Hutt, R (On the Application Of) v Parole Board of England And Wales

When deciding whether to recommend a life prisoner’s transfer to open conditions, the Parole Board must conduct the distinct balancing exercise required by the Secretary of State’s directions. It must evaluate both risks and benefits by addressing the four prescribed factors, including the benefits to the prisoner of testing less secure conditions. The test for transfer to open conditions differs from the test for release on licence. A conclusion on release does not determine the transfer question. The decision letter must contain sufficient reasoning to show that the separate exercise was undertaken and that the four factors were considered. A bare conclusion, without an identifiable evaluation of the relevant risks and benefits, is unlawful.

The claimant, a life prisoner, challenged the Parole Board’s decision refusing both release on licence and a recommendation for transfer to open conditions. Permission was limited to the challenge concerning transfer to open conditions.

The claimant argued that the Board had failed to carry out the required balancing exercise and had failed to give adequate reasons. The issue was whether the Board’s decision letter demonstrated a separate assessment of the four prescribed factors relevant to transfer, as distinct from the risk assessment applicable to release.

1. The claim succeeded in relation to the refusal to recommend transfer to open conditions. The decision was quashed and that issue was remitted to a differently constituted Parole Board.
2. Under section 239(6) of the Criminal Justice Act 2003 and the Secretary of State’s directions, transfer to open conditions requires a balanced assessment of risk and benefits. The Board must consider four main factors: progress in addressing and reducing risk; likely compliance with temporary release conditions; trustworthiness against absconding; and the benefit of testing the prisoner in a more realistic environment.
3. The first two factors primarily concern risks to the public. The latter two concern the benefits to the prisoner. The Board must balance those considerations. Suitability for release on licence and suitability for open conditions involve different tests and different considerations. A conclusion on release does not dictate the conclusion on transfer.
4. The Board, rather than the court, must weigh the competing considerations. The court’s role is to determine whether the required exercise was undertaken and whether the decision letter contains sufficient material to permit evaluation of the reasoning process.
5. Although the decision letter stated the correct test, its substantive analysis concerned release. It did not identify how the four transfer factors had been evaluated, did not address the benefits to the claimant under the third and fourth factors, and gave only a conclusion that the risks could not be adequately managed in open conditions. The reasoning therefore failed to demonstrate that the required balancing exercise had been carried out.