SECRETARY OF STATE FOR JUSTICE (R on the application of) v THE PAROLE BOARD OF ENGLAND AND WALES

When deciding whether to release a prisoner serving the custodial part of an extended determinate sentence, the Parole Board must apply the statutory test of whether continued confinement remains necessary for public protection. The test does not require a balancing exercise and has no temporal limitation. The Board must therefore consider relevant risks arising after the automatic release date, as well as risks before it. A release decision may be irrational where the Board fails to explain its departure from professional risk assessments, relies on an evidentially unsupported assumption, or overlooks harm inherent in grooming conduct. Specialist expertise warrants respect, but the ultimate conclusion must remain safely justified by the evidence.

The Secretary of State for Justice challenged the Parole Board’s provisional decision directing the release of Leslie Johnson, and the subsequent refusal of reconsideration. Mr Johnson was serving an extended determinate sentence for sexual offences and was eligible for parole before the expiry of his custodial term. The Board assessed the risk as high but considered that it was not imminent and could be managed in the community until the conditional release date.

The claim was heard as a rolled-up hearing after an order by Swift J. The issues were whether the Board had irrationally assessed the evidence and whether, when applying the statutory public-protection test, it could consider risk arising after expiry of the appropriate custodial term.

1. Outcome. Permission to apply for judicial review was granted. The Board’s decisions of 14 February and 16 March 2022 were quashed for irrationality.
2. The statutory test under Criminal Justice Act 2003, section 246A, is whether it is no longer necessary for public protection that the prisoner should remain confined. It does not require the Board to balance public protection against the benefits of release. The sole focus is protection of the public, consistently with R (King) v Parole Board [2016] 1 WLR 1947.
3. The test has no temporal limitation. The Board must assess risks arising after expiry of the appropriate custodial term because those risks may be relevant to whether release before that date is safe. Automatic release at the end of the custodial term does not make later risk irrelevant; protection thereafter is provided through the licence regime.
4. The Board’s decision was irrational on the evidence. It accepted numerous serious risk factors, including the absence of meaningful risk reduction, but gave no satisfactory explanation for rejecting the professional witnesses’ conclusions. Its assumption that further offending would necessarily be preceded by grooming lasting until the conditional release date had no evidential basis. It also overlooked that grooming may itself cause harm.
5. The court applied the cautious but evidence-based approach to rationality review described in R (Wells) v Parole Board [2019] EWHC 2710 (Admin). Expertise requires due deference, but cannot save a conclusion that cannot safely be justified by the evidence. The panel also proceeded on an erroneous factual premise that release at the custodial-term expiry would occur without a risk-management plan.
6. R (Sturnham) v Parole Board (No 2) [2013] 2 AC 254 did not undermine this approach. It concerned the different thresholds for imposing an extended sentence and releasing a prisoner. R v Parole Board ex p Bradley [1991] 1 WLR 134 was decided under common-law principles before the statutory test and did not support a balancing exercise.

• High Court (Administrative Court): Following a rolled-up hearing ordered by Swift J on 6 May 2022, permission was granted and the judicial review claim succeeded. The Parole Board’s decisions were quashed.