News & Insights

A wall at HMP Wandsworth

Clarity of approach in open conditions prison transfer cases: R (Allen) v Secretary of State for Justice [2024] and Oakley and Sneddon [2024]

16/01/2025

Open conditions prison transfer’ is one of “the hottest topics in contemporary Public Law”, and has generated a considerably large amount of caselaw, as HHJ Tindal aptly put it in the recent case of R (on the application of Allen) v Secretary of State for Justice [2024] EWHC 2370 (Admin).  Despite being an area with no shortage of first-instance authorities, there remains a lacuna in two arenas: firstly, substantial Court of Appeal authority and secondly, authorities which deal with the 2023 Parole Board guidance which is currently in force.

R (Allen), taken alongside Oakley and Sneddon [2024] EWCA Civ 1258, which followed a month later, provide important clarification on the proper approach to be taken to the transitional mismatch of policy and emphasised the need for the Secretary of State for Justice’s decisions in these cases to afford ‘appropriate respect’ by making some meaningful reference to the Parole Board’s recommendations to justify departure.

Policy Background

The legal framework for ‘open conditions transfer’ is found in the Generic Parole Process Policy Framework 2023 (‘GPPPF’). The GPPPF has a complex history, with several distinctive changes made to the policy in 2015, 2022 and 2023. Robust analysis of ‘open conditions transfer’ caselaw therefore requires a clear understanding of the similarities and distinctions between the different GPPPF policies over recent years.

Naturally, there are considerable similarities between all three of the most relevant policies. The genesis of the ‘wholly persuasive case’ criteria relevant to R (Allen) is found in the PSI 22/2015 (“GPPPF 2021”) at 5.8.3. It was absent in the next iteration of the GPPPF from 2022 which saw the implementation of a three-part policy at 5.8.2 requiring consideration of i) the risk of absconding, ii) that open conditions were considered essential to inform future decisions about release and iii) that doing so would not undermine public confidence in the Criminal Justice System. In addition, whether sufficient progress had been made by the applicant was a relevant background factor. Finally, the current policy GPPPF 2023 retains a three-part test but promotes the ‘sufficient progress’ and ‘wholly persuasive case’ criteria whilst removing the controversial ‘public confidence’ factor. GPPPF 2023 at 5.83 requires consideration of i) whether sufficient progress has been made ii) the risk of absconding and iii) whether there is a wholly persuasive case for transferring the applicant from closed to open conditions.

R (Allen) [2024] EWHC 2370 (Admin)

The claimant Sean Allen was convicted of murder in 2007 and sentenced to life imprisonment with an 18-year tariff expiring in November 2024. The parole board made a report on 1November 2022 in favour of the Claimant moving to open prison conditions utilising the GPPPF 2022 which was in force at the time. Due to a backlog in its caseload, caseworkers on behalf of the Secretary of State for Justice did not consider the claimant’s case until 20 July 2023, now applying the new GPPPF 2023. A decision letter was sent on 31 July 2023 stating that the Secretary of State for Justice did not consider that the new ‘wholly persuasive case’ criteria was met. In its decision letter, only minimal reference was made to the Parole Board’s recommendation report.

R (Allen) represents one of only three cases currently available on Westlaw and BAILII which relates to the 2023 policy which is currently in force (GPPPF 2023 at 5.83). Therefore, R (Allen) provides important insight into the proper approach to be adopted in respect of the current policy as opposed to analogous previous policies as addressed by much of the previous caselaw, including the most recent Court of Appeal authority Oakley and Sneddon [2024].

Another marked difference, making R (Allen) stand out from the sea of other ‘open conditions’ authorities, is its consideration of the correct procedure to be followed where there is a ‘transitional mismatch’ whereby new policy comes into force in between the Parole Board issuing its recommendation and the Secretary of State for Justice reaching its ultimate decision. Given the volume of first-instance decisions on this topic and the regularity of policy changes being implemented by successive governments it is important for practitioners to note that the approved approach to recommendations made during a policy transition period is that the policy in force at the time each relevant decision maker prepares their respective recommendation or decision is to be adhered to. Therefore, as in this case, where the policy used by the Parole Board is subsequently updated by the time the Secretary of State for Justice makes its decision, it is not bound by the old policy but can make a decision contingent on the new policy currently in force.

HHJ Tindal considered that the Secretary of State’s decision should ultimately be quashed for two distinct reasons. Firstly, that in making her decision the official with delegated responsibility for the Secretary of State for Justice failed to acknowledge the Parole Board decision or to provide a reason for her departure from it. Secondly, that the Secretary of State’s decision was internally conflicting and therefore unreasonable.

In interpreting what is meant by the final “wholly persuasive” criteria, the Judge departed from the narrower approach adopted by Andrew J in R (Kumar) v Secretary of State for Justice [2019] EWHC 444 (Admin), in a case involving the GPPPF 2021. HHJ Tindal’s rationale for such a departure was the vastly different policy context between the 2021 and 2023 GPPPF, at 56: In my judgement, para 5.8.2 of GPPPF 2023, can now be interpretated naturally in the sense I have tried to describe at paragraph 54 of this judgment, rather than more restrictively as Andrews J did in R(Kumar) in its very different policy setting of PSI 22/2015.” This departure affirms the approach taken by HHJ Wall in the contemporaneous case of R (Valentine) v Secretary of State for Justice [2024] EWHC 1534 (Admin). In short, the interpretation of the third and final factor of GPPPF 2023, the ‘wholly persuasive case’ criteria is comparative with a standard of proof – at 54, “whether there is a ‘wholly persuasive’ rather than ‘moderately persuasive’ case “. This is a matter for the Secretary of State for Justice to consider, falling outside of the scope of the Parole Board, and therefore the recommended approach is: having considered the first two criteria (if sufficient progress has been made and the risk of absconding) the Secretary of State for Justice should step back and consider whether the case as a whole meets the ‘wholly persuasive case’ standard.

Furthermore, it was held that ‘appropriate respect’ needs to be afforded to the recommendations made by the Parole Board. Although the Parole Board’s report acts as ‘advice’ and is not binding on the Secretary of State for Justice, there nonetheless needs to be some form of meaningful reference to the report. The approach to be taken is the same as that in the case of R (Draper v Secretary of State for Justice [2024] EWHC 1892 (Admin). At 58, HHJ Tindal states:

“Nevertheless, although the Defendant does not necessarily have to disagree with any specific finding of the Parole Board if it is decided (as here) the ‘absconding’ and ‘sufficient progress’ criteria are met, but there is not a ‘wholly persuasive case’ for open conditions, it does have to ‘engage properly’ with the Board’s recommendation and ‘articulate its reasons for reaching a contrary view’ ( R(Draper) points (ii) and (viii)). The Defendant must show that recommendation ‘appropriate respect’ (R(Draper) point (ix) and reach ‘rational and properly justified ‘ decision (R(Draper) point (iii)). The Defendant need not seek out a ‘deficiency’ in the Board’s decision, nor exercise ‘anxious scrutiny’ (R(Draper) point (v)) or present a point-by- point rebuttal or critique, but it must address the relevant issues and explain its ‘contrary view’ R(Draper) point (viii)).”

Ultimately R (Allen) concludes that there needs to be some form of engagement with the Parole Board’s report but, taking into consideration the Court of Appeal’s favoured approach in Oakley and Sneddon [2024], it need not require a prescriptive exercise or require that the Secretary of State evidences ‘very/good reasons’ for doing so.

Treatment in the Court of Appeal

This is an area of law which has had considerable consideration in the court of first instance but noticeably less consideration by the Court of Appeal. This was remedied somewhat by the recent much-anticipated judgment in the joint appeals of Oakley and Sneddon [2024] EWCA Civ 1258 which provided clarity on the approved approach to be taken in general by the Secretary of State for Justice in departing from Parole Board decisions, albeit without being wholly analogous to R (Allen) as both R (Sneddon) [2023] WEHC 3303 (Admin) and R (Oakley No.2) [2024] EWHC 292 (Admin) were cases in respect of an earlier and notably different GPPPF policy from 2022.

Despite the difference in GPPPF policy, the Court of Appeal’s approved approach in this case accords largely with the general approach HHJ Tindal adopted a month earlier in R (Allen). The Court of Appeal cautioned an overly prescriptive approach and stated, at 37:

“To approach rationality in this open way, and not by reference to a critique of the Board’s advice and a need to show “good” or “very good” reason to depart from any or all of it, is the approach identified in Gilbert, a Court of Appeal authority on point. It is an unreported decision which does not appear to have featured as strongly as perhaps it should have done in the first instance decisions that came after it.”

HHJ Tindal was wholly correct to refer repeatedly in his earlier judgment in R (Allen) to R (Gilbert) v Secretary of State for Justice [2015] EWCA Civ 802 when he approached the issue of transitional policy (at 24-26) and again when coming to his conclusion that the general correct approach to be adopted is:

If rejecting the recommendation, the Defendant does not have to show ‘very good reasons’ (except in rejecting specific findings on which the Board has particular advantage e.g. of fact), but it must ‘engage properly’ with the Board’s recommendation and show it ‘appropriate respect’ by explaining its disagreement.” (at 54).

There appears to be consensus in the most recent authorities in this area that some factual contexts where the Parole Board have particular advantage over the Secretary of State for Justice, for example if they have made a finding of credibility on the basis of oral evidence, might indicate a recommendation which should be more cautiously departed from. The ‘particular advantage’ test acts as a ‘red flag’ system, indicating to the court a decision which may be more or less likely to be rational. By rejecting the ‘good/very good reason’ approach the Court of Appeal, and R (Allen), resist encouraging a specific framework of analysis which could lead the courts to engage in a thorny approach of conducting an exercise of imagining themselves as the Secretary of State, something traditional Judicial Review principles have repeatedly warned against (6-014, De Smith’s Judicial Review). The ruling therefore takes a common-sense approach by avoiding opening the gates to anything more prescriptive. The usual principles of irrationality should remain, simply: was the Secretary of State’s decision rational or not.

Photo by John Cameron on Unsplash

Authors

Popular Insights

Tom Edwards looks at the impact of the shift from Joint Enterprise to Common Purpose in the five years since…

Articles
19/08/2021

Ben Hargreaves explores the inherent challenges in the admissibility of sexual history in sex cases. Section 41 of the Youth…

Articles
20/04/2020

Silas Lee, pupil barrister, reviews the statutory regime on witness anonymity. Anonymous witness orders are most commonly sought by the…

Articles
11/01/2021

An analysis of the law on fitness to plead and stand trial in the magistrates’ courts: Silas Lee reviews the…

Articles
06/06/2021

Portfolio Builder

Select the practice areas that you would like to download or add to the portfolio

Download    Add to portfolio   
Portfolio
Title Type CV Email

Remove All

Download


Click here to share this shortlist.
(It will expire after 30 days.)