoped that the Supreme Court will grant permission to appeal in these joint appeals and provide important clarification on the matters raised.

I am grateful to Lewis Graham and the editors for earlier comments on a draft of this post. All errors remain my own.

Gabriel Tan, Bar Vocational Studies candidate, City Law School. 

(Suggested citation: G. Tan, ‘A confused approach to irrationality: Oakley and Sneddon v Secretary of State for Justice ’, U.K. Const. L. Blog (4th November 2024) (available at https://ukconstitutionallaw.org/))