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

When the Parole Board considers whether to direct the re-release after recall of a determinate-sentence prisoner, it must apply a uniform public-protection test, even though the governing provisions do not state that test expressly. The appropriate test is whether it is satisfied that detention is no longer necessary for the protection of the public. The test is concerned with public protection and does not require a balancing exercise between the risk of further offending and the benefits of release. Public protection is the overriding consideration, although the panel must consider the factors relevant to the individual case. Guidance stating that such a balancing exercise is unnecessary is therefore lawful.

The claimant was serving a determinate sentence and had been recalled to custody after release on licence. The Parole Board later issued guidance concerning the test to be applied when panels considered the re-release of recalled determinate-sentence prisoners. The guidance stated that release should be directed only where detention was no longer necessary to protect the public from serious harm and that panels were not required to balance risk against the benefits of release.

The claimant sought judicial review, arguing that the previous approach under the Secretary of State’s directions required a balancing exercise and that LASPO 2012 had not expressly replaced it for decisions made by the Board under sections 255B, 255C, 256 and 256A of the Criminal Justice Act 2003. The central issue was the proper test and its ambit.

1. Claim dismissed. The December 2013 Guidance was lawful.
2. The Parole Board had to apply a uniform legal test when deciding whether to direct the re-release of a recalled determinate-sentence prisoner. It did not have carte blanche to devise its own test. The legislative structure, the statutory tests introduced by LASPO 2012, the transitional provisions and the reasoning in R v Parole Board ex parte Watson supported applying an equivalent public-protection test.
3. The applicable test was whether the Board was satisfied that it was not necessary for the protection of the public that the prisoner should remain in prison. This was equivalent to the test in section 255C of the Criminal Justice Act 2003. The absence of an express test for the Board did not indicate an intention to preserve the former test in the May 2004 Directions.
4. The statutory wording did not permit a balancing exercise between the risk posed by the prisoner and the benefits to the prisoner or the public of early release. The court relied on the statutory language and on the analysis in R(Sturnham) v Parole Board (No 2). The discussion in Watson about balancing hardship against public protection did not justify adding that gloss to the statutory test.
5. Panels would nevertheless need to consider the factors relevant to the circumstances of each case. Their ultimate question remained whether detention was no longer necessary for public protection. Public protection was the overriding consideration. Mr Justice Mitting agreed.

First-instance judicial review proceedings. Permission to apply for judicial review was granted by Nicol J on 1 May 2013. The Administrative Court dismissed the claim.