Wells, R (On the Application Of) v Parole Board

For a post-tariff indeterminate prisoner, the Parole Board need not be satisfied that there is no risk of reoffending. Under Crime (Sentences) Act 1997, it must decide whether continued confinement remains necessary to protect the public from a substantial risk of offending causing serious harm.

A decision refusing release is unlawful where the Board applies an offence-free standard, or where its conclusion cannot be justified by the evidence and it fails adequately to explain its departure from consistent expert assessments and a recent reasoned decision. Rationality and reasons must be examined with anxious scrutiny where detention and liberty are at stake.

The claimant was serving an indeterminate sentence for public protection for robbery. His two-year tariff had expired in 2007. He was released in 2017 but recalled after breaching licence conditions connected with substance misuse.

In April 2019, a Parole Board panel refused to direct his release, although it recommended transfer to open conditions. The psychologists, offender manager and offender supervisor had supported release with substance-misuse support. The claimant sought judicial review, alleging misdirection, irrationality, failure to consider relevant matters, and inadequate reasons.

The central issue was whether the panel lawfully concluded that his risk could not be safely managed in the community.

1. Claim allowed. The decision of 2 April 2019 was quashed and the claimant’s application for release was to be referred to a fresh Parole Board panel.

2. Under section 28(6)(b) of the Crime (Sentences) Act 1997, release depends on whether continued confinement remains necessary for public protection. Applying R (Brooke) v PB [2008] EWCA Civ 29, the Board need not eliminate all risk of reoffending. It must assess whether the residual risk of offending causing serious harm justifies continued post-tariff detention.

3. The panel misdirected itself by treating the absence of protective factors needed to live an offence-free life as the relevant hurdle. For an IPP prisoner, the material risk was of serious violence or other offending causing serious harm, not any offending whatever. The first ground therefore succeeded.

4. The rationality and reasons challenges also succeeded. The court applied a context-sensitive form of the Associated Provincial Picture Houses Ltd v Wednesbury Corporation test. It asked whether the panel’s conclusion followed from the evidence or involved an unexplained evidential gap. Anxious scrutiny was required because the decision concerned continuing detention.

5. The panel was not bound by the expert evidence. However, it did not state its own concluded level of risk, identify an increase in risk since the earlier release decision, explain why it rejected the unanimous professional recommendation for release, or engage sufficiently with the absence of violence since 2014 and the claimant’s extensive completed work. Its reasons therefore fell below the public-law standard. The separate relevant-considerations complaints were dismissed.

High Court (Administrative Court): On judicial review of the Parole Board panel’s decision of 2 April 2019 refusing release, the court quashed that decision and directed referral of the release application to a fresh panel.