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

The Parole Board deciding whether to confirm a prisoner’s recall must assess whether the prisoner presents an unacceptable risk of further offending. It need not first find that the risk has increased since release. The Board must consider all relevant information, including behaviour after release and the historical material available at the time of release. A known mental disorder does not prevent later conduct connected with that disorder from contributing to the recall decision, particularly where the conduct reveals a new or newly measurable risk. An Article 5 and Article 14 argument concerning early release cannot succeed where the applicable early-release procedure is not shown to engage a discriminatory breach of Article 5(4).

The claimant had been automatically released on licence after serving a sentence for robbery and indecent assault. Following conduct at a probation hostel associated with paranoid ideation, his licence was revoked and he was recalled to custody.

An earlier Parole Board decision was quashed by consent because material had not been disclosed and the procedure was flawed. The Board then reconsidered the case, declined to hold an oral hearing, and confirmed that recall was justified. The claimant sought judicial review, arguing principally that recall was unlawful because the risk arising from his known mental disorder had not increased since release. He also relied on Articles 5 and 14 of the ECHR and the Disability Discrimination Act 1995.

1. The application was dismissed. The claimant’s principal submission—that recall could be confirmed only if the risk had increased since automatic release—was unsustainable. Under section 32 of the Criminal Justice Act 1991 and the Secretary of State’s directions, the Board had to determine whether the claimant presented an unacceptable risk of further offending. That required consideration of all the information before it, not a comparison confined to the level of risk at release.
2. The proposed restriction would conflict with the Board’s statutory functions and could leave a person at liberty despite an assessment that his risk was unacceptable. The fact that the relevant mental disorder was known before release did not prevent behaviour after release, and its connection with a risk of violence, from being taken into account.
3. In any event, the factual premise of the claimant’s argument was not established. His conduct in the community was a new factor that had not been capable of being quantified at automatic release. The Board was entitled to assess that conduct against the claimant’s history, the threats and fears at the hostel, the need to alter hostel procedures, and the conclusion that his continued residence was no longer viable.
4. The reliance on Articles 5 and 14 of the ECHR did not assist the claimant. The court considered the early-release argument in light of R (on the application of Clift) v Secretary of State for the Home Department [2004] 1 WLR 2223, but held that R v Smith v Parole Board [2003] EWCA Civ 1269 prevented the argument succeeding on these facts. The challenge to the refusal of an oral hearing therefore fell away.

The judgment describes an earlier judicial review in the same litigation in which the Parole Board’s decision was quashed by consent because material had not been disclosed and the procedure was flawed. The present application challenged the Board’s subsequent decision of 10 November 2004. The High Court dismissed the application.