DSD And NBV & Ors R (On the Application Of) v

A Parole Board release decision is subject to restrained judicial review. The court must not substitute its own risk assessment for that of the specialist panel. However, where the material before the Board gives substantial reason to doubt a prisoner’s account and indicates potentially important further material, it may be irrational not to undertake further inquiry before assessing risk.

The Board may not determine guilt for untried offences. It may nevertheless consider reliable and fairly obtained information about wider alleged offending when assessing risk. A blanket prohibition on publishing all information about Parole Board proceedings is not authorised by the general rule-making power in Criminal Justice Act 2003 s 239(5). It unjustifiably impairs open justice and access to the court.

Three judicial-review claims challenged the Parole Board’s direction to release John Radford, formerly John Worboys, from an indeterminate sentence for serious sexual offences. DSD and NBV, the Mayor of London, and a newspaper group challenged the release direction. They alleged irrationality and a failure to investigate material relevant to the assessment of future risk. They also challenged Rule 25 of the Parole Board Rules 2016, which prohibited public disclosure of information about proceedings.

The court held that the Mayor lacked standing. DSD and NBV’s standing was not in issue. The central questions were whether the Board should have made further inquiry into evidence bearing on wider offending and the prisoner’s credibility, and whether Rule 25(1) was within the power conferred by Criminal Justice Act 2003 s 239(5).

1. The release direction was quashed. The court rejected the submission that the decision to release was irrational merely because it was surprising, exceptional, or reached without a more probing examination of the prisoner’s evidence. Risk assessment under Crime (Sentences) Act 1997 s 28(6) is a specialist, multi-factorial judgment for the Parole Board. The court does not exercise an appellate jurisdiction over that judgment.

2. However, the Board acted irrationally by failing to undertake further inquiry. The dossier referred repeatedly to more than 80 potential victims, disclosed inconsistencies in the prisoner’s account, and identified concerns about impression management. It also referred to litigation against the Metropolitan Police. Those matters gave the Board compelling reason to obtain and examine readily available material capable of testing the honesty, reliability and completeness of the account on which the psychological assessments had proceeded.

3. The Board was not entitled to determine whether the prisoner was guilty of untried offences. It was nevertheless entitled, subject to fairness, to obtain and consider information about wider alleged offending as part of its assessment of risk. Such material could have been used to test his account and to seek reconsideration of the expert assessments. Once obtained, it was so obviously material that it had to be considered.

4. The case was remitted for a fresh determination by a differently constituted panel. The court encouraged the Board to include a member with judicial experience, but made no finding that continued detention was necessary. That assessment remained for the Board.

5. Rule 25(1) was ultra vires. The Parole Board exercises judicial power when deciding whether a prisoner may remain confined after expiry of the minimum term. Open justice and the victims’ access to the court therefore entitled them to some information about the release decision. Section 239(5) could authorise withholding confidential information, but did not authorise a blanket and indiscriminate prohibition on all disclosure. Rule 25(1) went further than was necessary and was outside the enabling power.

• High Court (Administrative Court): On 26 January 2018, Supperstone J stayed the prisoner’s release pending the applications for permission for judicial review.
• Divisional Court: On 7 February 2018, permission was granted and disclosure of the release direction and dossier was ordered subject to confidentiality undertakings. This judgment quashed the release direction and held Rule 25(1) of the Parole Board Rules 2016 ultra vires.