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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kumar, R (On the Application Of) v The Secretary of State for Justice [2019] EWHC 444 (Admin) (28 February 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/444.html Cite as: [2019] 4 WLR 47, [2019] WLR(D) 169, [2019] EWHC 444 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Bull Street, Birmingham |
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B e f o r e :
____________________
R (on the application of SUNIL KUMAR) |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR JUSTICE |
Defendant |
____________________
Claire Palmer (instructed by Government Legal Department) for the Defendant
Hearing date: 13 February 2019
____________________
Crown Copyright ©
Mrs Justice Andrews:
INTRODUCTION
The roles of the Parole Board and the Secretary of State in this context
"must depend on the matters in issue, the type of hearing before the panel, its findings and the nature of the assessment of risk it had to make. The grounds for impugning the decision he makes which does not follow the recommendation must depend on the fairness of the way in which he approached his decision making in the light of the foregoing and whether the decision has a rational basis."
"I do not consider that Hindawi prevents the Secretary of State from rejecting a Parole Board recommendation if he disagrees with a conclusion reached by it from the factual material before it. However, when the Secretary of State considers a Parole Board recommendation, he must do so fairly and properly, and give adequate reasons."
THE POLICY
"The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are that the panel's recommendation
- either goes against the clear recommendations of report writers without providing a sufficient explanation as to why;
- or is based on inaccurate information.
The Secretary of State may also reject a Parole Board Recommendation where he does not consider that there is a wholly persuasive case for transferring the prisoner to open conditions at this time."
FACTUAL BACKGROUND
"In the light of the foregoing I am unable to make any recommendation for progression or release. I would want to see a profound and lasting change in Mr Kumar's attitude and manner of engaging with others before I would feel confident to make a renewed proposal for progression to open conditions or, indeed, release. Such change I believe would need to be tested over time in an appropriate custodial environment".
She recommended that the Claimant be detained in closed conditions and engage in further one-to-one work with a psychologist.
"For the moment … Mr Kumar should be detained in closed conditions and engage in further one-to-one work, as indicated with a psychologist. I would expect that the Parole Board would require up-dated assessments from his current establishment when such work had been completed."
THE DECISION OF THE PAROLE BOARD
"a decision about whether to recommend a transfer to open conditions is based on a balanced assessment of risks and benefits, with an emphasis on risk reduction and the need for you to have made significant progress in changing your attitudes and tackling your behaviour problems in closed conditions, without which a move to open conditions will not generally be considered."
That is a direct quotation from paragraph 5 of the Secretary of State's Directions to the Parole Board under s.239(6) of the Criminal Justice Act 2003 relating to the transfer of indeterminate sentence prisoners to open conditions which were issued in April 2015. The Board is legally bound to follow those directions, which form Annex O to the Policy. Paragraph 5 makes it clear that whilst a move to open conditions should be based on a balanced assessment of risk and benefits, the Board's emphasis should be on the risk reduction aspect.
THE DECISION OF THE SECRETARY OF STATE
THE CHALLENGE TO THE POLICY
i) It failed to give proper and adequate weight to the oral hearing process before the Parole Board and to accord sufficient respect to the benefits and expertise of the panel;
ii) The "rigidity" of the approach of "requiring" universal or majority support from report writers, because the risks and benefits are better assessed in an oral review;
iii) The Policy fails to allow for the proper engagement with the prisoner or his representative to allow effective participation in the decision-making process.
The last of these complaints overlapped to such an extent with a separate ground of challenge on the basis of an alleged breach of the common law requirement of procedural unfairness, that it makes sense to deal with them together.
THE ALLEGED LACK OF SAFEGUARDS REQUIRED BY THE ECHR