Rigby, R (on the application of) v Secretary Of State For the Home Department & Anor

R (Daly) v Home Secretary did not replace rationality with proportionality as the general test for administrative decisions. It established that a policy must not disproportionately violate fundamental rights. Where a Parole Board’s reasons, read with the evidence before it, clearly establish an unacceptable risk of further offending, an erroneous or surplus expression such as “potential risk” does not invalidate the decision. A broader question concerning Convention-compliant decision-making under section 6 of the Human Rights Act 1998 was left for a case in which it genuinely arose.

Charles Harold Rigby sought permission to apply for judicial review of the decision to sustain his recall to prison. Jackson J refused permission on 27 June 2001. On renewal before the Court of Appeal, the applicant argued that R (Daly) v Home Secretary had substituted proportionality for rationality and that the Parole Board had failed to apply the required standard by referring to a “potential risk of offending”. The central issues were whether the Board had found an unacceptable risk and whether a wider question under section 6 of the Human Rights Act 1998 arose.

1. Application refused. Sedley LJ gave the first judgment and Aldous LJ also refused permission.
2. R (Daly) v Home Secretary, [2001] 2 WLR 1622, did not establish proportionality as a substitute for rationality in relation to administrative public decisions generally. It concerned the requirement that a policy must not disproportionately violate fundamental rights.
3. The relevant policy required the Parole Board to consider whether continued detention or immediate release would pose an unacceptable risk of further offending. The policy itself was accepted to be unobjectionable and proportionate.
4. The Board’s reference to a “potential risk” was technically inept because every risk is potential. However, the Board’s reasons and the evidence before it showed that it had found an unacceptable risk. The breach of the licence condition, including the failure to live as directed despite the supervising officer’s objection, was so serious that no reasonable Parole Board could have failed to regard the risk as unacceptable.
5. The broader question whether section 6 of the Human Rights Act 1998 required every Parole Board decision to be Convention-compliant, and whether a reviewing court could examine its components for proportionality, did not arise in this plain case. The scope of a prisoner’s liberty rights while on parole was left open for future consideration.
6. The application was refused. Detailed assessment ordered.

• Court of Appeal (Civil Division): On renewal, permission to apply for judicial review was refused. Sedley LJ delivered the first judgment; Aldous LJ also refused permission.
• Administrative Court, Queen’s Bench Division: Jackson J refused permission on 27 June 2001.