Gulliver v The Parole Board

When the Parole Board considers the re-release of a determinate-sentence prisoner recalled under section 254 of the Criminal Justice Act 2003, it acts as the primary decision-maker. It must consider all the circumstances and assess the risk to the public using the material available when it makes its decision.

The Board’s role is not confined to reviewing the Secretary of State’s reasons for recall. Doubt about whether a licence condition was actually breached does not relieve the Board of its responsibility to decide whether immediate release is compatible with public safety. Relevant considerations include the circumstances of recall and whether suitable licence conditions can manage the risk.

The appellant was automatically released on licence while serving a three-year determinate sentence. The Secretary of State recalled him after an alleged failure to keep satellite-tracking equipment charged. The Parole Board did not accept that the breach had been proved conclusively, but refused immediate re-release because of the risk he presented and doubts about whether that risk could be managed under the proposed licence arrangements.

Collins J dismissed the appellant’s claim for judicial review. The appellant appealed with permission, although he had since been released automatically. The central issue was whether, after finding that the alleged breach had not been proved, the Board could consider all the material available at its hearing and refuse re-release because of the current risk to the public.

1. Appeal dismissed unanimously. The Parole Board was entitled to consider all the circumstances and to refuse to recommend immediate release because of its assessment of the risk to the public.

2. Sir Anthony Clarke MR held that sections 239 and 254 of the Criminal Justice Act 2003 did not confine the Board to reviewing the Secretary of State’s reasons for recall. Section 239(3) required consideration of the documents supplied by the Secretary of State and any other oral or written information obtained by the Board. Section 239(6) emphasised public protection, prevention of further offending and rehabilitation.

3. The Board was the primary decision-maker concerning re-release. It had to form its own judgment on all the material available when it decided the case. Its ultimate task was to determine whether release should be recommended following an assessment of current risk to the public. The circumstances of recall remained relevant, as did the possibility of devising suitable licence conditions, but neither consideration exhausted the inquiry.

4. The approach in R v Parole Board, ex parte Watson [1996] 1 WLR 906 applied to recalled determinate-sentence prisoners as well as life prisoners. The court also approved Richards J’s wider-picture approach in R (Jackson) v the Parole Board and the Home Secretary [2003] EWHC (Admin) 2437. The House of Lords’ reasoning in R (Smith (No 2) and West) v The Parole Board [2005] 1 WLR 350 was consistent with that conclusion.

5. Sir Igor Judge agreed that recall and the Board’s subsequent consideration formed a single process with distinct aspects. The Board exercised a supervisory check over the recall decision, but reservations about that decision did not remove its responsibility to decide whether re-release was compatible with public safety. Lord Justice Buxton agreed with both judgments.

6. Obiter, a legally defective recall would not itself render detention under the original sentence unlawful before the recall was quashed. A separate application for judicial review or habeas corpus might be appropriate in an exceptional case where the recall process was seriously subverted and the Board could not provide an adequate remedy.

There was no order as to costs, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously. The Parole Board had lawfully considered all the circumstances and the current risk to the public. Permission to appeal to the House of Lords was refused.

2. High Court, Administrative Court: Collins J dismissed the claim for judicial review of the Parole Board’s refusal to direct the appellant’s re-release. No citation is stated in the judgment.