The Secretary of State for Justice, R (On the Application Of) v The Parole Board

A Parole Board panel must make a substantive release decision where the prisoner remains subject to a sentence within the Board’s jurisdiction. A document purporting to direct release from a sentence which the panel considers expired may amount to no decision at all. Alternatively, a decision based on a critical error of fact and failure to consider essential material may be procedurally unfair and irrational.

The court further held, in obiter reasoning, that the Secretary of State has no general power to re-refer a case after a final Parole Board decision to release. R (ex parte Robinson) v The Parole Board was confined to its continuing-process context and did not establish such a power.

The Secretary of State referred James Walker’s case to the Parole Board under section 255C(4) of the Criminal Justice Act 2003 after his recall to custody. The panel wrongly concluded that an earlier extended sentence had expired and stated that it had no decision to take, while purporting to direct immediate release from that sentence.

After the correct Crown Court order was disclosed, the Secretary of State sought judicial review of the Board’s refusal to accept a re-referral. The issues were whether the panel had made any valid decision, whether its purported decision was procedurally unfair or irrational, and, more generally, whether a final release decision could be re-referred.

1. No decision. The panel’s written reasons stated that it had no decision to take because it believed the relevant sentence had expired. Its purported direction for release from a non-existent sentence was meaningless. On the facts, the Board had made no decision and the original referral remained live.
2. Alternative grounds. If the panel had made a decision, it was procedurally unfair and irrational. The panel lacked the amended Crown Court order, proceeded on an erroneous sentence calculation, and failed properly to consider the sentencing remarks and the initial release date. The error affected the public interest in protection from unjustified release.
3. Re-referral. The court’s conclusion that there was no general power to re-refer a final release decision was obiter because no valid decision had been made. R (ex parte Robinson) v The Parole Board concerned a continuing process in which final consideration had been adjourned. Its reference to a fundamental flaw or supervening material change did not establish a power to re-refer a final decision.
4. Statutory and procedural scheme. Section 255C(5) of the Criminal Justice Act 2003 makes compliance with a direction for immediate release a duty. Section 12 of the Interpretation Act 1978 could not authorise repeated referral contrary to that statutory intention. The reconsideration scheme in rule 28 of the Parole Board Rules 2019 provided the relevant mechanism for challenging eligible decisions and, in the court’s view, displaced any common-law re-referral jurisdiction.
5. The Board was ordered to consider the March 2020 referral afresh and make a proper decision.

First-instance judicial review in the Administrative Court. The claim was allowed and the March 2020 referral was ordered to remain live for fresh consideration by the Parole Board.