The precautionary approach recommended by the Root and Branch Review of the Parole System in 2022 included a power now known as the parole referral power (although it was described in the Review as a "ministerial check"). The Secretary of State has the power to direct the Parole Board to refer certain release decisions to the High Court. This power only applies to offenders serving indeterminate or determinate sentences in relation to top-tier offences, which are murder, rape, terrorism and terrorism-connected offences and causing/allowing the death of a child. When referred, the High Court will apply the statutory release test for itself and determine whether to direct the Secretary of State to release the prisoner or to quash the Parole Board’s decision.
	Currently, there is no clear power for the High Court to make either of those orders in respect of a prisoner who has been released unconditionally (i.e. without a licence). This measure ensures that the referral power applies to cases where the Parole Board has directed unconditional release, which aligns with the policy intention that this power can be used in relation to all release decisions by the Parole Board of top-tier offenders.
	The policy is that where the Parole Board makes the decision to unconditionally release an offender, and the Secretary of State requires the Parole Board to refer that case to the High Court, if the High Court makes an order requiring the Secretary of State to give effect to the Parole Board’s direction to the release of the offender (thereby upholding the Parole Board’s release decision) then the decision made by the Parole Board to release the offender unconditionally will automatically stand. Alternatively, if the High Court makes an order quashing the Parole Board’s direction to release the prisoner, then the licence termination decision will also be quashed because of the High Court’s decision not to release the offender.
Policy background Part 2: Management of offenders after sentencing Sentences of imprisonment or detention for public protection Powers of High Court on referral