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

When deciding whether a recalled prisoner should remain detained, the Parole Board must ask whether the risk posed can be managed in the community. It must not substitute the question whether detention remains necessary for public protection. A further risk assessment may constitute additional material justifying continued detention, including an assessment of the prisoner’s response to efforts in custody to reduce reoffending. The Board need not rely on evidence more tangible than a further assessment. An incorrectly stated test will not necessarily justify quashing the decision where additional material means that the Board might have reached the same conclusion on the proper approach.

The appellant, who had a history of sexual offending against children, had been sentenced to extended terms of imprisonment and released on extended licence. He was recalled to custody after alleged breaches of licence conditions. The Parole Board later declined to direct his release on several occasions, including in a decision dated 1 February 2010.

HHJ Pelling QC refused judicial review in the Administrative Court: [2010] EWHC 2257 (Admin). The Board had stated the wrong legal test, but the central issue on the renewed application for leave to appeal was whether it was arguable that the Board might have reached a different decision had it applied the correct test, particularly in light of Article 5 and further risk material.

1. Renewed application dismissed. The Court of Appeal refused the renewed oral application for leave to appeal.
2. The Parole Board had misstated the question it was required to answer. It asked whether it was satisfied that it was no longer necessary, for public protection, to confine the appellant. The proper question was whether, on a proper assessment of all the evidence, the risk posed by the appellant could not be managed in the community.
3. The court assumed, for the purpose of the application, that it was arguable that continued detention would be unlawful if based essentially on the same material as that available to the sentencing judge when imposing the extended sentence. This was the appellant’s argument under the authorities and Article 5; the point was not finally determined.
4. The court accepted that additional material was available to the Board. It was open to the Board to reach its conclusion by reference to that material. A further assessment of risk could itself constitute sufficient additional material, including an assessment of the prisoner’s response to efforts made during custody to reduce the risk of reoffending.
5. The submission that the Board required something more tangible than a further risk assessment was not arguable. Since the Board might have reached the same conclusion on the proper test and the additional material, the challenge could not properly proceed.

• Court of Appeal (Civil Division): The renewed application for leave to appeal was dismissed.
• Administrative Court, Queen’s Bench Division: HHJ Pelling QC refused judicial review of the Parole Board’s decision dated 1 February 2010: [2010] EWHC 2257 (Admin).