Case No: CO/11606/2009
Neutral Citation Number: [2010] EWHC 2257 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX

Date: Monday, 2 August 2010
Before:

HIS HONOUR JUDGE PELLING QC
(Sitting as a Judge of the High Court)

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Between:

	The Queen on the application of
CHATER	
   Claimant	
	- and -		
	
(1) SECRETARY OF STATE FOR JUSTICE

(2) THE PAROLE BOARD 	
     First Defendant

   Second Defendant	

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(DAR Transcript of 
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Mr Field appeared on behalf of the Claimant.
Mr Manknell appeared on behalf of the First Defendant.
Mr Wastell appeared on behalf of the Second Defendant.

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Judgment
His Honour Judge Pelling QC:

1.	This is the hearing of a substantive application for judicial review, which depends upon an allegation that the second defendant has breached its obligations under Article 5(4) of the European Convention on Human Rights in relation to its consideration of a review following the claimant’s recall to prison after he had been released on licence, and an allegation that, when eventually the review hearing took place, the Parole Board acted unlawfully by applying the wrong test in considering that the claimant ought not to be released. 
 
2.	The relevant facts are not in dispute.  The claimant has a long history of sexual offending against children.  Although the history is set out in the documentation it is not necessary to dwell on it in detail, because it is not relevant to the issues that I have to resolve in relation to this application.  In 2001 the claimant was sentenced to five years’ imprisonment with an extended licence period of three years, and in 2004 the claimant was sentenced to four years’ imprisonment with an extended licence period of five years.  On 14 March 2007 the claimant was released on extended licence conditions as contemplated by the original sentence.  

3.	On 11 April 2007 the claimant was recalled to custody by the first defendant, the Secretary of State for Justice, following allegations that the claimant had breached his licence conditions.  On 11 October 2007 there was an oral hearing before the Parole Board.  Whilst not authorising release, the Parole Board concluded that the claimant’s recall was not appropriate.  In reaching that conclusion the Parole Board’s panel said this at paragraph 12 and following of the decision: 

“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.

4.	In relation to the question of release the panel reached the conclusion I have identified in relation to the recall decision, and said the following in relation to release: 

“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.

5.	The position was next considered by the Parole Board on 13 October 2008. In a report dated 24 October 2008, the Parole Board said this:

“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.”

6.	Before proceeding further I should record that, at paragraphs 9 to 10 of his skeleton submissions, counsel for the claimant sought permission to bring judicial review proceedings in relation to the recall decision in 2007.  This was opposed by the first defendant on the grounds that permission had been refused by me in respect of the recall decision on the papers and no notice of renewal had been served.  In relation to that issue, however, as matters turned out, at the commencement of this hearing it was acknowledged by counsel for the claimant that to attempt to proceed with an application for permission to bring judicial review proceedings in relation to the recall decision could not hope to succeed because, first, it had been left until far too late, having regard to the strict time constraints that apply to the commencement of judicial review proceedings, but also secondly because it could not be alleged that the decision of the Secretary of State to recall was unlawful; merely that, in the circumstances as they were subsequently investigated by the Parole Board, it was found that recall was inappropriate.  In those circumstances, and following the decision of the Court of Appeal in R (Gulliver) v The Parole Board [2007] EWCA Civ 1386, [2008] 1 WLR 1116, there was no prospect of judicial review succeeding in relation to the recall decision.  As I have already said, there were no applications for judicial review of either previous review by the Parole Board, and thus the only decision which has been the subject of challenge is that of 1 February 2009, to which I come in a moment.

7.	I return to the chronology.  The claimant’s case was, as I have said, considered by the Parole Board on 13 October 2008.  That was a paper review that took place, notwithstanding that the claimant’s solicitors had requested an oral hearing.  On 24 October 2008 the Parole Board refused to sanction release, saying that the claimant remained a very significant risk, as I have described.  A further request for an oral review was made and the case was listed by the Parole Board for a hearing on 27 May 2009.  Due to a listing error the case was listed for hearing at Her Majesty’s Prison Hull, rather than Her Majesty’s Prison Full Sutton, where the claimant was detained.  The hearing did not take place, even though the case was ready for hearing, and could have been heard but for the listing error.

8.	An alternative hearing could not then be arranged before 26 January 2010.  There was thus a delay of about eight months.  The second defendant, the Parole Board, accepts that this constituted a breach of Article 5(4).  There is no doubt that that concession has been properly made: see the analysis concerning delay caused by errors on the part of the Parole Board in R (Pennington) v The Parole Board [2009] EWHC 2296 (Admin).  It was this delay that led Blake J to grant permission to the claimant to seek declaratory relief and/or damages for breach of Article 5(4) of the Convention on 29 October 2009.  However, the judge stayed these proceedings until the outcome of the Parole Board hearing, which was then due to be for hearing on 26 January.

9.	The Parole Board hearing took place as planned, and by a decision on 1 February 2010, the Parole Board again declined to order release.  The decision letter prepared is at page 292 in the supplemental bundle.  Insofar as is material, it provides as follows: 

“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

10.	At paragraph 3 there then followed analysis of the offending over time.  It was noted that the claimant had been released on his non-parole date, that it was subject to stringent licence conditions, including management at MAPPA Level 3, and subject and SOPO.  It records that the claimant was recalled some four weeks later, because he failed to remove himself when a child sat next to him at a public library; that that was the subject of a review which led to the conclusion that the recall was inappropriate, but that the claimant should nevertheless not be released, as I have explained.

11.	Paragraph 3 of the decision letter then goes on to record various convictions, and the responses that had been demonstrated by Mr Chater prior to the index offence in his sentencing.  At paragraph 5, under the heading “Factors which increase or decrease risk of reoffending and harm”, there is then listed in summary form a series of words and phrases which were designed to identify presumably factors which increased rather than decreased risk.  At paragraph 6 there was then an assessment of current risk of reoffending and serious harm, which was in these terms: 

“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.”

12.	There was then consideration at paragraph 7 under the subheading “Evidence of change during sentence” of progress that had been made during the period of the claimant’s incarceration.  It noted that the claimant had completed an ETS course in 2002, and an SOTP during his sentence, but it was reported that the progress that the claimant had made on the Core programme was poor, and the report continued: 

“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.”

13.	Following the delivery of that report an application was made to bring judicial review proceedings.  That came before me on paper on 13 April 2010 when I refused permission to bring judicial review proceedings in relation to the decision to recall in 2007 but gave permission to challenge the lawfulness of the decision to refuse to release dated 1 February 2010.  Thus, the position procedurally is that the claimant has provision from Blake J to seek a declaration and damages in relation to what is now admittedly a breach of Article 5(4) of the Convention in relation to the delay that occurred as a result of the mis-listing of the oral hearing and from me to challenge the lawfulness of the decision to refuse to release. The issue concerning the lawfulness of the recall decision no longer arises, for reasons that I have already discussed.  

14.	However, the Article 5(4) claim is in every sense dependent upon not merely the outcome of the decision in relation to the lawfulness of the decision taken on 1 February 2010, but also what happened subsequently, assuming that that decision were to be quashed.  This is so because there is a considerable body of authority, of which R (Betteridge) v Parole Board [2009] EWHC Admin 1638 is the lead example, for the proposition that claims in damages cannot be brought unless it is demonstrated that the claimant would have been released by a decision taken at a hearing which had occurred when it should have done, as opposed to when in fact it did.  Likewise, that and other cases are authority for the proposition that declarations should not granted, and serve no useful purpose, unless it can be demonstrated that the claimant would have been released at a speedily held hearing.  

15.	Thus, the first and critical issue that has to be addressed is whether the decision of the Parole Board arrived at in February 2010 ought to be quashed or not.  In the event that it is, then the claimant submits the damages claim should be further stood over, to await a further decision of the Parole Board arrived at, as the claimant would have it, in accordance with correct legal principle; whereas if it is not quashed, then the damages claim falls with the challenge to the Parole Board’s decision of 1 February.

16.	Section 85 of the Powers of Criminal Court Sentencing Act 2000 is the basis on which the original sentence was pronounced.  That provision provides: 

“(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.”

17.	The approach of the Parole Board where a prisoner has been recalled is governed by sections 239 and 254 of the Criminal Justice Act 2003.  Section 239 provides as follows, insofar as is material: 
“(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 …”

18.	The relevant directions, for present purposes, are to be found in a document entitled “Directions to the Parole Board under section 239(6) of the Criminal Justice Act 2003 - Issued April 2005”.  Insofar as is material, those corrections contain the following: 

“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.

19.	Finally, so far as the statutory material is concerned, I need to refer to section 254 of the 2003 Act, which is in these terms: 

“(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.

20.	These provisions to which I have so far referred have been the subject of a number of decisions of the court, including two of central importance by the Court of Appeal.  The lead cases which contain the relevant principles, in my judgment, are the case of R (Sim) v The Parole Board [2003] EWHC 152 (Admin), [2003] EWCA Civ 1845, [2004] QB 1288; and the decision of the Court of Appeal in R (Gulliver) v The Parole Board [2007] EWCA Civ 1386, [2008] 1 WLR 1116.  The relevant principles to be derived from these authorities, in my judgment, come to this.  From Gulliver there are to be derived the propositions that, first, a decision to recall will not be reviewable, save in exceptional circumstances where it can be demonstrated that the recall decision was itself unlawful; thus, a decision which would have been lawful, assuming the facts to be those that had been reported to the Secretary of State and which led to the Secretary of State’s decision, is not reviewable, the correct remedy being to apply to the Parole Board for release.  The second proposition to be derived from that decision is the proposition that in reaching a decision the Parole Board adopts a two-stage process, asking itself, first, in relation to a recall decision, whether the recall was appropriate, but then secondly whether the person concerned ought to be released by reference not merely to the circumstances of recall, but also by assessment of the risk to the public posed by the re-release of the person concerned, on the basis of all the material available to it when making the decision.

21.	The lead judgment in the Court of Appeal was that of Sir Anthony Clarke MR.  At paragraph 18 he identified the issue which had to be resolved, namely what was the nature of the responsibility of the Parole Board when considering whether to order an immediate release of the prisoner, and then concluding this: 

“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.”

22.	A little later, at paragraph 31, Sir Anthony Clarke said this:

“…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..”

23.	In a judgment concurring with the views of Sir Anthony Clarke MR, Sir Igor Judge, President as he then was, said this: 

“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.

24.	Sir Igor emphasised the nature of the process at paragraph 44 of his judgment, where he said: 

“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.”

25.	The other decision which I need to refer to in some detail is the first-instance decision and the decision of the Court of Appeal in R (Sim) v The Parole Board (see the references above).  The principal point to be derived from that case is contained in paragraphs 46 to 51 of the decision of Keene LJ, giving the judgment of the Court of Appeal in that case.  The issue which had arisen applies specifically to sentences such as that of the claimant in this case, which was an extended licence-type sentence, and the effect that the Parole Board was to give to the sentencing approach of the trial judge in adopting such a sentence.  Keene LJ started at paragraph 46 by quoting and adopting what Elias J had said at first instance at paragraph 53 concerning the objective of an extended sentence in these terms: 

“‘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.”

26.	At paragraph 49, there was a reference to some jurisprudence of the European Court and an acknowledgment of the interpretation of the relevant statutory provisions at paragraph 50 before.  At paragraph 51, Keene LJ said this: 
“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.

27.	In relation to the test to be applied, counsel for the Parole Board identified the test as being that identified by Elias J at first instance in paragraph 65 of his judgment, where he set out his conclusions.  Elias J said this: 

“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 [2004] 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.”

28.	It was submitted in this case on behalf of the claimant, by reference to what Robert Owen J said in paragraph 18 of his judgment in Jarvis, that it had to be demonstrated that the prisoner on licence had been detained following a breach of the terms of the licence or because other information raised fresh fears that he may commit other offences before a decision could be reached that the prisoner should not be released.  It was further submitted on behalf of the claimant that in the circumstances of this case neither of those conditions was satisfied; that this was a claimant who had been wrongfully recalled to prison; that that is what led to the conclusion of the Parole Board that his recall was inappropriate, and that because fresh fears could not be adequately demonstrated on the material before the Parole Board it therefore followed that the Parole Board in fact approached the decision it had to reach in a wrong way.

29.	That, then, is the legal background which I need refer to.  The first issue which arises is this.  In paragraph 1 of the decision of the panel, the Parole Board, it is submitted, clearly mis-stated the test that had to be applied, having regard to the decision of the Court of Appeal in Sim.  This is not seriously disputed on behalf of the Parole Board; indeed, it is conceded, essentially for reasons similar to those adopted by Munby J when he decided the case of R (Dean Solomon) v The Parole Board [2006] EWHC 2639 (Admin).  However, the point which is made on behalf of the Parole Board is that it is not a sufficient basis to justify the quashing of the decision without looking at the overall merits of the conclusion that had been reached, as expressed in the decision letter.  

30.	The submission that was made on behalf of the defendants is that a proper analysis of the decision letter demonstrates to the level required by the appropriate test, that the Parole Board had approached the case in a correct manner, because it had concluded that the risks of reoffending by the claimant were such that it was simply not safe to allow re-release and thus it is that, on a proper analysis, the approach adopted by the Parole Board was the correct one, even if paragraph 1 had been wrongly phrased, reflecting as it does the statutory language that applies without applying to it the analysis that the Court of Appeal set out in Sim.

31.	The submission which is made on behalf of the claimant is that this is misconceived.  This was a claimant who was a high-risk sexual predator, whose risk was clearly known and identified by the trial judge.  Nothing altered throughout the period of his sentence until he was released, and therefore and in those circumstances, it having been concluded that his recall was inappropriate, it was wrong to continue to detain the claimant, because the claimant was no greater, or possibly no lesser, risk than he had been at any stage.  Thus the relevant test could not be satisfied, and the only conclusion that could safely be reached was that the Parole Board had approached the case on the wrong basis and the decision ought to be quashed.

32.	This approach by the claimant ignores, the fact that no challenge has been made to the two previous decisions of Parole Board, in which it concluded that this claimant was a very high-risk sexual offender, who could not be safely managed in the community.  Therefore, whilst it may be said that the judge contemplated that, at the end of the custodial element of the sentence, this claimant’s risk of offending could be managed in the community, in the event and for the reasons set out in the various earlier decisions of the Parole Board, that is simply not so.  

33.	Aside from that, it seems to me that it was open to the Parole Board to reach the conclusions it did by reference to the additional material referred to in paragraph 2 and referred to also in paragraph 7 of the report.  This material leads to the conclusion that, as at the date when the case came before the panel, the position was that the risk posed by this claimant could not safely be managed in the community, and that, in arriving at that conclusion by reference to the material set out in the report, the Parole Board in practice approached the case in precisely the way that it was required to approach it by the statutes and by the Court of Appeal decisions to which I have referred.

34.	Whilst it is perfectly true to say that paragraph 1 of the decision letter is incorrectly phrased, as I have already indicated that is not the end, but rather at best the beginning, of the enquiry.  The real issue that has to be considered is that which is referred to in the cases to which I have made reference, and that is whether, on a proper assessment of all the evidence, the conclusion reached by the Parole Board is that the risk posed by this claimant can be managed in the community or not.  The conclusion which the Parole Board reached was that it could not, on the evidence that was available to it.  

35.	In my judgment, in those circumstances, the failure of the Parole Board correctly to state the test that was required to be applied in paragraph 1, whilst unhelpful in the circumstances, does not entitle this claimant to the quashing of the decision that was made.  It will no doubt be borne in mind by the Parole Board when considering Mr Chater’s case at the next occasion when a review must take place, which at the earliest will be in the late autumn of this year, and at the latest February of next, that in considering how best to approach matters regard must be had to the test as it has been refined and formulated by the Court of Appeal in Sim.

36.	The final point that I ought to make before ending this judgment is that, in the course of his submissions on behalf of the claimant, counsel drew my attention to the sentencing remarks of the trial judge, Judge Faulks.  Judge Faulks, at page 2 lines 4 to 10 of his sentencing remarks, said as follows:

“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.

37.	In those circumstances, the claim is dismissed.

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.

(Pause)

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.