Mahmod, R (on the application of) v Secretary of State for Justice

1. MRS JUSTICE LANG: This is a renewed application for permission to apply for judicial review of the defendant's decision, dated 30 November 2024, not to refer the claimant for a pre-tariff review, and a challenge to the lawfulness of the Policy Framework as regards pre-tariff sifts, at paragraph 3.4.11.

2. Permission was refused on the papers by Linden J. on 8 September 2025. History

3. The claimant is a Kurdish Iraqi who came to the UK in 1995 and was granted indefinite leave to remain.

4. On 11 June 2007 the claimant was convicted of the murder of his daughter, Banaz, in an honour killing carried out with other members of the family, because he disapproved of his daughter's relationship with her boyfriend. His daughter was sexually assaulted and tortured before death.

5. On 20 July 2007, the claimant was sentenced to life imprisonment with a minimum tariff of 20 years which expires on 9 April 2027. He is currently a category C prisoner serving a life sentence currently at HMP Coldingley. Despite the verdict, the claimant continues to deny involvement in the murder.

6. The claimant is assessed as posing a high risk of causing serious harm to his other daughter, Bekhal. She claims that the claimant and his brother threatened her and arranged for the claimant's son, Bahman, to seriously assault her because of her relationship and behaviour. She has been placed under police protection, which continues.

7. The claimant states that his behaviour and conduct in custody has been excellent. Since 2010 he has maintained the highest enhanced level on the incentives and enhanced privileges programme. He has engaged with programmes and courses, his risk factor is said to be low level, apart from the risk to Bekhal, and insufficient to gain any benefit in engaging with victim awareness or the Thinking Skills programme.

8. A Sentencing Planning Review Meeting ("SPRM") first took place in relation to the claimant on 31 October 2023. The PPCS refused thereafter to refer his case to the Parole Board in April 2024. The claimant and his legal representatives then instructed a forensic psychologist, Dr Bamford, to carry out a psychological assessment of him, which was produced on 27 August 2024. She recommended transfer to open conditions pending further information about the criminal activities of the claimant's son.

9. A further SPRM took place on 11 October 2024. The SPRM recommended that the claimant be transferred to open conditions and concluded that the criteria at 5.8.2 of the policy framework were met.

10. On 18 October 2024 the public protection casework section ("PPCS") received an updated SPRM report, the Bamford report and character references. On 30 November 2024, the PPCS issued the decision which is under challenge, declining to refer the claimant's case to the Parole Board. The basis for that decision was the PPCS's view that the claimant had not made sufficient progress during his sentence in addressing and reducing risk to a level consistent with protecting the public from harm in circumstances where a prisoner in open conditions may be in the community unsupervised under licenced temporary release. It confirmed that the parole review process would commence upon the expiry of his tariff. Ground 1

11. Under Ground 1 the claimant submits that the defendant's generic parole process policy framework, in particular the test applied to the pre-tariff sift at paragraph 3.4.11, is unlawful because (a) it authorises or approves unlawful conduct by decision-makers, namely rejecting claims, even though the Tameside duty has not been discharged via the Parole Board process, and/or it amounts to unlawful fettering of discretion and/or it is irrational.

12. In my view, the test at paragraph 3.4.11 has to be read in context. Whether a prisoner is kept in category C conditions or in open conditions is a matter for the defendant to determine pursuant to section 12(2) of the Prison Act 1952 , and rule 7(1) of the Prison Rules 1999. In the case of a prisoner with an indeterminate sentence, prior to the expiry of their tariff, the defendant has a discretion pursuant to section 239(2) of the Criminal Justice Act 2003 to ask the Parole Board for advice as regards whether the prisoner should be transferred to open conditions.

13. It is a matter for the defendant to decide whether the prisoner should be transferred, and there is no obligation on the defendant to accept the recommendation of the Parole Board: see R (Gilbert) v Secretary of State for Justice [2015] EWCA Civ 802 per Sales LJ at [70].

14. The policy framework provides at paragraph 5.8.2 that such a Parole Board recommendation will only be accepted where the defendant considers that three criteria are met:

1. The prisoner has made sufficient progress during the sentence in addressing and reducing the risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community unsupervised, under licence temporary release);

2. The prisoner is assessed as at a low risk of absconding; and

3. There is a wholly persuasive case for transferring a prisoner from closed to open conditions.

15. For the purposes of determining whether a case should be referred for advice to the Parole Board, the PPCS carries out a pre-tariff sift on behalf of the defendant by reference to paragraphs 3.4.1 to 3.4.21 of the policy framework.

16. The test to be applied is summarised in paragraph 3.4.11: "PPCS is responsible for deciding whether the case proceeds to the Parole Board … As part of this consideration, PPCS will decide whether all three of the criteria in the test for open conditions has been met (see guidance 5.8.2) in addition to whether there is a reasonable prospect of the Parole Board recommending a move to open conditions."

17. The claimant submits the test in paragraph 3.4.11 is unlawful, essentially because the threshold has been set too high. It requires the PPCS to be satisfied that the criteria for referral to open conditions as set out in paragraph 5.8.2 are satisfied. If the PPCS is not so satisfied, then the matter will not even be referred to the Parole Board for consideration, even though the Parole Board will undertake a more expansive and rigorous assessment than the PPCS and will address the same criteria.

18. I agree with the cogent reasoning of Linden J in his permission decision based upon the defendant's pleaded response, where he said: "(4) The nature of the decision at the sift stage is whether to seek the view of the Parole Board before reaching a final decision. The purpose of the sift is to prioritise cases which are likely to result in a positive outcome given limited resources and given that stage 2, consideration by the Parole Board, is a detailed and resource intensive process. Under paragraph 3.4.11 of the Generic Parole Process Policy Framework the issue which the PPCS considers is whether all three of the criteria in the test for transfer to open conditions under paragraph 5.8.2 are met, and whether there is a reasonable prospect of the Parole Board recommending a move to open conditions. It is unsurprising that the matter will be referred to the Parole Board if the PPCS has formed the preliminary or provisional view that the prisoner should be transferred to open conditions but not if that is not its view. The bar could be set lower, but it is not irrational for it to be set where it is set under 3.4.11. (5) Second, the Policy Framework provides that, as part of the sift, there is a Sentence Planning Review Meeting (“SPRM”) which is attended by all relevant report writers and the prisoner’s Offender Manager, and which the prisoner has a right to attend. Various reports are prepared and disclosed to the prisoner so that they can submit representations in advance of the meeting, which they are permitted to attend. The SPRM then considers whether the first two criteria for the test for a move to open conditions are met, and a report is submitted to the PPCS with a recommendation. This report is also disclosed to the prisoner. (6) Turning to Ground 1 I do not consider that it is reasonably arguable that paragraph 3.4.11 of the Policy Framework is unlawful. (a) It does not arguably authorise or approve unlawful conduct by the PPCS. The Claimant’s attempt to bring the case within R (A) v Secretary of State for the Home Department [2021] 1 WLR 3931 (SC) and BF (Eritrea) v Secretary of State for the Home Department [2021] 1 WLR 3967 (SC) on the basis that paragraph 3.4.11 authorises or approves breach of the Tameside duty is artificial. The approach under the Policy is that sufficient inquiries are made pursuant to the SPRM process and that seems to me to be perfectly rational. And, in any event, the Policy does not preclude consideration of other materials or the making of other inquiries. What it precludes, if the paragraph 3.4.11 test is not satisfied, is referral to the Parole Board. But that is not a breach of the Tameside duty. (b) It is not a fetter on the Defendant’s discretion to provide, as a matter of policy and therefore inherently subject to exceptional cases, that there will not be a referral to the Parole Board if the PPCS do not themselves consider that the criteria for transfer to open conditions are met. (c) It cannot sensibly be said that failure to provide for referral to the Parole Board in cases where the PPCS does not believe that the criteria for transfer to open conditions are met, and that there is therefore [not] a reasonable prospect of the Parole Board recommending such a move, is irrational."

19. In paragraph 6(c) of Linden J's reasoning, looking at the penultimate line in subparagraph (c), it seems to me that the word "not" ought to have been inserted so that it reads, "There is therefore not a reasonable prospect of the Parole Board recommending such a move", to make sense of the meaning of the sentence as a whole. The language is slightly convoluted, but the essence is in the first and last lines. It cannot sensibly be said that failure to provide for referral is irrational.

20. I do not agree with the claimant's criticisms of Linden J.'s reasoning. I accept the defendant's submission that the purpose of the sift is to prioritise those cases which do satisfy the PPCS on a provisional basis that the conditions for transfer to open conditions are met. This is a rational use of scarce public resources. The claimant is, in effect, seeking to impose upon the defendant a different policy, namely that the Parole Board process will be commenced in every pre-tariff case outside truly unmeritorious ones. This is not the policy that the defendant has adopted in the lawful exercise of his discretion.

21. For completeness, I also note that the policy framework makes provision for the defendant to transfer a prisoner to open conditions without a Parole Board recommendation in exceptional circumstances, which are set out at paragraphs 5.5.1 to 5.5.3. They are not applicable here.

22. For these reasons I consider that ground 1 is unarguable and permission should be refused. Ground 2

23. Under Ground 2, the claimant submits that the decision not to refer him to the Parole Board for pre-tariff review is unlawful in that (a) the decision was irrational; (b) the decision involved a failure to consider legally relevant matters and/or the defendant failed to discharge her Tameside duty.

24. The claimant makes four specific points. First, the decision letter did not acknowledge that the PPCS was departing from the assessment of the SPRM or set out a reasonable basis for doing so.

25. Second, the concern expressed in the decision letter that the claimant may continue to hold the same beliefs and attitudes which led to him to the commission of the index offence contained legal errors, as it did not set out a reasonable basis for disagreeing with Dr Bamford, did not include an analysis of the evidence relating to the claimant's beliefs and attitudes, or alternatively, did not take steps to seek out such evidence.

26. Third, it was irrational to conclude that there were evidently clear risks of placing the claimant in an open prison when he had not completed core risk reduction work and his tariff had not yet expired. There was no evidence that the claimant would be offered any further core risk reduction work, even if he remained in closed conditions until his tariff expired.

27. Fourth, it was irrational to conclude that the claimant had not made sufficient progress during his sentence in addressing and reducing risk to a level consistent with protecting the public from harm. The only risk identified was to the claimant's daughter and she was under police protection. Dr Bamford considered it was unlikely that he would personally cause her harm in view of his advanced age and other factors, but rather it would involve him instructing others to harm her.

28. I accept the defendant's submission that this ground is unarguable. The PPCS expressly referred to its careful consideration of SPRM's report, Dr Bamford's report and character references and, in my view, its reasoning demonstrated that those matters were considered and addressed.

29. The claimant was convicted to the criminal standard of proof of participating in a joint enterprise to murder his daughter. His refusal to admit his involvement meant as a matter of fact that he had done no core risk reduction work. He is assessed as posing a continuing high risk to his surviving second daughter, who gave evidence against the claimant at his criminal trial, including as to his involvement with his son in serious honour-based violence against her. She remains under police protection.

30. Dr Bamford was unable to establish that the beliefs and attitudes which led to his daughter's murder no longer existed (see paragraph 36 of the summary grounds of defence and the comments on Dr Bamford's report in the decision letter). Dr Bamford's support for his transfer to open conditions was caveated by conditions which had not been met, in particular surrounding the claimant's son's conviction for arson with recklessness as to the endangerment of life and whether that conviction was related to honour-based violence and the extent to which the claimant had concealed the details of that conviction from his psychologist.

31. I consider that the PPCS was rationally entitled not to follow the recommendation of the SPRM for the reasons summarised at paragraphs 34 to 35 of the summary grounds of defence. The SPRM treated evidence of good behaviour in prison as evidence that attitudes leading to the murder no longer existed. It urged risking a transfer to open conditions because there was no other way of testing the risk, which was not a safe or appropriate approach. It failed in the recommendation to address or account for the significance of the continuing high risk to the claimant's surviving daughter.

32. For these reasons I consider that ground 2 is unarguable and permission should be refused. Ground 3

33. The claimant submits that the process by which the defendant took the decision not to refer the claimant to the Parole Board was procedurally unfair because he was not given an opportunity to address the concerns of the PPCS. In particular, his failure to admit the index offence which inhibited his progression and risk reduction in prison, that he may hold the same beliefs that led him to commit the index offence, and that he may pose a risk to his surviving daughter. These particular concerns were not directly put to the claimant at the SPRM stage.

34. I agree with the defendant's submissions on this ground. Ground 3 rests on the proposition that after the SPRM process is completed, in which the claimant fully participated, the claimant should, for the purposes of the sifting decision, be given a yet further opportunity to address why his case meets the criteria for transfer to open conditions. This submission is unarguable.

35. The whole point of the SPRM process is to gather material from the claimant and from those within the prison which is relevant to the question of whether the claimant should be transferred to open conditions. The criteria for the SPRM specifically includes "whether the prisoner has made sufficient progress during the sentence in addressing and reducing the risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community unsupervised under licence temporary release)". The claimant's opportunity to address that criterion was provided under the policy framework as part of the SPRM stage and the claimant did address it. In fact, the claimant's participation in the SPRM process followed a prior PPCS decision which raised the same concerns and the claimant's solicitors submitted written legal representations challenging the basis of that decision. Therefore, neither the claimant nor his legal representatives were taken by surprise at these matters being relied on again.

36. The claimant's account and his position on the contentious issues that I have referred to was extensively set out in both the SPRM report and Dr Bamford's report, both of which were available to the PPCS. Even if the claimant had been given a further opportunity to make submissions on risk, I consider it is very unlikely that he would have had anything different to say beyond what he had already said during the SPRM process, including with Dr Bamford.

37. The defendant points out that under the policy framework the PPCS has ten working days from receipt of the SPRM record to review the record, make its sifting decision and to send a letter to the prisoner setting out the decision. It is clear from the short timescale, but also the step by step guidance on how the PPCS should approach its task, that the sifting decision is not intended under the policy to provide the prisoner with a further opportunity to address matters relevant to the criteria for open transfer, which should already have been addressed as part of the SPRM process.

38. The PPCS was not required to put its views to the prisoner in draft for comment or consultation in every case where the SPRM recommendation is not followed. Contrary to the claimant's submissions in paragraph 9 of the renewal notice, the sifting process was not a trial. It was not an opportunity for the claimant to be "heard" by the PPCS or to be cross-examined by the PPCS as to his beliefs or attitudes.

39. For these reasons, ground 3 is unarguable and permission is refused.

40. Ground 4, which is a reasons challenge, has not been pursued by the claimant. Therefore, permission is refused on all grounds. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]