Case No: CO/12510/2009
Neutral Citation Number: [2009] EWHC 3470 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Date: Thursday 17th December 2009 
Before:

MR JUSTICE LANGSTAFF
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Between:

	MR OAKES
	Claimant	
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SECRETARY OF STATE FOR JUSTICE
NATIONAL PROBATION SERVICE
PAROLE BOARD	
First Defendant
Second Defendant
Third Defendant	

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(DAR Transcript of 
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Mr S Field appeared on behalf of the Claimant.
Mr S Murray appeared on behalf of the First Defendant.
The Second Defendant did not appear and was not represented.
Mr C Thomann appeared on behalf of the Third Defendant.

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Judgment
MR JUSTICE LANGSTAFF:

1.	This application for judicial review, for which leave was given by Blake J on 24 November, arises out of the recall to prison of the claimant who was at the time released on licence from a substantial determinate sentence.  It raises questions as to the interpretation of the statutes under which respectively the Secretary of State for Justice and the Parole Board exercised their functions and as to the quality of the reasoning and procedure each has adopted.

2.	The central facts are these.  On 9 February 2007 the claimant who was then aged 30 was sentenced to a term of 58 months’ imprisonment, consisting of 52 months for three domestic burglaries, two non domestic burglaries, and breach of a suspended sentence with 18 further burglary offences taken into consideration, plus six months consecutive for an offence of escaping from (open) prison.  

3.	On 10 July 2009 he automatically became eligible for release.  His licence was subject to a condition of residence with his partner, one Katie Dawson, a woman of good character who worked as a hotel manager in Bradford, and was otherwise subject to a curfew and to the general condition that whilst under supervision, to accept which was a condition of his licence, he would be well behaved, would not commit any offence, nor would do anything which could undermine the purposes of his supervision (which were to protect the public, prevent him from reoffending and help him to re-establish himself in society).

4.	The claimant had an unenviable record.  On some 27 occasions since he was 15 he had been convicted of some 79 offences with others taken into consideration.  They included whilst he was a teenager offences of grievous bodily harm and assault occasioning actual bodily harm, common assault and assault with attempt to resist arrest, all committed on separate occasions.  Not only had he had those convictions but on a number of occasions, numbering 12 in total according to his criminal record, there had been what are described as non-conviction disposals.  These included a further Section 47 assault in 1995, an offence of affray in November 2006 and an offence of common assault on 19 January 2007.  Between those latter two, in respect of which there had not been any court appearance, there was an offence of destroying or damaging property.

5.	The pre‑sentence report which had been prepared for the purpose of the hearing before the Bradford Crown Court which led to his lengthy sentence described him as a prolific offender who unless he made significant behavioural changes would continue to pose a high risk of reoffending.  Factors said to increase the risk of reconviction were in particular his state of emotional well being, and a lack of appropriate coping strategies which had contributed to him misusing drugs. It was the misuse of drugs which was said to be directly linked to his offending.  In addition it was said that he had an inability to see the views of others and that it was clear in the author’s opinion “that unless he seeks support to remain illicit drug free, the risk of reoffending will be high”.

6.	The report noted that then -- that was in January 2006 – he had indicated that he wished to overcome his dependence on illicit drugs.  The author prophetically wrote: 

“Whilst his commitment to change needs to be tested in the longer term he currently presents as willing to engage in any sanctions which can support his motivation to remain illicit drug free. Such motivation appears to have been unsustainable in the past.”

7.	The burglary offences for which he was sentenced to the term of four years and four months were again said to be linked to ongoing substance misuse.  

8.	The claimant was released as I have noted on 10 July 2009.   On each of the 22 July, the 29th and on the 31st he tested positively for the presence of opiates, cocaine and morphine within his system.  This was plainly evidence that he was taking those illicit drugs freedom from which was an essential part of removing the risk of acquisitive crime which he posed to members of the community.  

9.	On 5 August he was given a final warning by West Yorkshire Probation Service arising out of the result of those tests.  Nonetheless, because his partner was due to celebrate her birthday on 6 August, the Probation Service relaxed the curfew to which the claimant was then subject.  He was able therefore to attend her birthday celebrations.  As Blake J pointed out in granting permission, that almost inevitably would have involved an apprehension that the claimant would take alcohol.  Abuse of alcohol had been involved with some of his earlier crimes. 

10.	On 7 August, that is in the early hours of the morning after the celebratory evening out at what seems to have been Tokyo’s nightclub in Bradford, a CCTV operator scanning a public space reported to the police that they should attend there because she was concerned that a man was assaulting a woman.  When the police attended they found the claimant and Katie Dawson.  It was a matter of concern to the police that the claimant might have been breaking his curfew: they may well not have appreciated that he was entitled to be out that particular evening.  Or it may have been that they suspected that he had been involved in assaulting her.  Certainly there was physical contact between the two which might have been interpreted or it may be misinterpreted by the CCTV operator, though plainly she had sufficient concern to alert the police. Whatever the reason, they took the incident seriously, arrested him, and made the Probation Service aware of what had apparently occurred.

11.	The consequence of this was that the Probation Service determined that it could no longer support the claimant within the community.  In an assessment for the purposes of the Secretary of State the Probation Service recommended recall.  The author of an extensive set of reasons on paper for recall recorded essentially the facts I have recited and added: 

“At the time of this arrest I am informed by the police that Mr Oakes was heavily under the influence of alcohol.”

12.	She assessed that due to the “alleged assault” the claimant demonstrated an increase in the level of risk of harm which he posed to Miss Dawson, drew attention to his history of violent offending relating to alcohol use when a youth, concluded that alcohol was linked to violence in his case and increased the risk which he posed to a partner, expressed concern that he had allegedly assaulted Miss Dawson whilst heavily under the influence of alcohol and yet he was residing at her address.  

13.	Two days passed during which it is plain that the claimant continued to reside with Katie Dawson.  Nothing adverse to him is known arising out of those two days and plainly she took no steps to prevent him living with her.  

14.	At the conclusion of that period the Secretary of State determined to accept the recommendation of the Probation Service.  He ordered the recall to prison of the claimant.  He did so on what is termed standard recall as opposed to recall upon terms that he would be automatically released after 28 days.  

15.	Only a matter of five days after he came back into prison, having been in the meantime told of the reasons why his licence had been revoked and he had been recalled, the claimant made representations.  Those representations were to the effect that there had been no violence, that there had been no excessive alcohol intake - he contended in that regard that he was not under the influence of alcohol since a doctor found him fit to interview after five hours - and that there was no reason to worry about the safety of his partner since they had a good relationship.  He accused the Probation Service of giving him little help, asserted that he had not been arrested for assault but for breaking his curfew and thereby disputed the force of the reasons for recall.  The Secretary of State referred those representations to the Parole Board. 

16.	The Parole Board considered whether or not the claimant should be released.  In a determination of 21 September 2009 the panel determined that he should not be.  The operative part of the Parole Board’s reasoning is in these terms: 

“Probation do not make a clear recommendation for re‑release … the panel is mindful that Mr Oakes’ SED [sentence expiry date] is about 15 months away.  It gives him credit for wanting to turn his life around and to build an offence-free life with his partner, child and parents.  However it is worried by his terrible offending record and the risks it indicates in terms of Mr Oakes’ regard for law and others.  It assesses risk of reoffending to be high and agrees with probation about their caution on risks posed to others including partners.  Mr Oakes would gain from engaging with offending behaviour work to do with thinking, victims, anger and substance abuse.  Taking all relevant information into account the panel concludes that risks are not at acceptable levels and makes no recommendation as to release.”

In coming to that conclusion the panel had first asked whether there should be an oral hearing.  They decided that there should not be.  I shall return to that later in this judgment.  

17.	Those facts give rise to complaints in public law against in turn the Probation Service as second defendant, the Secretary of State for Justice, as first defendant and the Parole Board, third defendant.  It is said that the Probation Service had no proper basis upon which to justify their recommendation for recall.  Before me Mr Field who appears for the claimant has accepted that he would not succeed in relief upon this ground alone and in effect does not pursue it further before me.  The Probation Service is not represented other than obliquely by Mr Murray who appears on behalf of the Secretary of State, and it seems common ground that I should simply dismiss any claim for relief insofar as it concerns them.  This is not so much that the arguments may lack force but that they are better placed against the Secretary of State whose responsibility it was to order recall, the Probation Service only being in a position to recommend, and that in the light of facts becoming apparent rapidly to them after the events of the morning of 7 August.

18.	As to the Secretary of State the allegation which is made is that the decision and act of the Secretary of State to recall and return the claimant to prison and a subsequent refusal to order his release in the light of the emerging facts is unlawful.  As against the Parole Board the claim is that the Parole Board should have directed the claimant’s release.  The ground that the first defendant should have directed the claimant’s release (he having been properly recalled, on the assumption that underlies this ground), is not apparent from the N461, but the words have been added without objection to paragraph 3 of Section 3 of that form which should now be read and understood as reading: 

“The refusal of the first and/or third defendants to direct the claimant’s release.”

That amendment causes no prejudice to either Defendant, and I permit it. As against the Parole Board it is also said that they should have had an oral determination prior to coming to the conclusion which the board did.  

19.	As to the duties which rested on the Defendants, the principal statutory provisions are those contained in the Criminal Justice Act  2003.  There, in part 12 at chapter 6, are the provisions which relate to release on licence.  Those have been substantially amended by the Criminal Justice and Immigration Act of 2008.  That was an Act which was meant, according to its long title to make further provision in this respect.  

20.	The relevant sections as amended now read: 

“254  Recall of prisoners while on licence 

(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison. 
(2) A person recalled to prison under subsection (1)— 
(a) may make representations in writing with respect to his recall, and 
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.”

“255A  Further release after recall: introductory

(1) This section applies for the purpose of identifying which of sections 255B to 255D governs the further release of a person who has been recalled under section 254 ( “the prisoner”).

(2) The prisoner is eligible to be considered for automatic release unless— 

(a) he is an extended sentence prisoner or a specified offence prisoner;

[and two further categories are set out]

(3) If the prisoner is eligible to be considered for automatic release the Secretary of State must, on recalling him, consider whether he is suitable for automatic release.”

[This is a separate concept, that of suitability.  Once eligibility has been determined the Secretary of State then has to consider suitability.] 

“(4) For this purpose ‘automatic release’ means release at the end of the period of 28 days beginning with the date on which the prisoner is returned to prison.

(5) The prisoner is suitable for automatic release only if the Secretary of State is satisfied that he will not present a risk of serious harm to members of the public if he is released at the end of that period.”

I pause there.  The test here is expressed in the negative.  The Secretary of State has to be satisfied not that there is a risk in order to ensure the continued detention of the prisoner, but rather has first to be satisfied there is no risk before he may order release, otherwise the prisoner must remain in custody.  What is required therefore is not a justification of custody, but a justification of release.  The default position is custody.  The phrase ‘risk of serious harm to members of the public’ has to be understood with the help of subsection 13 which provides that it means “death or serious personal injury, whether physical or psychological”.  This is perhaps a reflection of a similar definition for the purposes of assessing dangerousness for the sentencing provisions which apply under chapter 5 of the same part of the Act headed “Dangerous offenders”.  But it is separately defined in each.  

21.	Returning to Section 255A:

“(6) The prisoner must be dealt with— 
(a) in accordance with section 255B if he is eligible to be considered for automatic release and is suitable for automatic release; 
(b) in accordance with section 255C if he is eligible to be considered for automatic release but was not considered to be suitable for it;”

Interposing, (b) is this case.  There are further provisions made in respect of other cases.  

22.	I turn then to Section 255C.  It is headed “Specified offence prisoners and those not suitable for automatic release”:

“(1) This section applies to a prisoner who— 
(a) is a specified offence prisoner, 
(b) is not eligible to be considered for automatic release by virtue of section 255A(2)(b) or (c), or 
(c) was eligible to be considered for automatic release but was not considered to be suitable for it.”

That is this case.

“(2) The Secretary of State may, at any time after the person is returned to prison, release him again on licence under this Chapter. 
(3) The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison. 
(4) The Secretary of State must refer to the Board the case of any person to whom this section applies— 
(a) if the person makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which he is returned to prison, on the making of those representations, or 
(b) if, at the end of that period, the person has not been released under subsection (2) and has not made such representations, at that time. 
(5) Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.”

Subsection (6) is immaterial for present purposes.  

23.	It is plain that the wording in subsection (3) is materially different from the wording in 255A subsection (5).  The Secretary of State must not release a prisoner unless he is satisfied that it is not necessary for the protection of the public that he should remain in prison.  What is absent is any reference to a risk of serious harm to members of the public.  Plainly protection to the public includes and must include a risk of serious harm.  One issue here is whether it goes very much wider, and includes other risks such as a risk of repeated burglary.
  
24.	The pattern of 255C (see subsections (4), (5) and (6)) anticipates a hearing before the Parole Board.  It is common ground that when the Parole Board makes a determination in respect of a prisoner in circumstances such as these, it must look at the question of whether there is an unacceptable risk to the public in his release.  That is not limited to looking at the question of whether there is a risk of serious harm.  Thus of the matters about which the Secretary of State is obliged under Section 239 subsection (6) to issue directions to the Parole Board, that is, not only the need to protect the public from serious harm but the desirability of preventing the commission by offenders of further offences and the desirability of securing their rehabilitation, the Parole Board are concerned here with the risk of commission of further offences (whatever their specific nature).  As I say, that is common ground. 

25.	It seems to me, though Mr Field urges me to hold otherwise, that the difference in wording cannot be regarded as accidental.  It would have been simply open to the legislature to adopt the selfsame wording as appears in 255A (5) in 255C (3) had that been the intended test.  If it had been the intended test it would have meant that the test to be applied by the Secretary of State and that to be applied by the Parole Board would differ, although both were looking at the same question under the same section, that is, the question whether an offender to whom section 255C applied should be further detained in prison.  The Secretary of State would be looking to see whether his continued detention was necessary to protect the public from serious harm, but the Parole Board, whose recommendation on release would be binding on the Secretary of State, would be looking at the wider test of whether it was necessary for the protection of the public in what could very well be a more general sense.  Thus the career burglar who had been found in circumstances which might suggest that he was returning to his old ways, upon release on licence from a lengthy sentence for several such burglaries, might be no risk to the public in terms of causing members of it serious physical or psychological harm, but it would plainly be part of the protection of the public from the distressing after-effects of such offences if he were declined release by the Parole Board and the Secretary of State. It does not seem sensible to me that Section 255C should contemplate two separate tests in the case of such an offender.

26.	It leads to this conclusion as to the effect of sections 255A - C.  The Secretary of State has to decide at the outset whether there will be automatic release at the end of 28 days, or whether the recall is to be a standard recall.  If he determines at the outset there will be an automatic release date, then the recalled prisoner has 28 days to serve and he is then released.  The Parole Board does not consider the matter.  But the Secretary of State may only so determine if he is satisfied that there will not be a risk of serious harm to members of the public if the prisoner is then to be released.  He may also decide to release under section 255C (2) and (3), where he has not found a prisoner suitable for automatic release – but he is not obliged to order release simply because the offender offers no risk of serious harm to the public. In cases where the Secretary of State has concluded that he cannot be satisfied the prisoner does not constitute such a risk, or those where he declines to afford release, the Parole Board has to consider the question of release.  It will do so applying the test whether there is an unacceptable risk to the public in releasing the prisoner (i.e. the same test as would be applied by the Secretary of State under sub-section 255C(3)).   

27.	Cases only go to the Parole Board if the Secretary of State declines to permit release: that he has an independent power to order release without such a reference (either by determining that a prisoner who is eligible for automatic release is also suitable for it, or if he did not so determine at the outset, by exercise of his power under 255C(2)) operates as a form of filtering provision, so that only those cases in which the Secretary of State considers there may be an  unacceptable risk to the public in further release on licence are heard by the Board. 

28.	Given that statutory background, what is said against the Secretary of State here is this:  First, it is argued that there was no proper basis, whatever may initially have appeared to be the case, for drawing any conclusion that the claimant had been involved in an assault.  The alleged victim Katie Dawson positively denied that she had been the victim of any such attack.  Indeed her denial found its way into a witness statement of 26 August, subsequent to the incident and the claimant’s return to custody.  She gives an account that she was extremely drunk, she had wanted to go back into the club from which they had come out of the back door, there had been a discussion in which she and the claimant took different views about whether he should go home, she had her head slumped on her chest, sitting down, and he took his hand to lift her head up in order to hear what she was saying.  She categorically states that no assault took place, that the claimant had never “laid a finger on me”. Secondly, the claimant and his partner had cohabited without incident for the ensuing 48 hours. Thirdly, no adverse inference should be drawn from his use of alcohol, which was neither forbidden nor uncontemplated in the light of a curfew varied specifically to enable him to attend her birthday celebration. Once the suspicion that he had been engaged in assaulting Katie Dawson was removed, there was no other current basis to suspect that the offender posed a risk of serious harm to others.  

29.	As to that Mr Murray who appears for the Secretary of State argues that there was indeed material here which went way beyond the possibility that there had been an assault.  Objectively he said there had been no dispute that there had been three failed drugs tests.  Nor was it, he said, disputed that alcohol had been taken by the claimant on the evening in question.  The circumstances must have been sufficiently serious upon a look by an experienced operator of the CCTV recording system as to alarm her and for her to summons the police immediately.  There must therefore be enough in the incident to alert the Secretary of State, and if otherwise unexplained or unsatisfactorily explained the Secretary of State was obliged, first, to consider the Probation Service request to him which was that the claimant could no longer be managed within the community and was a significant risk, and secondly, to consider whether or not he could be satisfied that there was no risk of serious harm under Section 255A(5).  

30.	In my view it cannot properly be said that the response of the Probation Service was obviously irrational.  Indeed I concur entirely with the view of Blake J expressed in his observations when granting permission that an initial view of the need for recall on receipt of the information that an arrest on suspicion of assault had been made in all the circumstances of this claimant’s’ recent history would not be irrational.  Given the recent history, read in the light of the extracts from the pre‑sentence report I have highlighted and in the light of the Claimant’s criminal record, the Secretary of State was entitled to take the view that he could not be satisfied that the claimant was no risk.  Drink had been associated with early events of violence, the claimant had in 2006 and 2007 been involved in offences of violence though they never reached final determination by the courts as convictions, substance abuse was said to be a real problem for him in controlling his behaviour and he plainly had been involved in substance abuse since he had been released on licence to the extent of being given a final warning about it.

31.	The Secretary of State’s view could not against that background be said to be irrational, certainly as at the date of recall, 10 August.  

32.	What is said on the Secretary of State’s behalf in a witness statement by Nuzhat Razvi, who is deputy head of casework with the Croydon recall section of the public protection casework section at the Ministry of Justice, is that decisions as to the basis upon which recall is made cannot be amended once the revocation warrant is issued.  Therefore the decision to recall on a standard basis as opposed to a fixed term of 28 days cannot be changed in the light of further evidence becoming available.  So he notes that the fact that the police did not apprehend the claimant for 48 hours, during which time he returned to stay with his partner, was not a matter that could be taken into account by his team because that occurred after the revocation warrant was issued.

33.	Criticism was directed to the lack of flexibility in this approach.  It is submitted by Mr Field that a decision could not be and should not be set in stone at the outset and unchangeably so.  That would be inconsistent with the statutory regime which seeks to avoid troubling the Parole Board with applications for release.  He points in this regard to Section 255C (2) and (3).  

34.	In my judgment the prisoner who is designated for automatic release is simply to be released.  This provision as it seems to me under 255C (2) also permits the Secretary of State himself to release without the necessity to trouble the Parole Board.  At one stage it had appeared to me that a prisoner who makes representations under 254 (2) is entitled to have them heard by the Parole Board forthwith and that the Secretary of State in essence would have no locus to make a decision of his own pending the determination by the Parole Board, but I have been persuaded by Mr Field that that is not a proper reading of the legislation.  The Secretary of State could do so.  But as I have already indicated, my view is that in doing so he must under subsection (3) adopt the same test effectively as that which the Parole Board would adopt, and in the circumstances of this particular case it is not clear to me that the Secretary of State was ever properly put in a position when it could be said he could and should have exercised his discretion under Section 255C (2) and (3).  I emphasise the short periods of time that went past between recall and the determination by the Parole Board itself to which I have referred.

35.	Accordingly as it seems to me on both the aspects of the claim which have been brought against the Secretary of State, the claim must necessarily fail, first because the Secretary of State was entitled to recall the claimant to prison, was entitled to take the view that he could not be satisfied that the prisoner on the information then available to him not present a risk of serious harm to members of the public and was not obliged under Section 255C thereafter to release pending the decision of the Parole Board which was to be anticipated in the near future.  

36.	That then brings me to the case against the Parole Board.  Here what Mr Field submits is that the Parole Board’s approach was flawed.  I shall take the argument about whether the Parole Board was bound to provide an oral hearing first.  The reasoning was this.  The board’s determination reads: 

“Mr Oakes was released under licence on 10/7/09 but returned to prison on recall on 10/8/09.  Probation had issued Mr Oakes with a final written warning for failing three drug tests and then heard from police that he had been arrested in an intoxicated state after an alleged assault on his partner. His partner refused to make a statement against him later. The panel has read Mr Oakes’ two handwritten representations carefully. Mr Oakes contends in the main that 1) he was arrested for breach of curfew rather than domestic assault on partner 2) he was not under the influence of alcohol since a doctor found him fit to interview after 5 hours, 3) he reported to probation at 4 pm after the incident 4) probation should not be worried about his partner’s safety since they have a good relationship 5) He should not need to go to approved premises since he can stay with his partner or parents and 6) only his offender manager rather than others in probation holds these views about him.”

The panel recorded it had read his solicitor’s representation and his partner’s reference in which she denied there had been any assault.  It went on to comment: 

“It is not for the panel to comment on recall per se but it does have to consider whether an oral hearing is justified in case of factual disputes about the recall incident and if risks could have been interpreted to be higher than actual or could be assessed better through evidence in person.  In this case the panel concludes that such a hearing is not necessary because just the fact of an arrest by police would have been legitimate grounds for a higher risk assessment by probation based on Mr Oakes’ background. Additionally the panel prefers probation’s assessment of risk given Mr Oakes’ history.”

37.	But that might seem (and indeed did seem to the court at first) to be saying that the mere fact of an arrest, however justified or unjustified, would be proper grounds for assessing a risk to the public from the prisoner at a higher level.  That, if that had been the proper interpretation, would be illogical.  A wrongful arrest or arrest with no proper basis emerging for it could not give grounds for any assessment that there was additional risk or for that matter diminished risk in itself.  But I have been satisfied after listening to what is said by Mr Thomann on behalf of the Parole Board that that is not what the Parole Board here was saying.  The board was examining whether the actual recall itself could or could not be challenged.  There may be many cases in which the propriety of a recall rests upon disputed facts, such that the probation should never have recommended to the Secretary of State that there should be a recall.  In such circumstances it is not difficult to see that that would be relevant to the Parole Board’s decision.  But here what the board was saying was that the Probation Service was alerted on it may be 7 or 8 August to the fact of an arrest in the circumstances I have described -- and that was sufficient for the time being for them to regard the risk as higher than it may actually have been, and to lead to the recommendation which was made, upon which recall was justified   The Parole Board were not in my view saying that because there had been an arrest, however justified or unjustified, there was thereby a greater risk posed by the claimant, merely that there was no factual basis for supposing that the recommendation for recall made by the Probation Service was improper.  In context it actually has a different force than that which first appeared to the court.

38.	However, that being the approach which I am satisfied the Parole Board meant to take, the recommendation continues, dealing with the various risks of reconviction which the claimant posed.  Then it came to a conclusion in the words which I have already cited.  Those words include an apparent acceptance by the Parole Board of risks of reoffending.  The Board expressly agrees with probation about their “caution on risks posed to others including partners”.  The only available information within the papers as to any potential risk to partners arises out of inferences to be drawn from the incident involving Katie Dawson and the claimant in Bradford in the early hours of 7 August.  For there to be a “risk to others including partners” it must therefore necessarily be assumed, contrary to that which the claimant was saying, that the claimant had assaulted her.  It was contrary to what she said.  There was evidence which might be capable of suggesting otherwise if it were to be examined, such as the evidence of the CCTV, and it may be any material evidence which might have been given by or through the police.  But if that was to be a significant and relevant aspect for consideration by the Parole Board in coming to their conclusion, then it seems to me that taken on its own it would call for oral exploration, so that the Parole Board could determine the disputed facts for themselves rather than making an assumption whether there had or had not been a violent incident between claimant and partner.  

39.	The Parole Board were looking at the question of risk to the public.  Given the link in the pre‑sentence report between substance abuse, and on occasion alcohol, and offending, and given the nature of the acquisitive crime which in part had been inspired by the need to fund the purchase of substances in order to abuse them, in the light of the high risk of re‑conviction which the OASYS system indicated, I cannot as it seems to me necessarily say that the Parole Board must have come to the conclusion, taking any question of risk to the partner out of the equation, that the claimant should be released.  There were grounds for thinking that he remained a danger to the public in the sense of being liable to commit further acquisitive offences irrespective of the rights and wrongs of the incident involving Katie Dawson.  

40.	The rehabilitation of the claimant had some distance to go and the Parole Board made specific reference to that too.  Taking into account all that the board has mentioned, it does not seem to me that the recommendation which was made depends necessarily and centrally upon the question of whether the claimant had or had not engaged in offending behaviour on the night in question, but I am mindful that if it had not been for that particular incident, then absent any further reason to come to the attention of the probation officer supervising the claimant such as further adverse drugs tests, the claimant would not have been recalled to prison.  He would not then have been in a position where the Parole Board would have to assess whether or not he should be released.  I am conscious of the approach of Article 5(4) ECHR that continued detention in custody in general terms requires a good reason. (I avoid the term “justification” and I appreciate that is very much a summary and perhaps an inadequate one of the considerable case law in relation to it.)  But it must remain a concern here that the probation may have taken into account a matter of disputed fact relevant to continued detention which they should not have done without giving the claimant the opportunity to be heard upon it, an opportunity which by directing their mind solely to the question of the propriety of the initial recommendation to recall they had avoided determining.  The panel appear to have declined to hold an oral hearing because there was no relevant dispute of fact in relation to the recall, yet to have reached a determination adverse to the claimant by taking significantly into account matters of fact in relation to the incident leading to recall which were indeed very much in dispute.

41.	Mr Field submits that there was an inconsistency in any event between the conclusion reached by the Probation Service on the one hand and that reached by the Parole Board on the other.  He argues that public bodies operating in the same context should make decisions which are consistent one with the other.  He draws attention to the case of R (on the application of Paul Lowe) v the Governor of HMP Liverpool [2008] EWHC 2167 (Admin) and the case of Robinson v Parole Board, a decision of the Divisional Court, Simon Brown LJ presiding, on 8 November 1999, reported in The Independent.  These are to the effect, in Lowe, that if one governor assesses the category of a prisoner in a particular lower level then another governor subsequently dealing with his case is not permitted to take a different view without there being any material change in circumstances, and in Robinson, where one Parole Board has made an assessment of the risks an offender poses in the community then when a new panel of the Parole Board sits in order to determine the formal arrangements to secure his release into the community, that Parole Board is not then entitled to take a different view from the earlier panel, at least where there is no material change of circumstance..  

42.	These principles appear to be accepted by all counsel before me, but take matters little further.  This is not a case of one and the same body reaching a decision by panels, the decision of one of which is inconsistent with the decision of another of the same body.  The Parole Board is and has to be independent of the Secretary of State.  It is called upon by statute to make a decision applying the test it does, and it is called upon to make its decision in circumstances envisaged by that statute namely that other decisions may have been made (by the Secretary of State, or by him on the recommendation of the Probation Service) with which it will necessarily be obliged to disagree should it in fact disagree with them.  The decision is therefore entirely one for the Parole Board and it is not to be interfered with by a court without a very good reason.

43.	Accordingly it seems to me that insofar as an argument is addressed as to inconsistency, it is one which I do not find persuasive on behalf of the claimant.

Conclusions
44.	In conclusion it seems to me that the case insofar as it rests against the first defendant must be rejected. He was not obliged to order release. Insofar as it rests against the Parole Board I cannot conclude that the board is obliged as alleged to direct the claimant’s release. 
 
45.	However, there is one ground which as is plain from the above discussion has given me greater difficulty. There is said to be a failure of the third defendant to provide the claimant with a speedy and meaningful oral determination of the lawfulness of his continued detention.  It does for the reasons I have expressed in this judgment seem to me that the approach which the Board has taken has been one which has necessarily held adverse to the claimant matters which he disputed without satisfactorily resolving the dispute upon any ground which, insofar as the reasons go, properly stands scrutiny.  Its decision that there was no relevant factual dispute about the recall incident appears wrong, yet this was the basis upon which an oral hearing was not thought justified.

46.	Anyone taking an overview of what occurred might regard it as surprising that the claimant should find himself back in prison and detained, not only for 28 days but for longer, after an incident which though observed on CCTV was denied by the players as involving any criminality.  This surprise is perhaps reflected by the observations of Blake J in granting permission. It may be entirely rational that it should be the case that in all the circumstances (once properly established) the claimant should remain in custody; but because I cannot be satisfied that the Parole Board has properly and correctly approached the determination it made, by deciding on a flawed basis not to hold an oral hearing, I propose to allow the claim on this ground and shall hear counsel upon what relief it is appropriate to give.

MR JUSTICE LANGSTAFF: Mr Field?

MR FIELD: My Lord has already in that determination determined that notwithstanding the concerns my Lord raises felt that it’s inappropriate that the Parole Board should have ordered his immediately release and I …

MR JUSTICE LANGSTAFF: I cannot say that it was appropriate, it is not a decision I think for me.

MR FIELD: Yes.  That means the only … the only feasible remedy would be against the third defendant, the satisfaction of the request for an oral hearing.

MR JUSTICE LANGSTAFF: Well I think in the practical terms there may be difficulties in organisation, as far as I can see.  When might a review be heard if the Secretary of State were to require it, because I think the arrangements come from the Secretary of State, don’t they?

MR MURRAY: Certainly the listing requirements do.  I am afraid I am unable to give an answer as to how long in this particular case it would take.  And of course the problem there is, as my Lord is well aware, the resources of the Parole Board are under …

MR JUSTICE LANGSTAFF: I am fully aware of that but resources as you know Mr Murray are not a very good reason for keeping someone in custody if they shouldn’t be there.

MR MURRAY:  Indeed.

MR FIELD:  Sorry to interrupt. I appreciate the practicality and the resource issue. It may be that if my Lord granted declaratory relief that the decision makers should not hold against the claimant the …

MR JUSTICE LANGSTAFF: I don’t think I can go that far either. 

MR FIELD:  No, perhaps not.

MR JUSTICE LANGSTAFF: What I can do is I can simply say that I shall adjourn the question of relief until the parties have had an opportunity to consider what I have said in my judgment and whether there is any dispute between them as to consequential steps, because it may be simply that what I have said is sufficient for the Secretary of State to set about inviting the Parole Board to have another look.

MR FIELD:  Alternatively, and I don’t know my learned friend’s stance on this, my understanding is that the Secretary of State could now re‑address the matter under his ongoing power 255C, and also something that has not been raised before, my Lord, there is new information regarding the substantive …

MR JUSTICE LANGSTAFF: Well, that isn’t, I think, a matter for me at the moment, is it?

MR FIELD:  No.

MR JUSTICE LANGSTAFF: But …

MR FIELD:  My ..

MR JUSTICE LANGSTAFF: What I am concerned is, in the light of what I have said, is to produce as practical a result as I can bearing in mind that it doesn’t seem to me necessarily inappropriate that the claimant remains in prison, but if he is to do so the position is to be reviewed properly as speedily as it practicable.

MR THOMANN:  My Lord, I can assist with three matters.  First of all we could seek instructions on how long it would take the Parole Board to reconsider this matter, I would need a five minute break for that …

MR JUSTICE LANGSTAFF: Well I’ve got another case waiting but … are you in the other case?

MR THOMANN:  It may not however be necessary because what I would suggest should happen is that first of all we would be assisted by an expedited transcript of this judgment to assist the Parole Board, and secondly it may suffice as to the Parole Board’s decision in this case is quashed.  In my submission there is sufficient guidance in the judgment handed down to enable the Secretary of State and the Parole Board to put in train those matters that need to be put in train to meet the requirements of Article 54.

MR JUSTICE LANGSTAFF: Well I am certainly prepared to quash the decision of the Parole Board, it leaves the claimant in prison, and invite you, Mr Field, or rather your claimant, to come back to court should it seem that matters are unduly dragging their feet.

MR FIELD: My Lord, yes.

MR JUSTICE LANGSTAFF: I don’t know how to articulate that at the moment in words but that is the sense of it.  Let me just say this then.  Have you anything to say about that, Mr Murray?

MR MURRAY:  No, that seems a very sensible solution.

MR JUSTICE LANGSTAFF: It has been suggested by counsel for the Parole Board that the practical result of the reasoning which I have expressed is that the decision of the Parole Board should be quashed.  The claimant for the time being is in lawful detention.  Plainly the Secretary of State will wish to consider whether and to what extent it is right to maintain that period of detention and how quickly it is practicable to secure any further consideration, either by the Secretary of State himself under the legislation which I have set out or by inviting the Parole Board to do so.  That is a matter which all counsel are content to leave to the parties.  I grant liberty to apply should any issue arise as to that sensible process.  It is necessary for this that there should be an expedited transcript and I order expedition.  

Can I thank all parties for the quality of their submissions.

MR FIELD:  Thank you my Lord, and I am very grateful to the clarity of my Lord’s though processes.  I can say … can I make an observation?  In relation to my Lord’s example, and it is no more, there is no application, that it would appear that the burglar that my Lord had in mind, if he hadn’t been seen on CCTV doing something of this nature, if he had simply been wandering around, he would have been entitled to release under Section 255A because Section 255A specifically refers to serious harm to the public.  It is only the unfortunate wording of 255B and C that gives rise to any ambiguity on that point, so as unattractive as it may seem, it is only because there was a spectre of violence …

MR JUSTICE LANGSTAFF: This is arguing on after the event.

MR FIELD: Not arguing afterwards it’s …

MR JUSTICE LANGSTAFF: But I am grateful for those observations.  In any event it doesn’t I think change the reasoning which as I have indicated dependent upon the … what could have been or was a flawed approach by the Parole Board.

MR FIELD: My Lord, could I make a formal application?  I have to say I am not entirely sure of the correctness of this. Insofar as the claim against the Secretary of State has been dismissed on what I would submit is a very important construction point, a very new provision that will have a major affect on a number of prisoners in terms of unattractive prisoners but nonetheless those who aren’t dangerous, could I apply to my Lord for permission to appeal against my Lord’s ruling in relation to the Secretary of State’s construction of Section 255A and 255C...

MR JUSTICE LANGSTAFF: Well, you can appeal an order.  You can’t appeal  the reasoning.

MR FIELD: No, so …

MR JUSTICE LANGSTAFF: So what in the order are you appealing?

MR FIELD: The part of the order that where my Lord determined that Section 255C…

MR JUSTICE LANGSTAFF: Well, that’s not part of the order.  Part of the order is dismissing the case against the Secretary of State.

MR FIELD: That part of the order.  That part of the order, the part of the order dismissing the claim against the Secretary of State.

MR JUSTICE LANGSTAFF: Any observations, Mr Murray?

MR MURRAY:  No, my Lord

MR JUSTICE LANGSTAFF: No, I don’t grant that.  There are two reasons for giving permission.  One is that there is an arguable case.  It does not seem to me that there is.  The second is that the public interest requires that it be heard, but this is not in my view the right case.

MR MURRAY: Thank you, my Lord.  My Lord, I have one very minor correction from my Lord’s judgment.  There was one moment when you said probation rather than …

MR JUSTICE LANGSTAFF: I think there is more than one, probably.

MR MURRAY: I think if perhaps you could have a look

MR JUSTICE LANGSTAFF: The judgment is of course ex tempore, it will necessarily be revised before it is finally released. That is inevitable.  Thank you anyway, and I -- of course if you come to deal with it subsequently you will recognise it is an ex tempore judgment with all the flaws that go with it.

MR FIELD:  My Lord, could I make an application for costs?  Certainly that part of the claimant’s costs as against the Parole Board I would invite my Lord to make a cost in favour of the publicly funded claimant.  I have an obligation to make such an application on behalf of the Legal Services Commission.  Insofar as there may be any apportionment and there may be some part of the claimant’s costs that would not be covered by a costs order against the Parole Board, I would ask for a detailed assessment of the claimant’s publicly funded costs in relation …

MR JUSTICE LANGSTAFF: Mr Murray, do you have an application to make?

MR MURRAY:  I cannot resist that.

MR JUSTICE LANGSTAFF: Very well.  The Parole Board to pay the claimant’s costs as against the Parole Board.

MR FIELD: And could I ask for detailed assessment of any residue?

MR JUSTICE LANGSTAFF: Yes.

MR FIELD: Thank you, my Lord.