England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE TURNER)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 21 March 2001

1. LORD PHILLIPS, MR: I will ask Lord Justice Peter Gibson to give the first judgment.
2. LORD JUSTICE PETER GIBSON: By section 28 of the Crime (Sentences) Act 1997 certain life prisoners, including a prisoner under 18 at the time of the commission of the offence for which he was sentenced, must be released on licence by the Secretary of State once the prisoner has served the tariff part of his sentence and the Parole Board has directed his release (section 28(1)(d) and (5)). But by subsection (6), the Parole Board is not to give such direction unless the Secretary of State has referred the prisoner's case to the Board and the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Such prisoners have the right to require a review every two years (section 28(7)).
3. A panel of the Parole Board, known as the Discretionary Life Panel, under the chairmanship of a judge, considers cases referred to it by the Secretary of State. If it decides not to direct release, it frequently gives a recommendation as to the timing of the next review. That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of State. If the prisoner seeks an earlier review, he can make representations to the Secretary of State whose decision may be challenged by judicial review. The Secretary of State, of his own motion, can direct an earlier review.
4. In the present case, the appellant, Duncan MacNeil, was convicted, with another, on 8 October 1982 of murder committed on 25 April 1982. He was born on 12 April 1965, so he was only 17 when convicted. He was ordered to be detained during Her Majesty's pleasure. When he had completed the tariff part of his sentence, his case was referred to the Parole Board. On its direction he was released pursuant to section 28 in 1992, but his licence was revoked because of an incident occurring within two months of his release. From time to time thereafter the Parole Board has considered his release.
5. On 5 January 2000 the Parole Board reviewed his case but, as it informed the appellant by letter dated 10 January 2000, it was not satisfied that it was no longer necessary for the protection of the public that he be confined. The Parole Board, therefore, did not direct his release at that stage but it recommended that he should remain detained in open conditions for two years to allow full testing before a further review took place.
6. It was that recommendation by the Parole Board which the appellant sought to challenge by way of judicial review on the ground of irrationality. On 19 October 2000 Turner J refused the application, holding that the Parole Board's decision was not irrational. The appellant now appeals, with the leave of this court (Laws LJ). No criticism whatever is made by the appellant of the reasoning of the judge. The sole ground of appeal is founded on the decision of the European Court of Human Rights in Oldham v The United Kingdom (The Times 24 October 2000, decided on 26 September 2000). On behalf of the appellant it is said that, if the judge been referred to that case, he might well have formed a different view of the reasonableness of the Parole Board's decision. It is said that, in recommending that there be no review of the appellant's suitability for release until January 2000, the Parole Board breached the appellant's rights under Article 5(4) of the European Convention on Human Rights. Article 5(4) provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

7. In Oldham the applicant was a discretionary life prisoner who had been convicted in 1970. Medical evidence at the trial showed him to be suffering from a mental abnormality induced by alcohol. In December 1996 the Parole Board considered the applicant's case. It said that, in order to minimise the risk posed by the applicant to members of the public, the applicant needed to carry out further work in respect of alcohol, anger and relationships. It set the next review for November 1998. In February 1997 the applicant married and by March 1997 he had completed courses in anger management, relationships, alcohol awareness and men and violence. However, the Parole Board did not consider his case further until December 1998 when it recommended that he be released on licence.
8. The applicant was released on 17 December 1998. He complained to the European Court that the two year delay between his reviews by the Parole Board was unreasonable. That court referred to earlier decisions which had established that, to comply with Article 5(4), decisions must be taken speedily and that, where an automatic review of the lawfulness of detention had been instituted, decisions must follow at "reasonable intervals".
9. In paragraph 31 it said:

"It is true that the question of whether periods comply with the requirement must .... be determined in the light of the circumstances of each case .... It is therefore not for this Court to attempt to rule as to the maximum period of time between reviews which should automatically apply to this category of life prisoner as a whole. It notes that the system as applied in this case has a flexibility which must reflect the realities of the situation, namely, that there are significant differences in the personal circumstances of the prisoners under review."

10. In paragraph 32 it continued:

"In previous cases the Convention organs have accepted period of less than a year between reviews and rejected periods of more than one year."

11. It then referred to two cases. In AT v the United Kingdom the Commission found that a period of almost two years before a review of the detention of a discretionary life prisoner was not justified where the Discretionary Life Panel of the Parole Board had recommended that his case should be reviewed within one year. It also referred to the decision of the European Court in Herzcegfalvy v Austria (24 September 1992) where the court found that periods between reviews of 15 months and two years were not reasonable in the case of a person detained on the grounds of mental illness.
12. The European Court pointed to the particular circumstances of the applicant, including the fact that he had completed courses aimed at addressing his perceived problems but that no further courses were arranged during the next 16 months prior to his next review. It concluded in paragraph 37:

"The Court concludes in the circumstances of this case that the two year delay between reviews was not reasonable and that the question of whether his continued detention was lawful was not decided 'speedily' within the meaning of Article 5(4) of the Convention. There has, accordingly, been a violation of this provision."

13. It is the submission of Mr Richard Clough, for the appellant in the present case, that the decision in Oldham has now clarified the appellant's rights under the Convention and that the denial of those rights by the Board was unreasonable.
14. Ms Jenni Richards, for the Board, has pointed out in her helpful skeleton argument that the decision which is challenged was made in January 2000, some 9 months before the Human Rights Act came into force. Subject to a limited exception in section 22(4) of that Act not applicable to the present case, the Act does not have retrospective force. But on the footing that the decision of the Parole Board related to a fundamental right such that a review by the court of that decision, whether it was taken before or after 2 October 2000, would not be likely to produce a different result (see the judgments of this court in R v Secretary of State for the Home Department, ex parte Mahmood, 8 December 2000), I will consider the case on the footing that the appellant's human rights under Article 5(4) might be engaged.
15. Ms Richards has also drawn our attention to the decision on 14 March 2000 by Jackson J in R v Immigration Appeal Tribunal ex parte Khatib-Shahidi in which it was held that an adjudicator's decision to make, or failure to make, a recommendation to the Secretary of State in relation to the dismissal of an appeal under the Immigration Act 1971, was not susceptible to judicial review because the recommendation did not oblige the Secretary of State to act in any way and did not deprive the applicant of some benefit or advantage. This court on 20 July 2000 dismissed an appeal from that decision. She submitted that the decision in the present case, which was only a recommendation which the Secretary of State was not bound to accept, was likewise not susceptible to judicial review. It is unnecessary to decide that point in this case. I am prepared to assume, without deciding, that the decision in the present case is susceptible to judicial review.
16. The difficulty which Mr Clough faces in relying on Oldham is that the European Court expressly stated in the passage which I have cited from paragraph 31 that it was not going to give a ruling as to the maximum permissible period between reviews to consider a prisoner's release. It recognised that a "reasonable period" will depend on the facts of the particular case.
17. In the present case Mr Clough makes no attack on the system imposed by section 28. Indeed he could not. The respondent to the application for judicial review is the Parole Board and not the Secretary of State. Whether the decision of the Parole Board can be impugned, therefore, must turn on the particular recommendation which it made in the light of the particular facts of this case.
18. The fact that two years constituted too long a period in Oldham does not necessarily entail that a two-year period in the present case was disproportionately long. The relevant circumstances in this case include the following.
19. Prior to the index offence, the appellant had been sniffing glue and drinking. On the expiry of the tariff period, in April 1990 the Board recommended the appellant's release on licence. But after a provisional release date of 24 April 1992 was set, the appellant was found in an intoxicated state. This caused a postponement of his release by three months. Within six weeks of his release a further incident occurred. He was charged with using violence to gain entry to a public house. The Parole Board recommended the revocation of his licence which was revoked on 4 November 1992. The charges against the appellant were left on file and he was not tried. In January 1996 the Parole Board recommended a transfer of the appellant to open conditions. This took place in October 1996. But in the same month he tested positive for cannabis and again in February 1997. He absconded and was arrested a month later on a ferry at Harwich. In November 1997 the Board recommended that he be kept in closed conditions. One year later cannabis was found in his possession. In January 1999 the Parole Board considered the appellant to be unsuitable for release or open conditions, but it recommended a further review in 12 months. The appellant married in April 1999 and on 30 July 1999 he failed a further drug test.
20. After reviewing his case on 5 January 2000, the Parole Board said in its decision letter of 10 January:

"3. The panel was impressed with the progress you have made in the last 12 months, albeit you failed a drug test in July 1999 and still appear to regard cannabis as an answer to some problems. You have spent the vast majority of your adult life in custody and there is real concern about your ability to cope with the stresses of life after release.

4. With the exception of Mr Newton, all the report writers recommend a period of testing in open conditions. In the panel's view it would create an unacceptable risk to the public to direct your immediate release.

5. Whilst your Counsel argued that the index offence should be considered in the context of youthful immaturity, the panel noted that you have had difficulty on a number of occasions in facing up to and coping with stress and is of the view that you remain a risk for the commission of further serious offences until you have had an opportunity of developing strategies for dealing with stressful situations in open conditions.

6. A period in open conditions will result in your being better able to understand the stresses of family life in the community and to develop strategies for coping with them as well as to formulate a release plan that includes a viable arrangement for employment.

7. Despite the suggestion that a shorter period for review would suffice, the panel considered that you should remain for 2 years in open conditions to allow full testing before a further review takes place. It would be of benefit for you to be in an open prison close to your wife and family."

21. The Parole Board's thinking is further explained in a witness statement of Terry McCarthy, the Head of Policy and Casework in the Parole Board Secretariat, on instructions from the panel of the Parole Board which dealt with the appellant's case on 5 January. Mr McCarthy said:

"12. .... The Panel considered that Mr MacNeill needed to demonstrate adequate self control and strategies for coping with stressful situations, other than by resorting to drugs or alcohol, if it was to be satisfied that he did not pose a risk of committing further serious offences.

13. The Panel was also concerned about the pressure Mr MacNeill would face on his release. Mr MacNeill had married in April 1999, and would have become responsible for four children, one of whom had behavioural problems, upon his release. The pressure raised the risk of him reacting inappropriately by using drugs or alcohol with the subsequent potential for violence. The Panel considered that it would be appropriate for him to return to open conditions in an area close to his wife and family. It was hoped that over a period of time he would gradually spend more time with them, building a relationship that should not place undue pressure on him or his wife, and thereby reducing the risk of violence.

14. The Panel was aware of the recommendations in the reports for a short period in open conditions to test Mr MacNeill's suitability for release. The Panel considered, however, that an extended period was necessary to enable Mr MacNeill to demonstrate that he was able to cope with stressful situations. The Panel recognised that the Secretary of State would be able to refer the matter to the Board at any time if Mr MacNeill were perceived to be making good progress. The Panel were concerned, however, that too early a review would itself put pressure on him to hurry through the open regime without deriving the full benefit it offers in terms of extended leaves and outside employment."

22. As the judge observed in paragraph 46 of his judgment:

"It is clear that from time to time the applicant has responded badly either to stress or open conditions or the combination of both. One of the advantages of a period spent in open conditions is not merely the opportunity of observing whether there is or there is not an unacceptable risk to the public, but the 'opportunity of developing strategies for dealing with stressful situations in open conditions'. Therein lies, in my judgment, the obvious and proper rationale for the decision of this panel."

23. In my judgment the circumstances of the appellant bear little resemblance to those of the applicant in Oldham. It is impossible to say that, because in Oldham there was found to be a breach of Article 5(4), there was a breach in the present case, or to say that in the appellant's particular circumstances the recommendation of the Parole Board that the next review date be in January 2002 is unreasonable. I would hold that Article 5(4) has not been breached.
24. I note that the concerns of the Parole Board have proved to be justified by events subsequent to its recommendation. The appellant was moved to an open prison in May 2000 but on 4 November he was returned to closed conditions after reports were received that he had threatened to abscond and kill his wife who wanted to terminate the marriage. He was returned to open conditions last month. In view of the breakdown of his marriage, a new release plan will have to be formulated.
25. Finally, Ms Richards has drawn attention to the fact that, even if this court were to uphold the appellant's attack on the Parole Board's decision, there would be little utility in granting the relief sought by the appellant. He seeks a direction that the Parole Board recommends to the Secretary of State a review of the appellant's suitability for release in 6 to 12 months' time. But the Parole Board will review the appellant's case in January 2002 as matters now stand without any further direction. This appeal was, in any event, academic.
26. For these reasons I would dismiss this appeal.
27. LORD JUSTICE LATHAM: I agree.
28. LORD PHILLIPS, MR: This is a case which has turned upon its particular facts, as the Strasbourg court has recognised is appropriate. No general proposition can be based upon it to the effect that a two year interval will satisfy the requirement derived from Article 5(4) of the Human Rights Convention that a person deprived of his liberty shall be entitled to have the lawfulness of his detention reviewed at reasonable intervals.
29. For the reasons given by Lord Justice Peter Gibson, I would also dismiss this appeal.
Order: Appeal dismissed. No order as to costs. Detailed Assessment of Appellant's costs to be assessed by Legal Services Commission. (Order does not form part of approved judgment)