Cain, R (on the application of) v Parole Board of England and Wales

When reviewing a decision of the Parole Board, the court reads the reasons as a whole and asks how a reasonable person with knowledge of the material facts would understand them. The reasons must state the grounds and reasoning with reasonable clarity, but every word need not be analysed as though it formed part of a formal instrument.

A decision is not irrational merely because it distinguishes between evidence that cannot be relied upon directly and the effect that the evidence, or the prisoner’s response to it, may have on risk assessment and rehabilitation. The Board may consider a prisoner’s focus on a polygraph test and its effect on engagement with offence-related work, while excluding the test result itself.

The claimant sought renewal of his application for permission to bring judicial review proceedings against the Parole Board. Permission had previously been refused on the papers by His Honour Judge Behrens on 9 July 2013.

The claimant challenged the Board’s decision that he was unsuitable for release. He alleged that the Board had treated his refusal to undertake offence-related work inconsistently with his application for the Sexual Offenders Treatment Programme, and had misdirected itself by both excluding and relying upon polygraph evidence. The central issues were whether the Board’s reasons were irrational, unlawful or materially inconsistent, and whether permission should be granted.

1. Application refused. The decision of the Parole Board was lawful and not Wednesbury unreasonable. The refusal of permission by His Honour Judge Behrens was correct.

2. The Board’s reasons had to be read as a reasonable person with knowledge of the relevant material facts would read them. A decision of this kind must state its grounds and reasons with reasonable clarity. It need not be treated like a formal legal instrument in which every word is subjected to meticulous analysis.

3. The Board’s treatment of offence-related work and the Sexual Offenders Treatment Programme was not inconsistent. It was entitled to take account of the claimant’s refusal to undertake offence-related work because that made progress in risk reduction difficult to evaluate. It could also record that he had applied for the treatment programme but had been assessed as unsuitable for it.

4. The Board was entitled to distinguish between the polygraph result and the claimant’s response to the test. It did not rely on the test result, for which there was no professional analysis, and proceeded on the basis of the claimant’s guilt. It was nevertheless entitled to consider the report that he had focused his energies on the test, because that focus had entrenched his view of innocence and made work on sexual offending impossible.

5. The claimant’s wider concern about prison categorisation and possible transfer to open conditions was outside the scope of the application and had to be pursued with the prison authorities. There was no arguable merit in the judicial review claim, so permission was refused.

1. High Court (Administrative Court): permission for judicial review was refused on the papers by His Honour Judge Behrens on 9 July 2013.
2. High Court (Administrative Court): renewal application heard and permission refused on 23 September 2013; the earlier refusal was upheld.