Browne, R (on the application of) v The Parole Board of England and Wales

A Parole Board panel reviewing the recall of a determinate sentence prisoner must apply the public protection test: continued confinement is justified only where the Board is satisfied that it remains necessary for public protection. An express reference to a presumption in favour of release is not essential if the decision, read fairly and as a whole, shows that the correct approach was applied. The Board need not determine the truth of an unconfirmed allegation when assessing current risk. It must, however, consider the circumstances of recall fairly, and such an allegation may be a significant risk factor when considered with other evidence. The court will not substitute its assessment of risk for that of the expert tribunal unless the decision is unlawful or irrational.

The claimant, a determinate sentence prisoner, was recalled after pleading guilty to two breaches of a non-molestation order. The Parole Board declined to direct his re-release, assessing him as presenting a high risk of serious harm to his former partner and concluding that his risk was not manageable in the community.

He sought judicial review on three grounds: failure to apply a presumption in favour of release; procedural unfairness arising from an alleged assault which he disputed; and irrationality or failure to consider relevant evidence in the risk assessment. The central issues were whether the Board had applied the correct release test, whether it was required to determine the truth of the disputed allegation, and whether its risk assessment was irrational.

1. Claim dismissed. The applicable test under section 255C of the Criminal Justice Act 2003 was whether the Board was satisfied that continued confinement remained necessary for the protection of the public. There was no separate balancing test for determinate recall cases and detention could not be maintained solely because of a risk of non-violent offending.
2. The absence of an express reference to a presumption in favour of release did not establish legal error. The decision letter had to be read as a whole. It showed that the panel considered favourable and adverse material and concluded that the claimant’s risk was not manageable in the community. That conclusion was treated as equivalent in substance to a positive finding that continued confinement was necessary. The reasoning in R (Gary Coney) v Parole Board and Secretary of State for Justice [2009] EWHC 2698 (Admin) supported that approach.
3. The panel was not required to determine the factual truth of the disputed assault allegation. It expressly treated the matter as an allegation, acknowledged the limited available facts, and did not assume that the non-molestation order established its truth. In a risk assessment, rather than a criminal trial, unconfirmed allegations may nevertheless be significant when considered with other material. The panel’s assessment rested on numerous matters, including the violent index offences, the admitted breaches of the order, the claimant’s presentation, the risk assessments, and his limited insight.
4. The Board had discharged its duty to consider the circumstances of recall. The recall was based on the two admitted breaches of the non-molestation order and the resulting licence breach. The claimant’s rationality challenge failed because the risk assessment was one which the expert tribunal was entitled to make. The proposed lower standard of review based on R (Yousef) v Secretary of State for Foreign and Commonwealth Affairs [2016] 2 WLR 509 was rejected as premature because the Supreme Court had not undertaken the comprehensive review contemplated in that case.

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