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

In a renewed application for permission to appeal in a parole judicial review, the Court of Appeal may adjourn where later material raises a potentially arguable public-law issue not considered below and the relevant authorities need an opportunity to address it. The court indicated, tentatively, that reliance on attendance at available treatment courses may require a more rounded individual assessment in an unusual case involving prolonged detention beyond the tariff. It did not determine that issue. The application was adjourned for the Parole Board and Secretary of State to consider treatment, rehabilitation, release planning and possible transfer to Category C conditions.

The appellant was a life prisoner whose tariff had expired in 1997. The Parole Board had considered his case repeatedly without recommending release, and a lifer manager later refused his transfer to open conditions. Judicial review proceedings challenging the Board’s 2006 decision and the later categorisation decision were refused by Underhill J on 6 May 2008.

After that decision, the Parole Board held a further hearing and issued reasons addressing the possibility of resolving outstanding treatment issues and tailoring treatment to the appellant’s risk. On the renewed application, the appellant argued that a system relying on attendance at available treatment courses was unlawful unless the authorities assessed each prisoner in a more rounded way. The central issue was whether the new material warranted further consideration by the authorities or required fresh proceedings.

1. Application adjourned. The Court of Appeal did not decide the lawfulness of the Parole Board’s reliance on attendance at treatment courses, nor whether the appellant should be transferred or released.
2. The appellant’s principal submission was that the authorities must examine the position of each prisoner, particularly a lifer detained for many years beyond the tariff, in a rounded manner rather than treating course attendance as determinative. Lord Justice Thomas considered that submission potentially arguable in this unusual case.
3. The Parole Board’s later decision indicated that it recognised force in aspects of an independent report concerning the difficulties between the appellant and the prison authorities. It contemplated resolving those issues, tailoring treatment to outstanding areas of risk, examining the absence of a release plan and considering the appellant’s response to offence-related work.
4. Although the new issue had not been before Underhill J, the court considered that requiring the appellant to start fresh proceedings would be disproportionate in view of the history, delay, cost and expense. The better course was to adjourn the renewed application so that the Parole Board and Secretary of State could consider the matters identified in the Board’s reasons and any subsequent developments.
5. The application was to return before Lord Justice Thomas in approximately five or six months, with liberty to restore earlier or later. The court requested representation for the Parole Board and Secretary of State on the renewed hearing.

• Court of Appeal (Civil Division) — On 29 January 2009, the renewed application for permission to appeal was adjourned to allow further consideration by the Parole Board and Secretary of State: [2009] EWCA Civ 139.
• Administrative Court, Queen’s Bench Division — Underhill J refused the renewed permission application on 6 May 2008 in proceedings challenging the Parole Board’s 2006 decision and the lifer manager’s 2008 categorisation decision.