The Divisional Court of the Queen’s Bench Division held that the statutory test which the Parole Board was obliged to apply when considering whether to exercise its power under section 246A of the Criminal Justice Act 2003 to direct the release of a prisoner serving the appropriate custodial term of an extended determinate sentence imposed under section 226A of that Act contained no temporal limitation, such that it could consider risk arising after the expiry of the custodial term in determining whether a prisoner’s continued confinement was necessary for the protection of the public. Following that decision, the Parole Board issued guidance entitled Consideration of the ‘at risk’ period for determinate sentence cases. The claimant in the first case was sentenced to an extended determinate sentence of imprisonment for terrorism related offences. When considering her eligibility for release, the Parole Board adopted the guidance and considered her risk on an indefinite basis. The claimant in the second case was sentenced to a determinate custodial term of imprisonment for offences concerning indecent imagery of children. The Parole Board refused him an oral hearing and stated that applying the decision of the Divisional Court the risk period under consideration was indefinite. The claimants sought judicial review contending, inter alia, that the Parole Board’s interpretation of the Divisional Court case as set out in their guidance was wrong as it was inconsistent with the statutory scheme governing the early release of fixed term prisoners.
On the claims for judicial review—
Held, claim in first case dismissed and claim in second case allowed. (1) The statutory tests in section 246A(6)(b) and section 255C(4A) of the Criminal Justice Act 2003 for determining whether the Parole Board might direct the release of prisoners serving, respectively, extended determinate sentences and determinate sentences were materially identical. The test did not involve any temporal element regarding risk and it was unnecessary for the board to determine precisely when a risk might materialise. The Divisional Court case made it clear that a risk posed by a prisoner serving an extended sentence after expiry of the custodial term was capable of being relevant to the need for public protection. That reasoning applied equally to a risk posed after the expiry of the sentence. However, nothing in the Divisional Court case suggested that such a risk was always relevant to the statutory test. Its relevance on the facts of a particular case would depend on the question of whether the risk could be avoided or reduced by continued confinement before the sentence expiry date and as such, there had to be a causal link. It was not uncommon for a prisoner to present no imminent risk but for there to be evidence that on release he would start preparing for some criminal activity. In those circumstances, it might be necessary for the protection of the public that he was confined until he had to be released due to the expiry of the sentence. Where such a case arose, the statutory test to be applied by the Parole Board was the same, namely whether it was necessary for the protection of the public that the offender should be confined. However, the application of the test was different from its application in the context of a life prisoner. In a non-life case, if continued incarceration up until the sentence expiry date would do nothing to avoid or reduce the risk thereafter, it was not necessary for the protection of the public that the offender should be confined. The position was different if continued incarceration would reduce the risk to the public after the sentence expiry date. It followed that there had to be a causal link between continued detention and prevention or reduction of risk (paras 14–17).
(2) The guidance promulgated in June 2022 had been based on a misunderstanding of at least parts of the Divisional Court judgment. It misstated the way in which the test ought to be applied and ought to be amended in the various respects indicated in the present judgment (paras 18–25).
(3) In respect of the claimant in the first case, the Parole Board had said that it would apply its guidance when determining her application for release. The clarification provided by the present judgment was sufficient to ensure that the hearing would be conducted on a lawful basis. In any event, her application was premature as the Parole Board had yet to take any substantive action in relation to her application for release and accordingly, no relief would be granted (paras 36, 37, 38, 53).
(4) In respect of the claimant in the second case, there were significant factual issues and fairness required that he be given a right to an oral hearing. The failure of the Parole Board to order an oral hearing rendered the subsequent determination on the papers unfair. Although the claimant had had the right to request a reconsideration of the decision and to apply for an oral hearing at that stage, that could not cure the initial procedural failure and, accordingly, the decision would be quashed and his application for release considered by a fresh panel at an oral hearing (paras 48, 49, 50, 54).
Per curiam. In relation to the relevance of post sentence expiry risk, we see no distinction in principle between a standard determinate sentence and an extended determinate sentence. If the factual position in the Divisional Court case were to arise in the case of a man applying for release from a standard determinate sentence following recall, the Parole Board would be entitled to consider risk after the expiry of the sentence so long as the appropriate causal link could be established (para 52).
Jude Bunting KC and Stephanie Davin (instructed by Bhatt Murphy Solicitors) for the first claimant.
Edward Fitzgerald KC and Stuart Withers (instructed by Kesar and Co Solicitors, Bromley) for the second claimant.
Russell Fortt (instructed by Treasury Solicitor) for the board.
Jason Pobjoy and Madelaine Clifford (instructed by Treasury Solicitor) for the Secretary of State.