King, R (On the Application Of) v The Secretary of State for the Home Department

When the Parole Board considers directing the early release of a recalled determinate-sentence prisoner under sections 255B or 255C of the Criminal Justice Act 2003, it must apply the same public protection test that governs the Secretary of State’s power of release.

The test asks whether continued confinement is necessary to safeguard the public from the danger posed by the prisoner. It does not permit the risk of offending to be balanced against the benefits that supervised early release might bring to the prisoner or the community. If confinement is necessary because release would create a more than minimal risk of harm, public protection requires continued detention.

The Parole Board issued guidance stating that a recalled determinate-sentence prisoner could be released only when continued detention was no longer necessary to protect the public from serious harm. It also stated that the risk could not be balanced against the benefits of supervised early release.

The appellant sought judicial review of that guidance. The Divisional Court rejected his challenge. He appealed on two grounds: that sections 255B(5) and 255C(5) of the Criminal Justice Act 2003 did not subject the Board to the statutory test governing the Secretary of State, and that the public protection test permitted or required a balancing exercise.

The central issues were whether the statutory test applied to a direction by the Board and whether benefits arising from supervised early release could outweigh a risk of harm to the public.

1. The appeal was dismissed. The December 2013 Guidance correctly stated the test governing the Parole Board’s consideration of the early release of recalled determinate-sentence prisoners.
2. Although sections 255B(5) and 255C(5) of the Criminal Justice Act 2003 did not expressly repeat the public protection condition in subsection (3), that condition necessarily governed the Board. The Secretary of State alone possessed the statutory power of release under subsection (2). The Board could procure release only by directing the Secretary of State to exercise that power. Its function was to review the Secretary of State’s decision, so Parliament must have intended both decision-makers to apply the same test. A different test would have required express statutory language and would have produced an incoherent scheme.
3. Sales LJ added that subsection (5) did not create a freestanding power of release. It operated within a statutory scheme in which the only power of release was the power in subsection (2), expressly conditioned by subsection (3). The former statutory language authorising the Board to make a recommendation reinforced that construction. The later substitution of a direction made no material change.
4. The words “necessary for the protection of the public” did not require or permit the risk of offending to be balanced against benefits arising from supervised early release. The statutory objective was to safeguard the public from the danger posed by the prisoner, and continued confinement was the specified means. Where release would create a more than minimal risk of harm and confinement was necessary to avoid it, other benefits could not offset that risk.
5. The earlier May 2004 Directions had expressly required a balance between risk and the benefits of supervised release. Parliament’s adoption of materially different public-protection language, without a reference to balancing, indicated a deliberate omission. The authorities concerning life and indeterminate sentences likewise treated protection of the public as paramount and rejected any sliding reduction in the acceptable level of risk.
6. Sales LJ observed that the precise substantive scope of the public protection test had not been argued. The court therefore expressed no concluded view on whether the Board was correct to limit its guidance to risks of serious harm to life and limb, as opposed to other serious public harm such as fraud.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the Divisional Court’s rejection of both challenges to the Parole Board’s December 2013 Guidance: [2016] EWCA Civ 51.
2. High Court, Divisional Court: Aikens LJ and Mitting J rejected the challenge to the lawfulness of the guidance. No neutral citation for that judgment is stated.