Blackett, R (on the application of) v HMP Risley & Ors

Where a public-law decision is unlawful, the court may exceptionally preserve it for a short period pending reconsideration. The court must balance the claimant’s prejudice against the public risk of removing the decision immediately. Strong indications of a serious risk to the public, together with limited evidence of specific prejudice, may justify maintaining the decision temporarily. The order should ensure prompt reconsideration and provide for the unlawful decision to be quashed when the fresh decision is made.

The claimant sought judicial review of the Parole Board’s decision to impose residence at approved premises as a licence condition. The Board accepted that the decision had been made without giving the claimant notice of the proposed condition or the supporting reasons. The parties agreed that the matter required reconsideration after disclosure of those materials. The issue before the court was the interim order to make pending reconsideration, which was expected within approximately three weeks.

1. The court accepted that the Parole Board’s decision to impose the challenged residence condition had been reached unlawfully because the claimant had not been given notice of the proposed condition or the reasons supporting it. The decision would therefore have to be quashed in the relevant respect.
2. Under its discretion pursuant to CPR Part 54, the court could nevertheless maintain the unlawful decision temporarily if the balance of interests justified that exceptional course. The relevant comparison was between the claimant’s prejudice from remaining subject to the condition and the public risk if it were immediately removed.
3. There were strong indications in the papers that responsible bodies had assessed the claimant as presenting a serious risk of reoffending requiring strict licence conditions. Although the evidential presentation was unsatisfactory and a supporting witness statement would have been preferable, the court was entitled to take those indications into account.
4. The claimant had not demonstrated particular prejudice from remaining subject to the condition for the short period before reconsideration. The balance therefore favoured maintaining the condition temporarily, especially since the matter could be reconsidered promptly and in the round.
5. The decision of 22 August 2007 was to be quashed, insofar as it imposed the challenged condition, from the date of the fresh decision. The order required disclosure of the relevant dossier, an opportunity for representations, and prompt consideration by the Parole Board. The first and second defendants were to pay the claimant’s costs, subject to detailed assessment of publicly funded costs.

Not stated in the judgment.