QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(Sitting as a Judge of the High Court)
| THE QUEEN ON THE APPLICATION OF
|- and -
|PAROLE BOARD OF ENGLAND AND WALES
MS R EARIS (instructed by Lansbury Worthington) appeared on behalf of the Claimant.
THE DEFENDANT did not attend and was not represented.
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"In order to direct release the panel must be satisfied that it is no longer necessary for the protection of the public for you to remain confined. In order to recommend a transfer to open conditions the panel is required to consider the extent of your progress in addressing and reducing your risks, the extent to which you are likely to comply with any form of temporary release from open conditions, the degree of risk that you might abscond and the benefit of testing you in a less secure environment."
It is common ground that those are factors to which the Parole Board is obliged to have regard in carrying out the appropriate balancing exercise when considering an application to transfer to open conditions.
"Conclusion and decision of panel" and sets out the reasons in some detail why the panel declined to order the claimant's release. The last three sentences set out the conclusion which the panel reached, in the following way:
"Therefore the panel does not direct your release. Nor does the panel consider that such risks as you presently represent can be adequately managed in open conditions. There can be no confidence you would not soon further abuse drugs and you cannot presently be trusted to comply with open conditions. "
There is then a section headed "Indication of possible next steps to assist future panels".
"A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board's emphasis should be on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered."
That is the starting point, identifying that the task which the Parole Board is obliged to undertake is a balance of risks and benefits. Paragraph 4 requires the Parole Board to take into account all the information which it has before it. Paragraph sets out the four factors which were identified in Section 1 of the decision letter in the following terms:
"The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:
(a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community, unsupervised, under licensed temporary release;
(b) the extent to which the lifer is likely to comply with the conditions of any such form of temporary release;
(c) the extent to which the lifer is considered trustworthy enough not to abscond;
(d) the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage."
"However, it is clear that suitability for release and suitability for open conditions require the application of different tests."
In para.12, his Lordship said, in looking at the two different tests relating to release on licence and transfer to open conditions:
"By contrast, the test set out in the directions relating to the transfer of a lifer to open conditions that I have quoted is a 'balancing exercise' test."
"However, the different tests for release and transfer to open conditions require a different consideration of risk in the two cases."
"Paragraph 5 of the Directions requires the Parole Board to take four ma in factors into account when evaluating the risks of transfer against the benefits. This the Panel did not do, and thereby erred in law."
"It is true that the Board refers to the need to have regard to the directions of the Secretary of State in the opening introduction of their decision [as it did in this case]. It is true that the Board refer to the support the claimant had for transfer from the offender's supervisor, the offender manager and Dr Pratt, which if analysed contains references to the benefits which could be directly derived from transfer. It is true that there is a reference to weighing the risk assessment in the balance and to setting Dr Pratt's more favourable views against those more cautious of Miss Fleming. However, nowhere do I find any passage not merely making plain that they have carried out what I have described as the fundamental balancing exercise, fundamental to the decision- making process, but in which they expressly state which factors which go towards benefit have been taken into account."
MS EARIS: Thank you, my Lord. Only one application, then, which is that there be a detailed assessment of the claimant's publicly funded costs.
JUDGE DIGHT: Yes.
MS EARIS: Thank you.
JUDGE DIGHT: Would you mind drafting a minute of order and emailing it to the Associate?
MS EARIS: Yes, of course.
JUDGE DIGHT: Thank you very much for your help.