The Secretary of State for Justice v Robert Sneddon (First Appeal)

Hearing date: 16 October 2024

Approved Judgment

This judgment was handed down at 10.00am on 28 October 2024 in Court 4 and by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

These two conjoined appeals concern the power of the Secretary of State for Justice (SoS) to transfer prisoners to open prison conditions under s. 12(2) of the Prison Act 1952. In exercising that power, the SoS can call for “advice” from the Parole Board (the Board). If the SoS does so, “ it is the duty of the Board to advise the [SoS] with respect to any matter referred to it by [her] which is to do with the early release or recall of prisoners” (see s. 239(2) of the Criminal Justice Act 2003).

The appeals raise important questions of principle as to the correct approach to be adopted by the SoS to advice from the Board so provided. In the case of each of Robert Sneddon, the Respondent in the first appeal (Mr Sneddon), and Karl Oakley, the Appellant in the second appeal (Mr Oakley), the SoS (who will be referred to in the masculine for present purposes) decided not to accept the Board's advice. There has been an accretion of first instance decisions applying potentially very different approaches to the circumstances in which the SoS is entitled to reject the Board's recommendations.

In the first appeal, R (on the application of Sneddon) v The Secretary of State for Justice[2023] EWHC 3303 (Admin); [2024] 1 WLR 1894 ( Sneddon), Fordham J considered that the question of whether or not the SoS's decision was rational engaged a number of “key principles”. Those principles included that, in respect of evaluative conclusions on questions where the Board had a significant advantage over the SoS, the SoS would need to have “very good reason” for departure from the Board's advice. For all other questions, including the ultimate evaluative judgment, a “good reason” would still always be required. The SoS challenges that analysis, submitting that there is no warrant under the statutory scheme or in principle for such a restrictive approach.

In the second appeal, R (on the application of Oakley v The Secretary of State for Justice[2024] EWHC 292 (Admin) ( Oakley 2) HHJ Keyser KC (sitting as a Judge of the High Court) upheld the SoS's decision to depart from the Board's recommendation that Mr Oakley be transferred to open conditions. Mr Oakley challenges that decision. He contends that, in line with Sneddon, the SoS should not be permitted to depart from the Board's recommendation without good (or very good) reasons, including by analogy with the approach taken to court or tribunal decisions as set out in R (on the application of Evans) v Attorney General[2015] UKSC 21; [2015] 1 AC 1787 ( Evans).

The relevant legal framework

Section 12(2) of the Prison Act 1952 provides that prisoners “ shall be committed to such prisons as the [SoS] may from time to time direct”. Section 47(1) empowers the SoS to make provision for the classification and treatment of prisoners. Under that power, adult male prisoners are classified into four categories, A to D. Category A to C prisoners are held in closed prisons; only category D prisoners can be held in open conditions.

Open prisons are designed for individuals who have progressed to a stage where they are trusted to be able to manage more independently and with less supervision than in closed conditions. The levels of staffing in open prisons are much lower; there is often minimal physical and procedural security. The emphasis is on creating a pro-social prisoner population, in preparation for release. Prisoners may be released on temporary licence to take part in paid placements, community work and resettlement activities, including time with family, potentially unsupervised.

In exercising the power to transfer, the SoS may seek the Board's advice on the potential transfer of a prisoner: see s. 239(2) of the Criminal Justice Act 2003):

“ It is the duty of the Board to advise the [SoS] with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.”

Since a transfer to open conditions is a matter relevant to early release, advice on the matter falls within the Board's remit. But the SoS is not obliged to seek such advice. (See R (on the application of Gilbert v The Secretary of State for Justice[2015] EWCA Civ 802 ( Gilbert) at [7] and [70]). The situation is thus to be contrasted, for example, with the position under s. 28 of the Crime (Sentences) Act 1997 where the SoS is obliged to refer certain life prisoners to the Board and is bound to release the prisoner when the Board has directed release (see s. 28(5)).

Under s. 239(6) of the Criminal Justice Act 2003, the SoS may give directions to the Board as to the matters to be taken into account when exercising its functions. The directions issued under that power relevant for present purposes (though now superseded) are Directions dated April 2015 (the Directions).Paragraph 7 of the Directions provides:

“ The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:

a) the extent to which the ISP has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the ISP in open conditions may be in the community, unsupervised, under licensed temporary release;

b) the extent to which the ISP is likely to comply with the conditions of any such form of temporary release (should the authorities in the open prison assess him as suitable for temporary release);

c) the extent to which the ISP is considered trustworthy enough not to abscond; and

d) the extent to which the ISP is likely to derive benefit from being able to address areas of concern and to be tested in the open conditions environment such as to suggest that a transfer to open conditions is worthwhile at that stage.”

The Generic Parole Process Policy Framework (GPPPF) in force at the material time (issued on 27 January 2020 and re-issued on 30 August 2021) addressed the circumstances in which the SoS could reject the Board's recommendation as follows:

“ 5.8.2 PPCS may consider rejecting the Parole Board's recommendation if the following criteria are met:

• The panel's recommendation goes against the clear recommendation of report writers without providing a sufficient explanation as to why;

• Or, the panel's recommendation is based on inaccurate information

5.8.3 The Secretary of State may also reject a Parole Board recommendation if it is considered that there is not a wholly persuasive case for transferring the prisoner to open conditions at this time.”

For the sake of completeness, it should be noted that the GPPPF has since been amended (as of 6 June 2022) (the 2022 Policy) in the context of a Root and Branch Review published on 30 March 2022. The Review identified a need to rebalance the process, such that Board decision making should have a consideration of the maintenance of public protection at its core. A top tier cohort of offenders, into which both Mr Sneddon and Mr Oakley fell, was identified. It was noted that some offenders presented a heightened risk to the public due to the seriousness of their crime(s), and that the release of these offenders, and/or their management in the open prison estate, needed to be approached with even greater caution and scrutiny. Decisions on the cases of top tier offenders would require direct ministerial oversight.

Between publication of the Review and the issue of the 2022 Policy, those within the Public Protection Casework Section (PPCS) of His Majesty's Prison and Probation Service (HMPPS) were required to work to the present policy (ie GPPPF as in force at the time), whilst taking a precautionary approach in line with the Review.

There have also been subsequent amendments to the 2022 Policy, including the criteria by which Indeterminate Sentence Prisoners (ISPs) are assessed for suitability for open conditions. As of 17 July 2023, the SoS will approve an ISP for transfer to open conditions only where the following criteria are met:

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 (in circumstances where the prisoner in open conditions may be in the community unsupervised under licensed temporary release); and

ii) The prisoner is assessed as a low risk of abscond; and

iii) There is a wholly persuasive case for transferring the ISP from closed to open conditions.

As of 1 August 2023, the Board may recommend a transfer where it assesses that the first and second criteria are met; the third criterion is a matter for...