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

For prisoners serving imprisonment for public protection, the statutory release test is the same as that applying to life prisoners. The Parole Board must be satisfied that confinement is no longer necessary for protecting the public. In this context, the relevant risk may be assessed by reference to a significant risk of serious harm from further specified offences.

The Board may consider OASys assessments alongside other evidence. The age of an assessment does not automatically invalidate the decision where the Board considers updated reports and oral evidence. The weight given to the evidence is principally for the Board. Article 5 does not require the Board itself to fix the date of a future review.

The claimant was serving an imprisonment for public protection sentence imposed after he pleaded guilty to causing death by dangerous driving. The sentence included a minimum term, which had expired by the time of the Parole Board hearing.

The Board declined to direct release or recommend transfer to open conditions. It considered the claimant's offending history, drug misuse, OASys assessments, prison reports, probation evidence and incomplete offending-behaviour work. The claimant sought judicial review and habeas corpus, arguing that the Board had applied the wrong release test, failed properly to consider open conditions and relied on an out-of-date risk assessment. He also challenged the absence of a Board power to fix the next review date.

1. Release test. The court accepted, for the purposes of the application, the Secretary of State's concession that section 28(6) of the Crime (Sentences) Act 1997 could be treated as requiring satisfaction that confinement remained necessary to protect the public against a significant risk of serious harm from further specified offences. The court did not finally determine whether those additional requirements were implied by the statutory language.
2. IPP and life prisoners. By section 34, the release provisions for life prisoners apply to prisoners serving imprisonment for public protection. The legal test is therefore the same for both categories, although different practical considerations may affect its application. The test applicable to recalled prisoners serving extended sentences in R (Sim) v Parole Board was different and did not assist the claimant.
3. Application to release. The Parole Board applied the correct test. Its decision, read as a whole, addressed whether the risk identified at sentence had been reduced sufficiently to justify release. The reference to no present risk of violent or sexual offending concerned other such offending and did not exclude the risk arising from dangerous driving. On the evidence, the Board was entitled to refuse release.
4. Open conditions and evidence. The Board properly considered transfer to open conditions and was entitled to conclude that further offending work should be completed in closed conditions. It considered the OASys assessments together with prison reports, probation reports, oral evidence and the claimant's progress. The assessments were important but only part of the evidential context, and the weight given to each matter was for the Board.
5. Review date. Following R (Day) v Home Secretary, Article 5 did not require a judicial body to fix the date of the next review. The Secretary of State could do so, and the decision was not flawed on that basis. Both applications were refused.

This was a first-instance judicial review and habeas corpus application. The judgment records no earlier court decision in the same proceedings.