Churchman, R (on the application of) v West Midlands Probation Board

A recommendation that a prisoner should move to open conditions does not amount to a decision that he should be released into the community on temporary licence. Unless the Parole Board makes a binding release order, the Probation Board retains discretion to assess the risks of community release and to decide how those risks should be managed. Its statutory functions do not require it to provide accommodation to a particular prisoner or to proceed with release where it reasonably considers the risk to the public too high. An expectation of eventual community release does not arise merely because open conditions may be an initial step towards it.

The claimant, a life prisoner held in open conditions, sought judicial review of the West Midlands Probation Board’s refusal to provide approved-premises accommodation or otherwise facilitate testing by release on temporary licence. He argued that the Board had usurped the Parole Board’s function and had unlawfully frustrated the progression towards release. The Parole Board had previously recommended transfer to open conditions, but had not directed release into the community or made an order under section 28(5) of the Crime (Sentences) Act 1997. The central issues were whether the Board’s risk assessment was unlawfully inconsistent with the Parole Board’s earlier recommendation and whether the Board owed the claimant a duty to facilitate release.

1. Application dismissed. The Probation Board’s decision was lawful and rational. There was no legitimate expectation that the claimant would progress into the community merely because transfer to open conditions had occurred.
2. The Parole Board’s earlier recommendation concerned transfer to open conditions, not release into the community on temporary licence. The recommendation therefore did not determine the risk of community release or circumscribe the Board’s discretion. The claimant accepted that the Parole Board’s later directions, expressed to operate so far as practicable and if appropriate, were invitations rather than mandatory orders under section 28(5)(b) of the Crime (Sentences) Act 1997.
3. The Board was entitled, and in carrying out its statutory functions was required, to make its own assessment of the risk to the public, including hostel staff and residents. The statutory framework did not require it to manage a risk which it reasonably assessed as too high by providing accommodation or facilitating temporary release. The evidence provided a rational basis for its decision, and irrationality was not pursued.
4. R v Parole Board ex parte Robinson [1999] EWHC Admin 764 was distinguishable. That case concerned a Parole Board decision that release was safe, after which the Prison and Probation Services could not obstruct implementation by reopening the risk issue. That stage had not been reached here.
5. The court accepted the reasoning in R (on the application of Frank Irving) v London Probation Board [2005] EWHC 605 (Admin): section 5 of the Criminal Justice and Court Services Act 2000 conferred a public law function, including arranging sufficient provision, rather than a duty owed to an individual prisoner. Provision could be sufficient even if accommodation was unavailable for a particular prisoner at a particular time.
6. There was no order as to costs, save for Legal Aid taxation. Permission to appeal was refused.