Wallace, R (On the Application Of) v Parole Board for England And Wales

When advising on transfer of an indeterminate sentence prisoner to open conditions, the Parole Board must consider the case separately from release and make a balanced assessment of risk and benefit. It must address the relevant factors in the Secretary of State’s directions, including progress in reducing risk, likely compliance with temporary release, trustworthiness concerning absconding, and the benefits of testing and support in open conditions.

Lawfulness depends on substance. A decision is not invalid merely because its introduction or conclusion omits express reference to balancing, or because it does not follow the precise structure of the Board’s guidance, provided the decision read as a whole shows that relevant benefits and risks were considered and the reasoning is adequately explained.

The claimant, an automatic life prisoner, sought judicial review of the Parole Board’s decision not to recommend her transfer from closed to open conditions. The Board had separately declined to direct her release. The claimant argued that the Board had applied only a risk test, failed to identify the benefits of open conditions, and failed to balance those benefits against risk.

The Board did not defend the claim. The central issue was whether, reading the decision letter as a whole, it had lawfully undertaken the required separate assessment of suitability for open conditions.

1. Judicial review standard. The court’s role was to determine whether the Parole Board acted according to law, remained within the range of reasonable decisions, and gave proper, sufficient and intelligible reasons. The court should not interfere with the Board’s specialist judgment: R (Gordon) v Parole Board.
2. Applicable approach. Advice on open conditions is distinct from the decision whether to direct release. The Board must comply with the Secretary of State’s directions and conduct a balanced assessment of risk and benefit. It must consider the individual case and the principal factors specified in paragraph 7 of the directions. The authorities, including R (D’Cunha) v The Parole Board [2011] EWHC 128 (Admin), supported those general propositions, but their outcomes were fact-specific.
3. Substance over form. The Board’s introduction referred only to risk, and its final paragraph again did not expressly mention balancing. That was insufficiently precise, but it did not determine legality. Reading the letter as a whole, the panel identified the benefits of open conditions, including access to treatment and support, opportunities to develop a realistic release plan, family contact and possible rehabilitation arrangements. It then assessed whether those benefits were likely to materialise in view of the claimant’s limited insight, substance misuse and reluctance to engage with support.
4. The panel separately assessed the risks, including previous non-compliance, the history of disregarding sanctions and the possibility of absconding. It was entitled to conclude that the core risks could not reliably be managed in open conditions and to give the asserted benefits little weight. Failure to reproduce the guidance’s structure or expressly name the balancing exercise did not unlawfully elevate form over substance.
5. The judicial review claim was dismissed.

First-instance judicial review. Permission was granted on 17 October 2016, but permission to challenge the refusal to direct release was refused. The claim concerning transfer to open conditions was dismissed by the High Court.