Salte, R (on the application of) v Secretary of State for Justice & Anor

Article 5(4) does not require the Parole Board to complete an oral hearing or determine an offender’s case before expiry of the tariff period. The Board must provide a review within a reasonable time, assessed according to the circumstances of the individual case. Timetabling and the information required for a meaningful review are primarily matters for the Board, subject only to the Administrative Court’s ultimate supervisory jurisdiction in an extreme case. Outdated reports do not necessarily invalidate a review where the Board has sufficient information overall, including oral evidence. The Secretary of State may set the date for a future referral and review. Review intervals must be reasonable and fact-specific; an interval of 18 months was lawful on the facts.

The claimant was serving detention for public protection under section 226 of the Criminal Justice Act 2003. Following expiry of his tariff, the Parole Board held an oral review and refused release or transfer to open conditions. The Secretary of State subsequently indicated that the case would next be referred for a review in February 2010.

The claimant sought judicial review of the Parole Board’s decision and the Secretary of State’s subsequent letter. He alleged delay contrary to Article 5(4), application of the wrong release test, inadequate information, irrationality and disproportionality concerning open conditions, procedural irregularity in fixing the next review date, and an excessive review interval.

1. The application was dismissed. There was no breach of Article 5(4) or domestic procedural fairness.

2. The Secretary of State had referred the case before expiry of the tariff. Article 5(4) did not require the Parole Board to hold an oral hearing and determine the case before that expiry. The Board was entitled to arrange its own timetable, and a hearing approximately three months after tariff expiry was not unlawful on the evidence.

3. The Parole Board has wide discretion over its procedure and the information required to perform its statutory function under section 28(6) of the Crime (Sentences) Act 1997. The Administrative Court should intervene only in an extreme case. The Rule 6 dossier, although based on reports of varying age, was supplemented by the claimant’s evidence and updated evidence from a senior prison officer. The panel was entitled to regard the material as sufficient. There was no legal requirement for advance MAPPA arrangements or a psychological report in the circumstances.

4. The panel’s alternative conclusion that the claimant presented a significant risk of serious harm through further specified offences meant that any dispute about the proper construction of section 28(6) did not arise for decision.

5. The refusal to recommend transfer to open conditions was rational and proportionate. The panel was entitled to conclude that further offending-behaviour work should take place in closed conditions.

6. Article 5(4) did not require the Parole Board, rather than the Secretary of State, to fix the date of the next review. The proposed 18-month interval was supported by the claimant’s outstanding risk-reduction work and the need to assess its effect. It was neither disproportionate nor unreasonable.

First-instance judicial review proceedings. The court dismissed the application.