R (DSD and NBV) v Parole Board of England and Wales

Facts

John Worboys was convicted in 2009 of a series of serious sexual offences against women and received an indeterminate sentence for public protection. In 2018 a panel of the Parole Board directed his release. Two of his victims, DSD and NBV, sought judicial review of the decision, and also challenged the Secretary of State for Justice's decision not to challenge it. They said the Board had not properly investigated the extent of his offending when assessing the risk he posed.

History

The claimants applied directly to the Divisional Court for judicial review of the Parole Board's decision.

Issue

Whether the claimants had a sufficient interest under the Senior Courts Act 1981, section 31(3), to bring a challenge to a decision about the release of a prisoner; and whether the Parole Board's decision to direct release was irrational or otherwise unlawful.

Held

The claim succeeded. The claimants had standing, and the Board's decision to direct release was irrational and was quashed so that the case could be considered afresh.

Ratio

• Victims of the prisoner whose release is directed have a sufficient interest within section 31(3) to challenge the release decision, and the court's concern is with the public interest in the lawful performance of the Parole Board's functions.
• A decision to direct release was irrational where the panel failed to make reasonable inquiries into significant information that bore on the risk posed and on the prisoner's credibility, so that it did not take proper account of the matters required to answer the statutory question.

Key reasoning

• Standing under section 31(3) is a flexible requirement assessed in context, and the victims' close connection with the offending and the public interest in an informed risk assessment gave them a sufficient interest.
• The Board had the power and a duty to investigate what it needed to know to assess risk, and its failure to pursue inquiries into the extent of his offending meant that its conclusion was not a rational response to the evidence.
• The role of the court on judicial review was to correct a failure of inquiry and reasoning by the decision-maker, not to decide for itself whether the prisoner should be released.

Where it fits in the module

On the FHS topic of the Senior Courts Act 1981, section 31(3), the case illustrates a generous approach to sufficient interest for a person who is not the direct subject of the decision, in line with R v Inland Revenue Commissioners, ex p National Federation of Self-Employed [1982] AC 617, which treated standing as a matter to be assessed together with the merits and the nature of the challenge. It also shows that a ground of review of failure to inquire is closely linked to irrationality, a point developed in later cases on the Tameside duty of inquiry. The question for tutorials is whether wide standing risks turning judicial review into a general forum for those with a strong moral interest in outcomes.

Criticisms

• The decision treats an inquiry failure as irrationality, which stretches the meaning of irrationality and blurs it with a duty to take reasonable steps to inform oneself, an independent ground.
• Allowing victims to challenge release decisions may shift weight towards the interests of victims in a process whose statutory question is the risk to the public.
• The reasoning gives little guidance on how far a decision-maker must go in investigating, which leaves Parole Board panels uncertain of what inquiries are enough.
• Judicial review of a specialist panel on the basis that it should have looked further risks the court second-guessing the panel's own assessment of the evidence.