In R (Dich & Murphy) v Parole Board and Secretary of State for Justice [2023] EWHC 945 (Admin) the Divisional Court (William Davis LJ and Johnson J) have clarified the scope of public protection test as it applies to fixed term prisoners. It places important limits on the Parole Board’s interpretation of the Divisional Court’s decision in R(Secretary of State) v Parole Board and Johnson [2022] EWHC 1282 (Admin).

The two joined cases concerned an extended sentenced prisoner (Ms Dich) and a determinate recall prisoner (Mr Murphy). In both cases the Parole Board applied its guidance PPM 055-2022 entitled “Consideration of the at risk period for determinate sentence cases”. In Murphy’s case the Parole Board refused him an oral hearing and stated that the risk period under consideration was “indefinite (applying the case of Johnson”). In Dich, at a preliminary hearing a panel of the Parole Board stated they would consider her risk on an indefinite basis.

The Claimants argued that the Parole Board’s interpretation of Johnson as set out in their guidance was wrong as it was inconsistent with the statutory scheme governing the early release of fixed term prisoners.

The Divisional Court held that:

  1. The statutory public protection test does not involve a temporal limit as to risk (§14) however the PB’s guidance misunderstood Johnson [2022] EWHC 1282 (Admin).
  2. The Parole Board may consider risk after conditional release or sentence expiry. Such a risk may not always be relevant, but it must have a causal link between continued detention and prevention or reduction in risk. (§14-17)
  3. If continued imprisonment until sentence expiry will do nothing to avoid or reduce the risk thereafter – it is not necessary for the protection of the public for a prisoner to be confined. (§17)
  4. The position is different if continued imprisonment would reduce the risk to the public after sentence expiry (e.g., by preventing a prisoner from taking steps to commit an offence, or by undertaking rehabilitative work). (§17)
  5. Lifers/IPPs are not to be approached in the same way as fixed term prisoners. (§13, §20).
  6. The use of the word ‘indefinite’ in the Parole Board’s guidance under key points should be deleted. (§23)
  7. The lack of licence conditions/potential unenforceability of a risk management plan after sentence expiry will almost inevitably be irrelevant, as there is unlikely to be a causal link between them and early release. (§24)
  8. In Murphy the Parole Board’s decision to refuse him an oral hearing was held to be unlawful: “It was quite clear that Mr Murphy fulfilled more than one criteria identified in Osborn”. (§48) An oral hearing was directed by the Court to be held as soon as possible. (§54)

Mr Murphy was represented by Stuart Withers led by Edward Fitzgerald KC. He was instructed by Daniel Garner and Leyya Kitmitto of Kesar & Co Solicitors.

Ms Dich was represented by Jude Bunting KC and Stephanie Davin. Instructed by Simon Creighton of Bhatt Murphy.