Gourlay, R (on the application of) v Parole Board

A Parole Board assessing transfer to open conditions must assess the prisoner’s current risk on the basis that the conviction is safe, despite any denial. Denial may be highly significant and, in an appropriate case, determinative. It must not, however, automatically replace the required assessment of all relevant factors. The Board must give a reasoned decision showing that it has balanced risk and benefit and considered matters such as progress in custody, behaviour, maturation, insight and available interventions. A decision may be quashed where denial is treated as the sole operative factor, even though the court cannot say that transfer was the only reasonable outcome.

The claimant, a life prisoner convicted of rape, sought judicial review of a Parole Board decision dated 10 March 2014. The Board declined both to direct his release on licence and to recommend his transfer to open conditions. The challenge concerned only the refusal to recommend open conditions.

The claimant accepted that the Board had correctly identified the risk as one to young women known to him when alcohol was involved. He argued that the Board had treated his continuing denial of sexual offending as effectively decisive and had failed to consider other relevant matters. The central issue was whether the Board had lawfully assessed his current risk and balanced all relevant factors.

1. The claim succeeded in relation to open conditions. The decision not to recommend transfer to open conditions was quashed. The decision not to direct release was not challenged and was unaffected.
2. Under Criminal Justice Act 2003, s 239, and the Secretary of State’s Directions, the Board had to assess the claimant’s current risk and evaluate the risks and benefits of transfer. It had to consider all relevant information and the identified factors, including progress in reducing risk, likely compliance with temporary-release conditions, attitudes and behavioural problems, prison conduct, insight and treatment progress.
3. The claimant’s denial was not itself the risk. The risk was the danger of serious harm to young women known to him in circumstances involving alcohol. Denial was relevant to assessing the present level of that risk. It could be a highly significant or determinative consideration in an appropriate case, particularly in serious persistent sexual offending, but the Board had to assess it alongside the other competing factors.
4. The Panel acknowledged the claimant’s completion of generic courses, enhanced prison status and satisfactory recent behaviour. It did not, however, demonstrate that those matters had been brought into the risk assessment. Its reasoning treated attendance at a sexual-offender treatment programme, which denial prevented, as effectively indispensable. The result was that denial alone became the operative reason for refusing the progressive move.
5. The claimant was entitled to a reasoned decision addressing the entirety of the factors relevant to current risk. The court did not decide that transfer was the only reasonable outcome. It quashed the decision because the Board had failed to perform the required balancing assessment.
6. The court also identified, without deciding, a further issue for future consideration: whether the Board had addressed how the particular risk could be managed in open conditions, including through conditions governing temporary release, alcohol and relationships.

The judgment describes the challenged Parole Board decision dated 10 March 2014, following an oral hearing on 25 February 2014. This was a first-instance judicial review.