Case No: C1/2010/2163
Neutral Citation Number: [2011] EWCA Civ 360
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT
HHJ PELLING QC
CO/11606/2009
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/04/2011
Before :

LORD JUSTICE HOOPER
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Between :

	THE QUEEN ON THE APPLICATION OF  ALAN CHATER	
Appellant	
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	PAROLE BOARD	Respondent	
	
SECRETARY OF STATE FOR JUSTICE	Interested Party	

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Mr Stephen Field appeared for the Appellant.
The respondent and the interested party were not represented
Hearing date: 16th March 2011
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Judgment
Lord Justice Hooper : 
1.	The appellant orally renews his application for leave to appeal a decision of HHJ Pelling QC refusing an application for judicial review of a decision of the Parole Board dated 1 February 2010, [2010] EWHC 2257 (Admin). At the conclusion of the oral hearing I reserved judgment. 
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 [2004] original sentence.  
3.	On 11 April 2007 (less than a month after his release on extended licence conditions) 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.  The Parole Board concluded that the claimant’s recall was not appropriate.  However the Board declined to direct the appellant’s 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.
4.	That decision was not challenged and nor was further decision to the same effect on 13 October 2008:
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.
5.	The matter was considered by the Parole Board again which, in the challenged decision dated 1 February 2010, declined to order his release.  In parenthesis I add that the Board reconsidered the appellant’s case on 23 November 2010 and again declined to order his release.
6.	As HHJ Pelling found, the Board incorrectly stated the test which they had to apply. The Board asked itself whether it was satisfied that it was no longer necessary for the protection of the public that the appellant be confined.  The Board should have asked itself whether, on a proper assessment of all the evidence, the Board was satisfied that the risk posed by this claimant could not be managed in the community.
7.	Is it then arguable that the Parole Board might well have reached a different decision had the proper test been applied?
8.	Mr Field submits that, both on the authorities and in the light of Article 5, that the decision was arguably unlawful in that it was in reality based on no more than the same assessment of the risk posed by the appellant as the sentencing judge had made. In the words of HHJ Pelling summarising the argument:
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.
9.	I shall assume that it is arguable that it would not be lawful to order a prisoner’s continued detention on the basis of essentially the same material as that upon which the trial judge based his decision to pass an extended sentence. 
10.	However as HHJ Pelling said, rightly in my view:
... 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.  
11.	Mr Field went further and submitted that if the additional material consists of no more than a further assessment of the risk, then that is insufficient.  He submits, in effect, that the Board must rely on something more tangible than another assessment and that there was nothing of that kind in this case.  
12.	The submission that the Board must rely on something more tangible is in my view not arguable. The Board is entitled to base its decision on a further assessment taking into account, for example, the prisoner’s response to efforts made during his period in custody to reduce the risk of re-offending. 
13.	For these reasons the renewed application fails.