QUEEN'S BENCH DIVISION
1 Bridge Street West
B e f o r e :
(Sitting as a Judge of the High Court)
| The Queen on the application of
|- and -
(1) SECRETARY OF STATE FOR JUSTICE
(2) THE PAROLE BOARD
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Mr Manknell appeared on behalf of the First Defendant.
Mr Wastell appeared on behalf of the Second Defendant.
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His Honour Judge Pelling QC:
"The panel has upheld your representations against the recall, which it has concluded was not appropriate. Firstly, it has found that the recall was instituted on an incomplete or inaccurate report from the police. The recall was based on a telephone on a telephone call from DC Oddy, precise details of which were not available to the panel. Then a minute sheet was submitted by the same officer describing the events relied on. It seems, however, that DC Oddy was never in the library at the time. The description of the events provided in the section 9 statement of DC hall differs in material respects from the minute sheet. It confirms that he was actually in the library. It refers to you reading a newspaper. It gives detailed descriptions of the children and indicates that initially you paid no attention to the children. According to DC Hall's statement the longest time you could have been watching the children was six minutes. The shortest was one minute. The panel finds that your evidence is not incompatible with that of DC Hall, which the panel prefers to the minute sheet. There is no clear objective evidence as to whether you were watching the children or for how long. On one view your evidence is consistent with that of DC Hall and did leave the premises within one minute of seeing a child near you. Accordingly the panel finds that the original report to Probation was not wholly reliable. A number had been involved in your surveillance, including DC Trevarrow, and one might have expected the report to Probation, which it was known would be relied upon, to be as full and unequivocal as possible. That is not to criticise the probation service, which came under pressure to act. The panel has however accepted your explanation of events and that the information on which the recall was instigated was materially flawed. It was perhaps unfortunate that Mr Hooson was not able to have been involved in the recall, having regard to the attention he had given to the issue of your attending the library."
The allegation that was made and which led to recall was that the claimant, in breach of the conditions, or one of the conditions, contained in his licence, had attended a public library and had remained there when some children were present or arrived.
"The panel is however obliged to consider your present risk to the public and whether it would now be appropriate to release you. In this context the panel noted that you were automatically released at NPD. You had completed the SOTP but your progress was poor and hampered by your traumatic experiences of childhood abuse. Your risk remains largely untreated and both your static and dynamic risk is assessed as high or very high. Released at NPD, you were not subject to a pre-release risk assessment. You are a MAPPA level 3 prisoner, who in the opinion of MAPPA and the probation service cannot be safely managed in the community without further intervention whilst you are in custody. For all these reasons the panel is unable to direct your immediate release."
There was no judicial review sought of that decision; nor, as I shall currently explain, were any judicial review proceedings commenced against the Secretary of State for Justice in relation to the recall decision.
"The panel has carefully considered all the reports before it. Mr Chater has a pattern of apparently entrenched sexual offending. He has a history of other offending and breach of trust. The panel has been driven to the conclusion that Mr Chater's risk to the public and to children in particular remains undiminished. It is essentially the same as when he was automatically released on non-parole licence. Only recently his risk of serious harm to children was formally assessed as very high. This is confirmed by his probation officers. Despite completing some offence related work in 2002 he has much to do to reduce his risk to an acceptable level and there would now seem, albeit belatedly, some opportunity for him to do so. Until this is achieved Mr Chater will continue to pose a very high risk. In the panel's judgment the risk is plainly not manageable in the community at the present time. Parole is refused and Mr Chater will have another review in 12 months time."
"1. Decision of the panel:
The Parole Board is required to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Board that considered your case on 26 January 2010 was not so satisfied and has not directed your release."
At paragraph 2 there is then identified the various reports and evidence that was considered by the panel at that stage. It included a dossier and additional documents; it included representations made on behalf of the claimant by Mr Field, his counsel then as now, and evidence also presented by Mr Hooson, the Offender Manager, Mr Garrett, the Offender Supervisor, and Mr Hartland, the prison psychologist, and Mr Chater himself; and there was also before the court a report from Dr Anderson, an independent psychologist
"At the time you were originally sentenced you were assessed by OASys and RM2000 as posing a very high risk of further sexual offending with a specific interest in children. In May 2008 a further OASys assessment continued to place you at very high risk of causing serious harm to children, high risk to any known adult and in the medium risk band of causing harm to the public and staff [...] Your risk of reconviction was described as high with weighted areas of concern other than offending information being accommodation, education & training, relationships, lifestyle & associates, drug & alcohol misuse, OASys update concluded that there was only minimal change and your risks remained in the same bands. The panel agreed with the levels of risk you continue to pose."
"Although the earlier Panel considered your recall to have been inappropriate it also remarked upon the risky situations in which you had placed yourself, noted that you had been subject to a pre-release assessment and were later managed by MAPP at level 3."
There was then a consideration of what Dr Anderson had to say in his report, what Mr Hartland, Mr Garrett and Mr Hooson also had to say, before the panel concluded as follows:
"All three witnesses considered that your risks remain too high for release to be contemplated without work designed to give you a better understating of all the risk factors and to build on the Core programme."
Under the subheading "Plans to manage risk" it was said:
"A risk management plan is yet to be fully formulated although when developed must be mindful of the need for the views of victims."
There was then a conclusion at paragraph 9. The opening paragraph sought to rehearse in summary submissions made on behalf of Mr Chater. It was submitted by Mr Field that the summary was actually a summary of the conclusions reached by the panel; I reject that as untenable, not least because the subsequent paragraph makes it clear that what it was doing was rehearsing the submissions that had been made before arriving at a conclusion. The relevant paragraph reflecting the Parole Board panel's views was the second paragraph within paragraph 9 of the report, which was to this effect:
"The Panel balanced all the issues very carefully, recognising that you have spent a considerable period of time in custody since being recalled. There remain significant concerns as to your lack of strategies to prevent re-offending as you clearly over rely on external measures and controls that would be placed upon you. You were unable to convince the Panel of any in-depth understanding of the triggers to your sexual offending or internal mechanisms to manage risks, which must be subject to further treatment as soon as can be arranged for you. Your risks of re-offending and causing serious harm remain too high to allow re-release."
"(1) This section applies where a court --
(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and
(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.
"(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of --
(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ("the custodial term"); and
(b) a further period ("the extension period") for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above."
"(2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.
"(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter … consider --
(a) any documents given to it by the Secretary of State, and
(b) any other oral or written information obtained by it;
and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.
"(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter … and in giving any such directions the Secretary of State must have regard to --
(a) the need to protect the public from serious harm from offenders, and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation …"
"In determining whether the recall was appropriate, the Parole Board is entitled to take into account the information available at the time the recall decision was taken, together with any subsequent information, including representations made by or on behalf of the offender. The Parole Board should consider whether:
a) The prisoners continued liberty presents an unacceptable risk of a further offence being committed; or
b) The prisoner has failed to comply with one or more of his or her licence conditions; and that failure suggests that the objectives of probation supervision have been undermined.
"In cases where the Parole Board believes that the initial decision to recall was inappropriate, the prisoner should be re-released as soon as it is practicable to do so. In determining when to re-release the prisoner, the Parole Board should satisfy itself that the prisoner presents an acceptable risk to public safety and that adequate risk management arrangements are in place."
As will be apparent from the last paragraph of the directions that I have referred to, the directions contemplate a two-stage process; that is, first, a consideration by the Board as to whether the initial decision to recall was inappropriate, followed by a decision whether to release, which in turn depends upon the risk assessment carried out by the Parole Board.
"(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(2) A person recalled to prison under subsection (1) --
(a) may make representations in writing with respect to his recall, and
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.
(3) The Secretary of State must refer to the Board the case of a person recalled under subsection (1).
(4) Where on a reference under subsection (3) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.
(5) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 183(1)(b) in the intermittent custody order.
(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large."
That then is the statutory framework which relates to the present case.
"The key provisions are sections 254 and 239 of the CJA 2003, from which I have already quoted the relevant subsections. Section 254(1) does not say that the prisoner must be in breach of his licence conditions before he can be recalled. It could easily have done so if that had been intended. There is, I think, much to be said for the view that the power to recall is not so limited, although it is not necessary to reach a concluded view on that question in order to decide this appeal because, as I said earlier, it is accepted that the Secretary of State reasonably thought that the appellant was in breach of his licence conditions, and it cannot be said that the recall is unlawful."
"…a critical function of the Parole Board is to have regard to the risk to the public in reaching its conclusions. It would be very odd if Parliament had conferred a much narrower duty upon it in this type of case without saying so."
Then at paragraph 35 he said this:
"the role of the Parole Board is essentially the same in each of these classes of case. It is to have regard to all the circumstances of the case, including, of course, the circumstances of the recall, but in the end to decide whether to recommend the release of the prisoner having made an assessment of risk to the public, on the basis of all the material available to it when it makes its decision. One of those considerations will, of course, be whether appropriate licence conditions could be devised. The Parole Board considered the available licence conditions in this case and plainly decided that, in all the circumstances, they could not.."
"Nevertheless, whatever its view of that decision, or the circumstances in which it was reached, it is with public safety in mind that the Parole Board must address and decide whether to recommend the release of the prisoner. It is not divested of that responsibility merely because of reservations about the original decision by the Secretary of State. ."
Thus, what Sir Igor was saying was that a two-stage process is required to be undertaken involving an assessment of whether or not recall was appropriate, but then deciding the question of whether to re-release by reference to the public safety issue.
"The supervisory responsibility provides a valuable check on the original decision-making process. The recall order is examined by an independent body, the Parole Board. This provides a discouragement for the slovenly or the cavalier or the corrupt. It may very well be that in such cases, if they arise, the very fact that the process has been so characterized may lead the Parole Board to conclude that the risk to public safety is not established. Nevertheless, in the end the decision required of the Parole Board must depend on its assessment of public safety. I doubt whether it is possible to envisage any circumstances in which the Parole Board can recommend release, where it would otherwise refuse to recommend release on public safety grounds, merely because of deficiencies in the revocation and recall process."
"'In such cases the object of the sentence is not to subject the prisoner to detention for the extended licence period, and indeed frequently when such sentences are imposed there would be no power at that stage to detain the prisoner in custody for that period. The aim of the sentence is to manage the risk in the community rather than in prison, albeit that it is recognised that it may be necessary to resort to further detention if that aim fails. The offender is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty…'
47. Once the prison sentence imposed by the court has been served, once cannot say that the sentencing court had it in mind that the offender should be detained unless it was shown that he was no longer a danger. The presumption implicit in the sentence passed is that during the extension period the offender need not be in custody."
Then at paragraph 48, he said this:
"To have a presumption, therefore, that detention is justified after recall during the extension period is contrary to article 5. No court has decided, prior to matter being dealt with by the Parole Board, that detention is necessary during that period. The executive will be definition have taken that view, since it has decided to recall the offender, but that is not enough for compliance with article 5. As Elias J said, at para 54, the board should not be required to start from the premise that the executive's assessment was correct. It is something about which the Parole Board itself should be satisfied."
"All parties agree that the wording of section 44A(4) can be read and given effect to in the way identified by Elias J, through the application of section 3 of the Human Rights Act 1998. He construed the word 'necessary' in that provision in a flexible way so that the board has to be positively satisfied that continued detention is necessary in the public interest if it is to avoid concluding that it is no longer necessary."
Thus the Court of Appeal concluded that the default position, insofar as one was necessary to be adopted in a case such as that I am considering, is one which favoured liberty over detention, but in circumstances where, as was acknowledged at first instance, it is highly unlikely that cases will turn upon assumptions or presumptions of that sort.
"Accordingly, the detention must be consistent with the aims and objectives of the original sentence and must be subject to regular supervision by reviews which are compliant with Article 5.4 (as indeed they currently are.)
(2). Section 44A(4) of the CJA 1991 must be construed so that the Parole Board is obliged to conclude that it is no longer necessary to detain the recalled prisoner unless the Board are positively satisfied that the interests of the public require that he should be confined.
(3) The Parole Board must be satisfied that the public interest requires that the prisoner be confined because of the risk that he will commit further offences, of either a sexual or violent nature, which the extended sentence was designed to deal with. The Board does not, however, have to be satisfied that the risk is a high one, or that there is a substantial risk of physical or psychological harm. Nor does the Board need to have evidence of behaviour which of itself is directly linked to the risk of committing further offences. The sentencing judge has already identified such a risk, and accordingly it is enough if the evidence shows that the arrangements for supervision in the community cannot be sustained so as properly control that risk."
It is not seriously contended that that is not a correct reflection of the law, subject of course to the Court of Appeal's observations concerning the presumptions to be made, in the event that the case has to be decided by reference to presumptions.
There is one other case that I should refer to, because it is a direct application to a situation similar to that which I am concerned with of the principles that I have identified - R (Jarvis) v The Parole Board  EWHC 872 (Admin), a decision of Robert Owen J. The key point there is that at paragraph 12 the judge records that counsel for the claimant had submitted that a causal connection between the conviction and the deprivation of liberty which had to exist had been broken by the decision that had been taken. The submission was that the objective of the sentence imposed on the claimant was that following a period to be served in custody he should be released and rehabilitated in the community under the extended period of his licence. He submitted that in passing the sentence that he did the trial judge was making an assessment of the risk that the claimant presented and that the Parole Board should only have refused to direct his release where there had been a demonstrable increase in risk leading to recall, and where such increase could not be managed in the community, as the sentencing judge had intended. That submission was resisted by counsel for the Parole Board in that case, and the conclusion which the judge reached was set out at paragraph 18 in these terms:
"The argument that the approach of the Parole Board was fundamentally flawed is misconceived. There was no requirement to carry out a comparative evaluation of the risk existing at the point at which sentence was passed and that existing at the date of the hearing before the Parole Board. The Board was obliged to consider whether, in the light of all the evidence placed before it, it was satisfied that it was no longer necessary for the protection of the public that the claimant be confined. As Elias J observed in paragraph 34 in Sim, where a prisoner on licence is detained following breach of the terms of the licence, or because other information raises fresh fears that he may commit further offences, there is no severing of the causal link between the sentence for the original conviction and the subsequent detention."
"That is the custodial part of the sentence, but I am conscious of your danger to the public, and for the protection of the public I propose to extend that sentence by five years. That means that whenever you are released from your four year sentence, if you misbehave, you breach your licence, you are liable to be recalled to serve the balance of this sentence. So it is, in effect, a nine year sentence that I am passing on you today."
It was submitted that what has happened does not accurately reflect what the judge intended. In my judgment, that is not a legitimate ground of complaint available to the claimant. The judge was attempting in simple language to explain the effect of some very complicated statutory provisions. It is the statutory provisions which govern the outcome in this case, as construed by the higher courts, and in particular the Court of Appeal in Sim. Thus it is, it seems to me, that no legitimate comfort can be obtained in the circumstances of this case by the claimant from the judge's sentencing remarks.
Mr Wastell: My Lord, I am instructed to seek costs in principle from 12 February 2010.
Judge Pelling: Is that when they got public funding? Are you publicly funded?
Mr Field: We are publicly funded.
Judge Pelling: All the way through?
Mr Field: All the way through.
Judge Pelling: Right.
Mr Wastell: My Lord, that is the date on which the decision of 1 February had been published, and we wrote to the other side suggesting that they withdraw, or invited that --
Judge Pelling: So you are content with an order for costs in the usual form, not to be enforced without leave?
Mr Wastell: From 12 February. I am not instructed to seek costs before that.
Judge Pelling: You are content with that, I presume?
Mr Field: My Lord, I could not legitimately oppose that.
Judge Pelling QC: All right. There will be a costs order in those terms. Could you let me have an order which sets it all out, a draft, and I will approve it in due course?
Mr Field: My Lord, could I clarify, that is in similar terms to the earlier order, that because of the claimant's status that is not to be enforced --
Judge Pelling: Yes, absolutely, that is what I said.
Mr Field: I missed that.
Judge Pelling: All I am asking that an appropriate minute be drawn up, and we can have it through the usual channels, and then it can be seen.
Mr Field: My Lord, I have two applications. Could I first of all apply to my Lord for leave to appeal, on the basis that the Parole Board in this case has made a decision unprecedented, I would submit, on any of the authorities, in that it has found no new material on which it based its reassessment of the claimant's risk that it submitted had not altered since the judge passed a sentence, knowing the claimant's risk factors?
Judge Pelling: All right, can you just give me a moment, I have to fill in the form.
Judge Pelling: Yes, so your grounds are essentially those you have already argued?
Mr Field: Yes.
Judge Pelling: Anything you want to say in answer to that?
Mr Wastell: My Lord, just that there is no basis for that. (inaudible) Court of Appeal authority (inaudible).
Judge Pelling: Anything you want to add?
Mr Field: No, my Lord.
Judge Pelling: Permission to appeal is refused, because on the established authorities the claimant's case is not realistically arguable. In particular, although paragraph 1 of the decision wrongly states the relevant test, in fact the Parole Board approached its task and reached its decision on a lawful basis.
Mr Wastell: Then the final application, my Lord, is an order for a detailed assessment of the claimant's publicly funded costs.
Judge Pelling: That must be the order, yes. Right, any other business?
Mr Wastell: No, my Lord.