Browne v The Parole Board of England & Wales

A court reviewing a Parole Board decision under domestic public law applies rationality, with anxious scrutiny where liberty is at stake. It must respect the Board’s specialist, inquisitorial and judicial role. It cannot substitute its own assessment or conduct a full merits review.

Proportionality questions ordinarily test a decision or measure by examining its aim, necessity and balance. They cannot sensibly be directed at an individual, multi-factorial and predictive risk assessment used as evidence. Such an assessment may be tested for rationality. On the majority view, replacing rationality with proportionality in domestic judicial review requires consideration by the Supreme Court.

The Parole Board declined to direct the appellant’s release following his recall for breaches of a non-molestation order. It assessed him as presenting at least a medium risk of violent reoffending and a high risk of serious harm to an intimate partner. It concluded that the risk could not be managed in the community.

His judicial review claim was dismissed by the Administrative Court in [2016] EWHC 2178 (Admin). Permission to appeal was refused on the challenges to the Board’s risk assessment, procedural fairness and alleged failure to recognise a presumption favouring release. Limited permission was granted on whether proportionality, rather than rationality, governed review of a decision affecting liberty.

The appeal concerned the permissible scope of review, whether proportionality could be applied to the risk assessment or the release decision, and whether the Board’s conclusions could survive either standard.

1. Appeal dismissed. Coulson LJ, with whom Singh LJ agreed, held that the appeal as permitted concerned the assessment that the appellant posed a high risk of serious harm. That multi-factorial assessment was plainly rational. It rested on his violent offending, minimisation, hostility towards his former partner, breaches of the non-molestation order, limited insight, incomplete rehabilitative work and the independent OASys assessment.

2. A reviewing court cannot decide that a specialist risk assessment is simply “wrong”. Doing so would require the court to disaggregate and remake the assessment, exercise the tribunal’s fact-finding powers and conduct a full merits review. Judicial review confers no such jurisdiction.

3. The conventional domestic public-law standard for reviewing a Parole Board decision is rationality. The court should apply that standard with anxious scrutiny where liberty is affected. The relatively high threshold respects the Board’s judicial function, inquisitorial role, specialist expertise and responsibility for complex predictive judgments. Existing Supreme Court authority had left any general replacement of rationality by proportionality undecided.

4. The structured proportionality questions identified in Quila and Bank Mellat examine whether a decision pursues a legitimate aim, is rationally connected to it, is no more than necessary and strikes a fair balance. Those questions concern the justification of a decision or measure. They cannot coherently be applied to a component item of evidence consisting of a predictive risk assessment.

5. Alternatively, if proportionality governed review of the release decision, the Board’s decision was proportionate. It fairly balanced liberty against public protection, considered whether community controls could manage the risk, and was entitled to rely on its assessment of the appellant’s motivation and likely compliance after hearing him.

6. Arden LJ agreed that the appeal should be dismissed but preferred to express no view on whether proportionality was the relevant standard.

1. Court of Appeal (Civil Division): The appeal in [2018] EWCA Civ 2024 was dismissed. The majority held that rationality governed review and that the Parole Board’s assessment and decision were rational; the decision would also have survived proportionality review.

2. Administrative Court: In [2016] EWHC 2178 (Admin) , HHJ McKenna dismissed the judicial review claim. He rejected the alleged presumption, procedural unfairness and irrationality grounds, and declined to adopt a merits-based standard of review.

3. Parole Board: On 11 August 2015, the Board declined to direct release because the appellant’s risk was not manageable in the community for the remainder of his sentence.