Determining the Appropriate Test for Reviewing Parole Board Decisions: Browne (Aswad) v The Parole Board of England and Wales [2018] EWCA Civ 2024

Publication Date01 Feb 2020
AuthorGavin Dingwall,Danielle Bates
SubjectCase Notes
Case Note
Determining the Appropriate
Test for Reviewing Parole
Board Decisions
Browne (Aswad) v The Parole Board of England and Wales [2018]
EWCA Civ 2024
Judicial Review, Parole Board, irrationality, proportionality
Aswad Browne had a history of committing serious violent offences which had resulted in him serving a
number of custodial sentences. Most recently, Browne had been sentenced to six years and three months’
imprisonment in June 2011 for burglary and assault occasioning actual bodily harm; the sentencing
judge stated that the offence had involved ‘great planned violence towards the victim’. Following his
release from prison in March 2014, Browne broke the terms of his licence conditions. The conditions
included that he commit no further offences or engage in behaviour ‘undermining the purpose of his
Browne’s former partner made an allegation of assault in November 2014. Although she elected not
to press charges against Browne, a non-molestation order was served by the Family Court on 19
December 2014 which forbid Browne from making any form of contact with his former partner. This
non-molestation order resulted in Browne’s recall after he communicated with his ex-partner on 24
December 2014 and on 8 January 2015. Browne was convicted on two counts of breaching the order
which resulted in 56 days’ imprisonment. He was also recalled for breaching his licence conditions.
There was a Parole Board hearing in July 2015, at which Browne gave evidence. The Board concluded
that the risk Browne presented could not be managed in the community for the period remaining until his
determinate sentence expired and, therefore, did not order his release.
Judicial review was sought on three grounds: (1) an alleged failure on the part of the Parole Board to
apply a presumption in favour of release; (2) procedural unfairness because there had been no proper
investigation of the allegation that Browne had assaulted his ex-partner; and (3) the risk assessment was
irrational because it was based on the alleged assault of Browne’s ex-pa rtner, which had not been
properly investigated.
HHJ McKenna (sitting as a judge of the High Court) heard the judicial review application (R (on the
application of Aswad Browne v The Parole Board of England and Wales [2016] EWHC 2178 (Admin)).
All of the claims were rejected. Given the abundance of factors that had informed the Parole Board’s
assessment of risk, the applicant came ‘nowhere near’ reaching the requisite threshold for showing that
the Parole Board’s decision was irrational (at [48]).
Browne sought leave to appeal again on three grounds: (1) the alleged presumption in favour of
rerelease; (2) procedural fairness; and (3) that there was an irrational or wrongful assessment by the
single-member panel of a high risk of serious harm to Browne’s ex-partner rendering it necessary to
detain and/or failure to have regard to material evidence and consideration and, further or alternatively,
that the Judge applied the wrong test to review a decision that concerns liberty. It was submitted that the
The Journal of Criminal Law
2020, Vol. 84(1) 90–93
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0022018320906229

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