The King (on the application of X) v The Parole Board for England and Wales

When deciding whether an indeterminate-sentence prisoner should move from closed to open conditions, the Parole Board may consider the prisoner’s longer-term progression towards release on permanent licence. It is not confined to asking whether current risk can be managed in open conditions or whether particular work can be completed there.

The Board may conclude that continued confinement is necessary where a further period in closed conditions is likely to improve skills, reflection, planning and future risk management, even though the proposed work could also be undertaken in open conditions. Its reasons are adequate if they identify the statutory directions, explain the distinction between short-term manageability and longer-term community risk, and show why the chosen route is considered the quickest or safest route to release.

The claimant, a prisoner serving seven life sentences, challenged a Parole Board decision refusing to recommend his transfer from HM Prison Warren Hill to open conditions. His minimum term had expired in 2008. He sought transfer to open conditions, rather than immediate release on licence.

The Board accepted that his risk would be manageable in open conditions, that his risk of absconding was low, and that he was likely to comply with the open-prison regime and temporary release conditions. It nevertheless concluded that he should remain at Warren Hill to improve skills needed for safe management of risk after eventual release on permanent licence.

The claimant argued that the Board had failed to give adequate reasons for preferring one professional view and had failed to apply the Secretary of State’s directions. The central issue was whether the Board had lawfully interpreted and applied the relevant risk-and-progression framework.

1. The claim was dismissed. The Board had applied the test it set itself and had given adequate reasons.
2. The relevant question was whether, although risk would be manageable in open conditions, it was necessary for the claimant to remain in closed conditions to improve the skills needed for his risk to be safely managed in the community. That test reflected the Secretary of State’s directions under section 239(6) of the Criminal Justice Act 2003.
3. The Board was entitled to look beyond the short term. It could consider the risk of later licence breaches and return to custody, and whether remaining at Warren Hill would provide a quicker or safer route to release on permanent licence.
4. The evidence of the professional witnesses concerned principally current risk in open conditions and whether proposed work could be completed there. The Board did not reject that evidence. It accepted that the work could be undertaken in open conditions, but concluded that a further period at Warren Hill would provide better opportunities for reflection, planning and development of self-management skills.
5. The Board was entitled to take account of the possibility that the claimant would be released earlier overall if he remained in closed conditions temporarily and followed the proposed progression route. Its conclusion was not inconsistent with the finding that open conditions could manage his immediate risk.
6. The Board’s acknowledgement that it was departing from three of four professional recommendations did not mean that it had rejected those witnesses’ evidence. It showed that the Board had considered the wider progression question. The reasons adequately explained the different focus of the Board’s decision.

• High Court (Administrative Court): permission was refused on the papers by a deputy High Court judge on 14 February 2022, but granted at an oral hearing before an Upper Tribunal judge sitting as a deputy judge on 23 March 2022. The substantive judicial review claim was dismissed on 13 September 2022.