Buxton, R (on the application of) v The Parole Board & Anor

The Parole Board’s task on a recall challenge is to assess whether the prisoner’s continued liberty or release would present an unacceptable risk of further offending. It is not required to balance that risk against the prisoner’s personal, family or compassionate interests. Those circumstances may be relevant where they affect the quality or level of risk, but otherwise they must be addressed through the statutory and prison-law arrangements governing serving prisoners. Lawful continued detention under a sentence does not, without more, constitute an unlawful interference with private or family life. Adequate reasons require the Board to identify the principal matters bearing on risk and explain its conclusion.

The claimant, a short-term prisoner released on home detention curfew, was recalled after being arrested and charged with assaulting his partner. The charge was later discontinued. The Parole Board rejected his representations against recall, referring to his persistent offending, substance abuse, the alleged assault and the period remaining on licence.

He sought judicial review, arguing that the Board had failed to consider adequately his mental health, the effect of recall on his risk of self-harm, his partner’s pregnancy and his rights under articles 3 and 8 of the European Convention on Human Rights. The central issues were the proper scope of the Board’s risk assessment and whether its reasons were adequate.

1. Application dismissed. The Board’s function under the Criminal Justice Act 1991 and the Secretary of State’s directions was to determine whether release would present an unacceptable risk of reoffending. If that risk was unacceptable, the Board had to refuse release.
2. The word “unacceptable” did not require a free-standing balancing exercise between public protection and the prisoner’s interests. The effect of recall on the prisoner was relevant only insofar as it bore on the quantity or quality of the risk presented. Personal circumstances, including mental health and compassionate considerations, could instead be addressed through statutory and prison-regime provisions for medical care, temporary release and compassionate release.
3. Article 3 was not engaged on the facts. As to article 8, the restriction on private and family life flowed from the lawful sentence and continued detention. Provided the detention was lawful and justified under article 5(1), and the Board’s risk assessment was sound, the decision was not rendered unlawful by its effect on family life.
4. The Board’s reasons were sufficient. They addressed risk, identified the factors supporting the assessment and referred to the claimant’s partner’s wishes, mental health and available community treatment. The Board was not required to address matters which it could not lawfully take into account.