Harlow, R (on the application of) v Parole Board for England & Wales

In reviewing the continued detention of a discretionary life prisoner, the relevant question is whether detention remains necessary to protect the public from a threat to life and limb. The Parole Board may consider both evidence of continuing dangerous behaviour and the absence of evidence showing a material reduction in risk. A decision expressed as an absence of sufficient contrary evidence is not necessarily unlawful where the dossier provides ample evidence supporting continued detention. Absconding, nuisance, or the prospect of minor future offending is not, by itself, the statutory basis for detention. Procedural amendments raising a new Convention ground shortly before the hearing may be refused where the notice places the defendant at an unfair disadvantage.

The claimant, serving discretionary life sentences for firearm offences, sought judicial review of the Parole Board’s decision of 4 May 2007 to continue his detention. He argued that the Board had focused on the absence of evidence showing reduced risk rather than determining whether current evidence established that he remained dangerous. He also sought to add a ground under Article 5(4) of the Convention shortly before the hearing. The issues were whether the amendment should be permitted and whether the Board’s decision was unlawful under Article 5(1)(a).

1. Amendment. Applications for judicial review must be made promptly and in the prescribed form so that the defendant has a proper opportunity to answer the case. An amendment raising Article 5(4), supported by serious allegations disclosed less than one week before the hearing, would disadvantage the Parole Board and was refused in the interests of justice.
2. Continued detention. The governing question was whether release could occur without exposing the public to a risk to life and limb, namely serious violence. The relevant statutory scheme requires continuing review of a life prisoner’s detention and permits consideration of whether the prisoner has addressed the attitudes and behaviour that led to the index offence, together with insight and progress against sentence-plan targets.
3. The Board’s decision was guardedly expressed as an absence of sufficient evidence that risk had reduced. That formulation did not invalidate the decision. The dossier contained substantial evidence of violence, threats, disciplinary misconduct and drugs offences. Taken together, it was open to the Board to conclude that the claimant had not shown that release could safely be achieved.
4. The claimant’s previous absconding was not, by itself, a basis for finding a danger to the public. The relevant test concerned a threat to life and limb, not nuisance or minor future offending. The application for judicial review was nevertheless refused, and the claimant was granted detailed assessment of his community costs with no order for costs against the Parole Board.

First-instance judicial review proceedings. The application challenging the Parole Board’s decision of 4 May 2007 was refused.