Green v The Parole Board & Anor

When assessing an indeterminate-sentence prisoner’s suitability for open conditions, the Parole Board must genuinely balance the risks and benefits of transfer. The issue is distinct from release. The decision letter should show that the balancing exercise was undertaken and indicate the principal factors considered. Continued detention after expiry of the tariff must be reviewed regularly under ECHR Art. 5(4). Where a review interval exceeds one year, the decision-maker should explain by reference to the particular facts why it is reasonable. An 18-month interval was unreasonable.

The claimant, serving an imprisonment for public protection sentence, challenged two decisions following a Parole Board hearing. The Board refused to recommend his transfer to open conditions and the Secretary of State set the next parole review for 18 months later. The claimant argued that the Board had focused on risk and release without balancing the benefits of open conditions, and that the review interval had not been justified by reference to the particular facts. The court considered the statutory directions governing transfer and the requirements of ECHR Art. 5(4).

1. Transfer to open conditions. Under directions issued pursuant to Criminal Justice Act 2003, s.239(6), the Parole Board had to balance the risks and benefits of transfer. Relevant matters included progress in reducing risk, likely compliance with temporary-release conditions, trustworthiness and the benefits of testing the prisoner in open conditions.
2. The Board’s letter referred briefly to a balancing exercise, but its substance addressed the risks of release. It did not discuss the benefits of open conditions, and the refusal of transfer was appended to the decision on release. The decision was unlawful and was quashed. The issue was remitted to the Parole Board for fresh consideration and a further oral hearing by 15 December 2017.
3. Review interval. Continued detention after expiry of the tariff required regular review under ECHR Art. 5(4). Applying R (Loch) v Secretary of State for Justice [2008] EWHC 2485 (Admin), where the interval exceeds one year the decision-maker should show, by reference to the particular facts, why it is reasonable and compliant. The Secretary of State had not done so. In the circumstances, 18 months was unreasonable.
4. Costs. A tribunal or inferior court should not ordinarily bear costs absent flagrant improper behaviour or an unreasonable refusal to sign a consent order. The Parole Board’s neutral litigation position was proper, so no costs order was made against it. Costs relating to the Secretary of State were awarded against the Secretary of State, subject to detailed assessment.

First-instance judicial review. No prior appellate decision is stated in the judgment.