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The Divisional Court has clarified an important aspect of the statutory release test to be applied by the Parole Board, following its earlier decision in R (Secretary of State for Justice) v Parole Board and Johnson [2022] 1 WLR 4270 (“Johnson”).

The Divisional Court heard the joined judicial review claims of two prisoners, an extended determinate sentence prisoner (“Ms Dich”) and a standard determinate sentence prisoner (“Mr Murphy”) (the “Claimants”).

The Claimants’ challenge was to the lawfulness of separate Parole Board decisions and/or guidance issued following the decision of the Divisional Court in Johnson. In Johnson, the Divisional Court held that there was “no temporal limit” on the statutory release test (§29), such that the Parole Board 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.

The Claimants challenged the lawfulness of the Parole Board’s interpretation of Johnson; in particular, the Parole Board considered that, applying Johnson, it could have regard to risk arising beyond the expiry date of the Claimants’ sentences. The Secretary of State argued that the principle in Johnson allowed the Parole Board to have regard to risk arising post sentence expiry, and that this principle applied equally to all determinate sentence prisoners.

The Divisional Court (per William Davis LJ and Johnson J) clarified the effect of its earlier decision in Johnson as follows (§§14-15):

The statutory test does not involve any temporal element in relation to risk. It is not necessary for the Parole Board to determine precisely when a risk might materialise…

The decision in Johnson makes it clear that a risk posed by a prisoner serving an extended sentence after the expiry of the custodial term is capable of being relevant to the need for public protection. The reasoning applies equally to a risk posed after the expiry of the sentence.

As regards Ms Dich, the Divisional Court declined to award any relief: the Divisional Court found that while the Parole Board guidance misstated the way in which the test should be applied in certain respects (§25), her challenge was “premature” because no substantive decision had yet been taken on her parole review (§37).

As regards Mr Murphy, the Divisional Court quashed the Parole Board’s decision on the basis that Mr Murphy should have been afforded an oral hearing (§50). However, the Divisional Court also observed that “[i]n 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… 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” (§52).

The judgment is available here.

Jason Pobjoy and Madelaine Clifford, instructed by the Government Legal Department, acted for the Secretary of State for Justice.

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