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

Under section 28(6)(b) of the Crime (Sentences) Act 1997, the Parole Board must decide whether continued confinement remains necessary for public protection. Risk assessment is not ordinarily an exercise in allocating a legal burden of proof, although the distinction may matter in a genuinely borderline case. A decision letter must be read as a whole and in context. Where a prisoner’s conduct in open conditions demonstrates that release is unsafe, the Board may require him to demonstrate changed attitudes and conduct before release. That is a case-specific assessment, not a general reversal of the statutory test. The court should not decide Convention compatibility on hypothetical facts where the issue cannot affect the outcome.

The claimant, detained at Her Majesty’s Pleasure after conviction for murder, sought judicial review of the Parole Board’s refusal to direct his release. He challenged the Panel’s statement that the onus was on him to show that he respected authority, obeyed the law and was safe to release. The challenge arose after the claimant, while in open conditions, was dismissed from employment and found in possession of heroin, drug-taking materials and urine intended to defeat drug testing. The central issues were whether the Panel had wrongly imposed a burden of proof and whether section 28(6)(b) was compatible with Article 5 of the Convention.

1. Application dismissed. The Panel’s decision was not unlawful. The statutory test under section 28(6)(b) of the Crime (Sentences) Act 1997 asks whether the Board is satisfied that continued confinement is no longer necessary for public protection.
2. Risk evaluation is inherently incapable of proof. In most cases the Board should ask what the extent of the risk is, without treating the issue as one involving a legal burden of proof. The distinction between continued detention unless safety is shown and release unless danger is shown may nevertheless affect a genuinely borderline case.
3. The Panel’s statement about the onus could not be read in isolation. Its decision letter had to be read as a whole and in a common-sense manner. The Panel had concluded, on the reports and the claimant’s recent possession of Class A drugs, that the risk to life and limb and the risk to the public were too high for release or open conditions.
4. In that factual context, the Panel was entitled to say that the claimant had to demonstrate that he was safe to release and that his attitudes towards authority and obeying the law had changed. This was a response to his conduct and did not purport to state a principle of general application. The criticism based on the Panel’s use of negative wording was also merely semantic in context.
5. The Article 5 compatibility issue did not arise because deciding it could not affect this plainly non-borderline case. The judge nevertheless expressed the provisional view that section 28(6)(b) was compatible with Article 5. He distinguished the Article 5(4) reasoning concerning mental-health detention in Reid v United Kingdom from detention after conviction under Article 5(1)(a), and regarded Comerford v United Kingdom and R v Lichniak as supporting the view that a murder sentence may lawfully continue until the Board is satisfied that release is safe.

First-instance judicial review. The judgment does not state any earlier appellate decision in this litigation.