Application no. 24712/12
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 12 November 2013 as a Chamber composed of:
Vincent A. De Gaetano,
Robert Spano, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 11 April 2012,
Having deliberated, decides as follows:
1. The applicant, Mr Clive Hall, is a British national, who was born in 1972 and lives in Hoddesdon.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 26 April 2006 the applicant was convicted of sexual offences with a child under the age of 16. The offences were committed while he was under supervision for previous offences of possessing indecent images of children and was participating in a programme to address his sexual offending.
4. On 13 June 2006 the applicant was sentenced to an indeterminate sentence for the public protection with a minimum term (“tariff”) of forty-two months. On 3 February 2009 the tariff was reduced by the Court of Appeal to thirty months.
5. On an unspecified date in 2007 the applicant completed the Enhanced Thinking Skills course.
6. In March 2007 the applicant completed the core Sex Offenders Treatment Programme (“SOTP”).
7. In November 2007 the applicant was subject to an adjudication for possession of alcohol.
8. In March 2008 a Structured Assessment of Risk and Need (“SARN”) report was completed. It identified the extended SOTP as a course which the applicant should complete.
9. In July 2008 the Parole Board reviewed the applicant’s detention. It identified further offender behaviour work required.
10. On an unspecified date in or around 2008 the applicant completed the Cognitive Skills Booster Programme.
11. The applicant’s tariff expired on 13 December 2008.
12. On 23 February 2009 the applicant was transferred to HMP Usk in order to complete the extended SOTP.
13. In early 2010 the applicant completed the extended SOTP.
14. In May 2010 a further SARN report was prepared upon the completion of the extended SOTP. It considered that a period of consolidation was necessary to allow the applicant to continue rehearsing his knowledge and demonstrating further practice of his risk management strategies. It therefore recommended that he engage in an intervention designed to refresh, maintain and enhance his learning from previous SOTPs, which it considered could be achieved through the Better Lives Booster (“BLB”). It concluded that consideration of a transfer to open conditions would be appropriate once that work had been completed.
15. On 15 June 2010 the Parole Board met to consider the applicant’s case. The hearing was adjourned at the applicant’s request after it became apparent that his independent psychologist was unable to attend.
16. The Parole Board reconvened on 17 August 2010. It decided not to direct his release or to recommend his transfer to open conditions.
17. On an unspecified date the applicant completed the BLB programme.
18. On 27 May 2011 the applicant was subject to an adjudication for possession of an unauthorised item (a thermos cup).
19. On 28 May 2011 the applicant was subject to an adjudication for a positive mandatory drug test for codeine.
20. In June 2011 a further SARN report was completed.
21. A BLB post-programme review took place in August 2011.
22. On 6 September 2011 a Parole Assessment Report Offender Manager was prepared. It noted:
“Mr Hall has undertaken a significant amount of work during the course of his sentence to reduce the risks of further offending. He has completed the Enhanced Thinking Skills programme (ETS), Cognitive Booster Programme (CSB), as well as the Core SOTP, the Extended SOTP programme and the Better Lives Booster Programme. He has also completed a Victim Awareness course, Assertive & Decision-Making course, Budgeting & Money Management, Alcohol Awareness, and as part of his Personal Development Plan has undertaken a Healthy Relationships course, as well as various educational courses. Mr Hall has completed all outstanding sentence plan objectives in custody ...”
23. On 7 February 2012 a Parole Board review hearing took place. It was recommended that the applicant be transferred to open conditions. In its decision letter of 1 March 2012, the Parole Board discussed evidence of change during the applicant’s sentence. It noted:
“You have been willing to address your offending behaviour during your sentence and have successfully completed an enhanced thinking skills course and the cognitive skills booster programme. You have addressed your sexual offending through the Core SOTP, the Extended SOTP and the BLB. You also undertook one-to-one counselling at HMP Rye Hill.
24. It was satisfied that the applicant had received the appropriate amount of treatment in respect of offending behaviour programmes. It did, however, have concerns in respect of his behaviour, which it said fell “below the standard expected of a post tariff indeterminate sentence prisoner”. It also had concerns about the fact that the offences had been committed while the applicant was participating in a programme to address his sexual offending. It favoured open conditions rather than release to the applicant to be tested in a structured but less controlled setting in order that he could demonstrate that he was able to apply the skills that he had learned on offending behaviour programmes.
25. By letter dated 20 March 2012 the Secretary of State agreed to transfer the applicant to open conditions and set his next review to commence in November 2012 and conclude by July 2013. The period was made up of three months for transfer to an open establishment and twelve months of testing and consolidation.
26. By July 2012 the applicant had been transferred to HMP North Sea camp, an open prison.
27. It appears that the applicant has now been released.
B. Relevant domestic law and practice
28. The relevant domestic law and practice is set out in the Court’s judgments in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012.
29. The applicant complained under Article 3 of the Convention about the mental torture of struggling to progress in his sentence.
He complained under Article 5 §§ 1 and 4 about alleged delays in allowing him access to relevant prison courses
He complained under Article 8 about loss of family life during his incarceration.
Under Article 13 he complained that he had not had an effective remedy.
Finally, under Article 17, he complained that the IPP sentence was a State practice that denied him his rights.
A. The alleged delay in access to courses
30. The applicant complained under Article 5 §§ 1 and 4 that his access to required prison courses and his transfer to open conditions had been delayed.
31. In James, Wells and Lee, cited above, § 209, the Court explained that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection. It held that while Article 5 § 1 did not impose any absolute requirement for prisoners to have immediate access to all courses they might require, any restrictions or delays encountered as a result of resource considerations had to be reasonable in all the circumstances of the case, bearing in mind that whether a particular course was made available to a particular prisoner depended entirely on the actions of the authorities (see § 218 of the judgment). It found violations of Article 5 § 1 of the Convention in respect of the three applicants following the expiry of their tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses (§ 221 of the judgment).
32. As the Court explained in James, Wells and Lee, cited above, § 201, in examining whether an applicant’s detention post-tariff has been arbitrary within the meaning of Article 5 § 1 (a) of the Convention it “must have regard to the detention as a whole”. Thus, where, as in the present case, the applicant claims that delay in his access to required prison courses constituted a violation of Article 5 § 1 (a), the applicant’s general progression through the prison system must be assessed in light of the particular circumstances of the case. In accordance with Article 47 § 1 (h) of the Rules of Court, it is incumbent on the applicant to provide the Court with relevant documentation concerning the timeline of his detention and the courses and other rehabilitative activities that were offered to him, if any.
33. It is clear from the papers before the Court that the applicant was able to participate in rehabilitative courses throughout his detention. Even before tariff expiry, the applicant was provided with access to rehabilitative courses, including the core SOTP (see paragraphs 5-6 above). The facts of the present case differ therefore from the facts in the case of James, Wells and Lee, cited above, where two of the three applicants were not provided with the opportunity to pursue courses or other programs before the expiry of their tariff as they were not available in their local prisons. Following completion of the core SOTP, the extended SOTP was identified as a necessary course (see paragraph 8 above). While it appears that there may have been some delay from around March 2008 until early 2010 in providing the applicant with access to this course (see paragraphs 8 and 13 above), it seems that the applicant was able to access the Cognitive Skills Booster programme in the meantime (see paragraph 10 above), to build upon the ETS course completed in 2007. Following completion of the extended SOTP, a SARN report of May 2010 recommended completion of the BLB programme (see paragraph 14 above). The applicant has failed to specify when he was placed on the BLB programme but it is clear that the programme was completed by August 2011 (see paragraph 21 above). Throughout this period, the applicant was also provided with access to a number of other courses, including Victim Awareness, Alcohol Awareness and a Healthy Relationships course (see paragraph 22 above). Over the course of the time spent in detention, the applicant has therefore enjoyed regular access to a wide range of courses designed to assist him in addressing his offending behaviour and demonstrating a reduction of his risk to the satisfaction of the Parole Board.
34. The applicant appears to hold the view that successive SARN reports imposed unfair additional requirements upon him in terms of necessary coursework. However, in so far as the applicant seeks to challenge the identification of additional work during the course of his sentence, he has failed to appreciate the nature of offending behaviour work. In particular, it is not surprising that following completion of a particular course, an assessment is required in order to ascertain what, if any, risk reduction has been achieved. Depending on the conclusion of that assessment, further coursework is likely to be recommended to address any outstanding risk factors. This appears to have occurred in the applicant’s case. The process of careful and continuing assessment was in his interests, as a means both of demonstrating to the Parole Board that he was safe to be released and to ensure his genuine rehabilitation and reduction of risk. It is particularly noteworthy in this context that the applicant had committed the sexual offences concerned while under supervision for a previous sexual offence and while participating in an offending behaviour course. In the circumstances the authorities cannot be faulted for their cautious approach to assessing the extent of any reduction in the applicant’s risk and the need for further courses.
35. Finally, the applicant appears to suggest that the delay in transferring him to open conditions following the Parole Board recommendation of 1 March 2012 was unreasonable. In this respect, the Court observes that the Secretary of State considered the recommendation promptly and on 20 March 2012 informed the applicant that he agreed with the recommendation. He indicated that a transfer to open conditions was envisaged within around three months (see paragraph 25 above), a period which is not unreasonable having regard to the need to prepare the applicant for open conditions and to ensure flexibility in managing the prison estate. The applicant did not inform the Court of the exact date of his transfer, but it is clear that by July 2012 his transfer had been effected (see paragraph 26 above). The Court is satisfied that there was no unreasonable delay in this respect.
36. Having regard to the foregoing, the applicant’s complaints under Article 5 §§ 1 and 4 are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible pursuant to Article 35 § 4.
B. The remaining complaints
37. The applicant also lodged complaints under Articles 3, 8, 13 and 17 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
38. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-Passos Ineta