Hovenden, R (on the Application of) v The Parole Board

The Parole Board must apply the public protection test in Criminal Justice Act 2003, section 225C(3), when deciding whether continued detention is necessary. A decision should be read as a whole. An infelicitous opening statement does not invalidate the decision where the panel’s substantive analysis and conclusion demonstrate that it applied the correct statutory test. The court should avoid isolating words from the decision and assessing them in an unrealistic manner.

The claimant sought judicial review of the Parole Board’s decision that his continued imprisonment remained necessary for public protection. The Board’s concluding paragraph applied the statutory test, but its opening paragraph stated that release was required unless there was a risk of further offending or supervision had become impossible. The claimant argued that this formulation was legally erroneous and had infected the whole decision. The central issue was whether the decision, read as a whole, disclosed application of the correct public protection test.

1. The claim for judicial review was dismissed. The Parole Board’s concluding assessment plainly applied the correct public protection test under Criminal Justice Act 2003, section 225C(3).
2. The opening paragraph of the decision could have stated the statutory test more clearly. Its wording was infelicitous, but it addressed matters capable of being considered under the public protection test, including risk of reoffending, licence compliance and supervision.
3. The court must assess the decision in its entirety. An erroneous or unclear statement at the beginning will not necessarily flaw everything that follows. The question is whether the alleged error permeated the decision or affected the reasoning leading to the conclusion.
4. Here, the Board analysed the claimant’s offending history, risk factors, behaviour on licence, treatment position and positive and negative features. That analysis led to a conclusion actuated by the correct statutory test. Any possible error in the opening paragraph was therefore one of language rather than legal substance and did not undermine the decision.
5. The usual costs order was made, with enforcement against the legally aided claimant requiring leave of the court.

Permission to bring the judicial review claim was granted by Stewart J. The Administrative Court dismissed the claim.