Teon Hall-Chung v The Parole Board of England and Wales [2025] EWHC 1879 (Admin)

Neutral Citation Number:  [2025] EWHC 1879 (Admin)Case No AC-2024-LON-003250
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18.07.2025
Before
MATTHEW BUTT KC
Between
THE KINGClaimanton the application ofClaimantTEON HALL-CHUNGClaimant
Hearing Hearing date: 15 July 2025
APPROVED JUDGMENT

Matthew Butt KC:

[1]This is a challenge to a decision of the Parole Board of England and Wales (the Defendant) made on 17 May 2024 not to recommend that the Claimant who is an over-tariff prisoner serving a sentence of imprisonment for public protection (IPP) be transferred to open prison conditions.[2]The Claimant is represented by Mr Coningham. I am very grateful for the assistance he has provided to the court. The Defendant acknowledged service and provided a short helpful note with relevant legal principles but has adopted a neutral stance in this case in accordance with its legal position statement applicable to cases of this kind. The Secretary of State has not played any active part.[3]The Claimant is currently 43 years of age. In 2006 he was convicted of offences including robbery, possession of a prohibited firearms and attempting to cause grievous bodily harm with intent. At the time of sentence he had previous convictions for numerous offences including relating to firearms albeit none that involved actual violence.[4]The Claimant was sentenced to IPP under the regime that was in place at the time. The sentencing judge set a tariff of 10 years. This gave the Claimant an earliest release date of 15 October 2015 but he has not yet been released. He is now 10 years over tariff having spent nearly 20 years in custody.[5]Over the course of the Claimant’s time in prison he has never been released on licence. He has however spent two periods in open conditions; the first period was between October and December 2019 and the second between 13 November 2020 and 31 May 2022. At the end of the second period, the Claimant was returned to closed conditions following intelligence reports linking him to the supply of drugs in prison. No further information could be provided in this regard as the information was “likely to be passed to the police”. There was however no police action and the Claimant was not subject to any adverse prison adjudication. He denies this alleged involvement in the supply of drugs.[6]The Claimant’s first parole board since his return to closed conditions was due to be held on 18 December 2023 but it was deferred as the chair of the board sought a psychological risk assessment (PRA). Directions were provided as to the scope of the PRA which included to assess the Claimant’s risk of violent offending, risk and protective factors and to provide a recommendation as to whether he should be released or transferred to open conditions.[7]Ms Gouws is a chartered forensic psychologist with 25 years’ experience working for HM Prison and Probation Service (HMPPS). She provided a PRA in relation to the Defendant. In her report Ms Gouws noted that “continued imprisonment in closed conditions is likely to be detrimental to his mental health and motivation to engage with authority”. As to risks in open conditions, she stated that a risk of violence is not likely to be imminent but involvement in the drug trade may trigger aggression from the Claimant. The risk of serious harm was said to be moderate “depending on victim characteristics”. Ms Gouws did not recommend release but did recommend a transfer to open conditions.[8]A second report was provided from the Claimant’s prison offender manager who made no recommendation either way as to progression in his written report, however, at the hearing he recommended a transfer to open conditions.[9]A report was also provided from the acting Community Offender Manager who noted the limited contact that he had with the Claimant but indicated in a very full report his support for a return to open conditions.[10]The hearing was held on 24 April 2024. The panel heard evidence from the Claimant, Ms Gouws, the offender manager and community offender manager. The Claimant was represented by a solicitor who was able to ask questions of the witnesses and who submitted written closing submissions in which she asked that the panel direct the Claimant’s release. As set out above, the challenge in this claim is to a failure to recommend transfer to open conditions and not the failure to direct release.[11]The panel’s decision was handed down on 17 May 2024. The panel declined to direct release or to recommend transfer to open conditions.[12]The panel explained that its decision was “necessarily brief as little evidence was heard”.[13]The panel adopted the analysis of the Claimant’s core risk factors made by the last panel to consider his case in 2021 (when he was in open conditions).[14]Having recited these conditions, the panel went on to add further risk factors as follows:
“the need for stable and secure accommodation (post-Approved Premises and following any time spent living with his mother); associations with negative, antisocial, or pro-criminal peers (including family members such as his cousins), emotional well-being; variable engagement with and trust of professionals; some limitations in his self-awareness, understanding and insight evident within his evidence to the panel; indications of grievance thinking; and his seemingly limited skills to manage triggers, and risky situations.”
[15]The panel recorded that the Claimant:
“engaged with the release on temporary licence (RoTL) process and reports indicate that he completed three accompanied community visits, two to hospital and one to the community. He also had seven resettlement day release and two overnight RoTLs to his mother’s address.”
[16]This part of the decision concludes by stating that the Claimant was returned to closed conditions on 31 May 2022.[17]The panel stated that the Claimant: “undertook some resettlement day release (RDR) and residential overnight release (ROR) but was not as extensively tested in the community as he may have been had he undertaken more overnight release and, potentially, some voluntary or other work in the community”.[18]In conclusion the panel stated that the Claimant has not yet demonstrated the necessary consolidated period of good behaviour for it to direct his release or to recommend progression or return to open prison conditions. The panel noted the recommendations of the professionals for a return to open conditions but:
“struggled to balance their evidence against Mr Hall-Chung’s behaviours, his attitudes and presentation, his minimisation and his lack of insight, and the professional’s views that he needs to evidence good behaviours, and to consolidate and evidence skills and pro-social behaviours.”
[19]The Claimant requested reconsideration under Rule 28 of the Parole Board Rules 2109. Under the rules, the panel’s decision is provisional until this has been concluded. In very broad outline the Claimant submitted that(1) new risk factors had been added which he was not given the chance to address the panel upon and(2) the panel had made a material mistake of fact in relation to his release on temporary licence. In relation to the mistake of fact, the Claimant pointed out that he had completed far more overnight and day release periods than the panel had recorded. This had been a feature of the Claimant’s evidence and his solicitor’s closing submission before the panel. An email from the Claimant’s offender manager was provided which confirmed that the Claimant had spent 36 nights on ROR and 21 RDRs with no supervision.[20]The Defendant rejected the application for reconsideration on 25 June 2024. Under the Parole Board Rules, the Defendant is only able to reconsider whether there should have been a direction to release and not whether the panel was wrong to fail to recommend a transfer to open conditions. The Defendant was not therefore concerned with the challenge brought before this court. Within its reconsideration the Defendant accepted that the panel made a mistake in relation to how many days were spent on ROTL but determined that it did not affect the decision not to release the Claimant. The Defendant disputed that there had been any unfairness in relation to the new risk factors. RELEVANT LEGAL PRINCIPLES[21]The Defendant may direct release if satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.[22]If release is not ordered, the panel is invited by the Secretary of State to advise whether he should be transferred to open conditions.[23]The criteria for transfer to open conditions are(1) whether the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community, unsupervised under licensed temporary release); and(2) whether the prisoner is assessed as presenting a low risk of abscond. The second factor was and is not in issue in the Claimant’s case.[24]It is well established that mistake of fact can render a decision unlawful for public law error. A Claimant will normally need to show(1) mistake as to an existing fact(2) the fact or evidence is uncontentious and objectively verifiable(3) they and/or their advisers are not responsible for the mistake and(4) the mistake must have played a material (but not necessarily a decisive) part in the Tribunal’s reasoning, see E v SSHD [EWCA] Civ 49 at §66. GROUNDS OF CLAIM[25]The Claimant’s first ground is that the decision not to recommend a transfer to open conditions “was irrational/was based upon a material error”.[26]It is accepted by the Defendant that the panel made an error of fact upon a point that was objectively verifiable and for which the Claimant was not responsible. On the facts of this case therefore, I would allow the claim were I satisfied that the mistake must have played a material but not necessarily a decisive part in the panel’s decision making. On balance I am persuaded that it did play a material part in the decision making and that the claim should therefore succeed.[27]I make this finding for three principal reasons.[28]First, the difference between the amount of ROTL the panel found to have been completed and the correct position was significant. The panel believed he had completed a maximum of 12 days on temporary licence (two RORs which would typically comprise 3-4 nights and 7 RDRs) when in fact the Claimant had completed 56 days (35 nights on ROR and 21 RDRs). It was common ground that no problems have been reported when the Claimant has been on temporary licence.[29]Second, I note the relevance of a prisoner spending time on temporary licence to the criteria that the panel had to apply. A critical question for the panel when considering whether to transfer to open conditions was a risk assessment “when the prisoner may be unsupervised under licensed temporary release”.[30]Third, I note that the panel stated that the Claimant was “not as extensively tested in the community as he may have been had he undertaken more overnight release”. This is further evidence that the mistake of fact was material.[31]It is not therefore necessary for me to consider the second ground which relates primarily to the additional risk factors identified by the panel. It is unclear to what extent these matters were raised during oral evidence at the hearing. Mr Coningham accepted this difficulty but identified certain indicators which might have assisted the court if I had to decide whether some or all of these matters had been raised or not.[32]It is likely that some must have been raised by the Claimant during his evidence. I say no more on this ground than that the Defendant will be well aware of the need to raise matters which could impact upon its decision with the Claimant in order to ensure that he has fair opportunity to deal with these at the hearing. I am not making any finding as to what happened at the 2024 hearing.[33]I am also not going to deal with ground 3 which alleges that the decision is flawed by reason of its failure to make findings of fact and separate its reasoning as to risk based upon a transfer to open conditions and risk based upon release into the community. This ground is now academic as I have allowed the claim on ground 1.[34]The relief sought by the Claimant is(1) quash the impugned decision and remit the matter to be reconsidered and(2) direct that the Defendant convenes a fresh oral panel with expedition.[35]The Defendant in its acknowledgment of service urges restraint in relation to ordering expedition. It relies upon the judgment of this court in R Grinham v Parole Board for England and Wales [2020] EWHC 2140 (Admin) which suggests that a clear reason would be required for expedition such as imminent expiry of a sentence. I also note the observations of Mr Justice Irwin in O’Sullivan v Parole Board [2009] EWHC 2370 (Admin) that like any judicial authority, the board will generally know best how to handle the (often competing) demands upon its resources and that therefore compelling reasons will be required to interfere with the case management functions of another judicial body.[36]Recognising the force of the above, Mr Coningham suggested that I instead direct that reconsideration directions by issued within 28 days of this judgment. I do not see any proper basis to issue case management directions of this kind. The parole board will be aware of the importance of this case. That Mr Hall-Chung is 10 years over tariff is reason for his case to be dealt with as quickly as possible.[37]I therefore allow the claim, quash the decision and remit it back to the Defendant for reconsideration. END

Cited in 3 later judgments