Ismailaj v The Parole Board of England & Wales & Anor [2011] EWHC 1020 (Admin)

[2011] EWHC 1020 (Admin)Case No CO/15324/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/04/2011
Before
MR JUSTICE FOSKETT
Between
Vullnet IsmailajClaimantThe Parole Board of England & Wales (1)DefendantsSecretary of State for Justice (2)Defendant
Philip Rule (instructed by Lewis Nedas & Co) for ClaimantMatthew Slater (instructed by Treasury Solicitor) for First DefendantSteven Kovats QC (instructed by Treasury Solicitor) for Second DefendantHearing Hearing dates: 1 April 2011
Judgment

Introduction

[1]On 21 February 2005 the Claimant, then a 27-year old Albanian national who had come to the UK as an illegal immigrant in 2000, pleaded guilty at Southwark Crown Court on the day fixed for the trial to an offence of trafficking Lithuanian women into the United Kingdom from Germany for the purposes of sexual exploitation. He had been arrested on or about 11 October 2004. He was sentenced to 11 years imprisonment on 22 February 2005 and recommended for deportation. The sentence of imprisonment was reduced on appeal to the Court of Appeal Criminal Division in November 2005 to 9 years: see[2005] EWCA Crim 3404. It was said in the judgment of that court that of the various defendants the Claimant “was much the most significantly involved”. According to the same judgment, the Claimant had made a benefit from the illegal activities of approximately £160,000 - although the assessed benefit in the confiscation proceedings to which I will refer below was in excess of £170,000.[2]On 22 November 2005 a confiscation order was imposed on the Claimant at Southwark Crown Court in the sum of £95,000 plus interest with a default sentence of 22 months.[3]Given the fact of subsequent non-payment, on 6 November 2007 the City of Westminster Magistrates’ Court activated the default sentence which had the effect of adding a consecutive period of 22 months to the effective prison sentence. When the Claimant completed two-thirds of the 9-year sentence in October 2010 (when ordinarily he would have been entitled to release), he began serving the 22-month term which he is currently serving. He must serve one-half of that term so that his release date is now set to be 19 September 2011.[4]His sentence for the trafficking offence was imposed shortly before the sentencing regime set out in the Criminal Justice Act 2003 became effective. He was, therefore, sentenced under the terms of the Criminal Justice Act 1991. His sentence was imposed for offences committed before 4 April 2005 and exceeded four years in length. Consequently, it took effect as a Discretionary Conditional Release (DCR) sentence.[5]He was entitled to be released at the half-way point of the sentence if his release on licence was recommended by the Parole Board. The half-way point is known at the Parole Eligibility Date (‘PED’). As already indicated, release would have been automatic at the two-thirds point of the sentence (the Non-parole date, ‘NPD’). As I have indicated, but for the 22-month default sentence in relation to the confiscation order, he would have been released in October 2010. The default sentence itself is not subject to parole.[6]If he had been sentenced to a 9-year term for an offence committed after 4April 2005 he would have been subject to a Standard Determinate Sentence (‘SDS’) which provided for automatic release at the half-way point of the term (the Conditional Release Date, ‘CRD’).[7]The Claimant’s ‘PED’ was 19 April 2009. The Panel considered the Claimant’s first parole application on 15 September 2009 and rejected it.[8]The Claimant’s essential complaint, in a nutshell, is that had the Panel held an oral hearing of that parole application, as he contends it should have done, it is likely that he would have been released earlier. It is also said that there was a failure to have regard to all proper material considerations in reaching the decision on paper.[9]His claim for judicial review was launched against the Parole Board and the Secretary of State for Justice. The Claim Form was sealed on 15 September 2009 and the grounds were served on 26 January 2010.[10]On 8 July 2010 he obtained permission from Mr Nicholas Padfield QC, in his capacity as a Deputy High Court Judge, to proceed against the Parole Board, but not against the Secretary of State. The basis of the grant of permission was that it was arguably unfair not to hold an oral hearing. Although the Claimant sought to amend his grounds to raise wide-ranging issues against the Secretary of State and effectively to renew before me the application for permission to apply for judicial review against the Secretary of State, the matter was not listed as a “rolled up” hearing, no direction to that effect having been obtained previously. The Secretary of State appeared by Mr Steven Kovats QC and, having heard from Mr Philip Rule for the Claimant and from Mr Kovats, I refused the renewed application and the matter proceeded simply against the Parole Board on the basis for which permission had previously been granted.

The more detailed background

[11]Various assessments and reports were made of and on the Claimant in the period before the Panel considered his application in September 2009.[12]One such assessment was by his Offender Supervisor, Ms Sophie Browne. She had been his Offender Supervisor since October 2008 (when he arrived at HMP Erlestoke in Devizes, Wiltshire) and had interviewed him formally on three occasions during that period. Although there is no clear evidence to this effect, it does seem likely, asMr Matthew Slater for the First Defendant contended, that she will have seen him on other, more informal, occasions over that period. Nonetheless, the assessment that took place on 25 February 2009 (the last of the three to which she referred in her report) is the assessment that mattered for the purposes of the parole application. Her report was dated 19 March 2009.[13]In addition to the information she obtained from the interview, she had access to the Claimant’s prison records, including his wing history, sentence planning files, the OASys (Offender Assessment System) documents and drug testing history. She also requested further information from other sources.[14]She records the Claimant as continuing to say, as he had done at the time of his sentencing, that he was really unaware about what was going on at the time of his alleged involvement in the human trafficking and explained the remarks of the judge who sentenced him that he was “deeply involved in this offending” as the result of something said by one of his co-defendants. He sought to explain the substantial sums of money going through his bank account on the basis that he was effectively doing people favours by transferring money back to the families of certain people who were in the UK illegally.[15]Ms Browne said that she had not had access to the CPS papers and that she had only the sentencing judge’s remarks to assist in testing what the Claimant had said. However, her report draws a contrast between what the sentencing judge said and what the Claimant himself said. Looking at the former, it was plain that the Claimant had been convicted of “deep involvement in a substantial sex trafficking operation.” She recorded that he took no real responsibility for his actions and that he continued to maintain that his involvement was minimal and unwitting. She recorded that he had demonstrated no victim empathy which indeed was consistent with earlier reviews that had been undertaken. Her conclusion was expressed in these terms:
“[The Claimant] continues to minimise his offending and demonstrates very little victim empathy or remorse for his involvement in the sex trafficking operation. He has not had the opportunity to undertake any offending behaviour work whilst in custody and, due to his deportation status, will effectively not be on licence on release: there will not, therefore, be any further opportunity for him to examine his behaviour. [He] continues to pose a high risk of serious harm to the public – specifically vulnerable females wishing to enter the United Kingdom – which I would judge will continue to be the case whether he is in the UK or Albania. In light of this, I do not support release at this time.”
[16]He was also interviewed by a Probation Officer, Ms Fiona Gaines, on 23 July 2009, some 5 months after Ms Browne’s interview in February, following a transfer to HMP Guys Marsh (in Shaftesbury, Dorset). His Offender Supervisor at that prison was a Mr Smith. Mr Smith was present during the interview conducted by Ms Gaines. It is clear from her report that the Claimant gave very different responses concerning the offences and the victims from those he had given Ms Browne. He certainly made far more significant admissions of involvement than he had apparently done hitherto, acknowledged that he made some significant sums of money as a result and explained that he had begun to appreciate the impact that his actions had had on those involved. He expressed shame for his actions.[17]Ms Gaines noted this changed approach in two passages in her report that should be recorded:
“We discussed these offences in great depth, given concerns raised by other report writers over his minimisation of his level of involvement in them, and his apparent lack of remorse and limited victim empathy. It will be seen that [the Claimant] provided me with very different responses than those given to Ms Browne, and he attributed this to being offered the opportunity to expand on his answers to myself and Mr Smith, claiming he had previously only been asked a number of closed questions, to which his replies were restricted to either yes or no.” … “[The Claimant] presented as polite and cooperative throughout our interview. There may be some who feel sceptical about his improved responses to my questions, and I put this to him. He reiterated that he had not been able to express himself openly before in interview, and he appeared grateful to both myself and Mr Smith for allowing him to do so on this occasion.”
[18]I will set out Ms Gaines’ conclusion and recommendation below, but I should record one paragraph under the heading of “Behaviour and Progress in Custody” in her report to which Mr Slater drew attention. The sub-heading of the paragraph is “Victim Awareness Counselling”. The following is recorded under that sub-heading: “[The Claimant] demonstrated good victim awareness during our interview. Nonetheless, to underpin his improving attitude in this area, and expand his overall awareness of victim issues, Mr Smith is giving [him] a Victim Awareness Booklet to complete, and will discuss his responses with him, undertaking 1:1 work if necessary. HMP Guys Marsh also runs a Becoming Victim Aware Course, from which [he] might well benefit, although the waiting list for attendance on the program is lengthy”.[19]Ms Gaines’ conclusion was in the following terms:
“If [the Claimant] was going to remain in this country, I would support his release on parole because he would be subject to strict supervision and his behaviour and attitudes could be monitored. I appreciate that he will not be subject to such monitoring or control in Albania, but he will be offered familial support there, and employment seems to be waiting, both of which represent strong protective factors to reduce the risk of re-offending.”
[20]The report of Ms Gaines and the report of Ms Browne comprise part of the material considered, in due course, by the Panel. As I have indicated, the Panel considered the application on 15 September 2009.[21]I do not believe I have been told when the Claimant instructed his present solicitors, but it appears that they were instructed at least by the time he learnt (apparently on 14 September 2009) that the Panel would consider his application on the following day and possibly for some time prior to then. They made representations by letter of that date (which was sent by fax also) highlighting certain matters including the fact that the dossier was originally incomplete and then lost, the Claimant had not received full interviews for the OASys assessments and the reports were, it was said, incomplete and it had not been possible to obtain copies of the previous OASys assessments despite efforts to do so. Attention was drawn to the positive features of his application.[22]The letter contained the following paragraph: “[The Claimant] has found the whole process quite stressful and…, given the substantial delay already, would prefer the hearing to proceed rather than request any deferment. Therefore whilst ordinarily we would submit full representations, the time constraints and extra work required leading to a shortage of funding necessitates that we ask that the hearing proceeds and the board consider the enclosed brief representations and documents…”.[23]The letter invited the Board to grant the Claimant parole. Its concluding paragraphs in support of that contention were in the following terms:
“[The Claimant] endorses the content of [Ms Gaines’ report] and we would urge the Parole Board to consider following the recommendation for parole. It is well documented that [the Claimant] is due for deportation. In our respectful submission it serves no purpose for him to remain in the UK. He has progressed extremely well through his custodial period and at this time remains a trusted prisoner on the super enhanced wing. As mentioned by the Probation Officer, on return home he has the promise of support of his family, including his partner. In fact, this is a long term partner whom he was due to marry the day he was arrested and it is believed that that is still their intent. It is understood that his parents are now suffering ill health and this is causing him some considerable concern and anxiety having seen so very little of them in the past few years. It is his intent to ensure that they have full care on his return. He has the promise of employment and we enclose documents with certificated translations for the board’s reference.”
[24]Whilst it is possible that the Claimant’s advisers were presented with a difficult situation if there had been little notice of the hearing against the background of delays there had been, it is to be noted that there was no specific invitation to the Panel to provide the opportunity for an oral hearing.

The Board’s decision

[25]The Panel indicated that it had received and taken account of the representations made on the Claimant’s behalf. Its conclusion was that “the risk to the public (either in the UK or Albania) outweighed the benefit of a longer period of licence” and, accordingly, declined to recommend early release.[26]Before setting out the reasons given by the Panel for its decision in the Claimant’s case, the general nature of the decision that was required to be made needs to be recalled. The directions given to the Parole Board under section 32(6) of the Criminal Justice Act 1991 were to the following effect: “In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and the offender, of early release back into the community under a degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safe-guarding the public may often outweigh the benefit to the offender of early release”.[27]The same directions then indicate a number of factors that need to be considered before recommending release on parole licence.[28]Mr Rule submitted that the way the Panel expressed itself in the letter (see paragraph 25 above) reflected an error and that the correct approach was that set out in Appendix 7 of PSO 6000 which, in respect of “long-term prisoners liable to deportation or removal from the UK”, indicates that the primary focus was “on the need to protect the public from serious harm and the prevention of further offending.” Various factors are listed for consideration including “remorse, insight into offending behaviour and steps taken, within available resources, to address offending” and “any other information … which may have a bearing on risk assessment.” For my part, whilst the wording of Appendix 7 may be somewhat different from the wording used by the Panel, the essential question to be addressed is much the same and, for the reasons that will emerge in due course, I do not consider that applying the words of Appendix 7 would have made any difference in this case.[29]The decision letter of the Panel recited the history of the Claimant’s offending, noted that he had no previous convictions recorded in the UK (and that there was “no evidence of previous convictions in his native Albania”) and assessed the factors affecting the risk of reoffending. In relation to changes that had occurred during the sentence, the letter noted the following:
“The Panel noted the differing accounts given by [the Claimant] to the Seconded Probation Officer and the Offender Supervisor both of whom have come to differing conclusions as to his suitability for early release as a result of his presentation to them. If [the Claimant’s] attitude towards his responsibility for his offending has changed then the Panel consider that this had been very recent.”
[30]In relation to the risk of re-offending and harm to the public, the Panel noted the varying assessments made. It referred to the “extensive and lucrative nature of the … offending which was founded in exploitation of women for financial gain” and noted as follows:
“[The Claimant] has not undertaken any work that would require him to examine and challenge the attitudes and beliefs that underpinned his offending. For the majority of his sentence he has minimized his involvement and failed to accept responsibility for his part in the enterprise. If his presentation to the Seconded Probation Officer is genuine, it has been a very sudden and recent shift from his previous stance. The panel could not be satisfied that the risk of reoffending and harm to the public has materially reduced.”
[31]Under the paragraph relating to “risk management” the following assessment is made, the Panel having noted that the Claimant was liable to deportation on release: “Irrespective of the lack of a risk management plan the panel considered that [the Claimant’s] risk cannot be safely managed in the community. He has given conflicting accounts of his culpability to Probation within a very short period. In order for risk management to be effective the panel considered that a degree of consistency and openness would be required. [The Claimant] has yet to demonstrate these qualities and abilities. He has yet to demonstrate that he has made a lasting shift in his attitudes towards women”.[32]The conclusion of the panel was in the following terms:
“This is [the Claimant’s] first review of a substantial sentence for serious sexual offences committed in relation to a number of victims over a lengthy period. Although he has made some constructive use of his time and his behaviour has been acceptable he has yet to show a consistent level of acceptance of responsibility for his offending. It may be that he has suddenly realised the seriousness of his offending and accepted the full extent of his part in it. He needs to work with Probation to explore the motivation and triggers, attitudes and beliefs underpinning his offending, and to develop strategies to prevent re-offending. Until such time as he has done so the panel could not conclude that the risk was reduced to a level consistent with early release. He will be entitled to a further review before NPD.”
[33]Mr Rule argues that there were a number of factors that militated in favour of an oral hearing being held before the decision of the Panel was taken although it has to be said that some go more appropriately to his other argument, namely, that material factors were overlooked in the decision. In summary he submits that - 1. The Claimant was assessed as unsuitable for the Enhanced Thinking Skills (‘ETS’) programme in October 2007 as he did not match the criteria for such a course. He argued that it was irrational and unfair to hold against him the fact that he was assessed as not requiring the work, and therefore not offered it, and consequently had not undertaken it. Alternatively the Board gave insufficient weight to the fact that he was assessed as not requiring such intervention. He submitted that the situation was analogous to what was said R (Falconer) v SSJ [2009] EWHC 2341 (Admin): “It would be a breach of the Secretary of State’s public law duty to put beyond the prisoner the means of demonstrating progress towards rehabilitation while at the same time demanding such progress from the prisoner before granting him re-categorisation ….” 2. Ms Browne had said that there would not be any further opportunity for the Claimant to examine his behaviour if granted parole due to his deportation, this overlooked the fact that he would still have 11 months to serve in custody from the date of notional release on licence and during that time he could be given such opportunities. He submits that her assessment was thus flawed and the Panel failed to have regard to this material consideration and reached a flawed decision in consequence. 3. An oral hearing would have provided an opportunity for testing and examining the conclusions of the two reporting Probation Officers whose conclusions were different and whose account of the attitudes of the Claimant differed significantly. 4. Without an interview by a member of the Parole Board, or an oral hearing, the Claimant was not able to explain or challenge the comments and conclusions of Ms Browne or explain his attitudes and behaviour to the Panel. This would have informed the Panel of his true attitudes and the reality of any risk factor and the need or otherwise for any intervention. 5. The absence of any risk management plan resulted in the Panel being unable to explore and investigate the circumstances to which the Claimant intended to return in Albania. 6. The decision of the Panel gave insufficient weight to the fact that the Claimant’s risk of reconviction was low. 7. The Panel wrongly ignored the material consideration of the report of a prison officer which clearly referred to an acceptance of responsibility for his offending by the Claimant in February 2009 and the assessment he would not commit offences upon release. 8. The Panel failed to consider the fact that other prisoners subject to a similar sentence for a similar offence committed a short time later would be released automatically at the half-way point of the sentence and to make due allowance in considering the Claimant’s release of the need to avoid arbitrary and discriminatory treatment in conflict with Article 14 of the ECHR in conjunction with or in addition to Articles 3, 5 and/or 8. 9. The Panel failed to consider the fact that other prisoners subject to a like sentence for a non-specified offence such as a conspiracy to import class A drugs who received a sentence at the same date under the 1991 Act would also be released automatically at the half-way point under the amendments made retrospectively to the sentencing regime for such prisoners. 10. The Panel did not interview the Claimant prior to the decision. 11. The Panel did not have before it reports of work that the Claimant had done including(a) the Be Victim Aware course,(b) the assessment that deemed him unsuitable for ETS as he did not need it,(c) the Money Management course and(d) the Family Relations course. Discussion

Oral hearing

[34]Mr Slater, on behalf of the Board, accepts that procedural fairness may require an oral hearing and that it is ultimately a matter for the court to decide whether the procedure adopted was unfair. However, whether an oral hearing is required in any given case will depend upon the facts.[35]The background to this general issue has been considered in a number of recent authorities, authoritatively collected and analysed inMichael Osborn & John Booth v The Parole Board [2010] EWCA Civ 1409 in which the judgments were handed down on 15 December 2010. I do not think it necessary to extend this judgment with extensive citations from that or any other authority. It is clear that the test of whether there has been unfairness on the part of the Board is not a Wednesbury test. The court must form its “own primary judgment as to the demands of fairness”: per Moses LJ at paragraph 53. Whilst that is so, the parameters were stated (per Carnwath LJ at paragraph 42) to be as follows:
“Translated to the present context, the question of fairness should be judged in the context of the circumstances identified and evaluated by the Board, including their appraisal of the material already available, formed with the expertise which the court does not share, and their resulting assessment of what will be needed to satisfy it that release will not put the public at risk.”
[36]Having referred to what Lord Bingham said in Regina (Smith) v Parole Board (No 2) [2005] 1 WLR 350,he also said this at paragraph 38 when addressing the issue of the merits of the decision as to an oral hearing:
“Thus, the emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision-maker. There is no suggestion that an oral hearing is necessary even where the decision-maker is able fairly to conclude, having regard to the material before it and the issues in play, that an oral hearing can realistically make no difference to its decision.”
[37]A factor in determining whether an oral hearing would be appropriate is if there is a material issue of fact that may affect the outcome. That would militate in favour of an oral hearing: cf. per Lord Bingham in Smith at paragraph 31.[38]Sedley LJ put the matter thus:
“58. … the recognition that fairness is a question of law has two implications which may be in tension with one another. It means first and foremost that whether a step or decision was unfair is an appellate question, not a review question, and so is not to be approached by simply asking whether it went outside a broad band of discretion. In fact I question whether discretion is the correct word for most such decisions: they are, or ought to be, exercises of judgment. 59. Secondly, however, many such decisions turn on facts which it was for the tribunal to ascertain and to evaluate. If and insofar as such findings are recorded by the lower tribunal, they will be the basis on which the appellate court gauges the fairness of what the tribunal decided to do. For this reason among others it is desirable that tribunals should record in brief form what it is in the materials before them that has led them to their procedural decision. It goes without saying that the well-known judicial controls on fact-finding will apply. But it will also often be the case that what the lower tribunal has been considering is part of a written record which an appellate court can if necessary examine for itself.”
[39]Although Mr Rule did not advance his argument in this way, there is no clear evidence that the Panel considered positively whether an oral hearing was necessary in this case. I have already drawn attention to the fact that (unlike in the cases of the claimants Osborn and Booth) no request for an oral hearing had been made on his behalf and had been refused. The reasons for not holding an oral hearing have thus not been revealed as they were in those two cases. However, it may safely be concluded that the Panel will have looked at the material before it and will have decided that it did not need to call the Claimant before it and, more particularly, the writers of the two reports said to conflict with each other. Mr Rule did submit, by reference to statistics produced by the Ministry of Justice Statistics Analytical Services for a number of years including the year 2009/2010, that there was evidence of an “institutional reluctance” for financial reasons to hold an oral hearing. The statistics are, of course, available to be seen, but I do not consider that they invalidate the inference to be drawn in the circumstances of this case, namely, that the Panel could see no useful purpose in holding an oral hearing, an approach which, for the reasons I will set out below, was fair.[40]Mr Slater submitted that there were no important facts in dispute which would have had a bearing on the Panel’s decision and that questioning the report writers would not have increased the quality of the decision-making process. The reports were clear, he submitted, did not disclose disputed facts and were capable of being and were weighed by the Panel in its assessment of risk.[41]In my judgment, that broad submission is correct and I do not consider that the Panel acted unfairly in not requiring an oral hearing. For my part, I do not see how two assessments some 5 months apart can necessarily be said to be in conflict even if one recommends release and the other does not. As the Panel, perfectly understandably, concluded, the Claimant’s changed attitude to his offending, and more particularly to the victims, was developing. It wished to see clearer evidence of a more sustained change of attitude. A cynical view might well have been that he had demonstrated this change of attitude only because the consideration of his parole application was getting nearer. However, a more benevolent attitude would simply have been that it was a positive sign, but it had yet to be demonstrated to be a firmly entrenched change of outlook. Even had a positive invitation to hold an oral hearing been issued on the Claimant’s behalf, I do not, for my part, think it would have been unfair to give an answer to that general effect as the reason for declining the invitation. The context does have to be remembered: the offence the Claimant committed was deeply unpleasant and involved the unfeeling and callous manipulation of women who either had, or thought they had, no alternative but to act as prostitutes. In my judgment, no one could seriously argue with the proposition that the threshold for demonstrating a genuine and sustained changed attitude from callous indifference to empathy and concern is a relatively high one. Certainly on a first review, when there was evidence other than simply that of Ms Browne of the attitude that the Claimant had displayed at the time of sentence, it does not seem to me to be unfair to have said that an oral hearing would have made no difference to the outcome and that a longer period over which the changed attitude had been clearly demonstrated was required before a positive decision to release the Claimant could be made. Even the more positive assessment of Ms Gaines referred to further work being done in this regard: see paragraph 18 above.[42]In the circumstances of this case, therefore, I cannot see that it was unfair not to hold an oral hearing. The same consideration seems to me to apply to the criticism that the Panel did not arrange for an interview of the Claimant prior to making its decision.[43]In support of his argument to this effect, Mr Slater also relied on the case of R (D’Cunha) v Parole Board [2011] EWHC 128 (Admin) where His Honour Judge Stephen Davies, sitting as a Judge of the High Court, relying on Smith’s case (see paragraphs 35 and 36 above) and O’Sullivan v Parole Board [2009] EWHC 2370 (Admin), said that “the Parole Board is, and must be, free to accept or to reject particular evidence put before them”. Whilst I do not doubt the correctness of that view, I am not sure that it has much relevance to a decision about whether or not to conduct an oral hearing in order to resolve a conflict of fact or opinion. Where an oral hearing takes place, it would be after receiving the conflicting evidence that the acceptance or rejection of any feature of the evidence heard would be made. However, for the reasons I have given, I do not think that a material issue that required an oral hearing in September 2009 can be identified in this case.[44]Accordingly, for the reasons I have given, I do not accept the validity of the arguments of Mr Rule summarised in paragraphs 3, 4 and 10 under paragraph 33 above. Failure to take account of material considerations[45]The next issue is whether the matters said by Mr Rule to have been material considerations were ignored by the Panel or were not given sufficient weight such that the decision of the Panel was undermined.[46]The context for the court’s appraisal of arguments of this nature needs to be considered in the first instance. Mr Slater has, quite correctly, reminded me of the authoritative statements indicating the approach the court should adopt in relation to arguments of this nature.[47]In Secretary of State for

Justice v James [2009] UKHL 22, Lord Judge CJ said this at paragraph 134:

“Although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the Administrative Court cannot be invited to second-guess the decisions of the Parole Board, or the way it chooses to exercise its responsibilities. Your Lordships were told that the Board is frequently threatened with Article 5 (4) challenges unless it requires the Secretary of State to provide additional material. Yet it can only be in an extreme case that the Administrative Court would be justified in interfering with the decisions of what, for present purposes, is the “court” vested with the decision whether to direct release, and therefore exclusively responsible for the procedures by which it will arrive at its decision.”
[48]Drawing on what Lord Judge and others of their Lordships said in James, in The Queen (On the Application of Kai Salter) v The Secretary of State for Justice, The Parole Board of England & Wales [2009] EWHC 1497 (Admin) Hickinbottom J said this at paragraph 28:
“… these comments inform the whole approach to this challenge and similar claims. For Article 5 purposes, the Parole Board is the “court” to which Parliament has assigned the decision whether and when to direct release of an offender subject to an indeterminate sentence who has served his tariff period, in relation to which it has not only unique authority but unique experience and expertise. As such, the process adopted for review is “pre-eminently for the Parole Board itself”
. The Administrative Court has only an ultimate supervisory jurisdiction, and interference by this court will only be warranted in “extreme cases”. In other words, in relation to reviews, the Parole Board has a very wide margin of appreciation or discretion in relation to its own process and procedures, including timetabling, and this court will not intervene unless the Board strays outside that ambit.”[49]Whilst those comments were directed principally to timetabling matters, they have a resonance in all aspects of the Parole Board process. In The Queen on the Application of Scott Alvey v The Parole Board [2008] EWHC 311 (Admin) Stanley Burnton J, as he then was, said this:
“The law relating to judicial review of this kind may be shortly stated. It is not for this court to substitute its own decision, however strong its view, for that of the Parole Board. It is for the Parole Board, not for the court, to weigh the various considerations it must take into account in deciding whether or not early release is appropriate. The weight it gives to relevant considerations is a matter for the Board, as is, in particular, its assessment of risk, that is to say the risk of re-offending and the risk of harm to the public if an offender is released early, and the extent to which that risk outweighs benefits which otherwise may result from early release, such as a long period of support in the community, and in some cases damage and pressures caused by a custodial environment.”
[50]Without, of course, abdicating its supervisory jurisdiction, the court will consider with circumspection any suggestion that the Board, with its particular expertise and experience, has ignored a material consideration in deciding on the outcome of a parole application. Whether a factor is material is often a matter of judgment and the judgment of the Board will be accorded appropriate respect. The weight given to a material consideration is pre-eminently a matter for the Board.[51]I will deal with each of Mr Rule’s submissions (summarised in the numbered paragraphs under paragraph 33 above) against that background.[52]As to (1), I am bound to say that I do not find the factual statement made in the Panel’s decision letter, namely, that the Claimant had “been assessed as unsuitable for ETS as a result of his low scores”, as being treated as a material factor in the Panel’s decision. It was merely recorded under the sub-heading of “Changes during sentence”. It is quite plain that the most material factor considered by the Panel was the relatively recent change in his attitude to the offence and to the victims of the offence. If, which I do not consider to be the case, the non-attendance on the ETS course was treated as a negative factor, it was accorded very little weight by comparison with the weight attached by the Panel to the factor to which I have just referred. I agree, in any event, with Mr Slater that the situation in this case is not analogous to the situation where the failure to provide a specific course, the successful attendance at which is a condition precedent to release, is treated as a material factor. The situation in this case is far removed from that.[53]As to (2), in the first place, it needs to be remembered that it is the Panel’s decision that is under challenge, not Ms Browne’s view. The Panel’s decision was made with a great deal of information available, of which Ms Browne’s assessment (made some 8 months previously) was simply one part. For my part, I cannot read any part of the decision letter as having been affected by the matter sought to be criticised even if (which I do not think is fair) it is to be characterised as erroneous. Ms Browne considered there was more work to be done. So did Ms Gaines (paragraph 18 above).[54]As to (5), Mr Slater is right to draw attention to the OASys assessment available to the Panel that set out in some detail what would happen to the Claimant if he returned to Albania. Indeed the decision letter summarises what would happen in this scenario itself. I cannot see that this in any way undermines or invalidates the Panel’s decision.[55]As to (6), this is entirely a matter for the Panel. The Panel referred to the various views expressed about this risk, including one view that the Claimant’s risk of reoffending was low, but balanced against another view that he presented a high risk of serious harm to the public. However, this is all a matter of weighing the considerations by the Panel. It is not a matter for the court.[56]As to (7), I am quite unable to accept that this assertion can be valid. I have already referred to the assessments made on this issue and the Panel’s justification for believing that further time was needed for a settled change of attitude to the offending and the victims to be demonstrated.[57]As to paragraphs (8) and (9), as I understood him, Mr Slater accepted that these could be a factors considered by the Panel, but they were not mandatory considerations. Because, as it seems to me, there was ample justification for the Panel’s decision in this case without reference to any consideration such as this, I would prefer to express no view about it, one way or the other. I have not received sustained argument about it and I can see some arguments for saying that it should not be regarded as a material consideration at all. However, as I have said, I express no view about that other than to say that if it was a legitimate factor for consideration, to my mind it would have been significantly outweighed and overshadowed by the factor to which I have referred above.[58]As to (11), this seems to me to be similar to (5) and in some respects a repetition of (1). There is no doubt, however, that the Panel was aware (through Ms Gaines’ report if via no other route) that the Claimant was entitled to credit for the vocational skills he had acquired during the sentence. Indeed the Panel referred, in its decision letter, to the Open University course he was engaged in and to the fact that he had completed the Money Management Course. The Panel was entitled to give such weight to this as it thought appropriate and I can see no reason why it had to have before it reports of the work he had done. At the end of the day, as I have said more than once, the positive aspects of these matters could still not override the concerns that he had not fully engaged with the nature of his offending and with the effect that it had upon the victims. That remained the overriding factor and, for my part, I can well see why.

Conclusion

[59]For the reasons I have given, I do not consider that an oral hearing was required in this case and I do not consider that any of the matters to which Mr Rule has drawn attention undermines or invalidates the Panel’s decision. Accordingly, this application must be dismissed.[60]I am grateful to Mr Rule and to Mr Slater for their helpful submissions.

Cited in 1 later judgment