Malcolm Richards v The Parole Board of England and Wales

This is a challenge by way of judicial review to a decision by the Parole Board for England and Wales (“the Board”) to decline to direct the release on licence of the claimant, Mr Malcolm Richards, a post-tariff life sentence prisoner. It concerns the scope of the so-called “slip rule” at rule 30(1) of the Parole Board Rules 2019. This empowers the Board to “correct an accidental slip or omission in a decision at any time until the end of the period of twelve weeks, beginning with the day on which the decision becomes final”.

In these proceedings, the Board is the defendant but has adopted its customary neutrality. The Secretary of State, as an interested party, has also been neutral. The only submissions I received were from Ms Gidda for the claimant. I was supplied with a core bundle (CB, 159 pages), a supplementary bundle (SB, 930 pages) and an authorities bundle (AB, 328 pages).

In this judgment, I will set out some relevant introductory remarks about sentences and release; the factual background to this case; the Board’s decision(s) under challenge; the grounds of challenge; the applicable law; and then my analysis and conclusion.

An indeterminate sentence is a prison term with no fixed end date, requiring an offender to serve a minimum term or “tariff” set by the court before becoming eligible for parole (and, if parole is granted, release on licence). This is in contrast to a determinate sentence, where the prison term is for a fixed period and release on licence at the specified point is automatic. To be on licence is to be on probation; it refers to a period of supervision and a set of conditions with which the offender must comply. The licence period acts as a bridge between the period of custody and freedom, ensuring that the offender is appropriately monitored while being reintegrated into the community. If an offender breaches their licence, or commits a further offence while on licence, they are liable to be recalled to prison.

An indeterminate sentence can take the form of a life sentence (whether mandatory or discretionary), an Imprisonment for Public Protection (IPP) sentence, or a Detention for Public Protection (DPP) sentence. IPP and DPP sentences were introduced in 2005 but abolished in 2012. Those given IPP or DPP sentences between 2005 and 2012 remain on such sentences until they are released and their licence is subsequently terminated.

A person serving an indeterminate sentence once the minimum term has passed – referred to as a “post-tariff” prisoner – can only be released on licence if the Board is satisfied that “it is no longer necessary for the protection of the public that the prisoner should be confined”; see section 28(6)(b) of the Crime (Sentences) Act 1997 (the “1997 Act”). This is the release test. It requires the Board to make what is called a “public protection decision”, by which it must be satisfied that “there is no more than a minimal risk that, were the prisoner no longer confined, the prisoner would commit a further offence the commission of which would cause serious harm” (s.27ZA(3) of the 1997 Act, in force from 3 February 2025 by virtue of section 58 of the Victims and Prisoners Act 2024). Rule 25(1) of the Parole Board Rules 2019 describes the Board’s task as binary: “it must decide either that (a) the prisoner is suitable for release, or (b) the prisoner is not suitable for release”. Central to the Board’s analysis in each case is its assessment of the level of risk of serious harm upon release and, more generally, how any risk posed upon release can be addressed during the licence period by way of supervision and conditions.

When making its decision, the Board has the advantage of a “parole dossier”. This is compiled by the Public Protection Casework Section of HM Prison and Probation Service. It contains required and relevant information about such matters as the prisoner’s sentence, offending history and progression during incarceration.

When a person serving a life sentence is released from custody, they will be on licence for life; as section 31(1) of the 1997 Act puts it, “the licence shall, unless previously revoked under section 32 below, remain in force until his death”. Section 32 of the 1997 Act deals with the recall of life prisoners while on licence.

For a person serving an IPP sentence, the licence arrangements, as set out in section 31A of the 1997 Act, are different. Until recently, a person serving an IPP sentence would be on licence indefinitely upon release from custody but would qualify for termination of their licence after ten years. Section 66 of the Victims and Prisoners Act 2024, brought fully into effect from 1 February 2025, has amended sections 31, 31A and 32 of the 1997 Act. The thrust of the changes is that a person serving an IPP licence, who has been released on licence, is now automatically referred to the Board for a termination review three years after first release. For DPP sentences, the automatic referral for a termination review comes after two years. There is now a presumption that the licence will be terminated. If an IPP licence is not terminated at the three-year point, a sunset arrangement requires the automatic termination of the licence after two years in the community (presupposing the offender has not in the meantime been recalled or sent to prison for any other reason).

For the purposes of this judgment, the detail of the mechanism by which an IPP licence terminates matters less than two points: (a) it operates differently to a life sentence; and (b) there is reference to a two-year period in the community.

On 15 December 2008, at the Crown Court in Maidstone, the claimant was convicted of multiple sexual offences against children. The victims of his offending are entitled to lifelong anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992. On 4 February 2009, he was given a discretionary life sentence with a minimum term of ten years. He was 43 when sentenced. Taking account of the time spent on remand, his minimum term expired on 2 April 2018.

The Board considered the claimant’s case on 13 May 2020. Its decision on that occasion summarised his offending history from the detailed account provided in the Offender Assessment System (called OASys). It described his offending as “an exceptional case of cruelty and abuse” (SB, p.416). Nonetheless, it decided that his good behaviour in custody and his enhanced status as a prisoner boded well for his future compliance and therefore recommended his transfer to an open prison. He was duly transferred to open conditions on 26 August 2020. Today, at the age of 61, the claimant remains a serving prisoner, under open conditions and with enhanced status. He is eligible for short-term leave from prison (known as release on temporary licence or “ROTL”), including overnight leave.

The claimant’s case came before the Board again on 29 June 2023. By a decision dated 6 July 2023, the Board declined to issue a direction for his release (SB, pp.393-403). It incorporated the OASys analysis of his previous offending from the May 2020 decision. It noted some concerns about his insight into his offending past and about his relationship with his Community Offender Manager. Its decision stated: “however robust a risk management plan was put in place on release, it would not be strong enough to manage [the claimant’s] risks over time as he was unlikely to disclose important information that would be critical for the management of his risk” (SB, pp.402-403)

On 2 January 2024, the Public Protection Casework Section wrote to the Board, referring the claimant’s case again for decision as to whether or not it was appropriate to direct his release (SB, p.33). The subsequent dossier contained two important reports for the next review hearing: one was written by Mr Clee, the claimant’s Prison Offender Manager, dated 29 February 2024; the other was written by Ms Afulukwe on behalf of his Community Offender Manager, Mr Burton, dated 15 April 2024. Both reports inaccurately stated that the claimant was serving an IPP sentence (SB, p.218, p.227). The claimant’s solicitor, Ms McClure, pointed out this error at the start of her submissions to the Board dated 20 May 2024, in which she sought an oral hearing (SB, p.348).

The Board decided on 28 June 2024 to adjourn the matter pending further information (SB, pp.407-410). It is not quite clear from the documents before the court what happened next, but it is sufficient to note that the matter returned to the Board the following year. The error about the claimant being an IPP prisoner was repeated in a further report from Mr Clee dated 2 May 2025 (SB, p.906).

The Board hearing was held via video on 15 May 2025. This led to the first decision under challenge in these proceedings.

Ms McClure attended the Board hearing on the claimant’s behalf. She has filed a witness statement with the court in which she states that, when Mr Clee gave evidence, he acknowledged in response to questions from the chair of the panel that he had incorrectly referred to the claimant as an IPP prisoner (CB, p.129).

The Parole Board issued its decision on 28 May 2025 (CB, pp.78-90). The following can be noted:

The Board declined to direct the claimant’s release. In its conclusion (at CB, p.89, paragraphs 4.3 to 4.5), it said this (with my added emphasis):

Thus there were two clear factual errors in the decision. The first was in paragraph 3.8, in the section where the Board analysed future risk, which wrongly noted that the claimant’s licence would terminate automatically after two years in the community. The second was in paragraph 4.4, in the concluding section, where the claimant was specifically identified as an IPP prisoner whose licence was liable for automatic termination after two years. This did not accurately reflect the way IPP licences are now terminated but the provenance of the two-year period is discernible.

On 5 June 2025, Mr Clee emailed the Board and the parties in these terms (CB, p.96-97):

Acting on its own initiative, and in all likelihood by way of response to Mr Clee’s email, the Board issued an amended decision on 11 June 2025 (CB, pp.98-110), stating that it had done so “under Rule 30(1) the slip rule to remove an accidental mention of an IPP sentence”. The amended decision omitted the reference to the claimant as an IPP prisoner in paragraph 4.4, albeit it retained the reference to automatic termination of his licence after two years in paragraph 3.8. The relevant passage at paragraph 4.4 now read:

This is the second decision under challenge.

Ms Gidda referred me to the “Types of Case Member Guidance” issued by the Board. The latest iteration was issued in February 2025 (AB, pp.34-97). It says this at paragraph 12.2 (AB, p.78):

To test whether the last sentence of the above extract had been followed, the claimant’s solicitors sought disclosure from the Board of communications passing between its secretariat and the panel about the amended decision. The Board’s legal director replied to say that the only information falling to be disclosed was an email from the panel chair to the case manager dated 10 June 2025, referring to Mr Clee’s email, which said this: “Noted, there’s one reference. I have amended the decision letter under the slip rule – attached” (CB, p.144).

In two submissions dated 11 and 12 June 2025, the claimant’s solicitors applied on his behalf for reconsideration of the Board’s decision. The first submission addressed the unamended decision (CB, pp.116-121). It contended that the Board’s decision was made on the basis of a fundamental mistake as to the type of sentence he was serving. The second submission addressed the amended decision (CB, pp.122-123). It contended that the Board had inappropriate used the slip rule to remove a substantive element of its reasoning.

Rule 28(1) of the Parole Board Rules 2019 confirms that, where a decision of the Board is eligible for reconsideration, an application for reconsideration can only be made on the grounds that the decision “(a) contains an error of law; (b) is irrational; or (c) is procedurally unfair”. A separate panel, called an assessment panel, is convened for this purpose, rather than the original Board panel. The claimant’s application duly came before Her Honour Barbara Mensah, who considered the matter on the papers and issued her decision on 10 July 2025 (CB, pp.124-128). She refused the application. The critical parts of her reasoning were at paragraphs 29 to 31:

This is the third decision under challenge.

The claimant followed the pre-action protocol before commencing his application for judicial review. The Board declined any further review or reconsideration of its decision on the basis that it was now functus. The claimant brings three grounds of challenge, each of which proceeds on the observation – which is not controversial – that the Board’s decision erroneously referred to him on two occasions, directly or by implication, as an IPP prisoner who would only be on licence post-release for two years. I intend Ms Gidda no discourtesy in summarising briefly each of the claimant’s grounds of challenge and the supplementary arguments she made in court:

Finally, Ms Gidda contended that this was not the sort of case where the court should, pursuant to section 31(2A) of the Senior Courts Act 1981, refuse relief under what is sometimes called the “make no difference principle”.

The slip rule at rule 30(1) of the Parole Board Rules 2019 permits the correction of an “accidental slip or omission in a decision”. Save for the permitted period of twelve weeks, that formulation – an accidental slip or omission – is materially the same as it appears in other jurisdictions. By way of illustration:

Ms Gidda supplied me with commentary in the White Book which, at page 1295, describes the slip rule as “one of the most widely known but misunderstood rules”. The authorities mentioned below are drawn from that commentary, or from a reading of the cases mentioned in the commentary, or from the authorities bundle, or from the oral submissions.

The first case to consider, chronologically, is Bentley v O'Sullivan [1925] WN 95. There, the court had made an order that the plaintiff should recover its costs “to be taxed if not agreed”. A referee, as they were then known, amended the order at the instigation of the plaintiff to clarify that costs would be taxed on the High Court scale. The defendant challenged this and the Court of Appeal held that the referee should not have made that amendment. Banks LJ said this:

In Hulbert v Thurston [1931] WN 171, following a successful appeal by the defendant, the Court of Appeal ordered that judgment be entered for the defendant with costs. It subsequently refused to use the slip rule to amend the order so that the costs could be enforced against the plaintiff’s litigation friend. That was not the order it had originally been asked to make.

In Molnlycke AB v Proctor and Gamble Ltd [1993] FSR 154, a dispute arose between the parties about the plaintiff’s entitlement to immediate taxation and payment of costs. Morritt J concluded that his order did provide for this; but, having considered the Bentley and Hulbert cases, he said he would have rejected an alternative submission that he could have used the slip rule to make the amendment.

In Secretary of State for Trade & Industry v Rogers [1996] All ER 854, a case about disqualification of a company director, the Court of Appeal deprecated a suggestion that it could use the slip rule to remove a reference in the order under appeal to a company director being dishonest, a finding that the first-instance judge had made deliberately and intentionally.

In Mutual Shipping Corporation v Bayshore Shipping Co [1985] 1 Lloyd's LR 189, an arbitrator had a made an award which erroneously transposed the names of the parties. The Court of Appeal decided that this could be corrected under the slip rule. Sir John Donaldson MR described the difficulty in trying to distinguish between (on the one hand) a case where the court has had second thoughts about a decision it later accepts was erroneous and (on the other hand) a case where the court corrects a decision to give effect to first thoughts or intentions. In the same case, Robert Goff LJ said: “I do not think it would be right for me to attempt in this judgment to define what is meant by ‘accidental slip or omission’: the animal is, I suspect, usually recognizable when it appears on the scene”.

In Bristol-Myers Squibb v Baker Norton Pharmaceuticals Inc [2001] EWCA Civ 414, the Court of Appeal expressed its judgment in such a way that it deprived the successful party of about £50,000 worth of interest that had accrued on a sum it was owed by way of costs recovery. The successful party asked the Court of Appeal to amend its order under the slip rule, contending that the oversight must have been inadvertent. The Court of Appeal reviewed the pre-CPR authorities, including the Bentley, Hulbert, Molnlycke and Mutual Shipping cases mentioned above, and decided that it could use the slip rule to correct the error. Aldous LJ said the following at paragraph 25:

In Markos v Goodfellow & others [2002] EWCA Civ 1542, a boundary dispute between neighbours, the judge at first instance dismissed the claim on the basis that a 3-4 inch encroachment was de minimis. A High Court judge refused permission to appeal but used the slip rule to alter the trial judge’s judgment such that the claim was upheld but only nominal damages awarded. The Court of Appeal, referring to Secretary of State for Trade & Industry v Rogers, held that this was an inappropriate use of the slip rule: it could not be used to correct an error of substance.

In Foenander v Foenander [2004] EWCA Civ 1675, Wall LJ accepted at paragraph 57 that the slip rule was “primarily designed to correct typographical or grammatical errors”. However, applying Bristol-Myers Squibb, he said it was permissible to use it “to amend a court order to give effect to the intention of the court”. This was in the context of construing the terms of a civil restraint order.

In SmithKline Beecham Plc & others v Apotex Europe Ltd & others [2006] 1 WLR 872, Lewison J declined to use the slip rule to permit an amendment to a cross undertaking in damages. The error had not been accidental; it had simply not occurred to anyone that a particular form of relief might be available.

In R+V Versicherung AG v Risk Insurance and Reinsurance Solutions SA [2007] EWHC 79 (Comm), Gloster J declined to use the slip rule to alter an earlier judgment of Moore-Bick J to remove two of the defendants from its scope. She said this at paragraph 23:

In Dickenson & others v Tesco plc & others [2013] EWCA Civ 226, the Court of Appeal dealt with an appeal about claims for credit hire costs resulting from road traffic accidents, specifically on the point of whether fresh evidence could be admitted. The Court of Appeal allowed the appeal, intending that there be retrials of the issue of the recoverable hire rate. Its order adopted a slightly different formulation suggesting that other issues of quantum around car hire (such as the need for a hire car and the length of the hire period) might also be up for grabs. It deployed the slip rule to clarify that the rate of hire was the only issue to be reopened at trial, that having been its original intention.

In Re A (a Child) [2014] EWCA Civ 871, a case about financial provision for a child, the father applied to the trial judge to deploy the slip rule to amend his judgment so as to remove adverse factual findings about him that he described as libellous. The trial judge refused. On appeal, the Court of Appeal agreed that the slip rule was not available in this context.

In Kotsanga [2016] UKUT 228 (IAC), the judge at first instance had issued an order in which she allowed an asylum appeal on human rights grounds despite it being obvious from her reasoning that she had intended to dismiss it. She corrected her decision under the slip rule. On appeal, the Upper Tribunal held this was not permissible. Relying on Bristol-Myers Squibb, it decided that the slip rule could not be used to change the substance of a judgment or order.

A similar scenario arose in Secretary of State for the Home Department v Devani [2020] EWCA Civ 612. The judge at first instance issued a decision upholding an asylum appeal on Article 3 grounds. Her subsequent order then had the opposite effect of dismissing it. The matter reached the Court of Appeal, which said Kotsanga had been wrongly decided. At paragraph 23 of Devani, Underhill LJ said this:

In summary, the distinction is, in principle, a clear one. As Underhill LJ put it in Devani, it is between (on the one hand) a case where the order in question does not express what the court intended at the moment of promulgation and (on the other hand) a case where the order does express what the court intended at the time but it subsequently appreciates that it should have intended something different. As Sir John Donaldson MR put it in Mutual Shipping Corporation, the distinction is between a case where the court corrects a decision to give effect to first thoughts and a case where the court has had second thoughts. The slip rule is apt for deployment in the first category of case, but not the second. The second category of error can only be remedied upon appeal. The test for use of the slip rule is certainly not whether, stepping back, one can be confident that the ultimate decision reached was the right one.

A mere typographical or grammatical correction is the most obvious, and least controversial, example of the first category of case. There the slip rule can safely be deployed. In contrast, a change that alters the substance of a judgment or order, or purports to correct findings of fact, exemplifies the second category of case. The distinction between the two is not always clear, and some cases will be harder to categorise than others. The case law authorities considered above serve mainly as helpful illustration of the how the slip rule operates in practice.

The slip rule aside, I will mention briefly the key authority dealing with alleged errors of fact in public law decisions. It is of course E v Secretary of State for the Home Department [2004] 2 WLR 1351. In that case, Carnwath LJ (as he then was) expounded the well-known four-stage test to be applied when considering if a mistake of fact is sufficient to render a public law decision unlawful. The following must be demonstrated: first, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; secondly, the fact or evidence must have been established, in the sense that it was uncontentious and objectively verifiable; thirdly, the appellant (or his advisers) must not been have been responsible for the mistake; and fourthly, the mistake must have played a material (but not necessarily decisive) part in the reasoning. The fourth element of the test in E can be asked in an alternative formulation: is it possible to say that the mistake did not play a part in the reasoning? See R (Watt) v London Borough of Hackney [2016] EWHC 1978 (Admin), per Gilbart J at paragraph 52.

Ms Gidda helpfully referred me to examples of Parole Board decision where, in respect of the fourth element, the High Court had decided that mistakes of fact did play a material part in the reasoning (R (H) v Parole Board [2011] EWHC 2081 (Admin) and R (Hall-Chung) v Parole Board [2025] EWHC 1879 (Admin)) or that they did not (R (Morton) v Parole Board [2009] EWHC 188 (Admin)).

I begin with the first ground of challenge, which concerns the Board’s use of the slip rule in this case.

The Board’s decision must of course be read fairly and as a whole. In doing so, it is abundantly clear to me that it was troubled by the impact on the claimant of a limited licence period. This in turn influenced its assessment of the risk that he would pose if no longer confined. The Board made clear that it did not take lightly its disagreement about release with both psychologists and Mr Clee as the Prison Offender Manager. It was entitled to disagree with them. Its disagreement was rooted in concerns about the claimant’s internal and external controls; it describe the latter as “key to the management of his risks in the community”. When it considered external controls over the claimant, the Board was influenced by the erroneous belief that his licence would expire after two years in the community which, in turn, was based on the erroneous belief that he was an IPP prisoner rather than someone who would be on licence for the rest of his life. The Board’s belief that he would be free of supervision by the Probation Service after two years (albeit a belief which appears to misunderstand the circumstances in which IPP licences are now terminated) played a material part in its assessment of risk for the purposes of the public protection decision it was tasked with making.

That being so, this was not the sort of accidental slip capable of correction via the slip rule. If, upon a fair reading of the decision as a whole, it was plain that the Board knew it was dealing with a post-tariff life sentence prisoner on licence until he died, and the reference to IPP status was a simple typographical error, it would have faced no problem in amending its decision under the slip rule. It would have fallen neatly into the first category of case described above. However, this was more than a mere typographical error. There had been misinformation about the claimant being an IPP prisoner in the parole dossier; the error appeared twice in the reasoning in its decision (implicitly at paragraph 3.8 and explicitly at paragraph 4.4); and it was a material part of its assessment of risk. In my judgment, this case falls into the second category: the mistake of fact went to the substance of the decision. A correct understanding that the claimant was on licence for life may (and I put it no higher) have assuaged the Board’s concerns about a lack of external controls within two years of release. This was something Mr Clee recognised when he spotted the error and alerted the Board. The Board may ultimately have reached the same decision, but that is not the test for whether the slip rule can properly be deployed.

Should it be necessary, I would further conclude that the reconsideration decision was unlawful in the sense that the assessment panel reached a conclusion that was not properly or rationally open to it. As the extract above shows, the decision of the assessment panel was that the slip rule had been appropriately deployed because the sense of the decision remained even with the removal of the passage, because the reference to IPP in the passage was clearly a mistake, and because there was no unfairness or injustice in correcting an error that made no difference to the panel’s conclusion. As I sought to explain above, by reference to the authorities, the test for use of the slip rule is not whether, stepping back, one can be confident that the decision reached was ultimately the right one, or whether the sense of the decision was unaltered by the change, or whether the decision-making process was otherwise procedurally unfair or unjust.

Having upheld the first ground of challenge, the next question, under the second ground of challenge, is whether the decision as originally made (prior to amendment) was unlawful due to a material error of fact about the type of sentence the claimant was serving. This does not require a lengthy analysis. I recognise that this court is not a fact-finding body and must be cautious when considering if a public law decision is tainted by an error of fact. But the four limbs of the test set out by Carnwath LJ in the case of E have clearly been met. First, there was an obvious mistake about the claimant’s prisoner status – IPP or life sentence – which led to an erroneous belief about the period of time he would spend on licence after release. Second, the correct position – that he was a life sentence prisoner and not an IPP prisoner – was uncontentious and objectively verifiable. Third, the claimant was not responsible for the mistake; indeed, his solicitors had tried to correct it. Fourth, as I have already said, the mistake of fact went to the substance of the decision; it played a material, even if not necessarily decisive, part in the Board’s reasoning.

In those circumstances, and as Ms Gidda accepted, the claimant’s third ground of challenge is irrelevant.

Accordingly, my judgment is that the Board’s decision in this matter was unlawful because of a material error of fact and that, because the error went to the substance of the Board’s decision, it was not apt for remediation via the slip rule. I therefore grant the relief requested and quash the Board’s decision; for the avoidance of doubt, this applies to the original decision, the amended decision, and the reconsideration decision. The matter is remitted for the claimant’s case to be heard afresh by a differently constituted panel.

Ms Gidda suggested that this should be on an expedited basis. She referred me to the Board’s “Oral Hearing Listing Prioritisation Framework”, published on 7 March 2025. I note that page 10 of that framework confirms that an order of this court quashing a decision is considered a proper reason for expedition; I therefore order that the matter is expedited as requested.

This is not a case where I can properly predict the correct outcome for the purposes of section 31(2A) of the Senior Courts Act 1981. This is a matter for the Board to decide in accordance with the responsibilities given to it by Parliament. Although it is unlikely to need saying, I will say it anyway: nothing in my decision is intended to constrain the approach the Board takes to its public protection decision when considering the matter afresh save to ensure that, when assessing the risk that the claimant would pose if released, it notes it is dealing with an offender who will remain on licence for the rest of his life.

Because of the Board’s customary neutrality, it is conventional for this court to make no order for costs. However, Ms Gidda says that the claimant made efforts via his solicitors to agree that the matter should be resolved without the need for a court hearing and that, as a result, her clear instructions were to seek costs. I therefore direct that the claimant has seven days from the date of this judgment to make written submissions on costs, with the defendant having 14 days to respond. I then propose to deal with the question of costs on the papers and without a hearing.