England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 October 2003

Mr Justice Richards:

1. The claimant was a serving prisoner who was released on licence. Soon after his release he was recalled by the Secretary of State. His recall was subsequently confirmed by the Parole Board. He contends that the recall and/or its confirmation by the Parole Board were unlawful, that his subsequent imprisonment was therefore unlawful and that he is entitled to damages for such unlawful imprisonment. The arguments before me have concentrated on the lawfulness of the recall and its confirmation. It is common ground that if either decision was unlawful, then the claimant's imprisonment was unlawful from the date of the unlawful decision: see R v. Governor of Brockhill Prison, ex parte Evans (No.2) [2001] 2 AC 19. Arguments under the European Convention on Human Rights, although foreshadowed in the claim form and claimant's skeleton argument, have not been pursued. The issues covered have been adequacy of reasons, procedural fairness and rationality.

Statutory framework

2. Section 33 of the Criminal Justice Act 1991 deals with the release of short-time and long-term prisoners on licence. The claimant was a short-term prisoner. A prisoner released on licence can be recalled pursuant to s.39:

"(1) If recommended to do so by the Board in the case of a short-term or long-term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.

(3) A person recalled to prison under subsection (1) or (2) above-

(a) may make representations in writing with respect to his recall; and

(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

(4) The Secretary of State shall refer to the Board-

(a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and

(b) the case of a person recalled under subsection (2) above.

(5) Where on a reference under subsection (4) above the Board-

(a) …

(b) recommends in the case of any person,

his immediate release on licence under this section, the Secretary of State shall give effect to the recommendation."

Factual background

3. For the purpose of explaining the factual history it is necessary to refer to certain evidence concerning the reasons for the claimant's recall although one of the issues in the case is the extent to which that evidence should be taken into account.
4. The claimant's criminal antecedents are very lengthy and include offences of dishonesty, assault and public order offences. Most of them have been drink-related. He also has a history of mental illness, having been diagnosed with paranoid schizophrenia. In 2001 he was convicted of an offence of robbery, the circumstances of which involved the production of a grenade (harmless, though this was not known to the victim) while he was in a state of intoxication. He was initially sentenced to a Community Rehabilitation Order with a condition to attend for psychiatric treatment. He failed, however, to comply with the requirements of the order and he was sentenced in November 2001 to imprisonment for a period of one year, five months and 28 days.
5. He was duly released on licence on 11 September 2002. Unfortunately the licence given to him on his release from prison did not include certain conditions that it had been intended should be attached to it. The missing conditions included a condition relating to where he should report on release. It was intended that he report to the St Joseph's Probation Hostel in Eccles on the day of his release, and it was understood that he had been informed of the requirement even though the condition was not included in the licence. He failed to report there. On the day after his release he reported to the probation office in what was described as an extremely aggressive, abusive and intoxicated state. On the basis of this the probation officer requested revocation of the licence. Concerns were also expressed about the claimant's own vulnerability in the context of a history of mental illness, including attempts at self-harm and suicide.
6. A decision to revoke the licence was made by the Secretary of State on 12 September. But the revocation was not executed. A letter from the Probation Service dated 1 October 2002 sets out the circumstances of the recall decision and goes on to explain that the claimant subsequently made contact with the Probation Service and that it had been possible to negotiate a new set of licence conditions with him, which was considered to make recall unnecessary. This letter states that the claimant "admits to having consumed a large amount of alcohol on release from prison and to being extremely abusive to Probation Service staff", that he regretted his actions and was remorseful and that he appeared willing to cooperate in the supervision of his licence if granted the opportunity to do so. In all the circumstances the Secretary of State was requested to consider rescinding the decision to recall. In addition it was requested that the licence be amended to include six specific conditions.
7. It appears that the recall decision was revoked, and that a licence was prepared containing the new proposed conditions (or conditions based upon what had been proposed), but that a copy of the licence with the additional conditions was not given to the claimant. The only licence in his possession was still that given to him at the time of his original release.
8. On 22 October 2002 a further recall decision was made. It was dealt with on an emergency basis by an experienced caseworking manager in the Sentence Enforcement Unit, on the basis of a request made out of hours by telephone by the Assistant Chief Officer of the Probation Service. It was considered that immediate action was necessary because of concerns surrounding the claimant's action in discharging himself that day from a psychiatric ward at the Manchester Royal Infirmary to which he had been voluntarily admitted the previous weekend. He had discharged himself against medical advice. A revocation order was made on the basis of the information given to the caseworking manager by telephone. It was issued, in accordance with normal practice, without a statement of reasons. Effect was given to it immediately.
9. There is no contemporaneous record of the telephone conversation on the basis of which the recall decision was made. Again that accords with normal practice. The way an emergency recall of this kind is dealt with is by the subsequent preparation of a full report by the claimant's supervising probation officer. In this case a report was prepared on 24 October and submitted to the Secretary of State. The report stated:

"REPORT

Barry Jackson was released from HMP Acklington on ACR Licence on 11^th September 2002. The licence expiry date is 26^th January 2003 with a sentence expiry date of 11^th June 2003.

Immediately upon release there were difficulties with effecting supervision of Barry Jackson and emergency recall was requested on 12 September. Unfortunately, despite that being agreed it was not executed as of 1^st October 2002. On that date I wrote to the Sentence Enforcement Unit to inform a change of circumstances and that it had been possible to engage Barry Jackson constructively in supervision. That letter requested a series of six licence conditions to support his supervision and contain risk.

As of 22^nd October 2002, the Supervising Probation Officer of Barry Jackson had not been notified of any new licence being issued. Although Barry Jackson has maintained contact with his Supervising Officer, there have been escalating concerns about his mental health which has been deteriorating over some days prior to 22nd October. Indeed Barry Jackson had been admitted into a Psychiatric Ward at Manchester Royal Infirmary the previous weekend. On the afternoon/evening of 22^nd October, Barry Jackson against medical advice, discharged himself from hospital and went to stay at his mother's address, 84 Bankhouse Road, Blackley, Manchester. From information received from the Community Mental Health Team and from Barry Jackson's mother I deduce that Barry Jackson was still very poorly and presented a significant risk of harm and of re-offending. Barry Jackson is considered to be a high-risk offender. He has a history of mental health problems including paranoid delusions as well as a history of alcohol and drugs misuse. His index offence was a Robbery in which he produced a hand grenade to threaten the victim, when in dispute over a lottery ticket at a local shop. The shop in question is local to his mother's home address, 84 Bankhouse Road, Blackley.

The situation, which developed on 22^nd October, amplified earlier concerns about being able to work constructively with Barry Jackson. In the week since his release from prison his behaviour has given rise to serious concerns about the risk of harm and of re-offending and although strenuous attempts have been made to provide effective supervision regrettably these have not been successful given the magnitude of the risk factors in this case.

In my view, on 22^nd October 2002, Barry Jackson presented an immediate and significant risk of harm to the public. Added to this is the issue of Barry Jackson's own vulnerability in the context of his history of mental health illness including attempt at self-harm/suicide. My recommendation was for immediate recall on an emergency basis.

RECOMMENDATION:

The grounds for recall are Barry Jackson's failure to live where reasonably approved by his Supervising Officer in that he did not seek approval to leave hospital (Condition 3) and also engaging in behaviour which jeopardised the objectives of his supervision (condition 6)."

10. The licence conditions referred to in the probation officer's recommendation were conditions of the licence as given to the claimant on his release. As the body of the report makes clear, the probation officer was aware of the fact that the claimant had not been given a new licence containing the additional conditions previously requested.
11. In accordance with the requirement in s.39(3)(b) of the 1991 Act, on his return to prison the claimant was given a written statement of the reasons for the revocation of his licence. The statement reads:

"You have been recalled to prison because you have breached condition 5 (viii) of your licence in the following way:

It has been reported that you have failed to comply with condition 5 (viii) of your licence which requires you to attend upon a duly qualified psychiatrist/psychologist medical practitioner for such care, supervision or treatment as that practitioner recommends, in that, on 22^nd October 2002 you discharged yourself from the Psychiatric Ward at Manchester Royal Infirmary, against medical advice, to stay at your mother's address of 84 Bankhouse Road, Blackley.

In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."

12. That document, prepared on 25 October, refers to breach of condition 5 (viii) of the licence. That is a reference to one of the additional conditions that had been requested for inclusion in the claimant's licence but had not been included in the copy of the licence in his possession. The explanation proffered in the Secretary of State's evidence is that the reasons were prepared by an inexperienced temporary staff member who drafted them taking into account the amended licence which had not been given to the claimant rather than the licence in the possession of the claimant. This was a mistake for which the Secretary of State has offered a sincere apology. It is said that the true reasons for recall are those reflected in the supervising probation officer's report of 24 October.
13. The claimant's recall was confirmed informally by the Parole Board on 31 October. Nothing turns on this extra-statutory step in the procedures.
14. There was then a formal referral of the case to the Parole Board in accordance with s.39(4)(b) of the 1991 Act. The Secretary of State's evidence is that on 8 November (it is accepted that the reference in the witness statement to "8 September" is a typographical error for "8 November") the claimant was informed of his right to make representations to the Board and was provided with a copy of the parole dossier for this purpose, i.e. he was given the same bundle of material as was being provided to the Board for its consideration of the case. It will be necessary to come back to this aspect of the evidence.
15. Written representations on behalf of the claimant were submitted to the Parole Board on 28 November. Those representations concentrated on the written reasons that had been given by the Secretary of State for revocation of the licence. It was submitted that the revocation was unlawful and that the claimant should be released as a matter of urgency. Brief reference was made to the claimant's previous history, the index offence, his release from prison, and the initial recall decision and its rescission. It was said that the claimant believed that he was progressing well on his release and was settling back into the community. A placement was arranged for him at Manchester Royal Infirmary to seek assistance, to which he went of his own accord and not pursuant to any licence condition. He had discharged himself as he thought he was making progress and did not believe he needed to be there, and he wanted to spend some time with his mother. He had been arrested upon discharging himself, for alleged breach of condition. This, however, was a condition included in the licence conditions imposed after the rescission of the first recall decision and the claimant had not seen these licence conditions. As far as he was concerned he had been adhering to all licence conditions. It was submitted that licence revocation in circumstances where he had not seen or been advised of the revised licence conditions was unjustified and unlawful.
16. On 10 December the Parole Board rejected the claimant's representations against recall and thereby confirmed the recall decision. The reasons given were as follows:

"The panel has read all the papers in this case including Mr Jackson's representations.

Mr Jackson committed the index offence in drink. It involved a robbery during which he threatened the victim with a hand grenade. He has a history of drink related violence and other offending and has received psychiatric input across a number of years.

It is therefore of concern he admits to consuming a large amount of alcohol and to being extremely abusive to probation staff on release.

His behaviour prior to recall gave rise to serious concern about the risk of self-harm and of re-offending and he is considered at high risk to himself and the public.

His representations are rejected."

17. A claim for judicial review was lodged in February 2003. It proceeds now on amended grounds. The claimant was released from prison on the expiry of the three-quarter point of his sentence, so that the only remaining question is that of liability to damages.

First issue: lawfulness of recall

18. It is accepted on the claimant's behalf that it will only be in exceptional circumstances that a recall, which is basically an administrative act, could be said to be unlawful. It is contended, however, that this is one such exceptional case.
19. Ms Krause's primary submissions are straightforward, namely that (i) the reasons for the recall decision, or at least the only reasons upon which the Secretary of State is entitled to rely, are those set out in the written statement of reasons provided to the claimant on 25 October following his return to prison, and (ii) that a decision based on those reasons was unlawful since it relied on breach of a condition that was not contained in the claimant's licence.
20. If submission (i) is correct, then in my view there is no answer to submission (ii). Although the written statement refers to matters going beyond the breach of condition, the breach is at the heart of the reasons given for recall ("You have been recalled to prison because you have breached condition 5 (viii) of your licence in the following way …"). The condition in question was not contained in the copy of the licence that had been given to the complainant. There is nothing to show he was otherwise notified of it. The reason was therefore plainly a bad reason and could not provide a lawful basis for the recall decision.
21. The real question is therefore whether submission (i) is correct. In support of her submission Ms Krause relies on R v. Westminster City Council, ex parte Ermakov [1996] 2 All ER 302. That case involved notification of a finding of intentional homelessness under s.64(4) of the Housing Act 1985, which imposed a duty to notify the reasons at the same time as notification of the decision. In defending a judicial review challenge to the decision, the council argued that the reasons originally notified were mistaken and that the true reasons were those given in an affidavit of the decision-maker which was filed in the judicial review proceedings themselves. The Court of Appeal held that the council should not be permitted to rely on the later reasons or to justify the legality of the decision on the basis of them. In setting out his conclusions, Hutchison LJ stated (pages 315h-316d):

"(2) the court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in ex parte Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.

(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possible for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive."

22. In R (Nash) v. Chelsea College of Art and Design [2001] EWHC Admin 538, Stanley Burnton J, having reviewed Ermakov and other authorities, summarised the relevant principles as follows:

"34. In my judgment, the following propositions appear from the above authorities:

i. Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northampton County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.

ii. In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:

a. Whether the new reasons are consistent with the original reasons.

b. Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

c. Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).

d. The delay before the later reasons were put forward.

e. The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.

35. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons. …"

23. Ms Krause submits that the statutory context in the present case is similar to that in Ermakov (a statutory duty to give reasons a short time after the decision, even if not at the same time as the decision) and that the reasoning in Ermakov applies equally here. She further submits, as regards the reasoning of Stanley Burnton J in Nash, that the court should apply anxious scrutiny and be less ready to accept subsequent reasons since the subject matter is the liberty of the subject.
24. In my judgment there are important distinctions between this case and Ermakov:

i) First, there is no statutory duty to give reasons at the same time as time as the recall decision; and it is understandable why there is no such requirement in the case of a recall under s.39(2) in particular, since the subsection contemplates that a decision may be taken as a matter of urgency in the public interest. The statutory requirement is that reasons are to be given later and for the purpose of enabling the recalled prisoner to make representations to the Parole Board on a referral of the case under s.39(4).

ii) On the facts this is not a case where later reasons are advanced to contradict earlier reasons. The document relied on as recording the actual reasons for the decision taken on 22 October is the report of 24 October which sets out, in accordance with the procedure for emergency applications, the matters upon which the request for a recall was made. That document pre-dated the written statement of reasons prepared on 25 October. It is true that the later witness statement is sought to be relied on to identify the document of 24 October as the critical document and to explain that the document of 25 October was drafted on a mistaken basis by an inexperienced and temporary member of staff. But the circumstances are materially different from those in Ermakov, where the later affidavit was sought to be relied on as setting out reasons that contradicted those in the only contemporaneous document.

25. Accordingly this is not a case where there was a statutory duty to give reasons as part of the notification of the decision, so that "the adequacy of the reasons is itself made a condition of the legality of the decision" (see (i) of the quotation above from Nash). The court must still be cautious about accepting later evidence of reasons, and the need for caution is all the greater given that the subject matter is as serious as the liberty of the individual. But in the circumstances of this case I am satisfied that the matters set out in the 24 October request for recall can properly be relied on as the best evidence of the reasons in the mind of the decision-maker at the time when the recall decision was made, and that the court can and should accept that the 25 October statement of reasons was made in error. The statement of reasons still has an important part to play when considering the lawfulness of the Parole Board's confirmation of the recall, since it was the document on which the claimant's solicitors placed particular reliance in making representations on his behalf. But the Secretary of State should not be bound by that statement of reasons when justifying the original recall decision.
26. I therefore reject the first way in which Ms Krause puts the claimant's case.
27. Her alternative submission is that even if the relevant reasons are those set out in the 24 October request for recall, the decision based upon them was irrational. This was not a point taken in the claim form, but Mr Maurici for the Secretary of State was not embarrassed by it being taken late and I think it appropriate to entertain the submission.
28. The argument as to irrationality is based on the contention that the only specific matter relied on in support of the request for recall and therefore the recall decision itself is that the claimant had discharged himself from hospital against medical advice. Miss Krause points out that, as appears from his later representations to the Parole Board, he had admitted himself to hospital voluntarily. She says further that there is no specific example given of what else the claimant is supposed to have done to give rise to the concerns expressed in the document and that, in so far as reliance was placed on the circumstances surrounding the first recall decision as giving rise to concerns, it was unreasonable to place any weight on what happened at that time since the claimant had subsequently cooperated with the Probation Service and the recall decision had been rescinded.
29. In my judgment the recall decision, based as it was on the matters set out in the request dated 24 October, was plainly rational. It was permissible to have regard to all the matters set out in that document, including the claimant's history, the circumstances following his release and more recent events. The assessment made by the probation officer was that he presented an immediate and significant risk of harm to the public and that he was himself vulnerable. In the circumstances as outlined this was an entirely tenable assessment and the caseworking manager at the Sentence Enforcement Unit was entitled to rely upon it. It provided a perfectly proper basis for recall. Indeed I am inclined to the view that any decision other than to recall the claimant would have been irresponsible in the circumstances.
30. Accordingly I hold that the initial recall by the Secretary of State was lawful. I turn to consider whether the confirmation of that recall by the Parole Board was also lawful.

Second issue: lawfulness of the Parole Board's confirmation

31. The challenge to the decision of the Parole Board has two strands to it, namely procedural unfairness and irrationality.
32. In order to place the rival submissions in their correct overall context, I think it right to refer at the outset to R v. Parole Board, ex parte Watson [1996] 1 WLR 906. That case concerned a decision under s.39(4) in relation to a discretionary life prisoner whose licence had been revoked and who had been recalled to prison under s.39(2). The Court of Appeal rejected an argument that the Board should confine itself to determining the validity of the reasons for recall given by the Secretary of State. Sir Thomas Bingham MR stated:

"It would in my view be subversive of the review regime established by the Act if the board confined itself to reviewing the validity of the Secretary of State's reasons for recall. It is the judgment of the board as an independent quasi-judicial review body, not the judgment of the Secretary of State as an arm of the executive, which matters. He is a party to the review, and of course his evidence and submissions must be received and weighed. But the board must makes it own mind up, and give its own reasons. It would seriously undermine the integrity of the system if the board were to defer to the Secretary of State's view unless it were shown to be wrong. It is itself the primary decision maker." (916E-F)

33. Although Watson concerned a discretionary life prisoner, the statutory context is the same and I see no reason for attributing to the Board in this respect a different role according to whether the recalled prisoner is a discretionary life prisoner or not. I note further that s.32(3) requires the Board to deal with all cases "as respects which it makes recommendations under this Part" (i.e. including the exercise of its powers under s.39(4)) on consideration of (a) any documents given it by the Secretary of State and (b) any other oral or written information obtained by it, and that it may authorise one of its members to interview the prisoner if in any particular case it thinks it necessary to do so. Directions given by the Secretary of State to the board under s.32(6) also require the board to determine inter alia whether the prisoner is likely to comply with licence conditions in the future, "taking into account in particular the effect of the further period of imprisonment since recall". All these considerations tell conclusively in favour of the view that the role of the Board is not simply to review the reasons given by the Secretary of State for recall but to look at the wider picture and decide for itself whether the recall should be maintained or whether the prisoner's immediate release should be recommended. I understood Ms Krause to accept that position in her oral submissions, though it had not been clear from the claimant's written material.
34. Ms Krause emphasised, however, that this is subject to the need to comply with the requirements of procedural fairness. She also suggested that there exists a distinction between the actual circumstances of Watson (a discretionary life prisoner who had an oral hearing, so that all matters were looked into by the Board) and the circumstances of the present case (decided on written representations only) and that this makes it necessary to look more closely at whether there was fairness in relation to the written representations. She relied too on an observation of Sedley LJ in R (West) v. The Parole Board [2002] ECWA Civ 1461 at paragraph 23 where, referring to the gravity of the impact of recall to prison he stated that it "accordingly calls for a high standard of fair procedure". (I note that it was no part of Ms Krause's submissions that this claimant was entitled as a matter of fairness to an oral hearing, an issue covered in R (Smith) v. Parole Board [2003 EWCA Civ 1269.)
35. The case on procedural unfairness focuses on the difference between the Secretary of State's written statement of reasons, which was the document submitted by the Secretary of State to the Board, and the reasons given by the Board itself for confirming the recall. What is said is that the claimant, having been served with the written statement of reasons, concentrated on those reasons in his written representations, but that the Board relied on different matters altogether, including in particular the circumstances of the first recall, in support of its own decision. Those different matters were not put to the claimant. Had they been put to him, he could and would have made representations in relation to them, in particular by pointing out that the first recall had been rescinded on the grounds of his remorse and subsequent co-operation with the Probation Service. The denial of an opportunity to him to make such representations was procedurally unfair.
36. I do not doubt the need for a high standard of procedural fairness in this context; and if the Board had relied on material that was not provided to the claimant and on which he did not have an opportunity to comment, there would be very considerable force in the submission as to unfairness. On the evidence before this court, however, the claimant did have exactly the same material as was submitted to the Board and did have the opportunity to make representations in relation to it. The witness statement of Ms Adams on behalf of the Secretary of State states in terms that the claimant was provided with a copy of the parole dossier for the purpose of his right to make representations to the Board. That accords with the normal procedure in such cases. The directions given to the Board by the Secretary of State under s.32(6) includes the statement that the prisoner "will be served with the papers on which the decision to recall was taken and informed of the right to make representations under s. 39(3) of the Criminal Justice Act 1991".
37. The witness statement was served in June 2003 and was at no time prior to the hearing in October the subject of any questions from the claimant or any evidence in rebuttal. During the hearing before me, Ms Krause managed to obtain instructions about the documents received by the claimant's solicitors for the purpose of drafting their representations to the Board on the claimant's behalf. Her instructions were that the solicitors did obtain certain documents prior to the referral of the case to the Board, but that those documents did not include the letter of 1 October 2002 from the Probation Service to the Sentence Enforcement Unit seeking rescission of the first recall decision. The documents did, however, include the 24 October request for recall as well as the written statement of reasons for recall, the copy of the licence as given to the claimant and a copy of the licence containing the additional conditions. All of that material was obtained from the Sentence Enforcement Unit prior to 8 November 2002. There does not appear to have been contact between the claimant and the solicitors after 8 November. Accordingly, the information provided by Ms Krause on the basis of her instructions does not contradict the evidence for the Secretary of State that a copy of the parole dossier itself was given to the claimant on 8 November.
38. Looking at the matter overall, it is plain that the court must proceed on the basis that the claimant had all the material that was before the Board and that it was open to him through his solicitors to make representations in relation to all of that material. If the solicitors had received the parole dossier from the claimant and had considered the letter of 1 October 2002 in that dossier, they could have included reference to it in their representations. They could, for example, have commented that no adverse weight should be attached to the claimant's admitted drunkenness and abusive language having regard to his subsequent remorse and co-operation which led to a rescission of the recall decision. They could have been expected to do so since they must have been aware of the fact that, in accordance with the decision in Watson, the Board is not confined to reviewing the reasons given by the Secretary of State but is required to look at the wider picture and form its own judgment. The fact that the solicitors made representations of a more limited nature, focusing essentially on the breach of condition alleged in the Secretary of State's statement of reasons, may well be attributable to the fact that they did not have a copy of the letter of 1 October. But neither the Secretary of State nor the Parole Board is to be blamed for the failure of the claimant to pass on documents to his solicitors, nor is the lawfulness of the Parole Board's decision affected by it. I therefore reject the main argument of procedural unfairness advanced by Ms Krause.
39. In rejecting that argument, I have not lost sight of the fact that the claimant was misled by the erroneous statement of reasons he had been given by the Secretary of State. It is deeply regrettable that the error was not spotted and corrected before the Parole Board reached its decision. On the other hand, it meant that the claimant's solicitors were able to mount a cogent attack on the only reasons for recall that were advanced by the Secretary of State before the Board. The effectiveness of those representations is evidenced by the fact that the Board placed no reliance on the Secretary of State's stated reasons in support of its own decision. None of that, however, renders the Board's procedure unfair.
40. Ms Krause makes a subsidiary submission that if the Board was going to rely on specific matters such as the incident of drunkenness and abuse that prompted the first recall, rather than on matters of general application such as the claimant's offending history, the Board should have put those matters back to the claimant for comment before reaching a decision. I reject that submission also. The distinction between specific matters and matters of general application is a very uncertain one and cannot justify the difference in procedure contended for. The claimant had the opportunity to make such representations as he wished on all the material. It was not incumbent on the Board to identify and to put back to him for comment those aspects of the material, whether specific or general, upon which they were minded to place particular weight.
41. The second element of the challenge to the decision of the Parole Board concerns the rationality of the decision. Again this was a point not taken in the claim form but it did not embarrass Mr. Maurici to deal with it. It is based on much the same line of argument as in relation to the initial recall decision. The submission made is that the reasons for the Board's decision are not adequate reasons since they rely on matters that were no longer current, given that the claimant's behaviour had improved to the extent that the first recall decision was rescinded. Further, the nature of the risks referred to is not particularised.
42. In my judgment there is no substance to those points. It was plainly permissible for the Board to have regard to the claimant's conduct leading to the first recall decision, even if there was subsequently an improvement leading to his recall. Although the previous concerns had been reduced to the extent that the initial decision was rescinded – a matter that the Board no doubt took into account - the claimant's more recent behaviour had amplified those previous concerns. Further, the concerns must be looked at against the background of the claimant's previous history and the index offence. The reasons given by the Board record that the panel had read all the papers. It plainly had regard to the whole picture and did not limit itself to the events leading to the initial recall decision. The weight to be attached to the relevant considerations was a matter for the Board. The conclusion that the claimant was considered to be at high risk to himself and the public was one reasonably open to the Board on the material before it.

Conclusion

43. For the reasons given above, the challenge to the lawfulness of the initial recall decision and of the Parole Board's confirmation of that decision fails. It follows that no question of liability to damages arises. The claim must be dismissed.