Burstow v Secretary of State for Justice: open prison refusal upheld under Sneddon

The High Court has dismissed a judicial review brought by a life-sentenced prisoner against the Secretary of State for Justice's refusal to transfer him to open conditions, despite a Parole Board recommendation. In R (Burstow) v Secretary of State for Justice [2026] EWHC 2922 (Admin), Susie Alegre, sitting as a Deputy High Court Judge, held that the decision was within the range of reasonable responses, applying the Court of Appeal's guidance in R (Sneddon) v Secretary of State for Justice [2025] KB 245.

The claimant is serving a life sentence for attempted murder, with a seven-year tariff that expired in November 2007. The Board has reviewed his case nine times and had recommended open conditions on three earlier occasions. After an oral hearing in November 2025, a panel again recommended progression so that his progress could be tested in lesser security. On 8 January 2026, a senior official acting under delegated powers rejected that advice.

Stuart Withers, for the claimant, initially criticised the decision letter for failing to mention Sneddon, but accepted that the omission would not be fatal in every case. His principal submission was that the Secretary of State had departed, without explanation, from the Board's assessment of the claimant's credibility, on which the Board, having heard oral evidence, enjoyed a "particular advantage".

Under the Generic Parole Process Policy Framework, the Secretary of State applies the Board's two criteria on risk reduction and abscond risk, plus a third requirement that there be a "wholly persuasive case" for transfer.

Following Sneddon, the judge emphasised that the Secretary of State is the sole decision-maker and may reject even a reasonable recommendation on the basis of a different but reasonable assessment. There is no need to identify a flaw in the Board's reasoning or to show a good reason for departing from it. The question is one of rationality, with the weight owed to the Board depending on whether it held a particular advantage on the issue. Departing from credibility findings made after oral evidence may be hard to defend; disagreement on risk may readily be reasonable.

The court rejected the characterisation of the dispute as one of credibility. R (Hindawi) v SSJ [2011] EWHC 830 (QB), concerning a claimant's professed change in political beliefs linked to the index offence, bore no comparison. The risk factors here concerned personality traits, and the assessment turned on behaviour management and risk. The letter expressly acknowledged the claimant's progress and completion of all core interventions, but concluded that his risk remained high, a matter within the Secretary of State's own expertise.

The letter cited professional concerns about conflict management, grievance-based thinking and controlling tendencies, including the claimant's response to evidence given by a former offender manager at an earlier hearing. The judge found nothing irrational in drawing on older reports alongside current ones, noting that the Board had done the same. A psychological assessment that risks in open conditions could be managed was itself a risk assessment the Secretary of State was entitled to reject.

Reading the letter fairly and as a whole, consistent with R (Overton) v Secretary of State for Justice [2023] EWHC 3071 (Admin), the judge found sufficient engagement with the Board's advice and dismissed the claim. She also observed that the defendant had raised delay only after permission was granted, which did not appear consistent with the overriding objective.

The judgement confirms that, post-Sneddon, the bar for departing from Parole Board advice is lower than some earlier first instance authority suggested, and that credibility-based challenges will require a genuine divergence on credibility.

Stuart Withers (instructed by Bhatia Best Solicitors) appeared for the claimant. Jonathan Metzer (instructed by the Government Legal Department) appeared for the defendant.