Hindawi v The Parole Board

A prisoner facing deportation may in principle be released on licence before the end of the sentence. The Parole Board must, however, assess the risk to the public generally, including persons outside the United Kingdom. Where deportation will promptly place the prisoner in a country in which the Board finds that an unacceptable risk of serious harm cannot be managed, the Board cannot direct release merely because the risk could be managed in the United Kingdom. The absence of overseas supervision does not by itself bar parole for a foreign prisoner. The Board must assess the likely response of the receiving state to the identified risk, but a failure to explore a further question will not necessarily invalidate the decision where the challenge is pleaded on different grounds and a fresh assessment is imminent.

The claimant, a foreign national prisoner serving a lengthy sentence for terrorism-related conduct, challenged the Parole Board’s refusal to direct his release. He would be deported to Jordan on release and did not challenge deportation.

A previous Panel had recommended release, but a later Panel found that the claimant posed an unacceptable risk of serious harm in Jordan because his political extremism might lead to incitement of terrorist activity and there would probably be no monitoring or surveillance. Permission for judicial review was refused on challenges to the underlying risk assessment, but granted on issues concerning monitoring in Jordan, the distinction between release in Jordan and the United Kingdom, and whether release in the United Kingdom should have been considered.

1. The application was dismissed. The court accepted that the Parole Board could in law direct the release on licence of a prisoner facing deportation, but only where the prisoner posed no more than a minimal risk of harm to the public anywhere in the world. The Board’s unchallenged finding that the claimant presented an unacceptable risk in Jordan, together with the intended prompt deportation, meant that it could not direct release in this case.
2. The risk to the public was not confined to the United Kingdom. The court relied on R v Parole Board ex parte White [1994] TLR (20 December 1994) and the discussion in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54 (reported at [2007] 1 AC 484).
3. The difference between licence supervision by NOMS in the United Kingdom and intelligence-based monitoring overseas was real, but could not alone prevent parole for foreign prisoners. Such an approach would recreate the legal difficulty identified in R (Clift) v Secretary of State for the Home Department concerning the former exclusion of foreign prisoners from parole.
4. The Panel was entitled to find that the claimant was unlikely to be monitored in Jordan if neither government regarded him as a security risk. It was also rational to find that his political expression might present a greater risk in Jordan. The Panel should ideally have explored how Jordan would respond if he resumed association with extremists or propagated violence, but the omission did not require quashing the decision. The pleaded challenge was irrationality, not procedural unfairness; the claimant had opportunities to raise the issue; and a fresh Panel would reconsider release. Previous Panels did not bind later Panels.

The judgment describes earlier proceedings in the same litigation:

• Administrative Court: In R (Hindawi) v Secretary of State for the Home Department [2011] EWHC 830 (QB), the Divisional Court quashed an earlier refusal to accept a Parole Board recommendation for release.
• High Court (Administrative Court): The present judicial review challenge to the later Parole Board decision was dismissed.