Malcolm Richards v The Parole Board of England and Wales

The slip rule permits correction of an accidental failure to express the court’s intention at the time of promulgation. It does not permit the court or tribunal to reconsider the substance of its decision or correct a material error of fact. The question is whether the original decision expressed the decision-maker’s first thoughts, not whether the outcome was ultimately correct or remained substantively unchanged after amendment. A material, objectively verifiable and non-party-caused mistake of fact may render a public law decision unlawful where it played a material part in the reasoning.

The claimant, a post-tariff life prisoner, challenged three Parole Board decisions concerning his release on licence. The Board had treated him, expressly or implicitly, as an IPP prisoner whose licence might end after two years. It subsequently amended its decision under rule 30(1) of the Parole Board Rules 2019 by removing one express reference to IPP status, and an assessment panel refused reconsideration.

The central issues were whether the amendment fell within the slip rule, whether the original decision was unlawful for material error of fact, and whether relief should be refused because the error would have made no difference.

1. Slip rule. Rule 30(1) of the Parole Board Rules 2019 draws a distinction between a decision which fails to express what the decision-maker intended when it was promulgated and a decision which expressed that intention but was later thought to require a different result. The former may be corrected; the latter can be remedied only on appeal. The same distinction was expressed in Mutual Shipping Corporation v Bayshore Shipping Co and Secretary of State for the Home Department v Devani.
2. The Board’s error was substantive. Its mistaken belief that the claimant was an IPP prisoner, and that external supervision might end after two years, materially influenced its assessment of future risk. The fact that the Board might have reached the same conclusion on a correct understanding did not make the slip rule available. The amended decision was therefore unlawful.
3. Material error of fact. Applying the four-stage test in E v Secretary of State for the Home Department, the court found: an existing factual mistake; an objectively verifiable and undisputed correct position; no responsibility for the mistake on the claimant’s part; and a material role for the mistake in the reasoning.
4. The original decision was consequently unlawful, as were the amended decision and the reconsideration decision. All three were quashed. The matter was remitted to a differently constituted panel for a fresh hearing and was expedited. Relief was not refused under section 31(2A) of the Senior Courts Act 1981, since the court could not predict the correct outcome.

This was a first-instance judicial review. The court quashed the original Parole Board decision, the amended decision and the reconsideration decision, and remitted the matter to a differently constituted panel.