High Court finds Parole Board guidance on the ‘at risk’ period for determinate sentence prisoners is unlawful

In a judgment handed down on 26th April 2023, Lord Justice William Davis and Mr Justice Johnson clarified an important aspect of how the Parole Board’s statutory release test is applied to determinate sentence prisoners.  

Specifically, the Court considered the time horizon of risk to be considered by a panel and the legality of Parole Board guidance on this issue.

This guidance was issued in June 2022 following R (Secretary of State for Justice) v Parole Board and Johnson [2022] 1 WLR 4270 (“Johnson”) and purported to apply the principles in that case. It stated that, in determinate sentence cases, the test should be approached in the same way as in life and IPP sentences, and that panels needed to consider all potential future risk.  

The Claimants challenged the guidance and its application to their cases, which the Parole Board and Secretary of State for Justice sought to defend.  

Davis LJ and Johnson J held that this guidance misunderstood Johnson and parts did not correctly state the law. As such, the Court explained, “to avoid further misunderstanding” it would “go through the guidance promulgated in June 2022 and indicate where and in what terms it should be amended”. The Court held that risk arising after the expiry of a sentence may be considered by the Parole Board, however:

  • Cases involving a determinate sentence are to be approached differently from cases where an indeterminate sentence has been imposed (as the Claimants had submitted);

  • The lack of licence conditions after the expiry of a sentence “almost inevitably will be irrelevant to the issue to be considered by the Parole Board”; 

  • While it was “theoretically possible that some very long term risk will be relevant to the Parole Board's consideration of a particular case”, it is “difficult to see how the necessary causal link between early release and a long term risk could be established.”

The case involved two linked claims: by Ms Dich, who had received an extended determinate sentence ("EDS”), and Mr Murphy, who had received a standard determinate sentence and was seeking re-release by the Board after his recall to prison.

The Court further found that Mr Murphy had been unlawfully denied an oral hearing as part of his parole review.

Jude Bunting KC and Stephanie Davin represented Ms Dich, instructed by Bhatt Murphy.  

Edward Fitzgerald KC and Stuart Withers represented Mr Murphy, instructed by Kesar and Co.