R (HILL) v HOME SECRETARY

R (HILL) v HOME SECRETARY

Last Updated: 2:27am BST 27/09/2007

Queen's Bench Division (Admin)
Irwin J
September 19, 2007

Discretion - Life prisoners - Open prisons - Parole Board - Parole Board's recommendation for transfer to open prison - Exercise of discretion by Secretary of State not to transfer

FACTS

The claimant life prisoner (H) applied for judicial review of the decision of the respondent secretary of state refusing to accept the recommendation of the Parole Board that he be moved to open prison. In 1980 H, then a serving soldier, murdered his homosexual partner as he had threatened to inform the army of their relationship. H was sentenced to life imprisonment with a tariff of 12 years. In 2004 the Parole Board recommended that H was moved to open prison and the secretary of state accepted that recommendation. H was subsequently removed from open prison conditions due to staff concern at his behaviour. The following year the Parole Board again recommended a move to open prison but the secretary of state refused to accept the advice. H objected to the decision on the basis that the secretary of state had not considered the expert oral evidence at the Parole Board hearing or the Parole Board's decision. The secretary of state agreed that his decision was flawed and reconsidered the matter on two further occasions but again rejected the advice.

ISSUE

Whether the approach of the secretary of state when exercising his discretion and refusing to accept the advice of the Parole Board to transfer a life prisoner to open prison had been rational.

HELD (application granted)

(i) For practical purposes a spell in open prison was a pre-requisite of release. Under the relevant legislation and regulations the Parole Board gave advice and the secretary of state had a discretion whether to accept that advice. It was clear from statistical evidence that when the Parole Board refused to recommend a transfer to open prison the secretary of state accepted that advice in the overwhelming majority of cases. In the past there had been a pattern of general acceptance of the Parole Board's advice recommending transfer. However, in the year to March 2007 there had been a marked increase in the number of times the secretary of state had rejected the Parole Board's recommendation and an inference could be drawn that a change of policy had been adopted by the secretary of state.

(ii) The secretary of state's approach to the exercise of his discretion in H's case had not been rational or even-handed. If the secretary of state was to keep his discretion he had to be even-handed in his approach. Given there had clearly been a change of policy, the secretary of state should either accept the Parole Board's advice every time, save in exceptional circumstances, or he could look carefully at every piece of advice whether it was positive or negative. Further, the secretary of state's reasoning was not clear and did not reflect the oral evidence or the views of the Parole Board. The decision was irrational and was quashed, R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 distinguished.

Sam Grodzinski (instructed by Bhatt Murphy) for the claimant. Nicola Greaney (instructed by Treasury Solicitor) for the defendant.