Stephens, R (On the Application Of) v The Parole Board of England and Wales

The Parole Board must address each mandatory factor specified in the Secretary of State’s directions when deciding whether to recommend a prisoner’s transfer to open conditions. A decision focused principally on risk reduction, while omitting compliance with temporary-release conditions and the benefits of testing the prisoner in open conditions, is unlawful.

The Board also owes a duty of sufficient inquiry. It must take reasonable steps to obtain relevant information, including material capable of affecting risk assessment. Failure to consider an incomplete probation file and the absence of information from the prisoner’s entire support network may amount to procedural unfairness and irrationality.

The claimant, serving a life sentence for murder, challenged the Parole Board of England and Wales’ decision not to recommend his transfer to open prison conditions. He alleged that the Board had failed to consider all mandatory factors and had failed to make sufficient inquiries.

The Board and the Secretary of State adopted a neutral position. Permission was granted for judicial review. The central issues were whether the Board had lawfully applied the directions governing transfer to open conditions and whether the information before it was sufficient for a rational decision.

1. Claim allowed. The Board’s decision was unlawful. A declaration and quashing order were made.
2. The directions issued under the Criminal Justice Act 2003 required consideration of four main factors: progress in reducing risk, likely compliance with temporary-release conditions, trustworthiness against absconding, and the likely benefit of testing and addressing concerns in open conditions.
3. The decision letter identified the relevant factors but the substantive reasoning concentrated on risk reduction and absconding. It did not address the claimant’s likely compliance with temporary-release conditions or the benefits of transfer and testing in open conditions. The Board therefore failed to consider all mandatory factors, contrary to the approach in R (Grantham) v Parole Board for England and Wales and R (Butt) v The Parole Board.
4. The court applied the sufficient-inquiry principles derived from Secretary of State for Education and Science v Tameside MBC and summarised in R (Plantagenet Alliance Ltd) v Secretary of State for Justice. The Board was entitled to determine the manner and intensity of its inquiry, but it required sufficient relevant information to reach a rational conclusion.
5. The offender manager had not reviewed the complete probation file or post-sentence report and had not contacted the claimant’s aunt and partner, who comprised his support network. Those omissions were material to the risk assessment and supported the conclusion that the claim succeeded on both grounds.
6. A mandatory order requiring expedition was refused because the court lacked information about the Board’s ability to hold hearings during the prevailing difficulties. The court nevertheless strongly encouraged expedition.