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

Post-tariff detention of an indeterminate-sentence prisoner must be justified by a substantial or more than minimal risk of reoffending capable of causing serious harm. The Parole Board must assess whether continued detention is proportionate to that risk. Release does not require assurance of an offence-free future.

Judicial review of a refusal of release requires anxious scrutiny of whether the conclusion is justified by the evidence, with due deference to the board’s expertise. The board must adequately explain its assessment of risk. Its duty to give reasons is heightened when rejecting expert evidence. Departure from a recent reasoned decision of another panel also requires explanation.

Mark Wells was serving an indeterminate sentence of imprisonment for public protection following a robbery conviction. His two-year minimum tariff expired in September 2007. He was first released in November 2017 and recalled in January 2018 following breaches of his licence and withdrawal from rehabilitation. He subsequently spent two months unlawfully at large without committing further offences.

Following an oral hearing on 2 April 2019, the defendant Parole Board refused to direct release and recommended transfer to open conditions. Two psychologists, the offender manager and the offender supervisor supported release into the community with appropriate substance misuse support. An earlier panel had directed release after assessing a medium risk of serious harm and reoffending.

Wells sought judicial review for misdirection in law, irrationality, failure to consider relevant matters and inadequate reasons. The Secretary of State for Justice was an interested party. Both public bodies remained neutral. The central issues concerned the public-protection threshold for continued detention and whether the panel had adequately justified its departure from the evidence and the earlier release decision.

Claim succeeded. The refusal of release was quashed for misdirection in law, irrationality and inadequate reasons. The relevant-considerations ground was dismissed.

1. Section 28(6) (b) of the Crime (Sentences) Act 1997 required an assessment of whether confinement remained necessary for public protection. Post-tariff detention required a substantial or more than minimal risk of offending capable of causing serious harm. In this case, the relevant danger was serious violence threatening life or limb. The panel had instead approached release as requiring assurance of an offence-free future. That misdirection independently justified quashing: R (Brooke) v PB and R (Sturnham) v Parole Board applied (paras [19]–[28]).

2. The rationality inquiry examined whether the panel’s conclusion could be justified by the evidence, with due deference to its specialist expertise and the need for caution. An unexplained evidential gap or leap in reasoning could demonstrate unreasonableness. This was a practical application of the test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. Detention and liberty required anxious scrutiny, and the evidential inquiry overlapped with the duty to give adequate reasons (paras [30]–[36]).

3. The board was not bound by expert evidence. Its duty to give reasons was nevertheless heightened when rejecting that evidence, and the observations in Flannery v Halifax Estate Agencies Limited were apposite. Departure from an earlier recent reasoned panel decision also required explanation, although that decision was not binding (paras [38]–[40]).

   All professional witnesses supported release, and no contrary professional recommendation supported open conditions. The panel suggested that violence risk might be underestimated without making a specific finding on risk. It inadequately engaged with the absence of an identified increase in risk, the prolonged absence of violence and the extensive completion of offending behaviour programmes. It identified no further courses required before another review. Its conclusion and reasons therefore failed adequately to reflect or explain the evidence, including the fundamental assessment of risk (paras [37]–[41]; [48]–[50]).

4. The panel had sufficiently addressed intellectual limitations and did not need to repeat that discussion. The court also considered that it would have known the difficulties and adverse consequences of removing an electronic monitoring device. Those relevant-considerations complaints failed (paras [42]–[47]).

5. The Secretary of State was ordered to refer the release application to a fresh panel. Detailed assessment of publicly funded costs was ordered, with permission to apply to vary that direction because of a pending further appeal concerning the costs liability of a neutral Parole Board. Expedited reconsideration was suggested, given almost 14 years’ imprisonment against a two-year tariff (paras [51]–[53]).

• High Court (Administrative Court): In this first-instance judicial review, [2019] EWHC 2710 (Admin) , the court quashed the refusal of release and ordered referral to a fresh panel.
• Parole Board: On 2 April 2019, the panel refused release and recommended transfer to open conditions.
• Parole Board: An earlier decision dated 23 October 2017 directed release. The claimant was released on 20 November 2017 and recalled on 26 January 2018.