John Allan, R (on the application of) v Parole Board for England and Wales

Permission for judicial review of a Parole Board decision requires an arguable public law ground with a realistic prospect of success. The Board must assess whether continued detention remains necessary for public protection, taking account of material information relevant to risk. A recommendation that a prisoner remain in open conditions, with further testing through temporary release and development of working relations with probation, does not necessarily impose a rigid precondition to release. Where relevant health information was available to the prisoner and his legal representatives but was not communicated to the Board, the Board cannot ordinarily be criticised for failing to consider it. The court may refuse permission where the alleged omission could not have affected the outcome.

The claimant, serving a mandatory life sentence, sought judicial review of the Parole Board’s June 2022 decision refusing to direct his release and recommending that he remain detained in open conditions. He relied principally on alleged failures to consider deteriorating health, a subsequent cancer diagnosis and refusals of release on temporary licence. He also argued that the Board had imposed impossible conditions, including undertaking temporary release and improving his relationship with probation.

The claim came before the Administrative Court as a rolled-up hearing. The court first had to decide whether permission should be granted and, if so, the substantive claim. The central issue was whether any alleged public law error had a realistic prospect of success.

1. Permission refused. The claim had no realistic prospect of success, so no substantive judicial review hearing arose.
2. The Board had considered the claimant’s existing health conditions and healthcare needs. Those matters were relevant to risk and had been addressed through the evidence and representations before the Board. The Board was entitled to conclude that continued detention remained necessary because there had been insufficient time to test progress in open conditions, the probation officer could not recommend release, and the release plan was not sufficiently robust.
3. The Board could not fairly be criticised for failing to consider the later cancer diagnosis and related medical developments when the claimant had not informed his solicitor, and the information had not been communicated to the Board. In any event, even if the Board had known of those developments, they could not realistically have altered its risk assessment or decision.
4. The evidence did not show that temporary release was impossible. The May 2022 update indicated that the necessary paperwork and measures could be implemented at the claimant’s prison. Nor did the Board impose temporary release as a rigid precondition to release. Its reference to further testing concerned the assessment of risk and the justification for continuing open conditions.
5. The Board was entitled to regard development of an open, transparent and trusting relationship with probation as relevant to risk assessment and management. No arguable public law error arose from that approach.
6. The claimant had been given a full and fair opportunity to present his case after the court obtained the Board’s full decision. No procedural unfairness arose. No order for costs was made because the defendant and interested party had not participated.

The claim was listed for a rolled-up hearing pursuant to an order of HHJ Pearce KC dated 11 October 2022. The High Court refused permission for judicial review. The judgment noted that the claimant could apply to the Court of Appeal within seven days.