Samuel,R (On the Application Of) v Secretary of State for Justice

When deciding whether an indeterminate-sentence prisoner should transfer to open conditions, the Parole Board must carry out an actual balancing exercise between risk and benefit. It is insufficient to state the applicable test or refer generally to risk. The Board must identify and evaluate the benefits of transfer and weigh them against the relevant risks. This exercise is distinct from the release test, which focuses on whether detention remains necessary for public protection. A failure to undertake the balancing exercise is an error of law. A decision may also be unlawful where material evidence is misunderstood or findings are unsupported by the evidence.

Joseph Samuel sought judicial review of the Parole Board’s decision not to direct his release or recommend his transfer to open conditions. He had been detained for public protection following serious offences committed when he was seventeen and was substantially beyond his tariff. The challenge alleged that the Board had applied the wrong test to open conditions and had made irrational findings of fact. The principal issue was whether the Board had lawfully balanced the risks and benefits of transfer and properly assessed the evidence before it.

1. Transfer to open conditions. The claim succeeded in relation to transfer. The Secretary of State’s directions under section 239(6) of the Criminal Justice Act 2003 require a balanced assessment of risk and benefit. The relevant considerations include progress in reducing risk, likely compliance with temporary-release conditions, trustworthiness concerning absconding, and the benefit likely to be obtained from testing the prisoner in open conditions.
2. The Parole Board’s decision stated the balancing test but did not perform it. It identified no benefits of transfer and did not evaluate or weigh them against risk. The benefits identified in the evidence included further education, development of family and community ties, testing the claimant’s ability to lead a pro-social lifestyle, and increased motivation to engage with his sentence plan. The failure to address those matters was an error of law.
3. The court rejected the argument that the error was immaterial. Under section 31(2A) of the Senior Courts Act 1981, it was not highly likely that the Board would have reached the same decision. The Board might have assessed the risks through the wrong lens by confusing the transfer test with the release test.
4. Some challenged factual assessments were lawful. The inference that adjudications were not pursued for every possible infraction was supported by the evidence and by the panel’s knowledge and experience. The finding that nothing had changed to reduce risk was also rational because the claimant had not undertaken specific offending-behaviour work concerning violence, and education was not equivalent to that work.
5. However, the Board misunderstood the professional evidence by treating recommendations for transfer as based only on an impasse. The evidence also indicated that transfer would provide benefits and that risk could be managed in open conditions. That misunderstanding was an error of law.
6. The decision concerning transfer was quashed and the issue was remitted to a freshly constituted panel. The refusal of release was not remitted. The claimant received the costs of the specific-disclosure application, but not the costs of the application to adduce further evidence.

The judgment was a first-instance judicial review decision. Permission to proceed had been granted by Sir Wyn Williams on 6 August 2019. No appellate decision is stated in the judgment.