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

An allegation of violence cannot, without more, establish that a lifer presents a particular risk of violence. The Parole Board must either disregard an unsupported allegation or investigate evidence enabling findings about the offender’s conduct. A decision to transfer a lifer to open conditions requires a distinct balancing exercise. The Board must weigh risk against the benefits of progression, including compliance with conditions, trustworthiness concerning absconding, and likely rehabilitative benefit.

Gary Delaney, serving a mandatory life sentence, challenged the Parole Board’s decision not to direct his release or recommend his transfer to open conditions. His licence had been revoked after allegations of domestic violence, but no prosecution followed. The Board made no finding about what had occurred, while treating the allegations as increasing his risk of violence.

The claim challenged the risk assessment, the adequacy of the reasons, and the approach to the separate decision concerning open conditions.

1. Risk assessment. The claim succeeded because the Parole Board treated the fact and seriousness of unproved allegations as establishing an increased risk of violence. An allegation is only an allegation. Even where an allegation has led to a charge and pending prosecution, it cannot by itself establish a particular type or degree of risk.
2. Where the undisputed surrounding facts provide no basis for an identifiable and present risk, the Board must either disregard the allegation or investigate and consider admissible evidence about the offender’s conduct. That evidence must enable at least some findings of fact from which risk may properly be assessed. The Board’s stated approach, that the allegations themselves had increased the claimant’s risks, was legally flawed.
3. Open conditions. The question whether to recommend transfer to open conditions is different in kind from the threshold question whether continued detention remains necessary for public protection. Under the applicable Directions, the Board must conduct a balancing exercise addressing: progress in reducing risk; likely compliance with licence conditions; trustworthiness concerning absconding; and likely rehabilitative benefit from testing the offender in a more realistic environment.
4. The judge declined to hold that the Board had failed to conduct that separate balancing exercise. The decision letter identified the two different tests, and its reference to the management of risks in open conditions implicitly addressed the factors favouring transfer. However, the defective risk assessment had fundamentally influenced both decisions.
5. The Parole Board decision dated 18 June 2018 was quashed. The judge was minded to direct that a differently constituted panel rehear the 2018 parole review.