Francis, R (on the application of) v West Midlands Probation Board

A probation board deciding whether to transfer responsibility for a pre-release prisoner’s supervision exercises a discretion distinct from the Parole Board’s power to direct release. It may assess the risks and viability of a proposed release plan when deciding whether transfer is justified. It need not assume that the prisoner would present only minimal risk, although it must implement a later release decision made by the Parole Board.

A broad discretion was sufficiently constrained by the statutory aims in section 2 of the Criminal Justice and Court Services Act 2000, applicable guidance and public-law principles to satisfy article 8(2). On the assumed engagement of article 8, a refusal of transfer causing only limited interference was proportionate and was not rendered unnecessary by the Parole Board’s separate release function.

The appellant was serving life imprisonment for murder. He sought transfer of probation supervision from the West Midlands to Avon and Somerset so that he could advance a release plan involving eventual residence with his fiancée in Bristol. The respondent refused, principally because it assessed the proposed plan as presenting unacceptable risk and as unviable.

Silber J dismissed the appellant’s judicial-review claim in the Administrative Court: [2009] EWHC 3747 (Admin). The appeal raised whether the respondent had impermissibly usurped the Parole Board’s release function, and whether the refusal was unlawful or disproportionate under article 8 of the European Convention on Human Rights.

Appeal dismissed. Richards LJ, with whom Aikens and Mummery LJJ agreed, held that Silber J was right to dismiss the claim for judicial review.

1. The respondent had a broad discretion over transfer of supervision. It was required to have regard to the statutory aims in section 2 of the Criminal Justice and Court Services Act 2000, including public protection, and to the applicable key principles in Circular PC25/2007. Public-law principles provided a further constraint on the discretion.

2. The transfer decision was legally distinct from a future release decision. The respondent was entitled, and needed, to assess whether the proposed Bristol release plan was viable and whether it involved unacceptable risk. It did not usurp the Parole Board’s sole release function by doing so. Only if the Parole Board later directed release on that plan would the respondent have to accept and implement that decision on the basis that the appellant presented minimal risk.

3. The respondent was therefore not obliged to assume, at the earlier transfer stage, that residence with the appellant’s fiancée involved minimal risk. Its conclusion that the plan was unviable could lawfully mean that the plan gave no good reason to transfer supervision.

4. The court assumed, without deciding, that article 8 was engaged. The governing domestic law was accessible and sufficiently precise. The statutory aims, the Circular’s key principles and established public-law controls prevented the discretion from being unfettered or arbitrary. The decision was accordingly in accordance with the law for article 8(2) purposes.

5. Any interference with article 8(1) rights was very limited. The principal obstacle to the proposed cohabitation was the unchallenged risk assessment, rather than the transfer refusal. The respondent’s lawful conclusion that there was no good reason for transfer was proportionate. The Parole Board’s role in deciding release did not make the separate transfer decision unnecessary or disproportionate.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal: [2010] EWCA Civ 1470.
• Administrative Court (High Court) — Silber J dismissed the application for judicial review: [2009] EWHC 3747 (Admin).