Danny Osborne, R (on the application of) v Parole Board for England & Wales

A Parole Board panel may make findings about alleged criminal conduct using the civil standard of proof, but must act with appropriate circumspection where liberty is at stake. Fairness is assessed in the round and is fact-sensitive. A panel is not bound by unanimous professional evidence about risk management. However, if it proposes to reject that evidence, it may need to test its concerns with the witnesses, obtain further evidence, or give particularly clear reasons. Conclusions based on psychological expertise and assumptions about necessary interventions must be securely supported, tested and explained. An unexplained inference that a particular condition is the primary driver of risk, followed by an unexplained conclusion that only continued imprisonment can manage that risk, is not safely justifiable.

The claimant was serving an indefinite sentence for public protection. After recall to custody following allegations that he had stalked and assaulted a former partner, a Parole Board panel declined to direct his release. The panel found, on the balance of probabilities, that he had been violent and abusive towards the former partner, and concluded that underlying antisocial personality disorder traits required intervention unavailable through the proposed community risk-management plan.

The claimant sought judicial review of the panel’s decision and of the subsequent refusal of reconsideration. He challenged the panel’s fact-finding, its treatment of unproven historical allegations, its rejection of unanimous professional recommendations that risk could be managed in the community, and the fairness of its procedure.

1. The finding concerning the October 2020 assault. The panel was entitled to assess the allegation and make findings of fact where the case could fairly be considered. Its conclusion was rationally supported by the contemporaneous injuries to both individuals, an independent witness statement, the photograph of the former partner’s injury, and the inadequacy of the claimant’s alternative explanation. Fairness did not require a more detailed credibility assessment, a finding about historic allegations, or an express Lucas direction. The panel was also entitled to treat the former partner’s social-media messages as indications of consistency and to regard the decision not to prosecute as insufficient to undermine the allegation.
2. Unproven allegations. The panel’s risk assessment was based on convictions, established conduct, recall history, drug misuse and psychological evidence. The unproven allegations did not materially affect that assessment. On a fair reading, they were mentioned only as historical background and no discernible weight was placed on them.
3. Professional evidence and risk management. The panel was entitled in principle to reject unanimous and uncontroverted professional evidence. However, where it intended to do so, it might need to test its doubts with the professionals, seek further evidence, or explain its reasons with particular clarity. The necessity of those steps depended on the facts.
4. Here, the panel’s conclusion that antisocial personality disorder traits were the primary drivers of the claimant’s offending and lack of openness was an unexplained inference on a matter of psychological expertise. The panel had not tested that conclusion with the witnesses, obtained further evidence, or adequately linked it to the existing evidence. Its further conclusions that mandatory intervention was required, that the proposed programme was inadequate, and that no practical alternative to closed conditions existed were likewise insufficiently explained.
5. The decision could not safely be upheld under rationality or fairness principles. Grounds 3 and 4 succeeded. The panel’s decision was set aside, which was dispositive of the claim.