Broadbent v The Parole Board of England and Wales

A charge and pending prosecution, without more, cannot establish a sufficient risk of reoffending for parole purposes. The Parole Board need not always examine all prosecution evidence or decide guilt, but must consider relevant undisputed facts, the prisoner’s representations and, where fairness requires, an oral hearing. The Board must make its own risk assessment, although it may consider a bail decision. A mandatory order for release is appropriate only where the lawful outcome is indisputable.

The claimant, a determinate-sentence prisoner released on licence, was recalled after being arrested and charged with serious drug offences. The Parole Board later refused to recommend release, relying substantially on the uncertainty created by the charges and pending trial. The claimant sought judicial review, alleging that the Board had acted unlawfully by relying on the charge without examining the underlying evidence, failing to consider his grant of bail, and failing to address his request for an oral hearing.

The court also considered the imminent further Parole Board hearing and criminal trial.

1. Charge and prosecution. The fact of a charge and pending prosecution alone cannot justify a conclusion that a prisoner presents a risk of reoffending. Otherwise, the Board would effectively delegate its assessment to the prosecuting authority. However, the Board is not required in every case to examine all, or any, of the prosecution evidence, or to determine whether the prisoner committed the alleged offence.
2. Relevant material and fairness. Undisputed facts may provide sufficient material. Here, the Board could consider that the claimant was driving a van containing a large quantity of cannabis and could assess whether drug dealers would entrust such a consignment to a person unaware of it. It could also consider his previous association with drug dealers. In an appropriate case, the Board must examine the evidence supporting the charge, consider the prisoner’s representations and denial of guilt, and provide an oral hearing, applying the principles in R (Smith and West) v The Parole Board [2005] UKHL 1. It must take account of evidence showing that a charge is unfounded.
3. Bail. The prosecution’s failure to rely on a risk of reoffending when opposing bail carried little weight. The Parole Board, not the prosecution or the bail court, must assess the risk under its distinct jurisdiction. It may consider the bail decision, but must reach its own conclusion on the material before it.
4. Relief. A flawed hearing ordinarily requires a fresh, fair and lawful hearing. A mandatory order requiring release is available only where the outcome on the material that should have been considered is indisputable. That threshold was not met.
5. Because a new Parole Board hearing and the criminal trial were imminent, the court granted no relief concerning the January and February decisions. The Board was required to consider the request for an oral hearing and retained discretion to defer its decision until after the trial. The claim for judicial review was dismissed.