Richard Matthews, R (on the application of) v The Parole Board for England and Wales

The Parole Board must comply with directions governing transfers of indeterminate sentence prisoners to open conditions. Its decision must show that it has carried out the required balanced assessment of risk and benefits, including the material factors identified in the directions.

Where a panel receives new material after an oral hearing and relies on it adversely, procedural fairness normally requires consideration of a further oral hearing. The prisoner must have an effective opportunity to address the panel’s concerns and, where appropriate, to enable professional witnesses to respond. A prisoner’s failure expressly to request a further hearing does not remove that duty.

The claimant, serving concurrent public protection sentences and a later determinate sentence, challenged the Parole Board’s refusal to recommend his transfer to open conditions. The Board had obtained further prosecution material concerning firearms offences of which he had been acquitted after the oral hearing, but did not convene a further hearing.

The challenge alleged failure to apply the Secretary of State’s directions and procedural unfairness in relying on the new material. A further ground concerning Pearce was stayed because an appeal to the Supreme Court was pending.

1. Ground One allowed. The April 2015 directions issued under section 239(6) of the Criminal Justice Act 2003 were mandatory. The Parole Board had to consider all information before it and assess each case on its individual merits.
2. The directions required a balanced assessment of the risks of transfer against its benefits. The principal factors included progress in reducing risk, likely compliance with temporary-release conditions, trustworthiness against absconding, and the likely benefits of testing the prisoner in open conditions. The decision contained no proper consideration of the benefits of transfer and did not demonstrate that the essential balancing exercise had occurred. Following Gordon, the Board need not set out every thought process or factor, but must make the balancing exercise and the broad factors considered plain.
3. Ground Two, second limb, allowed. The panel was entitled to obtain further material, including material concerning acquitted allegations, and was not required to follow the jury’s verdict slavishly when assessing risk. However, the material became central to the refusal of transfer and was used to support adverse conclusions about risk and credibility.
4. After receiving that material, fairness required the panel to consider whether a further oral hearing was necessary and to give the claimant an opportunity directly to address the concerns. The professional witnesses recommending transfer should also have had an opportunity to respond. Written representations did not cure the defect. The absence of a specific request for another hearing did not discharge the Board’s duty, particularly given the high standard of procedural fairness in parole cases.
5. The decision dated 11 April 2022 was unlawful and contained a serious procedural irregularity. It was quashed and remitted to the Parole Board for fresh consideration. The court did not require a fresh panel, but directed that reconsideration be expedited. Costs were left for agreement or further submissions.

The judgment records that permission for the first ground was granted by Eyre J and permission for the renewed second ground was granted by Stacey J. It was a first-instance judicial review in the Administrative Court.