“In order to direct release, the Board should be satisfied that it is no longer necessary for the prisoner to be detained in order to protect the public from serious harm (to life and limb). It is not a requirement to balance the risk against the benefits to the public or the prisoner of release.”
“(6) the Parole Board shall not give a direction [for release] under subsection (5) above with respect to a life prisoner to whom this section applies unless--- … (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
“In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable.”
“In exercising its practical judgment the board is bound to approach its task under the two sections in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury. In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance the board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury. This is the test which section 34(4)(b) prescribes, and I think it is equally appropriate under section 39(4).”
“In both cases the need to protect the public is paramount”
“The test that the board has to apply in both situations is the same; that the board has to be satisfied that further confinement of the prisoner is no longer necessary for the protection of the public. That this is the test in all cases is consistent with the intention of Parliament as manifested in the language of section 32(6). The test is justified if the protection of innocent people is to be placed above the personal liberty of one who has been guilty of grave offending and who may still represent a danger to others. In my opinion, it is incontrovertible that Parliament in the Act has manifested an intention to put the protection of the public as the over-riding consideration. It follows that in my judgment the board directed itself correctly as to the test it had to apply. ”
“What it all comes to is this. The Parole Board have to carry out a balancing exercise between the legitimate conflicting interests of both prisoner and public. They must clearly recognise the price which the prisoner personally is paying in order to give proper effect to the interests of public safety. They should recognise too that it is a progressively higher price. Accordingly, the longer the prisoner serves beyond the tariff period, the clearer should be the Parole Board’s perception of public risk to justify continued the deprivation of liberty involved.”
“If that passage means only that the longer a prisoner has remained in custody the more anxiously the Parole Board should scrutinise whether the risk of releasing him is at the unacceptable level, then I would entirely agree with it. The use of the work “clearer” rather than “greater” suggests that is what the court intended. However, Mr. Fitzgerald argued that passage meant that the longer a prisoner has been detained the greater would the risk to the public need to be in order to justify his continued detention. This would import a sliding scale whereby the protection of the public would diminish and taper off in proportion to the length of the prisoner’s detention. In my judgment that cannot be right. The level of risk to the public which the Parole Board regards as unacceptable cannot properly be varied to accommodate the release of a prisoner even if he was jailed in his twenties and has been detained for many years.”