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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

10 JAN 2013

R (on the application of Wilmot) v Secretary of State for Justice [2012] EWHC 3139 (Admin); (2012) PLLR 142

Prisoners - discretionary life prisoner - Parole Board - recommendation - transfer to open prison - Secretary of State for Justice - refusal - policy - legitimate expectation - irrationality

The decision of the Secretary of State for Justice was entitled to depart from the recommendation of the Parole Board that the claimant be moved to an open prison. The decision was made on the basis of irrationality where a significant body of evidence had not been properly dealt with by the Board, and could not be challenged

9 November 2012

Administrative Court

King J

(1)        The claimant (W) was a discretionary life prisoner who had served 15 years more than his tariff. The Parole Board recommended that he be moved to a closed prison. The Secretary of State for Justice declined to follow this recommendation.

(2)        W sought judicial review, claiming that the Secretary of State had created a legitimate expectation by issuing a published policy that he would only depart from Parole Board recommendations where such a recommendation could be said to be irrational, and that he could only lawfully depart from that policy if the decision of the Parole Board could be said to be irrational in the Wednesbury sense or where they were legitimate public policy reasons for doing so (R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12). Both parties accepted that if no such legitimate expectation existed the claim could not succeed as the Secretary of State's decision could not be said to be irrational on general public law principles.

(2)        King J held (i) that the statutory scheme laid down by section 12 of the Prison Act 1952 and rule 7 of the Prison Rules gave the Secretary of State a broad discretion in determining how prisoners should be categorised. The court should be slow to find that the Secretary of State had bound himself. It was notable that there had been no amendment to either the Prison Service Order Direction or internal guidance following the issuance of the policy statement referred to. The court would only intervene where the Secretary of State's decision could be shown to be unlawful on the general public law grounds of Wednesbury unreasonableness or procedural fairness [43] - [48], [57] - [57]. (ii) That it was not possible to say that there was a clear published policy of following the Parole Board's recommendations. The use of the word ‘irrational' by the Secretary of State in the decision letter was not a legal usage; rather, it meant that the Secretary of State would only depart from a decision of the Parole Board where it was clearly wrong and did not match his own assessment of the situation. Even if a legitimate expectation had been created, the Secretary of State had not acted irrationally in departing from the Parole Board and was entitled to conclude that the decision had failed to engage properly with significant evidence suggesting that W was not ready for transfer [58] - [66].

Claim fails

Key paragraphs

[1] - [8] Introduction

[9] History of previous reviews

[10] - [13] The 2011 Parole Board recommendation

[14] - [15] Evidence not supporting a transfer

[16] - [18] Evidence supporting transfer

[19] - [24] The Parole Board decision

[25] - [29] The decision letter of the Secretary of State

[30] - [34] Subsequent statements from both the Parole Board and on behalf of the Secretary of State

[35] - [36] The legal framework

[37] - [38] Role of the Parole Board

[39] - [42] Directions of the Secretary of State to the Parole Board

[43] - [48] Status of any Parole Board recommendations

[49] - [55] The alleged policy/practice of the Secretary of State

[56] - [57] This court's conclusions.

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