IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE TURNER)
London WC2A 2LL
Wednesday 21 March 2001
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE LATHAM
|IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW|
|T H E Q U E E N|
|ON THE APPLICATION OF DUNCAN MACNEIL|
|- v -|
|HER MAJESTY'S PRISON DISCRETIONARY LIFER PANEL|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
MS JENNY RICHARDS (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
Crown Copyright ©
"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."
"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."
"In previous cases the Convention organs have accepted period of less than a year between reviews and rejected periods of more than one year."
"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."
"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."
"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."
"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."