Hoffman, R (On the Application Of) v Parole Board

Suitability for release and suitability for transfer to open prison conditions require different legal tests. Release involves a threshold assessment. Transfer to open conditions requires a balanced assessment of risk and benefit, including the risk of reoffending while on temporary release, likely compliance with release conditions, trustworthiness, and the benefits of testing or further work in a less restrictive environment.

The Parole Board must show from its reasons that it has carried out that balancing exercise. A conclusion focused only on risk, without evaluating the relevant benefits and other prescribed factors, is unlawful and must be quashed.

The claimant, an indeterminate sentenced prisoner, challenged the Parole Board’s refusal to recommend his transfer to open conditions following his recall to prison. The challenge alleged that the Board applied the wrong test, failed to balance risk and benefit, and acted unfairly.

The Board’s decision considered the claimant’s offending history, risk factors, courses and custodial conduct, but concluded that his risk was not manageable in open conditions. The central issue was whether the Board had lawfully assessed suitability for transfer to open conditions under the applicable directions.

1. Application granted. The Parole Board’s decision dated 25 September 2014 was quashed. The question of transfer to open conditions was remitted to the Board for fresh consideration, with priority listing. The respondent was ordered to pay the claimant’s costs, subject to detailed assessment if not agreed.
2. Suitability for release and suitability for open conditions require different tests. Release is governed by a threshold test. Transfer to open conditions requires a balancing exercise, as recognised in R (Hill) v Parole Board [2012] EWHC 809 (Admin).
3. The applicable directions required consideration of progress in reducing risk in the context of temporary release, likely compliance with temporary-release conditions, whether the prisoner was sufficiently trustworthy not to abscond, and the benefits of further work and testing in open conditions. The Board was also required to consider all relevant information and the individual merits of the case.
4. The Board’s reasoning concentrated on the risk of serious harm and did not explain the risk of reoffending in open conditions. It did not evaluate likely compliance with temporary-release conditions or trustworthiness, and it gave no adequate explanation why further interventions had to occur in closed rather than open conditions.
5. A detailed account of every thought process or factor is unnecessary. However, the balancing exercise is fundamental and the reasons must make clear that it was performed and identify broadly the factors considered, consistent with R (Gower) v The Parole Board CO/1640/2000. The bald conclusion that risk was not manageable in open conditions did not satisfy that requirement.

First-instance judicial review proceedings. The judgment does not state any earlier appellate decision in the same litigation.