Rowe, R (On the Application Of) v Parole Board for England And Wales

The Parole Board must follow mandatory directions governing transfer to open conditions. It must assess risk and benefit together, including the likely benefit of testing the prisoner in a more realistic environment. Judicial review does not permit the court to reweigh evidence or substitute its own assessment for that of the Board. Intervention is justified where the decision is irrational or the Board fails to give sufficient reasons. A decision is unlawful where it addresses risk reduction but does not show that the benefits of transfer were identified and balanced against the risks.

The claimant was serving an indeterminate sentence for public protection after convictions for threats to kill and assaults against his former partner. His tariff had expired. The Parole Board declined both to direct release and to recommend transfer to open conditions.

The claimant challenged the decision on the grounds that it was irrational, unsupported by the evidence, and failed to comply with the Secretary of State’s directions concerning transfer to open conditions. The court rejected the challenges to the Board’s assessment of risk and evidence, but considered whether the Board had carried out the required risk-benefit balancing exercise.

1. The claimant’s challenges based on irrationality and the alleged absence of evidence failed. The Board had expertise in assessing risk, was entitled to prefer the cautious evidence of the trainee psychologist, and could form its own view from the claimant’s oral evidence. The court could not substitute its assessment of the evidence or the weight to be given to competing opinions.
2. The Secretary of State’s directions concerning transfer to open conditions were mandatory. The Board had to consider the specified factors, including the extent of the prisoner’s progress in reducing risk and the extent to which he was likely to benefit from being tested in a more realistic environment.
3. The Board’s reasons showed that it had considered risk reduction, outstanding concerns about the claimant’s insight and the possibility of renewed contact with a former partner. Those conclusions were rationally open to it. The length of time served, completed offending-behaviour work, the contextual nature of the risk, and the absence of recent contact were not individually decisive.
4. However, the Board did not expressly identify or balance the benefits of transfer against the risks. Its references to weighing the risk assessment and to the supporting evidence did not demonstrate that it had addressed the fundamental balancing exercise required by direction 5(d). That failure was fatal to the legality of the decision.
5. The claim was granted and the decision was quashed. The matter was to be reconsidered afresh by the Parole Board following referral by the Secretary of State.