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

For an imprisonment for public protection prisoner, the release test under section 28(6)(b) of the Crime (Sentences) Act 1997 is the same as for a life prisoner. The Parole Board must be satisfied that confinement is no longer necessary to protect the public against a significant risk of serious harm from further specified offences. A general reference to reoffending may be understood in context as referring to the specified offending identified at sentence. A fresh OASys assessment is not essential where other recent evidence permits a proper risk assessment. The Board’s jurisdiction is confined to matters referred by the Secretary of State. An error in a release decision would not alone make continued detention unlawful or support habeas corpus.

The claimant was serving an imprisonment for public protection sentence for causing death by dangerous driving. After the tariff period expired, the Parole Board declined to direct his release or recommend transfer to open conditions. The claimant brought claims for habeas corpus and judicial review. Cranston J dismissed both claims on 13 November 2008.

He appealed as of right against the habeas corpus decision and sought permission to appeal the refusal of judicial review. The issues concerned the applicable release test, transfer to open conditions, the currency of the risk evidence, the timing of the next review, and whether continued detention was unlawful.

1. Disposition. Lord Justice Dyson gave the judgment, with Lord Justice Moore-Bick and Lady Justice Arden agreeing. The habeas corpus appeal was dismissed. Permission to appeal against the refusal of judicial review was refused.
2. Release test. Section 28(6)(b) of the Crime (Sentences) Act 1997 applies to IPP prisoners as well as life prisoners. The Board must ask whether it is satisfied that confinement remains necessary to protect the public against a significant risk of serious harm from the commission of further specified offences. The approach in R (Sim) v Parole Board [2003] EWCA Civ 1845 concerned a recalled prisoner serving an extended sentence and did not govern a prisoner serving an indeterminate IPP sentence. In context, the Board’s reference to reoffending meant the specified risk of causing death by dangerous driving.
3. Open conditions and risk evidence. The decision not to recommend open conditions was neither unreasonable nor disproportionate. The probation officers supported completion of further drug-related work in closed conditions, and the relevant course was available only there. The Board had sufficient recent reports and oral evidence to assess risk. It was not required to obtain a fresh OASys assessment, although it had to take account of the age of the existing assessments and the other evidence.
4. Next review. Under Rule 20 of the Parole Board Rules, the Board’s jurisdiction was confined to the matters referred by the Secretary of State. Since the referral did not ask it to recommend a review date, it had no power to set one. Article 5(4) of the Convention did not require the date to be fixed by a court; the Secretary of State could fix it. This was consistent with Blackstock v UK [2004] (Application 59512/00) and R (Day) v SSHD [2004] EWHC 1742 (Admin).
5. Habeas corpus. The detention was lawful because the Board’s decision was lawful. Further, applying R (James) v SSJ [2009] UKHL 22, even an error of law in a decision not to recommend release would not by itself make continued detention unlawful.

1. Court of Appeal (Civil Division) — [2009] EWCA Civ 1016: dismissed the habeas corpus appeal and refused permission to appeal on the judicial review grounds.
2. Administrative Court, Queen’s Bench Division — Cranston J dismissed the habeas corpus and judicial review claims on 13 November 2008.