Sean Allen v Secretary of State for Justice

Hearing date: 11 th September 2024

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

HHJ

Introduction

This is another judicial review claim relating to the rejection by the Ministry of Justice of a Parole Board recommendation for an indeterminate prisoner to be transferred from a closed to an open prison. (It raises a quite different issue from the highly publicised recent changes to the scheme for the early release on licence into the community of determinate sentence prisoners to ease prison overcrowding). The Claimant, Sean Allen, was convicted of murder in 2007 and his 18-year tariff expires in November 2024. In 2022, the Parole Board recommended his transfer to open conditions as preparation for release. But on 31 ^st July 2023, the Defendant rejected that recommendation, which the Claimant challenges in this claim.

So far, this may seem a typical ‘open conditions’ case, but it is relatively unusual:

a. Firstly, it was one of the first decisions by the Defendant under the new policy introduced on 17 ^th July 2023 – indeed, one of only three decisions so far on that new (and still current) policy Counsel or I have found. The key provision in the Defendant's Generic Parole Process Policy Framework (‘GPPPF’) as amended from July 2023 (‘GPPPF 2023’) is paragraph 5.8.2:

“The Secretary of State (or an official with delegated responsibility) will accept a recommendation from the Parole Board ([to] approve an [Indeterminate Sentence Prisoner i.e.] ISP for open conditions) only where: [i] the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm…; and [ii] the prisoner is assessed as low risk of abscond; and [iii] there is a wholly persuasive case for transferring the ISP from closed to open conditions.”

(I add Roman numerals for clarity). The statutory Directions to the Parole Board amended on 1 ^st August 2023 only permit it to recommend transfer to open conditions where it is satisfied criteria [i] and [ii] are met, therefore [iii] — the ‘wholly persuasive case criterion’ — is for the Defendant alone.

b. Secondly, whilst the Defendant made the challenged decision under GPPPF 2023, the Parole Board's recommendation had been under its 2022 statutory Directions which had criterion [ii] (the ‘absconding criterion’) with criteria [i] (the ‘sufficient progress criterion’) as a background factor only. The other mandatory criterion in the 2022 Directions was: ‘ a period in open conditions is considered essential to inform future decisions about release…’ (‘the essential criterion’). The Defendant's 2022 version of the GPPPF (‘GPPPF 2022’) had the ‘absconding’ and ‘essential’ criteria and a third criterion the Parole Board did not consider, deleted in July 2023: ‘transfer to open conditions would not undermine public confidence in the Criminal Justice System’ (the ‘public confidence criterion’). So, this case also considers ‘transitional mismatch’ between the GPPPF and Parole Board Directions.

c. Thirdly, this case raises an apparently new point I have only seen in passing in one other case in the many on ‘open conditions’: ‘internal disagreement’: where different Ministry of Justice officials reach different conclusions on transfer and the impact on the rationality of and reasons for the decision.

‘Many’ other cases on open conditions is an under-statement. This judgment was handed down on 26 ^th September 2024. In a judgment handed down only on 30 ^th July 2024, R(Carrigan) v SSJ[2024] EWHC 1940 (Admin), Fordham J said at [5]:

“I have in the present case had the following portfolio of cases to consider.R(Banfield) v SSJ[2007] EWHC 2605 (Admin) (10.10. 07, Jackson J); R(Hindawi) v SSJ[2011] EWHC 830 (Admin) (1.4.11, DC); R(Adetoro) v SSJ[2012] EWHC 2576 (Admin) (26.9.12, HHJ Gilbart QC); R(Wilmot) v SSJ[2012] EWHC 3139 (Admin) (9.11.12, King J); R(Gilbert) v SSJ[2015] EWCA Civ 802 (23.7.15, CA); R(Kumar) v SSJ [2019] 4 WLR 47 (28.2.19, Andrews J); R(John) v SSJ[2021] EWHC 1606 (Admin) (14.6.21, Heather Williams QC); R(Stephens) v SSJ[2021] EWHC 3257 (Admin) (2.12.21, Whipple J); R(Oakley No.1) v SSJ [2023] 1 WLR 751 (17.10.22, Chamberlain J); R(Wynne) v SSJ[2023] EWHC 1111 (Admin) (11.5.23, Steyn J); R(Green) v SSJ[2023] EWHC 1211 (Admin) (22.5.23, Sir Ross Cranston); R(Zenshen) v SSJ[2023] EWHC 2279 (Admin) (15.9.23, Dexter Dias KC); R(McKoy) v SSJ[2023] EWHC 3047 (Admin) (1.12.23, UTJ Elizabeth Cooke); R(Overton) v SSJ[2023] EWHC 3071 (Admin) (7.12.23, Eyre J); R(Sneddon) v SSJ [2024] 1 WLR 1894 (21.12.23); R(Oakley No.2) v SSJ[2024] EWHC 292 (Admin) (14.2.24, HHJ Keyser KC); R(Cain) v SSJ[2024] EWHC 426 (Admin) (29.2.24, Calver J); R(Uddin) v SSJ[2024] EWHC 696 (Admin) (27.3.24, HHJ Walden-Smith); and R(McPhee) v SSJ[2024] EWHC 1247 (Admin) (23.5.24, HHJ Keyser KC). I can also add these two more recent cases: R(Valentine) v SSJ[2024] EWHC 1534 (Admin) (20.6.24, HHJ Carmel Wall); and R(Hahn) v SSJ[2024] EWHC 1559 (Admin) (24.6.24, Eyre J). In recent cases this Court has been made aware of the fact that appeals in Sneddon and Oakley (No.2) mean those cases are heading for authoritative resolution at higher judicial altitude.”

‘Open conditions transfer’ is one of the hottest topics in contemporary Public Law, (as discussed in: Gabriel Tan and Lewis Graham: A Quiet Revolution – Rationality and the Parole Board – UK Constitutional Law Association). But even the list in R(Carrigan) does not include every case, such as one decided the day before it: R(Draper) v SSJ[2024] EWHC 1892 (Admin) where Turner J at [30]–[32] expressed concern that the rapid succession of cases, sometimes only days apart created difficulties. So, he followed R(Hahn) as the then-most recent case which had considered all the authorities, in the hope for clarity from the Court of Appeal in R(Sneddon) and R(Oakley No.2), which is listed for next month — October 2024, (in which Mr Buckley for the Claimant before me appears). Helpfully, in this case, Mr Evans for the Defendant supplemented the nine propositions Turner J stated in R(Draper) (derived from Eyre J's judgment in R(Hahn) in turn quoting extensively from his own judgment in R(Overton)) by linking them to the other leading authorities in the field. This is an effective way of bringing together all the key points from all the authorities irrespective of the version of GPPPF applying. After all, I cannot just apply R(Draper), as GPPPF 2023 which applies in this case is markedly different than GPPPF 2022 which applied in R(Draper), R(Hahn) and R(Overton) amongst other cases; and indeed GPPPF 2021 applying in R(Sneddon) and R(Oakley) amongst other cases. So, whilst the Court of Appeal judgment in the latter cases will be invaluable, Mr Buckley accepts it may not necessarily address those three unusual features here: the effect of GPPPF 2023, ‘transitional mismatch’ between Parole Board and Defendant; and ‘internal disagreement’ within the latter.

Pending Court of Appeal guidance — at ‘higher judicial altitude’ as Fordham J put it in R(Carrigan) — given the volume of guidance from him and so many other High Court Public Law luminaries, at my own ‘altitude’ down at the Administrative Court's ‘base-camp’, in addition to the assistance of Counsel with submissions of the highest quality, I have found it helpful to keep focus on three practical things:

a. Firstly, as Eyre J said in R(Hahn), which Parole Board Directions apply to its decision and which version of the GPPPF applies to the Defendant's decision are important. Building on analyses of Eyre J in R(Hahn) and Fordham J in R(Sneddon), I will summarise their ‘genealogy’: the crucial changes under Parole Board Directions and the GPPPF and predecesssors since 2012 and the cases in Fordham J's list in R(Carrigan) relevant to each. That will guide me to which authorities are of relevance here to the Defendant's decision under the 2023 GPPPF rejecting the Parole Board's recommendation (or to use the concept in statute — s.239(2) Criminal Justice Act 2003 — its ‘advice’) decided under the Parole Board's 2022 Directions.

b. Secondly, the difficulty with the sheer volume and pace of the case-law in this field is that inevitably, some get missed. Even Fordham J's invaluable review of the authorities in R(Carrigan) understandably did not include R(Draper) the day before, or R(O'Dell) v SSJ[2023] EWHC 899, a decision of HHJ Wall from April 2023, which does not appear on Westlaw or BAILII but was cited to me, as was R(Swellings) v SSJ[2024] EWHC 771 (Admin) from HHJ Simon in April 2024 (for fear of parochialism, the latter both Birmingham cases). Indeed, R(O'Dell) was not cited in but is relevant to Fordham J's analysis of R(Kumar) in R(Sneddon); itself argued on 7 ^th December 2023: the day Eyre J handed down his judgment in R(Overton), so understandably neither cited the other. This perhaps explains why in other cases, Counsel have cited them as rival authorities when in fact, as Eyre J explained in R(Hahn), they related to different versions of the GPPPF. Furthermore, R(Hahn), R(Overton) and indeed R(Swellings) illustrate how rationality and reasons challenges can overlap, as they do in the present case.

c....