Hill, R (on the application of) v The Parole Board

Suitability for release and suitability for transfer to open prison conditions involve different legal tests. Release requires a threshold assessment of whether release is consistent with public protection and successful reintegration. Transfer to open conditions requires a balancing exercise between risks and benefits. The Parole Board must consider risk reduction, compliance with temporary-release conditions, the risk of absconding, and the benefits of testing and rehabilitation in a more realistic environment. A decision letter must show that this balancing exercise was undertaken. Specialist status does not cure failure to address mandatory factors.

The claimant, an IPP prisoner whose tariff had expired, sought judicial review of the Parole Board’s refusal to recommend his transfer from closed to open conditions. He did not challenge the refusal to direct release. The Board’s decision identified continuing risks associated with violence, emotional management and alcohol, but did not expressly address all the factors in the Secretary of State’s directions governing transfer to open conditions.

The central issues were whether the Board had applied the correct test and whether it had assessed the risks against the benefits of open conditions.

1. Different tests. Suitability for release and suitability for open conditions required separate consideration. The release test was a threshold assessment, whereas transfer to open conditions required a balancing exercise.
2. Mandatory factors. Paragraph 5 of the directions required consideration of risk reduction, likely compliance with temporary-release conditions, trustworthiness against absconding, and likely benefit from testing and rehabilitation in a realistic environment.
3. Adequacy of reasons. The Board’s decision did not demonstrate consideration of how the identified risks could be managed in open conditions or what benefits open conditions might provide. Its references to the risk of release and to further work in closed conditions were insufficient.
4. Disposition. The judicial review application was granted. The matter was remitted to the Parole Board for fresh consideration, with the case to be heard by 1 April 2012 in the absence of good reason. The parties had liberty to apply concerning the hearing date, and the defendant was ordered to pay the claimant’s costs, subject to assessment if not agreed.