Jody Simpson, R (on the application of) v Secretary of State for Justice

The statutory power to refer a determinate-sentence prisoner to the Parole Board requires the Secretary of State to hold an objectively supportable belief, on identifiable and scrutinisable grounds, that release would create a significant risk of serious harm through a relevant offence. A mere possibility of harm, or a risk that cannot be eliminated altogether, is insufficient.

The statute does not impose an inflexible requirement of a material change of circumstances since sentence. However, the absence of new information or material developments will ordinarily make reasonable grounds difficult to establish. Where a published policy narrows the statutory power, the Secretary of State must follow it unless there is a good reason to depart. Misunderstanding another decision and relying on the seriousness of the case or continuing denial of guilt did not provide such a reason.

The claimant was serving a determinate sentence for offences involving very serious injuries to a child. She was due for automatic release under Criminal Justice Act 2003, section 244, but the Secretary of State referred her case to the Parole Board under the newly introduced section 244 ZB power and maintained that decision on later reviews.

She sought judicial review on three grounds: delay, failure to satisfy the statutory reasonable-grounds test, and departure from the Secretary of State’s published policy. The central issues were whether a material change of circumstances was required, whether the risk assessment supplied reasonable grounds for detention, and whether the policy departures were justified.

1. Ground One. Permission was refused on the delay ground. Whether any duty to act within a reasonable time exists depends on the statutory scheme and context. Section 244 ZB expressly regulates the timing of notice and provides a remedy for delay after notice but before referral. The policy’s timeframes were guidance for internal processes, not an enforceable timetable. In any event, the chronology did not establish unreasonable delay.
2. Ground Two. Permission was granted and the ground upheld. The phrase “on reasonable grounds” in section 244 ZB(2) imposes more than ordinary rationality. The supporting basis for each element of the belief must be identifiable and capable of scrutiny. The statutory test requires a significant risk, meaning more than a mere possibility and a risk of noteworthy or considerable importance.
3. No hard and fast statutory requirement of a material change of circumstances follows from Evans. Nevertheless, the absence of new information or material developments since sentence will generally make it difficult to establish reasonable grounds. Here, professional assessments indicated that the risk was conditional, could be managed in the community and was not significant in the statutory sense. The Secretary of State relied on the possibility that safeguards might fail, rather than assessing the prospects of the risk materialising. He also misunderstood the claimant’s assessed risk level and did not identify a reasonable basis for rejecting the professional assessments.
4. Ground Three. Permission was granted and the ground upheld. The Power to Detain Policy required new or additional information, an imminent and very high risk, and an unmanageable risk. The claimant did not meet those criteria. The post-sentence material showed, at most, that her risk had not reduced; it did not show an escalating pattern or new behaviour of significant concern.
5. The policy could be departed from only for a good reason. Johnson concerned a different statutory test and did not justify removing the policy’s imminence requirement. The severity of the potential harm and the claimant’s continuing denial of guilt were insufficient, particularly where denial had not been assessed as increasing risk. The referral decisions were quashed.