Chater, R (on the application of) v Secretary of State for Justice & Anor

On a recalled prisoner’s application for release, the Parole Board must distinguish between whether recall was appropriate and whether, on all the evidence available at the review, continued detention remains necessary for public protection. In an extended-sentence case, the Board must positively assess whether the public interest requires confinement; it must not treat the executive’s decision to recall as conclusive. A misstatement of the statutory test does not automatically invalidate the decision. The court must examine the decision as a whole and ask whether the Board in substance applied the correct risk-based approach. If the evidence lawfully establishes that risk cannot safely be managed in the community, the decision may stand despite defective wording. Statutory provisions, as construed by the higher courts, govern the result rather than simplified sentencing remarks.

The claimant, who had been released on an extended licence, was recalled after an alleged breach of licence conditions. The Parole Board later concluded that recall was inappropriate but declined to direct release because the claimant continued to present a very high risk that could not safely be managed in the community.

An oral review was delayed by a listing error, amounting to a conceded breach of Article 5(4) of the Convention. The claimant challenged the Parole Board’s subsequent decision of 1 February 2010, arguing that it had applied the wrong test and that the absence of new risk material required release. The central issue was whether the decision should be quashed.

1. Claim dismissed. The Parole Board’s failure to state the applicable test correctly in paragraph 1 of its decision letter did not, viewed in context, require the decision to be quashed.
2. The statutory scheme and R (Gulliver) v The Parole Board [2007] EWCA Civ 1386 established a two-stage process. The Board must first consider whether recall was appropriate. It must then decide whether the prisoner should be released by assessing the risk to the public on the basis of all material available when the decision is made. The second inquiry is not confined to the circumstances of recall.
3. For an extended sentence, R (Sim) v The Parole Board [2003] EWCA Civ 1845 required the Board to be positively satisfied that the public interest required continued confinement. The executive’s decision to recall did not establish that detention remained necessary. The scheme favoured liberty over detention, although cases would ordinarily turn on the evidence rather than an abstract presumption.
4. The Board’s decision letter contained sufficient reasoning, read as a whole, to show that it had assessed the claimant’s current risk, the evidence of change, treatment needs and the feasibility of community management. It was entitled to conclude that the risk of reoffending and serious harm remained too high for release.
5. The claimant’s argument that release followed automatically because recall had been found inappropriate, or because risk had not increased since sentence, was rejected. Earlier unchallenged decisions had found that the claimant could not safely be managed in the community, and the Board was entitled to consider the further material before it. The approach was consistent with R (Jarvis) v The Parole Board [2004] EWHC 872 (Admin).
6. The sentencing judge’s simplified explanation of the extended sentence could not displace the statutory provisions as construed by the higher courts. Permission to appeal was refused. Costs were ordered in the usual form, not to be enforced without leave, from 12 February 2010, with detailed assessment of publicly funded costs.

First-instance judicial review. The judgment records no earlier determination of the challenged decision by another court. Permission to appeal was refused on the basis that the claim was not realistically arguable.