Oakes v Secretary of State for Justice & Ors

On recall of a prisoner released on licence, the Secretary of State may retain custody where the statutory conditions for release are not met. Automatic release requires satisfaction that release after 28 days will not create a risk of serious harm. Where the prisoner is not suitable for automatic release, the Secretary of State may release only if satisfied that continued detention is unnecessary for public protection. The Parole Board applies the wider question whether release would create an unacceptable risk to the public, including the risk of further offending. A decision-maker may not materially rely on disputed facts adverse to continued detention without fairly resolving the dispute. Where an oral hearing is necessary to examine those facts, refusal to hold one is unlawful.

The claimant had been recalled to prison after release on licence following failed drug tests and an incident involving his partner which was reported as a possible assault. The Secretary of State refused to release him. The Parole Board declined to recommend release and refused an oral hearing, relying on the claimant’s offending history and the perceived risks to others.

The claimant challenged the recall, the refusal of release and the Parole Board’s determination. The central issues were the proper construction of the release provisions in the Criminal Justice Act 2003, whether the Secretary of State was required to release him, and whether the Parole Board had lawfully assessed disputed facts without an oral hearing.

1. Claim against the Secretary of State. The claim failed. Under sections 255A to 255C of the Criminal Justice Act 2003, automatic release after 28 days was available only where the Secretary of State was satisfied that the prisoner would not present a risk of serious harm to the public. The default position was custody, and the burden was to justify release rather than custody.
2. Section 255C used materially wider language. The Secretary of State could release a prisoner not suitable for automatic release only if satisfied that continued detention was unnecessary for the protection of the public. The Parole Board applied the same substantive test under that section, namely whether release would create an unacceptable risk to the public, including a risk of further offending. The Secretary of State had an independent power to release before referral to the Board, but was not obliged to do so.
3. The initial decision to recall was not irrational. In the light of the claimant’s recent failed drug tests, history of violence, substance misuse and the information then available about the incident, the Secretary of State was entitled to conclude that he could not be satisfied that release would pose no risk of serious harm. He was not required to release the claimant pending the anticipated Parole Board decision.
4. Claim against the Parole Board. The Board was not required to direct release, and the alleged inconsistency between the Probation Service and the Board did not establish unlawfulness. The Board was independent and entitled to reach its own assessment of risk.
5. However, the Board had refused an oral hearing on the basis that there was no relevant factual dispute, while materially relying on the disputed possibility that the claimant had assaulted his partner. If that issue was relevant to risk, it required oral exploration so that the Board could resolve the facts rather than assume them. The determination was therefore quashed. The claimant remained in lawful detention pending prompt reconsideration, with liberty to apply and an expedited transcript. The Parole Board was ordered to pay the claimant’s costs.

First-instance judicial review. Leave was granted by Blake J on 24 November 2009. The claim was allowed only on the ground that the Parole Board had unlawfully refused an oral hearing; the challenge to the Secretary of State’s decision was dismissed.