Khan v Parole Board, Court of Appeal - Administrative Court, May 15, 2015, [2015] EWHC 2528 (Admin)

Resolution Date:May 15, 2015
Issuing Organization:Administrative Court
Actores:Khan v Parole Board


Case No. CO/972/2014

Neutral Citation Number: [2015] EWHC 2528 (Admin)




Royal Courts of Justice


London WC2A 2LL

Date: Friday, 15 May 2015

B e f o r e:


(Sitting as a Judge of the High Court)


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Computer-Aided Transcript of the Stenograph Notes of

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Mr P von Berg (instructed by GT Stewart) appeared on behalf of the Claimant

The Defendant did not attend and was not represented

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  1. JUDGE BLACKETT: This is an application for judicial review of the defendant's decision dated 4 December 2013 not to recommend the claimant's transfer to open conditions, permission having been granted on the papers by HHJ Moulder, sitting as a judge of the High Court, on 10 October 2014.

  2. On 21 April 2006 the claimant pleaded guilty to an offence of robbery. He had 11 previous convictions for 33 offences between 1997 and 2004, including criminal damage, burglary, theft, common assault, threatening behaviour, possession of cannabis and assault with intent to rob. The offence related to the claimant stealing a mobile telephone from a man having threatened him with violence, and was motivated by the need to obtain money for drugs. He was sentenced to imprisonment for public protection with a minimum term of four months for an offence of robbery. His minimum term expired on 19 August 2006. It is worth noting that the sentence of imprisonment for public protection was introduced by the Criminal Justice Act 2003 section 225. The Criminal Justice and Immigration Act 2008 (section 13) amended section 225 so that the notional minimum term must be at least 2 years when passing a sentence of imprisonment for public protection. The Legal Aid Sentencing and Punishment of Offenders Act 2012 abolished imprisonment for public protection. The claimant has been in prison for 9 years.

  3. These are factors which should have played on the minds of the Parole Board panel when considering the claimant's case. In R(Osborn) v Parole Board [2014] AC 1115 Lord Reed JSC said, at paragraph 83:

    In relation to cases concerning post-tariff indeterminate sentence prisoners, it has been said more than once that the board should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.

    The Board might also add to their anxious scrutiny consideration of the length of the original minimum term when compared with the time actually served, particularly where that minimum term was so short that the offender may not have been sentenced to an indeterminate sentence after the changes made by the CJIA 2008.

  4. By all accounts the claimant's behaviour in prison was mixed. He received 7 proven adjudications for possession of items not on his property card (x 2), disobeying a lawful order (x 4) and having a positive drugs test for buprenorphine.

  5. On 29 March 2012 the claimant's case was considered by the Parole Board who recommended that he be transferred to open conditions. He was transferred to open conditions on 12 October 2012 but then transferred back to closed conditions on 19 December 2012. On return to closed conditions his behaviour was again mixed although a drugs test in February was negative and his behaviour in the months leading up to his second Parole Board hearing was good.

  6. On 28 November 2013 the claimant's case was again considered by the Parole Board which considered whether it would be appropriate to direct his release. This was the fourth review. The Parole Board, in its oral decision letter dated 4 December 2013, concluded:

    "After considering all the evidence and the submissions made on your behalf the panel is satisfied that notwithstanding your good behaviour over the past few months your risk has not reduced to a level that could be safely managed in the community and in consequence the panel does no direct your release.

    The panel considered whether you should now be returned to open conditions. The purpose of spending time in open conditions is to provide an opportunity for any areas of on-going concern to be tested in conditions more closely resembling those to be found in the community; to allow you the opportunity to take more responsibility for your actions and to develop or advance your release plan. The panel is satisfied that you have not yet addressed the risk factors that contributed to your failure in open conditions and that it would be premature to recommend your return to open conditions. In consequence the panel advises the Secretary of...

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