Where the Parole Board has the function to determine release, it does so by applying the release test, also known as the public protection test, determining whether it is no longer necessary for the protection of the public that the offender remain confined, in order to decide if the offender should be released on licence. The release test has been subject to significant judicial commentary. In R v Parole Board, ex p. Bradley [1991] 1 WLR 134, the High Court held that the release test for indeterminate offenders whose minimum term had ended was a balancing exercise between the legitimate, but conflicting interests of both the prisoner and the public, and that the threshold to be met involved the risk posed being not merely perceptible or minimal. This concept of a balancing exercise was referred to again by the Court of Appeal in R (Brooke) v Parole Board [2008] 1 WLR 1950, where the Court was considering both determinate and indeterminate parole-eligible offenders.
	A different position was established in the case of R (King) v Parole Board [2016] EWCA Civ 51, where the Court of Appeal made it clear there was no balancing test involved in the release test, and the threshold was simply if there is a more than minimal risk of harm if the prisoner was to be released, confinement of the prisoner will be required to avoid that risk. The changes to the public protection test in the Act codify the principles set out in King within the release test to create consistency in application and put beyond doubt the threshold the Board must apply.
	Part of the clarification of the public protection test is to codify some of the key matters which the Board must consider when taking their decision. The Board is already required to take all relevant matters into account when taking their decisions (and the drafting makes it clear that the list does not fetter the matters the Board can take into account when making the decision); however, taking the approach of listing the significant considerations will put beyond doubt those matters upon which the public protection test focuses. This approach is based on the approach taken in Ireland via section 27(2) of the Parole Act 2019 (IE) and section 1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003 (IE).
Legal background Public protection test