Conditional discharge preventing Parole Board from considering parole?

DD v Sussex Partnership NHS Foundation Trust [2022] UKUT 166 (AAC) was about a change in status after a tribunal application, but in passing UTJ Edward Jacobs mentions that the prisoner’s conditional discharge “effectively prevented the Parole Board from considering parole”. Can this be right?

I imagined the Parole Board would find a way to proceed – liaising with the MOJ MHCS before the hearing and/or ploughing ahead and telling them afterwards. The condition in question is pointless or unlawful (or both).

Has anybody experienced this situation?

Here are the relevant extracts from the decision:

  1. … On 27 September 2021 with the hospital and restriction orders still in force, DD applied to the First-tier Tribunal. A few weeks later, on 15 October 2021, the Secretary of State directed that he be conditionally discharged; the only condition was that he ‘reside at HM Prison’. I was told that the Parole Board considered that this condition prevented the Board from considering parole in respect of the earlier offences.

  1. … As I have said, the condition that DD reside in a prison effectively prevented the Parole Board from considering parole.

A prison barrister has asked that I add these views here:

This seems daft to me.

The Parole Board only has power to decide whether to direct a prisoner’s release (whether under s.28 Crime (Sentences) Act 1998 or under the Criminal Justice Act 2003). That means deciding whether he can be safely managed in the community. The Parole Board has to address that question and no others. If there is a separate condition requiring the prisoner to be held in custody then the Parole Board could say that at the end when directing release and get on with it. I don’t see how the Parole Board can refuse to exercise its one statutory power otherwise.

I agree that the statement that the parole board are prevented from exercising its power doesn’t make sense on the face of it.

The condition for the discharge appears to be that the place of residence is prison: the conditional discharge obviously doesn’t authorise imprisonment itself. I don’t think there is any scope for a conditional discharge condition to authorise deprivation of liberty, or to put someone in the custody of, for example, prison officers. So the condition of residence is just that, a condition of residence. Should the discharged patient get parole from prison, presumably the MoJ would just have to adapt its condition of residence to wherever the person went on to live. No different, in a way, to where a person is required to reside at an address in the community and they subsequently lose the ability or right to reside there (landlord eviction, mortgage foreclosure, whatever). The apparent implication that the residence condition subsequent to conditional discharge could be prison and only prison rather suggests that the Tribunal went ultra vires in its understanding of what it was doing.