Chester, R (on the application of) v Parole Board & Anor

Decision-makers assessing release or recategorisation must consider all material relevant to risk. Completion of an offending-behaviour programme is highly important, but it must not become the only touchstone of risk reduction. Where a prisoner declines a programme, the decision-maker must examine whether the reasons indicate continuing risk and what can be inferred from other available evidence. The Parole Board may refuse release unless satisfied that confinement is no longer necessary for public protection. Judicial intervention requires an arguable case that the decision was irrational, unfair, or failed to take relevant considerations into account. Tentative research questioning programme effectiveness does not suffice to establish irrationality.

The claimant, a life prisoner whose tariff had expired, sought permission to challenge two decisions. The Parole Board had refused in December 2006 to direct his release or recommend transfer to open conditions. A lifer manager had subsequently refused to recategorise him from Category B to Category C. Both decisions relied substantially on the claimant’s failure to complete an extended sex-offender programme.

The claimant argued that the authorities had treated programme completion as determinative, contrary to domestic law and articles 3 and 5 of the Convention. He also relied on the approach to non-participating offenders in R (ex parte Oyston) v the Parole Board and on the independence findings in R (Brooke) v Parole Board. The central issue was whether either decision disclosed an arguable public-law error.

1. Permission refused. The claimant had no arguable case against either the Parole Board’s decision or the lifer manager’s decision.
2. The statutory criterion under section 28(6)(b) of the Crime (Sentences) Act 1997 entitled the Board to refuse release unless it was satisfied that confinement was no longer necessary for public protection. That position was compatible with the Convention.
3. A formulaic approach treating completion of an appropriate programme as the exclusive means of demonstrating reduced risk must be avoided. The Board and those advising it must consider all material relevant to risk. Where a prisoner declines a programme, they must consider whether the reasons themselves indicate risk and, with particular care, what conclusions may be drawn from other available evidence. This principle did not diminish the importance of offending-behaviour programmes.
4. The evidence did not show that the Parole Board had adopted such an approach. The reports were full and balanced. They addressed the claimant’s reasons, his progress, his mental health and the available support. The Board considered those matters and sought a psychiatric assessment. It was not required to refer expressly to every report before it.
5. Research which cast tentative doubt on the effectiveness of the programme did not establish irrationality. Intervention would require cogent objective evidence unequivocally demonstrating that such programmes had no substantial value in reducing risk. The independence findings in R (Brooke) v Parole Board had no bearing on the criticisms advanced in this case.
6. The lifer manager was entitled to require successful completion of the programme before recategorisation. The claimant could not insist on undertaking it at the establishment of his choice where no cogent reason prevented participation at a Category B establishment.
7. The court directed that a transcript be produced at public expense and indicated that it should not be treated as an important judgment, although it need not be ring-fenced from use in other cases.

1. High Court (Administrative Court): Mr James Goudie QC, sitting as a Deputy High Court Judge, refused permission on 22 May 2007.
2. High Court (Administrative Court): Walker J adjourned the renewed permission application on 21 September 2007 to permit amendment of the grounds.
3. High Court (Administrative Court): Mr Justice Underhill refused permission to apply for judicial review of both decisions.