Smith v The Parole Board

When deciding whether to transfer a prisoner to open conditions, the Parole Board must conduct a balanced assessment of risk and benefit. Risk reduction has pre-eminence, but benefit remains a mandatory consideration. This test differs from the statutory release test, which focuses on public protection.

The Board need not recite the test or address every piece of evidence. Its reasoning must nevertheless show that it understood and applied the distinct transfer test. Where evidence identifies significant benefits, the Board should explain why those benefits are outweighed by continuing risks. Failure to do so renders the decision unlawful.

The claimant, an indeterminate sentence prisoner, challenged the Parole Board’s refusal to recommend his transfer from closed to open prison conditions. The Board had also refused release on licence, but that decision was not challenged.

The claimant argued that the Board had applied the release risk assessment to the transfer application without balancing risk against benefit under the Secretary of State’s mandatory directions. The central issue was whether the decision letter demonstrated application of the distinct transfer test.

1. The claim was allowed and the Parole Board’s refusal to recommend transfer to open conditions was quashed. The matter was to be reconsidered by a reconvened panel.
2. The statutory test for release under Crime (Sentences) Act 1997, section 28(6)(b), concerns whether continued confinement remains necessary for public protection. Transfer to open conditions is governed by mandatory directions issued under section 32(6) of the Criminal Justice Act 1991. Those directions require a balanced assessment of risk and benefit, although risk reduction is given pre-eminence.
3. The Board is not required to state expressly that it has performed the balancing exercise, provided its reasons make that apparent. The reviewing court must not substitute its own assessment of risk or benefit. It must ask whether the Board understood and applied the correct legal test and gave proper, sufficient and intelligible reasons.
4. Where release and transfer are considered together, the Board must recognise that they involve different legal tests. Benefit is relevant to transfer but immaterial to the statutory release decision. The reasoning must therefore demonstrate that the separate transfer application was addressed.
5. Here, the evidence identified benefits including completion of a relevant programme, testing in a less secure environment, and testing the claimant’s ability to manage outstanding risks in the community. The decision letter contained no reference to benefit or to a balancing exercise. Its focus was on public protection and unresolved risk factors. That made it impossible to determine that the transfer test had been applied.
6. The likely availability of the same outcome on reconsideration did not cure the procedural unlawfulness. The panel might reach the same conclusion, but a different conclusion remained possible.

First-instance judicial review in the Administrative Court. The Parole Board’s decision dated 15 May 2012 was quashed and reconsideration by a reconvened panel was ordered.