England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

		The Court House Oxford Row Leeds LS1 3BG
		31st March 2011

Judge Behrens :

1. Introduction

1. Mr Chester was born on 4 October 1954 and is thus 56 years old. On 1 March 1978 he was convicted of the murder of his 7 year old niece, Donna Marie Gillbanks. He was sentenced to life imprisonment. The tariff set by the trial judge was 12 years. The tariff was subsequently reviewed by the Secretary of State, and set at 20 years. It expired on 29 October 1997. Mr Chester has now spent over 33 years in prison.
2. Mr Chester's case has been reviewed by the Parole Board on six previous occasions – in June 1995, January 1998, July 2000, December 2004, December 2006 and September 2008.
3. The seventh review of Mr Chester's case took place in May 2010. It was a paper review. The Parole Board considered that Mr Chester was unsuitable for release or for a recommendation that he should be transferred to open conditions. Mr Chester was dissatisfied with the decision and applied for an oral hearing to look properly and carefully at the risk.
4. By a decision dated 1^st June 2010 the oral hearing was refused. The reasons for that decision are contained in the fourth paragraph of the decision letter:

Mr Chester's application for an oral hearing centres on his assertion that his case and assessments of risk require an oral hearing to be fully explored. He states that he challenges the dossier, although he is not specific about what he challenges and does not state what legal argument might be put to a hearing. He does not state what it is about his case that cannot be considered on the papers alone and there is no evidence that his areas of risk have been addressed, as indicated in the paper decision. The member considered that there was insufficient justification for an oral hearing and therefore the application was refused.

5. In this application Mr Chester seeks judicial review of the decision of 1^st June 2010 by which he was refused the oral hearing. It will be necessary to consider his grounds in detail later in this judgment. In summary he submits that in the circumstances of this case it was unfair to deny him a hearing. The Parole Board seeks to resist the challenge. In summary it contends that there was no realistic prospect of release or a move to open conditions and the decision to refuse an oral hearing was fair.
6. On 29^th September 2010 Judge Langan QC granted permission. In doing so he made the following comment:

The Claimant should not be unduly optimistic. The defence argument based on the availability to the Board of the Claimant's detailed and highly articulate written submissions is a strong one: and he could, if he wished have supplemented these by further written submissions after he received the dossier. Against this, the overall length of the time served by the Claimant, the amount by which the tariff has been exceeded, and the fact that something of an impasse has been reached in the management of his sentence, support the view that procedural fairness required he be granted an oral hearing. His case is not one marked out for obvious success, but is fairly arguable.

2. History up to the seventh review

2.1 The index offence

7. It is accepted by Ms Krause that the circumstances of the offence were horrific. Mr Chester murdered his 7 year old niece. On the night of the offence Mr Chester went to his sister's house whilst drunk and while looking for the bathroom he entered his niece's bedroom, raped and strangled her. Her mother found the body of her daughter in the morning.

2.2 The first review – June 1995

8. As already noted Mr Chester's 20 year tariff expired in October 1997. At his first parole board review Mr Chester had accepted his guilt and sought transfer to an open prison. It was recommended that he be transferred to a Category C prison but the Parole Board recommended he remain in category B conditions.

2.3 The second review – January 1998

9. Mr Chester had not co-operated with the process of preparing reports in readiness for the review. He showed no victim sympathy or remorse. He had completed anger management and alcohol awareness courses, but had declined to participate in the Sex Offenders Treatment Programme (SOTP). The probation officer felt that until he had completed such a course no complete assessment of risk could be made. Mr Chester was considered to represent a high risk until he was able to accept responsibility for the offence, and its consequences, and could be seen to be working through related issues. The Board did not consider him suitable for release or a move to open conditions.

2.4 The third review – July 2000

10. By this stage Mr Chester had completed the SOTP. He had demonstrated good victim empathy and had made considerable progress in addressing his offending behaviour. The probation officer felt there was still work to be done with respect to addressing future risk. The psychologist, however, felt that progress had been minimal and there was a substantial amount of work to do. Mr Chester had refused interviews with the psychologist and the wing manager. The Board did not recommend release or transfer to open conditions.

2.5 The fourth review – December 2004

11. An impasse in Mr Chester's progress was noted. He had expressed a degree of remorse in relation to his offence. Emotional difficulties had seen Mr Chester placed on two separate F2052sh procedures to guard against self harm. Although angered by the lack of progress he still maintained a degree of motivation.
12. Upon being transferred to HMP Brixton in order to undertake the Extended SOTP, Mr Chester had deselected himself from the programme after 3 weeks, because of his faith. The psychologist's report highlighted revealed concerns about his coping skills, and identified assessment for various courses, including the Extended SOTP and other programs. None of the report writers recommended release or a move to open conditions. The Board did not recommend any such move.

2.6 The fifth review – December 2006

13. Mr Chester had remained reluctant to engage in treatment programmes as outlined by his sentence plan. He had failed to accept that it was his unwillingness to engage in specific programmes that had impeded his progress. He was bitter that he had spent 29 years in prison. The report writers had noted that Mr Chester would have difficulty in evidencing a reduction in risk, and that he would still be regarded as a danger to the general public until he had completed further work, including the Extended SOTP. Offence focused work had been readily available at HMP Frankland. Mr Chester had received external support through visits from members of the Jezreel New Testament International Church. Once again, the Board concluded that Mr Chester's risk factors remained unaddressed, had not been reduced, and therefore no recommendation for release or a move to open conditions was made.

2.7 The sixth review – September 2008

14. Mr Chester had become "pre-occupied with legal issues regarding his parole review." It was accepted that he had shown considerable insight into his own behaviour at the time of the offence. However, he had still not engaged in any offence-focused work since his last review.
15. He had said that he would consider undertaking the Extended SOTP at HMP Shepton Mallet (but this would have involved a re-categorisation to category C conditions). He had failed to respond to an invitation by the Psychology Department to engage in an anger management course. His reluctance to participate in sex offender treatment precluded discussion into areas that inform risk management. Mr Chester did not present a major control problem on the wing. However, his attitude changed when there was a change in prison routine or policy. A Mental Health Team report indicated that Mr Chester had received mental health input, and that he showed signs of chronic depression. He had declined medication, and relied on his faith. An OASys assessment put Mr Chester at a medium risk of reconviction and a very high risk of harm to children. Mr Chester disputed formal risk assessments claiming that in the 30 years he has been in prison he had developed coping strategies to avoid re-offending
16. The tenor of the reports was that there was "no substantial discernible indication of a reduction in risk, and his risk factors had not been addressed." The Board accepted the views of the report writers that there should be no recommendation for release or a move to open conditions.

3. The May 2010 paper review

17. For this review the Parole Board were provided with a dossier comprising 109 pages. Included within the dossier were a number of documents :

1. An OASys report prepared in July or August 2009. This included an assessment of a 76% risk of general re-offending and a high risk of sexual/violent offending. It is, however clear from paragraph 10.1 of the report that Mr Chester refused to participate in the assessment as he regarded it as a waste of time. He was described as pre-occupied and frustrated at what he sees as the injustices of the system.

2. A Risk Matrix 2000 report dated September 2009 prepared by Jane Read a principal forensic psychologist. In it Mr Chester was assessed as a Medium risk of future sexual offending and high level of risk of non sexual violence. The report was prepared based on Mr Chester's recorded history. Ms Read however points out that a degree of caution is required in using the RM2000 in cases of murder with a sexual element.

3. A report from Phil Husband, the head of Offender Management. Mr Husband noted that Mr Chester walked out of a Sentence Plan Review Board on 19/3/2009. He noted that it had been recommended that Mr Chester be assessed for his suitability to engage in relevant SOTP and CALM programs. It was Mr Husband's view that as Mr Chester has not engaged in any offence focussed work he was not recommended for transfer to open conditions or release.

4. Reports from two Probation Officers. Clare Burkinshaw was concerned that Mr Chester had chosen to disengage with the Sentence planning process. Whilst he refuses to participate in such assessments his identified areas of risk would remain outstanding. Her view was thus the same as that of Mr Husband. A similar view was expressed by Pauline Gardener. It was her view that because of Mr Chester's entrenched view it was difficult to see a way forward at this time.

5. A report from Jane Read. She points out that previous assessments have disclosed areas of concern including sexual interest in children, use of violence, and lack of emotionally intimate relationships with adults. As Mr Chester has refused to engage with the assessment she was unable to discuss the review with him. She considers that he still presents a medium to high risk of future sexual and/or violent offending. In her view his needs would best be met by an Extended SOTP course.

6. An 8 page document prepared by Mr Chester comprising his representations to the Parole Board. After setting out some case law designed to explain why he will not participate in any treatment programs he sets out in detail why he submits he should be released. He makes the point that the assessment of risk should be based on factors other than the attendance on treatment programs. He puts his evidence under 7 headings – Physical, Intellectual, Emotional, Social, Sexual, Cultural and Spiritual. Under each heading he gives detailed reasons why he has changed over 30 years in prison. He submits that on his release he would have a completely different lifestyle and that he has a realistic release plan.

18. As already noted the paper decision did not recommend release. It noted the risk factors set out in Jane Read's report and expressly agreed with them. It pointed out that there was no evidence that Mr Chester had applied himself to any of the objectives in the latest Sentence Planning Meeting and had not engaged in any offence focussed work. It agreed with the assessment of risk in the OASys report. It concluded :

"The panel gave very careful consideration to all representations on the dossier. It took into account the serious and violent nature of the index offence and Mr Chester's offending record, as well as the indications of unconvicted previous sexual offending. It did not consider that his behaviour in prison gave any real cause for concern noting that the last adjudication was in 2008. Mr Chester seeks to persuade the panel that he has changed and no longer presents a risk and that he does not need the interventions proposed by various report writers. In the absence of evidence from accredited programs, the panel must look elsewhere for evidence of risk reduction. In Mr Chester's case they were unable to accept that his own contentions that he has changed could provide such evidence. His decision to decline to engage with his sentence plan means that there is no other evidence of risk reduction available. The Panel noted that there is no support from any report writer for a move to open conditions or release. The Panel concluded that risk remains too high to support either a move to open conditions or release."

19. As already noted Mr Chester did not accept the decision. On 14^th May 2010 he requested an oral hearing. Amongst his reasons were:

"An oral hearing is essential to properly consider the risk factors and the progress to date. At present the risk is being assessed purely in relation to the completion or otherwise of courses. That is not acceptable. An oral hearing is needed to look properly and carefully at the risk. Mr Chester challenges the dossier and the way the risk has been assessed. Legal argument will also be put forward at the oral hearing. While this matter is being considered on the papers alone speculation only is being considered. At the oral hearing real evidence of change will be presented. Witness evidence may also be needed to that effect. Put simply this is not a case that can adequately be considered on the papers alone."

20. The application was refused in a decision letter dated 1^st June 2010. I have already set out the relevant parts of the decision letter. It is that decision which is the subject of this application

4. The Law

21. Mr Chester's detention is governed by section 28 of the Crime (Sentences) Act 1997. Under section 28(5) the Secretary of State is bound to release a post tariff prisoner if the Parole Board have directed his release. Under section 28(6) the Parole Board shall not give a direction under subsection (5) … unless … the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
22. The Parole Board Rules 2004 (as amended by the Parole Board (Amendment) Rules 2009) provide:

Rule 11: Consideration by single member panel

(1) Within 14 weeks of the case being listed, a single member panel shall consider the prisoner's case without a hearing.

(2) A single member panel must either

(a) decide that the case should receive further consideration by an oral panel; or

(b) make a provisional decision that the prisoner is unsuitable for release.

Rule 12: Provisional decision against release

(1) In any case where the single member panel has made a provisional decision under rule 11(2)(b) that the prisoner is unsuitable for release, the prisoner may request an oral panel to give consideration to his case with a hearing.

(2) ...

(3) …

23. Article 5(4) of the ECHR provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

24. Before 2009 a prisoner serving a life sentence had the right to an oral hearing if requested under rule 12(1). The 2009 amendment changed this so that a prisoner now has only the right to request such a hearing.
25. The effect of the 2009 amendment has been the subject of recent authority, that is to say R (Roose) v the Parole Board [2010] EWHC 1780 (Admin) in the Divisional Court and, more recently, R (Osborn and Booth) v the Parole Board [2010] EWCA Civ 1409 in the Court of Appeal. In addition to the authorities on rule 12(1) there is also authority in relation to the right to an oral hearing by a prisoner recalled from licence. That authority includes the decisions of R (Smith) v the Parole Board [2005] 1 WLR 350 in the House of Lords and R (O'Connell) v the Parole Board [2007] EWHC 2591 in the Divisional Court.
26. In August 2009 the Parole Board set out its policy on the question of granting oral hearings. The policy is set out in full in paragraph 10 of the judgment in Roose:

"Decisions on oral hearings will be taken by the ICM member. The member will consider this in all cases, regardless of whether the prisoner has requested one. An oral hearing will normally be granted in two sets of circumstances:

1. Where the ICM member considers there is a realistic prospect of release or a move to open conditions; or

2. In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. This would include a case where a progressive move is not a realistic outcome, but where live evidence is needed to determine the risk factors. It is envisaged that this will be a rare step to take and would normally only be necessary where experts disagreed about a risk factor; for example, whether or not there was a sexual element to an offence that needed exploring. It is only intended to apply this principle where there is a dispute about whether an issue is a risk factor at all, not necessarily whether it has been addressed or not.

An oral hearing will not be granted where there is no realistic prospect of release or open conditions, but where such outcomes are requested by the prisoner, detailed reasons will be given for refusing, in particular where the prisoner is already in category C or D.

27. The last paragraph was criticised by Moses LJ in paragraph 55 of the judgment in Osborn as contradicting the second set of circumstances and needing to reiterate the absence of hard and fast rules.
28. As a result new Guidelines were issued in January 2011 which take account of Moses LJ's comments.
29. A number of points emerge from the authorities:

1. Rule 12 as amended is not incompatible with Art 5.4 of the ECHR. [See paragraph 18 of the judgment in Roose]. To be fair Ms Krause did not assert before me that it was. As Sales J said in refusing permission in Roose:

Art. 5(4) does not in terms require an oral hearing; it creates an implied obligation to hold an oral hearing only where that would serve a useful purpose in allowing proper exploration of a claimant's case. Whether that is so or not will depend on the particular facts of individual cases. The amended rules leaves it to the judgment of the Parole Board to assess that in each case. There is nothing in the rule which prevents the Parole Board from acting to ensure full compliance with Art. 5(4) rights. Structuring the decision-making process in this way is clearly compatible with Art. 5(4).

2. The Court's approach to the issues of fairness in the procedure of a lower court is not a Wednesbury test. Fairness is ultimately a question of law. The question of fairness should be judged in the context of the circumstances identified and evaluated by the Board, including their appraisal of the material already available, formed with the expertise which the court does not share, and their resulting assessment of what will be needed to satisfy it that release will not put the public at risk. [see paragraph 42 in the judgment in Osborn].

3. It is plain that there should be an oral hearing where the ICM member considers that there is a realistic prospect of success or a move to open conditions and where facts are in issue that may affect the outcome. The more difficult question is when fairness may demand an oral hearing in other cases. This point was considered by both Moses LJ and Sedley LJ in paragraphs 56 and 62 in the judgment in Osborn. As already noted in paragraph 55 Moses LJ had emphasised the need for flexibility and the absence of hard and fast rules. In paragraph 56 he said:

But what are those cases? Lord Bingham's citation of Goldberg (see [37]), gives no further assistance since it only identifies cases where credibility and veracity are in issue. Sedley LJ's comment at [62] is of importance to this question. He gives an example of a case where, absent any factual dispute, an oral hearing may be of value. This highlights the difficulty for a member of the Board charged with deciding whether an oral hearing should take place. In considering whether there is no realistic prospect of success, the Board must always bear in mind the power of oral persuasion. Of course justice for prisoners demands that the time and resources of the Board should not be wasted where an oral hearing is unnecessary for a just conclusion. Whilst a judgment that there is no realistic prospect that an oral hearing could affect the Board's conclusion is the only test which has been devised, I wish to underline the importance, which Sedley LJ demonstrates, of appreciating the effect of oral persuasion and discussion on cases hitherto believed to be "open and shut" (John v Rees [1970] Ch 345, 402).

In paragraph 62 Sedley LJ said:

Mr Booth's is an unhappy case. There is a real risk that institutionalisation may make him unable ever to cope in the world outside prison. The reports on him are pretty unanimous about this, though they do not record the unusual and positive feature that he has been having one-to-one counselling. I do not doubt that there are cases where an oral hearing before the Parole Board has real value in, for example, enabling a panel which includes a psychologist or psychiatrist to discuss the prisoner's prospects open-mindedly with the responsible professionals, quite irrespective of whether there are evidential conflicts. There must also be cases where the professionals do not agree among themselves and where a hearing is all but inevitable if the Board is to engage in a productive discussion and reach a measured judgment. But Mr Booth's is at present none of these cases, and an understandable desire on his lawyers' part to see what concessions can be extracted from the report-writers at a hearing does not make it one.

5. Submissions

30. In the course of her submissions Ms Krause made a number of points in support of the submission that fairness demanded an oral hearing for Mr Chester. She made the point that Mr Chester had now been in prison for 33 years. She submitted that Mr Chester had not been assessed properly for some time. This is, of course, because he will not co-operate with the assessments and because he refuses to attend offence related courses such as CALM and Extended SOTP. The effect of this is that all of the professionals rely on historic assessments of risk in order to make current assessments of risk. She points out that over 33 years Mr Chester might well have changed. There is no current evidence of a sexual or a violent offence.
31. Ms Krause drew attention to the mental problems suffered by Mr Chester as outlined in the reports.
32. Ms Krause drew attention to the detailed 8 page submission from Mr Chester evidencing change and submitted that the Parole Board were wrong simply to dismiss this as uncorroborated without giving reasons.
33. Ms Krause drew attention to the impasse identified both in the reports and in Judge Langan's observations. If Mr Chester is to be refused an oral hearing it is an impasse which will continue for the rest of his life. It is the view of the professionals that there is no reduction of risk unless Mr Chester goes on the courses or carries out offence related work. Mr Chester's attempts to demonstrate a reduction in risk by his detailed evidence are rejected as being uncorroborated evidence. Furthermore he is denied an oral hearing where he can be cross examined and attempt to demonstrate a reduction in risk. In the result he will never be released. She submitted that that outcome was procedurally unfair.
34. Ms Krause also made the point that if there were to be an oral hearing it would be possible to obtain an independent psychological report which might well support Mr Chester's claim that he no longer represented a risk. In paragraphs 8 and 9 of her skeleton argument she puts the problem in this way:

8. …the Intensive Case Management procedure provides for a maximum of 28 days from receipt of dossier to decision of the single member on the papers. This does not provide enough time to get funding and actually getting a report by an independent expert. This is what happened in the Claimant's case. Funding is also limited at that stage and any application for an extension must be thoroughly argued and corroborated. Some of the independent psychologists charge £5,000 for a report although some charge less but not much less.

9. This therefore informs the ability of a prisoner such as the Claimant to put forward a persuasive case for an oral hearing and he is in a Catch 22 situation. This is part of the problem for this Claimant.

35. Mr Thyne submitted in short that there was no possibility of any of Mr Chester's risk factors having been addressed, that Mr Chester was reliant solely upon his own assertion that his risk was now reduced, and that he provided no submissions to the Board, either prior to the decision on the papers, or the request for an oral hearing, setting out what evidence he could present to the contrary. In the circumstances it was entirely proper to refuse an oral hearing, which would have served no useful purpose.
36. Whilst he recognised that there are circumstances in which procedural fairness requires an oral hearing he submits that this is not such a case. All of the professionals were agreed and there was no practical possibility of an oral hearing changing the position.
37. Mr Thyne helpfully summarised his submissions in paragraph 34 of his skeleton argument in the following way:

1. The Board had before it all of the evidence and information which was necessary to make a fair and just decision. Such information included a detailed dossier of reports from professionals, and also detailed written submissions prepared by the Claimant.

2. The overwhelming evidence of the professionals who prepared the reports for the 2010 review was that nothing had changed since the Claimant's last oral hearing.

3. The Claimant's failure to engage with his sentence plan or any recommended treatment programmes was due to an active decision on his part not to co-operate – as is acknowledged in the Claimant's skeleton argument at para 2(i)).

4. There are therefore no disputed issues of fact. It is common ground that the Claimant has failed to undertake the courses which have been identified as necessary to achieve the objective of assessing and reducing the risk he poses.

5.The consequence of the Claimant's failure to engage is that there had been no possibility of addressing the risk factors^[1], less still any prospect of there having been an actual reduction in risk.

6. The Claimant's representations to the Board amounted to no more than self-reporting that he believed his risk had been reduced. No independent evidence had been produced.

7. The Claimant's recent proposal that he would agree to the instruction of an independent psychologist was not made to the Board, nor was it made as part of the Claimant's request for an oral review. In any event, he has previously proposed/agreed to such a course, in order to try to break the impasse, but thereafter withdrawn his consent

6. Discussion and Conclusions

38. I have to confess that I have not found this an easy case. I see the force of Mr Thyne's submissions. All of the professionals are agreed that the risk of re-offending has not been addressed by Mr Chester. Mr Chester is refusing to co-operate with assessments that are carried out, or to go on the extended SOTP or other courses. Thus on one view he has only himself to blame for the unanimous view of the professionals.
39. On the other hand I equally see the force of Ms Krause's submissions. The task of the Parole Board is to assess the current risk not the reduction in risk. The Parole Board have assessed the risk as being too great in this case on the basis of the views of the professionals. All that evidence pointed in the same direction. However that ignores the long and detailed written statement of Mr Chester. The Parole Board dismissed Mr Chester's statement out of hand on the basis it was uncorroborated. However because of Mr Chester's lack of co-operation the professionals assessments were based on historic assessments and the lack of evidence of reduction in risk.
40. To my mind the crucial question in the case is whether in the very unusual circumstances of this case it was procedurally unfair not to allow an oral hearing to assist in the assessment of risk. It is plain from the passages from the judgments of Moses LJ and Sedley LJ to which I have referred that there are cases other than where facts are in issue where an oral hearing is necessary to achieve a just result. It may be, as Mr Thyne submitted, those cases will be rare.
41. In the end it is a relatively short point. I prefer the submissions of Ms Krause In my view this is such a rare case. Mr Chester has been in prison for over 33 years and is at risk of being in prison for the rest of life without having an oral hearing as to whether the risk has reduced. In my view an oral hearing may break the impasse between Mr Chester and those responsible for his progress in prison. Equally it may enable him to engage the services of an independent psychologist so as to corroborate his evidence. Thus it may be one of those cases of real value. Importantly it will also enable the Parole Board and any report writers present to assess the risk in the light of Mr Chester's oral evidence and any other evidence he is able to call.
42. In all the circumstances this application for judicial review succeeds.

Note 1   As per report of Pauline Gardener, Offender Manager    [Back]