Khan v Parole Board

The Parole Board must comply with mandatory directions governing the transfer of indeterminate sentence prisoners to open conditions. Its reasons must show that it considered the prescribed matters and conducted the required balancing exercise. The Board must scrutinise risk particularly carefully where a prisoner has spent a lengthy period in custody after expiry of a short minimum term. Hearsay and unsubstantiated allegations may be considered, but their evidential quality must be reflected in the weight attached to them. A decision is unlawful where the reasons do not demonstrate proper consideration of material positive evidence and recommendations, or where disproportionate weight is given to unsubstantiated allegations.

The claimant, serving an imprisonment for public protection sentence, sought judicial review of the Parole Board’s decision dated 4 December 2013 refusing to recommend his transfer to open conditions. He did not challenge the refusal of release. The claimant argued that the Board had failed to give proper and intelligible reasons, including reasons for rejecting recommendations from three professionals, and had acted irrationally by giving excessive weight to unproven allegations of misconduct. Permission had been granted on the papers by HHJ Moulder on 10 October 2014. The central issues were whether the Board had complied with the Secretary of State’s directions and whether its assessment of the evidence and risk was rational.

1. The claim succeeded. The Parole Board’s decision dated 4 December 2013 was quashed and the matter was remitted to a fresh panel for rehearing within six weeks.
2. The directions issued by the Secretary of State in August 2004 concerning the transfer of life sentence prisoners to open conditions were mandatory. The Board was required to consider the matters specified in them.
3. The decision letter did not show that the panel had considered material matters, including the claimant’s positive behaviour, negative drug test, lack of diagnosed psychiatric condition, proposed risk-reduction interventions, relationship with the probation service and the significant difference between the short minimum term and the period actually spent in prison. The reasons did not adequately explain the rejection of the recommendations of three professionals. It was insufficient to infer compliance by reading between the lines.
4. The Board should scrutinise risk with increasing anxiety as the period spent in custody after expiry of the tariff lengthens. The length of the original minimum term may also be relevant, particularly where it was so short that the prisoner might not have received an indeterminate sentence under later legislation.
5. The Board may consider hearsay and allegations of bad behaviour when assessing risk. It must, however, take proper account of the quality of the material and avoid attaching excessive weight to unsubstantiated allegations. The panel had given too much weight to such allegations and insufficient weight to the claimant’s account and positive evidence. Its conclusion was irrational.
6. Costs were reserved pending further submissions and an oral hearing.

Permission to apply for judicial review was granted on the papers by HHJ Moulder, sitting as a judge of the High Court, on 10 October 2014. The Administrative Court allowed the claim and quashed the Parole Board’s decision.