Karl Oakley, R (on the application of) v Secretary of State for Justice
[2024] EWHC 292 (Admin)
Zarak McKoy, R (on the application of) v The Secretary of State for Justice
1 December 2023
[2023] EWHC 3047 (Admin)
High Court
A prisoner's request to move to an open prison was denied by the government even though the Parole Board recommended it. The judge said the government gave enough reasons for its decision, which involved balancing the prisoner's needs against public safety. The government's rules for making this decision were also deemed fair and clear.
Key Facts
- •Zarak McKoy, serving a discretionary life sentence, sought judicial review of the Secretary of State's rejection of the Parole Board's recommendation for his transfer to open prison conditions.
- •McKoy was convicted in 2015 of wounding with intent and firearm possession, with a tariff expiring in July 2024.
- •The Parole Board recommended open conditions in a pre-tariff review, but the Secretary of State rejected this.
- •The Secretary of State's rejection was based on the assertion that there wasn't a "wholly persuasive case" for transfer.
- •The case involved analysis of the Secretary of State's obligation to provide reasons for disagreeing with the Parole Board and the legality of the "wholly persuasive case" criterion.
Legal Principles
The Secretary of State has the power to direct prisoner transfers (Prison Act 1952, s. 12(2), s. 47; Prison Rules 1999/728, r. 7).
Prison Act 1952, Criminal Justice Act 2003
The Parole Board advises the Secretary of State on early release and transfers (Criminal Justice Act 2003, s. 239(2)). The Secretary of State's decision is ultimately discretionary.
Criminal Justice Act 2003
When departing from the Parole Board's recommendation, the Secretary of State must give reasons; the level of detail depends on whether the disagreement concerns facts/expert evidence (requiring 'very good reason') or a balancing of interests (requiring sufficient justification).
R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB); R (Oakley) v Secretary of State for Justice [2022] EWHC 2602 (Admin); R (Zenshen) v Secretary of State for Justice [2023] EWHC 2279 (Admin); R (O’Dell) v Secretary of State for Justice [2023] EWHC 899 (Admin)
A policy allowing departure from Parole Board recommendations if there isn't a "wholly persuasive case" is not unlawful if the policy itself is published and the term has an ordinary, understandable meaning.
R (Lumba) v SSHD [2011] UKSC 12; R (Teleos Plc) v Customs and Excise Commissioners [2005] EWCA Civ 200; R (on the application of MXK) v Secretary of State for the Home Department [2023] EWHC 1272 (Admin)
Outcomes
Judicial review application refused on both grounds.
The Secretary of State provided sufficient reasons for rejecting the Parole Board's recommendation, engaging with the relevant risk factors and balancing public protection with the prisoner's interests. The "wholly persuasive case" criterion, while discretionary, was not deemed unlawful due to the published policy.
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