England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 October 2014

1. MR JUSTICE DOVE:

Background

2. On 15 October 2007 the Claimant was sentenced to a life sentence with a minimum term of 12 years for murder. His tariff expires on 21 May 2016. During his time in closed conditions he engaged positively with the activities and programmes that were there to assist him and, as a result, in due course consideration was given by the Defendant's officers as to whether or not he should have his case referred to the Parole Board.
3. On 3 April 2013 one of the Defendant's officers, a Mr Mungar, on behalf of the Defendant, agreed that the Claimant's case should be referred to the Parole Board. The purpose of that referral was to consider whether or not in the Claimant's case his absconding risk and his circumstances were such that he should be moved to open conditions.
4. On 6 September 2013 Mr Mungar wrote for the purposes of assisting the Parole Board, setting out in particular the position in relation to the Claimant's deportation. He noted that a deportation order had been made in the Claimant's case on 22 June 2010. He then went on to advise as follows:

"The deportation order against Mr Harris remains extant. However, at the current time he cannot be removed from the UK under TERS because Immigration Enforcement have yet to commence consideration of Mr Harris' case and consideration will only begin on 21/11/2014. Once consideration has commenced, Immigration Enforcement will need to serve Mr Harris with a signed deportation order which will provide Mr Harris with an opportunity to appeal. In addition to this, a travel document will also need to be obtained. His suitability for removal under TERS will be reviewed on a regular basis by PPCS on behalf of the Secretary of State. The expectation is that where a prisoner is eligible for and there are no impediments to removal, they will be released and removed under TERS. Until such time, their ongoing detention must continue to be reviewed by the Parole Board."

5. A panel of the Parole Board convened their hearing, which occurred on 23 October 2013. The deliberations of the Parole Board led to them reaching a decision dated 30 October 2013. In that decision they concluded as follows:

"5. Evidence of progress in custody

While on remand prior to your retrial and sentence, you received adjudications for assault, damage and abusive words and behaviour. You settled down thereafter and at HMP Gartree you undertook a drugs course in 2008. In 2010 you completed a Thinking Skills Course, it being noted that you had participated positively throughout the programme and gained a good understanding of the skills and tools used. You arrived at HMP Ranby on 25 July 2011. You have completed an in-cell victim awareness pack and in conversations with your offender manager have demonstrated good victim awareness and genuine remorse. You do not meet the criteria for other offending behaviour programmes such as CLAM, CSP and RESOLVE, but you have made constructive use of your time pursuing educational and vocational qualifications and working in the plastics workshop. Although you have a number of minor disciplinary infringements on your record while at Ranby, you are described as generally polite and personable. Given your immigration status and conviction, you meet the criteria for automatic deportation, and the appropriate notice was served on you on 22 June 2010. Immigration Enforcement will commence consideration of your case eighteen months prior to expiry of your tariff. You receive visits from your mother and stepfather and are in telephone contact with your nine year old son, facilitated by his mother. You have however always accepted that on release you will have to return to Jamaica. You have other family members there, including an uncle who may be able to offer you employment in his electrical business. You have been saving money with a view to setting up a poultry breeding business on your return to Jamaica.

6. Panel's assessment of current risk

Your risk of causing serious harm had been assessed as high at the time of sentence but is now reduced to medium. All other relevant risk scores are low. The panel accepts this assessment. It is clear to the panel that you have matured considerably in the course of your sentence. You appear to the panel entirely genuine in your expressions of remorse and declared intention to keep free of cannabis, shun criminal associates and lead a law-abiding life. You are aware of how much you would stand to lose if you were to abscond.

7. Evaluation of effectiveness of plans to manage risk

Both your offender manager and offender supervisor recommend that you be transferred to open conditions. It is considered that your risk would be manageable in open conditions and you would be most unlikely to abscond. In your evidence to the panel you spoke thoughtfully of the potential benefits to you of a transfer to open conditions, remarking that you have been in closed establishments for ten years and that a transfer to open would help you get ready for release, improve your education and employability, and would provide you with the opportunity to see more of your family. Because of your liability to deportation, you would be unable to pursue employment outside the prison. You would however be able to prepare for release into the community by adjusting to the less restrictive regime of an open prison, and you hope to be able to pursue a business studies diploma and to learn employment skills, for example, in agriculture if you are transferred to an establishment with its own farm.

8. Conclusion and decision of panel

The panel accepts that you have done all the offending behaviour work appropriate to closed conditions. The panel agrees with the professionals responsible for you that the benefits to you of a transfer to open conditions outweigh the risks, the panel also agrees with all witnesses who state that, do you not present a significant risk of absconding if transferred to open conditions.

The panel therefore recommends that you be transferred to open conditions where you will be able to do further constructive work in reducing your risk factors by managing the tests of less secure conditions and taking forward your plans for a law-abiding life on your eventual release."

6. The recommendation of the Parole Board was then passed to the Defendant for a decision in relation to it. The Defendant reached a decision in a letter dated 6 December 2013, which provides as follows:

"The Secretary of State has now considered the Parole Board recommendation but is not prepared to agree to your transfer to open conditions in view of the fact that you are subject to liability to deportation and Immigration Enforcement will not be considering your case until 18 months prior to your tariff expiry on 21 May 2016, ie November 2014. Full reasons for this decision are attached at Annex A."

7. Turning, therefore, to Annex A, the important passages for the purposes of this case commence at paragraph 4:

"4. The Secretary of State notes your behaviour has been good and that you have complied with your sentence plan, completing the Thinking Skills Programme . . . and your Offender Supervisor and Offender Manager both support a progressive move to open conditions. He notes that you were assessed as not meeting the criteria for the Self Change Programme . . . Controlling Anger and Learning to Manage it programme . . . and the RESOLVE programme. You are not tariff expired until May 2016 and the Secretary of State has concerns with regard to your abscond risk due to your possible deportation.

5. In view of the above concerns regarding the abscond risk relating to your immigration status, the Secretary of State, following the hearing, has liaised with Immigration Enforcement regarding your current immigration status. IE has now informed the Secretary of State that they will not be looking at your case until November 2014, 18 months prior to your tariff expiry, 21 May 2016.

6. The Parole Board based their decision on the facts before them at the hearing and it was not possible at this early stage to provide them with details as to the prospect of you being deported. You are currently just under 2 and a half years away from your tariff expiry and it will be just under a year before Immigration Enforcement commence consideration of your deportation.

7. The Secretary of State has taken account of the uncertainty over your immigration status and the amount of time remaining before your tariff expiry date. The Secretary of State considers that your immigration status should be resolved before your move to open conditions.

8. Against this background, the Secretary of State has decided to reject the Parole Board's recommendation and decided that you should remain in closed conditions. If, however, following consideration of your case, Immigration Enforcement informs the Secretary of State that it would be unlikely you would be deported, he will take immediate steps to refer your case to the Parole Board for an exceptional pre-tariff review. As your tariff does not expire until May 2016, this would still allow sufficient time for you to transfer to open conditions and be able to undertake resettlement work including release on temporary licence."

The overview of the challenge

8. The Claimant advanced three bases of challenge to the decision that was reached by the Defendant in this case. Firstly, it is contended by the Claimant that the Defendant failed to give adequate weight to the Parole Board recommendation, bearing in mind the Parole Board's expertise in matters of this kind and, in particular, that it had received oral evidence from the Claimant which enabled an evaluation of him and also enabled findings of fact to be made as a consequence of seeing and evaluating that live evidence.
9. The second ground of the Claimant's challenge is that the Defendant failed to provide adequate reasons to reject the Parole Board's recommendation in this case.
10. The third ground of challenge is that the Defendant's decision was irrational. That is, in particular, based on the case of R (Evans) v HM Attorney General and another [2014] EWCA Civ 254, to which I shall allude below in greater detail. The Claimant contends that that case supports the conclusion that the Defendant could not rationally depart from the Parole Board's recommendation. Nothing had changed in the circumstances of the Claimant to justify or gainsay the Parole Board's decision in this case.
11. Those being the three grounds of challenge, it is nevertheless necessary for me to observe that, during the course of argument, the Claimant sought to develop submissions about the relevant policies published by the Defendant dealing with the decisions which fall to be considered in this case. However, it was made abundantly clear during the course of the argument that the Claimant was not advancing a case based upon legitimate expectation. It was not being said that the Defendant, having created a legitimate expectation through the publication of those policies, was, in this case, acting unlawfully in departing from those promises in the decision which had been reached. Thus it follows that, to my mind, the submissions which were made by both parties as to the effect of the policy are in this case by the by. They do not require me to consider them further. It may be -- and there was a hint of this during Mr Bunting's submissions -- that that might be an issue in another case for another day. But so far as the pleaded case in this action is concerned, the construction of the policies placed upon them by the Claimant and disputed by the Defendant as representing a correct analysis of the law is of little assistance to me. What I need to do, in the light of the authorities, is to decide this case on the basis of the legal principles at stake without having regard to whether or not in this case the policies of the Defendant actually summarise those legal principles.

The law

12. Section 12(2) of the Prison Act 1952 provides that a prisoner may be lawfully confined in such prisons as the Defendant directs and section 47 of that Act provides for classification of prisoners.
13. Section 239(2) of the Criminal Justice Act 2003 provides as follows:

"It is the duty of the [Parole] Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners."

14. Provisions of the Prison Rules, in particular Rule 7, provide a broad discretion to the Defendant in relation to the classification of prisoners. In this case, the Claimant emphasises the importance to a prisoner of transfer to open conditions. To my mind that is perhaps self-evident, but the particular significance which is relied upon by the Claimant in this case is the role that the transfer to open conditions can play as a key step on the pathway for the prisoner to release. That provides, in my view, an important backdrop to the decisions which were being made in this case.
15. The structure of the decision-making process in this case is also, in my view, of central importance. That structure is that whilst the Parole Board recommends a decision to the Secretary of State, it is for the Secretary of State to decide. The legal principles which arise in circumstances of this kind were set out by Jackson J (as he then was) in the case of R (Banfield) v Secretary of State for Justice [2007] EWHC 2605. At paragraph 28 he summarised, in a manner which was uncontroversial in this case, the central legal principles as follows:

" . . . I derive five principles from the authorities:

(1) The decision of the Secretary of State is not lawful if he fails to take into account the recommendation of the Parole Board and the fact that the Parole Board has particular expertise in assessing the risk posed by individual prisoners. Nevertheless, it is a matter for the Secretary of State what weight he assigns to those factors in any given case.

(2) The decision of the Secretary of State is not lawful if it was reached by an unfair procedure. It is for the court to determine in any given case whether the procedure was unfair.

(3) If the Secretary of State places reliance upon significant material that was not before the Parole Board, then fairness may require that the prisoner be given an opportunity to comment upon it.

(4) The mere fact that the Secretary of State takes a different view from the Parole Board of material that was before the Parole Board is not normally a matter which merits a reference back to the prisoner for his further comments.

(5) Even if the procedure adopted by the Secretary of State is fair, if his final decision is irrational it may still be quashed on traditional Wednesbury grounds."

16. Jackson J noted that the Parole Board recommendation was not binding but, as he observed, it was "obviously an important factor" in coming to a decision.
17. Jackson J's decision was shortly preceded by the decision of this court in the case of R (Hill) v Secretary of State for the Home Department [2007] EWHC 2164, upon which Jackson J drew in reaching his conclusions. I shall return to the case of Hill shortly.
18. Following on from the case of Banfield, there is also helpful assistance in this area of the law to be derived from the case of R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB). That case was based on a similar structure of decision, save that it was a different statutory context. That case was one of a small vestige of cases in which the Secretary of State received a recommendation from the Parole Board before he took the final decision in the prisoner's case himself. It was submitted in that case by the Claimant that the Secretary of State could only depart from the Parole Board recommendation if either there was an error of law in that recommendation or additional evidence came to light in order to undermine it. That was a submission which was rejected by the Divisional Court. At paragraphs 51 and 52 of the judgment of Thomas LJ (as he then was), who gave the leading judgment, he observed as follows:

"51. However, at the time of the decision under review the decision maker under the statutory scheme remained the Secretary of State for these few prisoners. He must therefore have been entitled to come to his own conclusion on the assessment of risk provided he did so by a process which was fair and the decision was rational. As Mr Owen QC accepted, he had some expertise, though not superior expertise. I cannot accept that he was only entitled to reject the recommendation on the narrow grounds suggested by the claimant, particularly given that assessment of risk is, as experience has more clearly shown over the years, a task of great difficulty where those entrusted with it can reasonably differ.

52. It is self evident that he should and would accord weight to the recommendation of the Parole Board. However the weight the Secretary of State should accord to the recommendation 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."

19. The court went on to consider findings in relation to the Claimant's credibility, which had been overturned by the Secretary of State. The court made the following observation about the distinction to be drawn between findings of fact made by the Parole Board and its assessment of risk:

"60. In my view, the Secretary of State, when making the decision on parole, also had to distinguish between the findings of fact made by the panel and the assessment of risk. The findings of fact were the basis on which the Secretary of State was entitled to reach his own view, using the Appendix 7 criteria, to determine risk, according appropriate respect to the views of the panel on their assessment of risk."

20. The subsequent decision in the case of R (Wilmot) v Secretary of State for Justice [2012] EWHC 3139 (Admin) is to similar effect in terms of the legal principles, in particular at paragraphs 43 to 47.
21. As promised, I return to the decision in the case of Hill, which again in itself reflected the discretion left with the Secretary of State, subject to the application of well-known public law principles, to reach his own conclusion following a recommendation from the Parole Board.
22. The Claimant in the case of Hill succeeded on the grounds of reasons. In that case the Secretary of State, in reaching a decision to reject the Parole Board's recommendation, had failed to grapple with the reasons provided by the Parole Board. There is, therefore, of course, a duty on the Secretary of State to provide adequate reasons in cases of this kind.
23. The case also featured within it, as one of the concerns raised by the Claimant, a perceived change of policy, evidenced by statistics about outcomes in relation to the Defendant's acceptance of Parole Board recommendations. Submissions were made by the Claimant along these lines in this case and further factual material adduced in relation to recent decisions by the Defendant in this respect. However, this point was not central to the submissions advanced by the Claimant and I would simply observe at this stage that, in my view, the statistics adduced do not portray a significant change in whether or not recommendations are being accepted as those statistics stand at present and certainly do not begin to portray the kind of picture which the court had in the case of Hill.
24. In relation to ground three, as I have mentioned above, the Claimant places reliance on the case of Evans. That is a case which concerned the use by the Attorney General of a power given to him by section 53(2) of the Freedom of Information Act 2000 to override a decision of the Upper Tribunal. In that case, the Upper Tribunal had ruled that there should be disclosure of some claimed information and the Attorney General issued a certificate under section 53(2) overriding that decision. Such a certificate could only be issued if the Attorney General "has on reasonable grounds formed the opinion that" there was no failure to disclose within the requirements of the Act. In my view, it is important to appreciate the nature of the submission which was being made on behalf of the Claimant and Appellant in that case before the Court of Appeal. That is recorded in the judgment of the Master of the Rolls at paragraph 21 as follows:

"21. Miss Rose QC submitted to the Divisional Court (as she has done to us) that, once an independent and impartial tribunal has determined, after a fully contested hearing including oral evidence, that a public authority has failed in its statutory duty to communicate requested information, its determination is definitive and can be departed from by the executive only on cogent grounds. Examples of such grounds are some demonstrable error or change of circumstances, which would show that the tribunal's judgment could no longer be safely relied on. It is not reasonable for an accountable person simply to disagree with the evaluation of the tribunal."

25. The Master of the Rolls' conclusions on this submission, which were accepted and agreed with by the other judges in the Court of Appeal, can be found at paragraphs 37 and 38 as follows:

"37. In my view, whether a decision is 'reasonable' depends on the context and the circumstances in which it is made. I agree with the Divisional Court that two opposing decisions or opinions may both be objectively reasonable. But whether it is reasonable for X to disagree with the reasonable decision or opinion of Y depends on the context and circumstances in which X and Y are acting. That is well illustrated by the three authorities on which Miss Rose relies. In each case, the court asked whether it was reasonable for Y to make a decision which was contrary to the earlier decision of X. In each case there was a judicial review challenge to the reasonableness of the later decision. In my view the cases provide a helpful analogy. In each of them, the context in which the reasonableness of Y's decision was to be judged was that it was contrary to the earlier decision of X, which was an independent and impartial body that had conducted a full examination of the very issues that Y later had to determine. In each case, the court emphasised as being of particular importance the fact that the earlier decision had been made by an independent and impartial body, after a thorough consideration of the issues. In these circumstances, the court held that there had to be something more than a mere disagreement on the same material for it to be reasonable for Y to disagree with X. In the present case, the Attorney General disagreed with the decision of the UT (an independent court chaired by a High Court judge) on the very question which the UT had examined in meticulous detail. The Attorney General did not have any additional material and it has not been suggested that the UT made any error of law or fact. It is accepted that the UT's decision was a reasonable decision.

38. I do not consider that it is reasonable for an accountable person to issue a section 53(2) certificate merely because he disagrees with the decision of the tribunal. Something more is required. Examples of what would suffice are that there has been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law. This was the approach suggested by Simon Brown LJ in Danaei in relation to the Secretary of State's decision which contradicted the earlier decision of the special adjudicator. It seems to me to be particularly apt in relation to section 53(2). I do not agree with the reasons given by Davis LJ for distinguishing the three cases (see para 32 above). The fact that a section 53(2) certificate involves making an evaluative judgment (rather than a finding of primary fact) is not material to whether the accountable person has reasonable grounds for forming a different opinion from that of the tribunal. Nor do I consider that the basis for the decision in Powergen was that the decision of the highway authority was 'subversive of the legislative scheme.'"

26. For those principal reasons the Court of Appeal struck down the section 53(2) certificate.

Ground One

27. As set out above, the Claimant emphasises the expertise of the Parole Board in the assessment of risk and in the appraisal of the questions arising in cases of this kind. Mr Bunting, on behalf of the Claimant, also noted that the Parole Board had been acknowledged by the House of Lords in the case of R (Giles) v Parole Board [2004] 1 AC 1 at paragraph 10 of Lord Bingham's speech as being a judicial body. He further emphasised the facts found by the Parole Board and contended that the Secretary of State has treated the conclusions of the Parole Board unlawfully. The point which was raised about the Claimant's immigration status in paragraphs 5 and 6 of Annex A to the decision, treating it as, in effect, a new point when it was not, was an aspect of the Defendant's irrationality.
28. In response, on behalf of the Defendant, Mr Weisselberg QC, who appeared on behalf of the Secretary of State, drew attention to the structure of the decision-making process and, in reliance on the case of Banfield, submitted that the Secretary of State had not, in truth, subverted any of the findings of fact of the Parole Board but simply reached a different conclusion on the assessment of risk based on the need for certainty about whether or not the Claimant was to be deported.
29. Having considered these submissions, my conclusion is that the relative positions of Parole Board and the Secretary of State in this case are of central importance. The Parole Board is expert and, undoubtedly, in many cases performs a judicial function. I have no doubt that Mr Bunting is correct when he observes that the Panel which was convened in this case was very experienced and listened carefully and attentively to the evidence of the Claimant and had particular expertise in the kind of decision which the Secretary of State was to reach on their recommendation.
30. It is also important to take account of the fact that the Parole Board sees the witnesses and has the benefit of an oral hearing in order to inform its recommendation.
31. All of these features, along with section 239(2) of the 2003 Act, mean that I am in no doubt that the Secretary of State will want to afford weight to the Parole Board's recommendation. However, as paragraph 28 of the decision of this court in Banfield makes clear, he is not bound by that recommendation. The factual findings may well, in my view, have a significant status; such as, for instance, the findings of credibility in the case of Hindawi, but those facts should be separated from the assessments of judgment about risk.
32. Ultimately, the court, in my view, will only interfere on conventional public law grounds and the decision in Hindawi was based on the court's view of an irrational overturning of a credibility finding, illustrating one of the potential conventional public law grounds upon which reliance can be placed. In my view, in this case the Secretary of State is not seeking to gainsay any credibility findings that the Parole Board might have reached or any factual findings about the progress which the Claimant has made in closed conditions or his potential intentions on release. What paragraph 7 of the decision of the Defendant in Annex C makes absolutely clear, however, is that it is the Claimant's immigration status and, in effect, that alone which required clarification in this case from the point of view of the Defendant before he could find his way to open conditions. That requirement in the decision of the Defendant is not a matter which disturbs any of the findings of fact of the Parole Board, but is rather an ingredient in the Defendant's assessment of the risk of absconding in the Claimant's case and one which, as a reassessment of risk, of which he was entitled to take account.
33. I do not read paragraphs 5 and 6 as suggesting that the question of the Claimant's immigration status was being treated by the Defendant as a new matter. The use of the word "now" in paragraph 5 simply relates to the further enquiry that the Defendant had made following the hearing and paragraph 6 makes clear in the first sentence simply that the Defendant is recording the position both before the Parole Board and before him, namely that at the stage of that decision, and indeed the recommendation, the prospects of deportation were unclear. Whilst it is, therefore, correct that this was no change from the position explained by Mr Mungar to the Parole Board, nevertheless it is not, in my view, being treated in these paragraphs incorrectly as a new matter. It is being treated, in truth, as the matter which the Secretary of State has taken into account in a reassessment of the risks leading him to differ from the Parole Board solely in relation to that question of risk which was a matter of judgment for him. He took account of that matter, namely the need for clarity about deportation and it is undisputed that it was a factor that was clearly material to his decision. He reached a different but rational conclusion, in my judgment, in relation to that issue. As a matter of judgment and assessment of risk, he was entitled to reach a different conclusion from the Parole Board, having taken account of their recommendation and his approach was, in my view, unchallengeable based on the legal principles set out in the Banfield case. There is, therefore, no error of law of the kind alleged in ground one.

Ground Two

34. As set out above, this is a reasons challenge in which the Claimant contends that the Defendant failed to grapple with the reasons provided by the Parole Board for recommending the Claimant's transfer to open conditions. It will probably be obvious from what I have set out above that I consider the reasons given by the Defendant in this case to be clear and, moreover, clear as to the explanation for his difference of conclusion from that of the Parole Board.
35. The Defendant's decision in this case was not a root and branch disagreement with the conclusions of the Parole Board. In reality, it related to one issue, an issue which had not featured especially large in the Parole Board's assessment of risk, namely the impact on the absconding risk of the present uncertainty about the prospects that the Claimant would be deported. Annex A of the decision set out clearly and sufficiently to my mind why the Defendant had reached a different conclusion on risk and I am unable to accept that the reasons in that respect were insufficient.

Ground Three

36. As I explained in the summary, this is an irrationality ground based, in particular, on the case of Evans. The Claimant relied on that case to contend that by analogy the disagreement here with the Parole Board, without more, was not a rational basis for the Secretary of State to reach a different conclusion. Mr Bunting drew attention to the three other cases that were referred to in the Master of the Rolls' judgment in the case of Evans. Firstly, R v Warwickshire County Council ex parte Powergen PLC [1998] LGR 617, where following an appeal granting planning permission, at which the Highway Authority had appeared to object to the highway access arrangements, that highway authority refused to enter into an agreement under section 278 of the Highways Act 1980 so as to enable those works to proceed. That refusal to enter into the agreement was regarded by the Court of Appeal as irrational.
37. The second case, R v Secretary of State for the Home Department ex parte Danaei [1998] 1 WLR 124, was a case where, following a successful appeal in which an asylum seeker's account of the factual circumstances of his case had been accepted, albeit that the appeal was dismissed for other reasons, in a subsequent decision the Secretary of State rejected his account. That rejection was considered irrational, given the earlier acceptance of the factual account in the preceding appeal.
38. The third case, R (Bradley) v SSWP [2009] QB 114, related to the recommendations of the Parliamentary Commissioner for Administration investigating a complaint and finding maladministration on behalf of a ministry. The relevant minister rejected the Parliamentary Commissioner's findings and her recommendation and that was found to have been irrational.
39. Having considered both the case of Evans and those three examples, I am unconvinced that those cases assist the Claimant in this case. The case of Evans, for example, was a case where, following the conclusion of a bespoke decision-making body, the executive then subsequently overrode or departed from those conclusions. In those circumstances, the decision of the court in Evans is that clearly the determination of that decision-making body could only be departed from by virtue of demonstrable legal error or a change of circumstances, as opposed to reaching a different but equally rational conclusion.
40. That is, in my view, a different structure of decision-making to the one with which I am concerned in this case. Here the decision-making body is the Defendant, not the Parole Board, for the reasons I have set out above. The Parole Board makes a recommendation but that is not a determination or an operative decision in relation to the matter. The cases of Ex parte Powergen and Danaei are clear examples of earlier determinations or operative decisions, as opposed to recommendations. The case of Bradley is, to my mind, more complex but it is important to appreciate that that case arose from the specific statutory regime that the Parliamentary Commissioner for Administration inhabits and that is made clear in the judgment of Sir John Chadwick in that case at paragraph 91 as follows:

"91. For my part, I am not persuaded that that is the correct approach: I am not persuaded that the Secretary of State was entitled to reject the Ombudsman's finding merely because he preferred another view which could not be characterised as irrational. As I have said, earlier in this judgment, it is not enough that the Secretary of State has reached his own view on rational grounds: it is necessary that his decision to reject the Ombudsman's findings in favour of his own view is, itself, not irrational having regard to the legislative intention which underlies 1967 Act: he must have a reason (other than simply a preference for his own view) for rejecting a finding which the Ombudsman has made after an investigation under the powers conferred by the Act. It is, to my mind, a striking feature of the history which I have set out that the Secretary of State has not, even in this Court, sought to meet the Ombudsman's finding that the assurances given on page 15 of the leaflet PEC 3 were incompatible with the Government's intentions."

41. That passage from the judgment makes plain that that decision has to be viewed in the clear context of legislative attention in which it arose. Thus, in my view, the case of Evans does not change the context for reviewing the Defendant's decision in this case. The context of the case is as set out in Banfield and Hindawi and, for the reasons which I have already given, the Defendant's decision in this case passes those tests.
42. For all of those reasons, each of the grounds in relation to this case, although eloquently and persuasively put by Mr Bunting, must fail.
43. MR PRITCHARD: My Lord, I am obliged. The parties have managed to agree an order in the event that the judgment was that way. If I can pass up the order and just explain the terms of the order.
44. MR JUSTICE DOVE: I hope you also prepared one in case it went the other way as well.
45. MR PRITCHARD: We did.
46. MR BUNTING: Before my learned friend hands up the order, my Lord will see that there is a provision given in respect of permission to appeal in that order.
47. MR JUSTICE DOVE: You don't say.
48. MR BUNTING: And on that point I do make an application, but I recognise that the terms of my Lord's judgment may count against me.
49. MR PRITCHARD: My Lord, that's paragraph 4. I was going to draw your attention to it. Paragraph 4 may need to be changed subject to your decision on my learned friend's application.
50. MR JUSTICE DOVE: That's very helpful of you both to set out the relevant provisions, because I know it's important, particularly for Mr Bunting, to have this order made in an appropriate form. So I am very grateful for you having looked at that and set it out earlier.
51. MR PRITCHARD: My Lord, in that case I intend to sit down, unless I can assist you further.
52. MR JUSTICE DOVE: No, there's nothing further you can assist with. Yes, Mr Bunting, why did I get it wrong?
53. MR BUNTING: In respect of permission to appeal, my Lord, I do advance an application for permission to appeal. It's to protect my lay client's position, given that he's not here today --
54. MR JUSTICE DOVE: I think he's entitled to go to the Court of Appeal without you having to ask me, but of course that is not to deter you from making your application. But I think the rules changed a couple of years ago. Certainly, if you have another look at order 52, I think you used to have to apply and the Court of Appeal wouldn't consider you until you had applied below, but you don't necessarily need to. But, as I say, I don't deter you from making your application.
55. MR BUNTING: If my Lord is correct about that, then I'll say no more.
56. MR JUSTICE DOVE: No, make your application. I don't want to put you off.
57. MR BUNTING: The application is based on the evidence ground which does raise, in my respectful submission, a new point in respect of a common law protection for prisoners in this context. In my respectful submission, that is a ground with reasonable prospects of success, given that the ground on which my Lord has essentially distinguished Bradley is the same ground on which reliance was made in Evans in the first instance, which was rejected by the Master of the Rolls in that case. In any event, it is my respectful submission that there is some other compelling reason why I should be granted permission to appeal, namely the one of importance in this point, given the large number of prisoners who are regularly affected by decisions of this nature. Unless I can assist you further, my Lord.
58. MR JUSTICE DOVE: Mr Bunting, it will not surprise you, perhaps, to hear that I am going to refuse your application and if you wish to take it further, by all means, but you will have to take it elsewhere. I am satisfied that the basis for distinguishing between the structure of the decision-making in this case and that which was in the three cases and Evans is sufficiently justified by the reasons that I have already given in my judgment. So I am going to refuse your application.
59. MR BUNTING: I am obliged.
60. MR JUSTICE DOVE: Thank you very much. Can I thank you very much indeed and would you also Mr Weisselberg on my behalf for all the help that you have given me in relation to this case. Thank you indeed.
61. Now, I have a form to complete if somebody has one. It doesn't look like anybody has the application. I have to complete a form in relation to your application -- here is the associate. We've had an application for permission to appeal and I think I have to fill a form in for you, so do you have a copy of it. There's no need for you both to continue to attend while I do this piece of bureaucracy.
62. MR BUNTING: With regards to a transcript of my Lord's judgment, is it a transcript that will be made available in the usual way --
63. MR JUSTICE DOVE: It's out of my hands. What happens is it's sent to me for me to have an opportunity to take out the ums and the ers out of it and I will do that as soon as it comes to me. But I am waiting on one that I delivered a little over a week ago, so I don't know how soon it will get to me. But you can rest assured that as soon as it gets into my hands, within 24 or 28 hours it will be away and then I believe they appear on Lawtel, or whatever. So that's how it will emerge, rather than it being sent to you in the same way as a hand down would. It may be if you make enquiries of the shorthand writers, they're able to help too, but you won't get it until I've approved it.
64. MR PRITCHARD: In relation to the order, would you like a copy emailed to your associate?
65. MR JUSTICE DOVE: Why don't I sign this one and then you give it to the associate? Presumably you both have copies for your records and you don't need a signed version and then the associate will have a signed version and we're all done.
66. MR PRITCHARD: Thank you.