R v Secretary of State for the Home Department, ex parte Zulfikar [1996] COD 256

Citation: R v Secretary of State for the Home Department, ex parte Zulfikar [1996] COD 256

Decision

Ex parte Zulfikar established certain principles which should be adopted by the Parole Board when a prisoner comes before it seeking a progressive move to open conditions and/ or ultimately release. Those principles are as follows:

1. Each case is decided upon its own merits and its own facts;
2. There is a presumption that the prisoner before it has been properly convicted, i.e. he was in fact guilty of the index offence;
3. The Parole Board must take into account any denial of guilt from the part of the prisoner;
4. The Board must also take into account if the prisoner has refused to participate in offending behaviour programmes in order to address his risk;
5. However, release cannot be refused purely because the prisoner denies his guilt, although in practice it is easy to see how denial makes a demonstration of risk reduction more difficult (i.e. a denier cannot demonstrate remorse for the offending, and there may also be difficulties in effectively engaging with offending behaviour courses).

R (oao Smith and West) v Parole Board [2005] UKHL 1

Citation: R (oao Smith and West) v Parole Board [2005] UKHL 1

Decision

Smith and West is authority for the principle that the Parole Board has a common law duty to ensure its procedure is fair when considering whether recalled prisoners should be re-released. In order to decide the matter of re-release fairly, an oral hearing may be required. If a prisoner is unfairly refused an oral hearing, his rights under Article 5 may be engaged and he may be entitled to claim damages.

R (on the application of Noorkoiv) -v- Secretary of State for the Home Department [2002] 1 WLR 3284

Citation: R (on the application of Noorkoiv) -v- Secretary of State for the Home Department [2002] 1 WLR 3284

Court: Court of Appeal (Civil Division)

Decision

This decision is of relevance:

1. Post-release (i.e. to recalled prisoners) and;
2. Pre-release.

Once the Secretary of State has revoked an individual's licence, and he has subsequently been recalled to custody, the recalled prisoner should be brought before the Parole Board as quickly as possible. If not, Article 5(4) ECHR could be infringed. The lack of the Parole Board's recourses or administrative difficulties cannot justify a breach of Art. 5(4).

The principle also applies to prisoners who have served their minimum term (i.e prior to initial release). In this particular case, the appellant's Parole Board review did not occur until two months after the expiry of his minimum term. The court held that this delay amounted to a breach Art. 5(4). This is because the purpose of pre-release reviews is to determine whether the individual can be lawfully detained after the expiry of the minimum term.

R (on the application of Broadbent) -v- The Parole Board [2005] EWHC 1207 (Admin)

Citation: R (oao Broadbent) v The Parole Board [2005] EWHC 1207 (Admin).

Court: Administrative Court (High Court, Queen's Bench Division).

In R (Broadbent) v The Parole Board (2005), it was held that a charge and even a prosecution are not sufficient reasons alone to justify recall to custody following release on licence. This is because a charge and prosecution alone cannot, without more evidence, justify a conclusion that there is a risk of the recalled prisoner re-offending.

This is important to bear in mind when submitting written representations to the Parole Board when applying to get your client re-released or an oral hearing.