R v Parole Board, Ex parte Watson (Watson, Ex parte)

On a review of the recall of a discretionary life prisoner, the Parole Board is the primary and independent decision-maker. It must determine for itself whether continued confinement remains necessary for public protection. It is not confined to testing the validity of the Secretary of State’s reasons for recall.

The release test in section 34(4)(b) of the Criminal Justice Act 1991 also governs re-release after recall under section 39(4). Public protection must receive preponderant weight against any significant risk of serious injury. An informal and provisional Board confirmation of an emergency recall does not create a real danger of bias where a different panel later conducts a full, independent and inter partes review.

The applicant was a discretionary life prisoner who had been released on licence after serving over eighteen years. Following concerns about his association with young men and allegations of proposed violence, the Secretary of State revoked his licence under section 39(2) of the Criminal Justice Act 1991 and recalled him to prison.

The Parole Board initially confirmed the recall informally. A differently constituted Discretionary Lifer Panel later heard representations, disregarded one witness statement, and declined to direct his release because it considered that he continued to present a serious risk to the public. Popplewell J rejected the applicant’s judicial-review challenge.

On appeal, the issues were whether the informal confirmation compromised the Board’s independence or created apparent bias; whether the release test differed on recall; and whether the Board’s conclusion was unreasonable.

1. Appeal dismissed unanimously. The Master of the Rolls held, with whom Rose and Roch LJJ agreed, that the informal confirmation of an emergency recall did not compromise the Parole Board’s later independence. The confirmation was provisional, based on incomplete material, and could only benefit a recalled prisoner by creating a possible earlier route to release.
2. The later section 39(4) review was conducted by different members, chaired judicially, on fuller material and after an inter partes hearing. The earlier confirmation would form part of the history but carry no weight in the later decision. Applying the real-danger-of-bias test in R v Gough [1993] AC 646, there was no real danger of bias and no procedural unfairness.
3. The Board was not confined to reviewing whether the Secretary of State’s recall reasons were valid. Under the statutory scheme it was the independent, quasi-judicial primary decision-maker, required to reach and explain its own conclusion.
4. The same release criterion governed both initial release and re-release after recall. Although section 39(4) prescribed no separate test, the Board’s power to direct release was the same statutory power as that exercised under section 34. A recalled discretionary life prisoner remained subject to the life sentence. The Board therefore had to ask whether it was no longer necessary for public protection that he be confined.
5. That judgment required a balance between liberty and public protection, but the Board had to give preponderant weight to protecting innocent people against any significant risk of serious injury. There was ample material supporting its conclusion that the applicant remained a very real public risk. The court would not second-guess the specialist tribunal’s assessment, which was not unreasonable.

• Court of Appeal (Civil Division): dismissed the applicant’s appeal from Popplewell J and upheld the Parole Board’s decision not to direct release.
• High Court, Queen’s Bench Division (Crown Office List): Popplewell J rejected the applicant’s judicial-review challenge to the Parole Board’s decision.