Morecock, R (on the application of) v Parole Board

On a prisoner’s representations against recall, the Parole Board may consider afresh whether release would create an unacceptable risk of any further offending. The risk need not concern serious, imprisonable, or previously offending conduct. Repeated minor driving offences may support a conclusion that release presents an unacceptable risk, particularly where offending occurred while the prisoner was on licence and shortly after release from custody. The Board may also conclude that the prisoner is unlikely to comply with licence conditions. Its reasons need not replicate the Secretary of State’s original reasons for recall, because the Board provides an independent check and considers the case on the evidence before it.

The claimant had been released on licence after serving two-thirds of a long-term sentence. The Secretary of State later revoked his licence and recalled him to custody for alleged breaches involving contact with his former partner and residence away from his approved hostel.

The Parole Board rejected those grounds but refused release because the claimant had admitted repeated driving offences while on licence and was unlikely to comply with his licence conditions. On reconsideration, the Board corrected an error concerning the precise driving offences but maintained its decision. The claimant sought judicial review, arguing that the Board had acted irrationally and had relied on reasons inconsistent with the original recall decision.

1. The claim was dismissed. The claimant remained in custody under the original sentences. Recall did not create a new sentence for the later road traffic offences: R (Smith) v The Parole Board (No. 2) [2004] 1 WLR 421.
2. The Secretary of State’s directions under section 32(6) of the Criminal Justice Act 1991 did not restrict “further offending” to serious, imprisonable, or historically similar offences. The direction expressly stated that the offending need not involve a risk to public safety. It was therefore open to the Board to treat repeated uninsured and otherwise unlawful driving as relevant offending.
3. The Board was entitled to find an unacceptable risk of repetition. The claimant had offended while on licence, despite knowing that breach of the law or licence conditions could lead to recall. His offending history suggested that offending had been interrupted mainly by imprisonment. Those matters made the conclusion reasonably open to the Board and not irrational.
4. The same considerations supported the conclusion under paragraph (d) of the directions that the claimant was unlikely to comply with his licence conditions. The Board was required to take account of the further imprisonment since recall, but it was not obliged to spell out an obvious consideration in its reasons.
5. The Board was not required to release the claimant merely because the Secretary of State’s original reasons for recall had fallen away. Rodgers v Governor of HM Prison Brixton [2003] EWHC 1923 (Admin) concerned the legality of the original recall and was distinguishable. The Board acts as an independent check and may consider the case afresh. The approach was supported by R (Sim) v The Parole Board [2004] 2 WLR 1170.
6. The claimant’s costs were to be assessed under the Community Legal Service (Costs) Regulations 2000. No order for the Parole Board’s costs was made.

First-instance judicial review in the Administrative Court. No earlier appellate decision is stated in the judgment.