England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The High Court of Justice
Queens Bench Division Administrative Court
CO/1204/2001

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 May 2002

Lord Justice Buxton :

Introduction: life sentences

1. In this appeal the court has again to confront the difficulties created in Convention terms by the English institution of life sentences. Three cases must be distinguished:

i) The "mandatory" life sentence for murder, imposed under section 1(1) of the Murder (Abolition of Death Penalty) Act 1965;

ii) The "discretionary" life sentence, imposed in cases where such a sentence is statutorily available to the sentencing judge, and which fulfil the further requirements laid down in the jurisprudence of the Court of Appeal (Criminal Division), the most important of which being that the offence must have been sufficiently serious to justify a long sentence and the offender a person who is likely to commit specially injurious offences in the future or is otherwise dangerous;

iii) The "automatic" life sentence, introduced by section 2 of the Crime (Sentences) Act 1997 and continued in being by section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, whereby an offender who commits one of a list of specified "serious" offences will be sentenced to life imprisonment if he has previously committed another such listed offence, unless there are "exceptional circumstances" permitting the court not to take that course.

2. In none of these instances is it thought, except in very exceptional cases, that life means life. As Lord Mustill put it in Doody [1994] 1 AC at p556H:

"the indeterminate sentence is at a very early stage formally broken down into penal and risk elements. The prisoner no longer has to hope for mercy but instead knows that once he has served the 'tariff' the penal consequences of his crime have been exhausted."

In accordance with that approach, in the case of discretionary and automatic life sentences the sentencing court is required by section 82A of the Powers of the Criminal Courts (Sentencing) Act 2000 to specify a "tariff" period to be served by the prisoner, and also to order that the "early release" provisions should apply to him. Those provide, in short, for his release after the tariff period has expired to be determined by the Parole Board.

3. The status in relation to the Convention of the arrangements for mandatory life sentences was exhaustively reviewed by this court in R (Anderson) v SSHD [2002] 2 WLR 1143, and will not be further canvassed here. In relation to both discretionary and automatic life sentences, the fundamental requirement of the Convention that persons should not, save in very limited circumstances, be detained other than under the authority of a court is met in the case of the tariff period by the authority of the sentencing court; and in respect of any part of the sentence required to be served after the expiry of the tariff period by the control of that period of imprisonment by the Parole Board.
4. That control operates through the terms of section 28(5)-(7) of the Crime Sentences Act 1997:

(5) As soon as –

(a) a life prisoner to whom this section applies has served the relevant part of his sentence,

(b) the Parole Board has directed his release under this section,

it shall be the duty of the Secretary of State to release him on licence.

(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless –

(a) the Secretary of State has referred the prisoner's case to the Board: and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined

(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time –

(a) after he has served the relevant part of his sentence; and

(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and

(c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence;

The case of Mr Noorkoiv

5. Mr Noorkoiv was convicted on 22 October 1998 of two offences falling under section 2 of the 1997 Act (see §1 above). He had been convicted of another such offence in 1997, and was therefore given an automatic life sentence. His tariff period was fixed by the court as 30 months, and therefore expired on 21 April 2001. His hearing before the Parole Board to determine whether he should continue to be detained under section 28 (5)-(6) of the Crime (Sentences) Act was held on 22 June 2001. The Board refused to order his release, since it considered that his detention continued to be necessary for the protection of the public, and he remains in prison. Mr Noorkoiv does not and could not challenge that decision, but he complains in these proceedings of the delay in affording him a hearing before the Parole Board.
6. The delay was quite deliberate. The Board wrote to Mr Noorkoiv's solicitors on 1 March 2001 informing them that

"The Secretary of State referred Mr Noorkoiv's case to the Parole Board to be listed some time after 22 April 2001."

This delay was inherent in the scheme for consideration of life sentence prisoners by the Parole Board, to which I must now turn.

The Parole Board scheme

7. The process starts with the reference of a discretionary or automatic life sentence case to the Board by the Secretary of State. His policy is to refer cases approximately six to nine months in advance of the expected hearing date. On receipt of the reference the Board institutes a process that depends on the hearing date fixed by them. The process provides for the assembly of a dossier of reports on the prisoner; his written representations on the dossier; and the making of directions by the chairman of the DLP [Discretionary Life Prisoner] panel that is to hear the case. The only detail that need be noted at this stage is that the dossier is produced and served on the prisoner 16 weeks in advance of the hearing.
8. It is the policy of the Board and, it would seem from the letter quoted in §6 above, of the Secretary of State that hearings are only scheduled for a date after the expiry of the tariff period. The gap between the end of the tariff period and the hearing date will vary from case to case, for two principal reasons. First, it is the Secretary of State's policy to refer cases to the Board in quarterly "batches": all cases whose tariff date will accrue during a particular quarter are referred on the same date, and scheduled thereafter on the same basis, with the result that a case whose tariff date accrued shortly before the beginning of the quarter may not be heard until the end of the quarter. Second, the Board can only schedule hearings within the resources, in terms of judicially qualified DLP chairmen and psychiatrists, available to it. That shortage of personnel in turn dictates that in principle all cases pending at a particular prison should be heard at the same time by the same panel. It may therefore fall out that a hearing in respect of a particular prisoner can only be scheduled at the prison where he is held towards the end of the quarter.
9. As we have seen, that is what occurred in the case of Mr Noorkoiv. His case was referred to the Board by the Secretary of State on 28 September 2000. The Board arranged that hearings at the prison at which Mr Noorkoiv was held should take place over the period of 20-21 June 2001, and the preparatory timetable referred to in §7 above counted back from that date.

These proceedings

10. The present proceedings were issued on 25 March 2001, the Parole Board having refused a request by Mr Noorkoiv's solicitors that his hearing date should be brought forward. The relief then sought presents some problems, to which I shall have to return, but in essence the claim was for (i) a mandatory order requiring the expedition of Mr Noorkoiv's hearing date; and (ii) some sort of declaratory relief that the system or policy that produced the hearing date were unlawful. Henriques J dismissed the application on 27 April 2001.
11. The central complaint is that the procedure and its outcome caused in the case of Mr Noorkoiv a breach of article 5(4) of the Convention:

"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"

Put shortly, the lawfulness of Mr Noorkoiv's detention in Convention terms expired with the expiry of his tariff period. The delay of two months before the Parole Board determined the lawfulness of his continued detention meant that that latter decision had not been taken "speedily".

12. It has been the position of the Secretary of State and of the Board throughout the proceedings that lack of resources prevents any improvement on the present procedures. As the Board's deponent put it:

Each case involving a life sentence prisoner (whether oral or on paper) is considered by a Panel of the Parole Board, comprising a judicial member, a lay member and a psychiatric member. The Parole Board has available to it for the period 2000/2001 only 20 judges. Most of those judges work full-time and are only able to devote a limited amount of their time to Parole Board work (on average most of the judges spend [sic] about 20 to 25 days per year to Parole Board work). The Board also has only 18 psychiatrists. Most of them work full-time elsewhere and, like the judges, are only available for a limited number of days per year. ….Inevitably, therefore, the Board is constrained by the availability of its judicial and psychiatric members when scheduling hearings…..It would, in practice, be impossible for the Board to schedule hearings if cases were referred to it by the Secretary of State on an individual and piecemeal basis, rather than in groups on a quarterly basis, as is the current practice. If referrals were made piecemeal, the system would, in my opinion, effectively grind to a halt, disadvantaging all prisoners.

13. The latter part of that evidence was put forward in reply to an argument advanced by Mr Noorkoiv that although some delay between expiry of the tariff period and the hearing was inevitable, a delay more consonant with the requirements of Article 5(4) could be achieved if priority in listing were given to cases of automatic life prisoners with short tariffs, such as Mr Noorkoiv. The Board demonstrated that within the constraints of the present system such a policy would produce chaos; nor were there any obviously good reasons why prisoners such as Mr Noorkoiv, as opposed to automatic life prisoners with longer tariff periods, or discretionary life prisoners, should have priority.
14. Those arguments entirely persuaded the judge. He concluded, at §24 of the judgment, that

It appears to me that a massive operation is being managed with consummate skill in terms of listing and case disposal. Some delay is inevitable. It is kept to the necessary and absolute minimum.

15. Initially before this court Mr Noorkoiv maintained the arguments that had not attracted the judge, and which, given the assumptions on which they are based, do not attract me either. However, during the course of the hearing a further issue emerged, as to why, even given the resource constraints, it was necessary to adopt a policy of always scheduling hearings on dates after the expiry of the tariff period. We adjourned the appeal to allow that aspect to be further explored. On the renewed hearing we had the benefit of submissions from Mr Gledhill who, although instructed only some few days before the date of that hearing, had plainly taken a firm grip on the case. He supported the feasibility of scheduling hearings to take place before the expiry of the tariff period. He also added or developed two further arguments, that significantly departed from the way in which the case had previously been put, and which questioned the assumptions that had been heretofore accepted on behalf of Mr Noorkoiv. First, Mr Gledhill suggested, or at least was prepared to countenance after discussion with the court, that the present arrangements might be vulnerable under article 5(1) as well as under article 5(4): because, once the tariff period had expired, Mr Noorkoiv could only be deprived of his right to liberty by one of the procedures listed in Article 5(1) a-f, none of which applied in the case of Mr Noorkoiv until the decision of the Parole Board. Second, that under the Convention it was the state, and not just one of its particular emanations in the shape of the Parole Board, that was responsible for Mr Noorkoiv's unlawful detention. If the unlawful period of detention was attributable to lack of resources, it was for the state to put that right.
16. Out of that somewhat confused background a number of distinct issues emerged, which I will seek to address in something approaching a logical order.

The state's liability under article 5(1)

17. Miss Richards, for the Board and the Secretary of State, understandably expressed concern at the emergence of this new point, which if it were correct established that the Board not only could but must conduct hearings before the expiry of the tariff period. After the appeal had closed she submitted a detailed skeleton argument addressing the point.
18. The main contention of the Secretary of State was that article 5(1) did not apply at all in the present case. The objective of article 5(1) was to protect against arbitrary detention. Detention, in casu while waiting for the Parole Board, was not arbitrary if it had a sufficient connexion with a court order: which Mr Noorkoiv's detention did, the relevant court order being the sentence of life imprisonment. For that proposition, Miss Richards relied in the first instance on Weeks v UK (1988) 10 EHRR 293 and Van Droogenbroeck v Belgium (1982) 4 EHRR 443. Neither of those cases assist her argument. In Van Droogenbroeck the sentence was regarded as being genuinely indeterminate in nature, and therefore subsequent ministerial decisions fell within the authority of the original sentence. In Weeks, as further explained in Thynne Wilson and Gunnell (1990) 13 EHRR 666, the discretionary life sentence was analysed as containing both punitive and preventive elements, and the defendant was entitled to the protection of article 5(4), by regular reviews of his continuing "dangerousness", once the punitive period had expired: see paragraph 78 of the Court's judgment. Although there was no argument addressed to the Court in those cases in relation to article 5(1), it is difficult to see how obligations under article 5(4) could have been thought to arise if the detention could in any event be validated under article 5(1). And it should further be noted that the Court in such cases makes particular reference to the rules of national law: see for instance Jecius v Lithuania, Application no 34578/97, cited to us by Miss Richards. But national law has moved on since Weeks and Thynne, and precisely in response to the guidance given in those cases has formally divided discretionary and automatic life sentences into two stages, each with its separate judicial control and justification: see the provisions set out in §4 above. I find it very difficult to see how continued detention after the expiry of the tariff stage without the justification required for the protective stage can be justified under article 5(1).
19. There is a further consideration in the particular case of Mr Noorkoiv. He was sentenced at a time when the fact that a defendant was not "dangerous" was not seen as depriving the sentencing court of vires to impose an automatic life sentence: I refer, if I may, to the account of the history of the automatic life sentence provisions that is given in the judgment of the Criminal Division of this court in Kelly (No2) [2002] 1 Cr App R (S) 85 [20]-[23]. It cannot therefore be assumed that the sentencing judge in the case of Mr Noorkoiv imposed his automatic life sentence on the basis that he presented a continuing danger: however much, in view of the subsequent decision of the Parole Board, it seems likely that that was the case. But the clear rationale of both Weeks and Thynne is that the (discretionary) life sentence was imposed on grounds of dangerousness, and thus continued detention on that ground carried the authority of the original sentencing court: however much article 5(4) required a continuing review of that detention, in order to ensure that the basis relied on by the original sentencing court still obtained. Mr Noorkoiv's case therefore cannot in any event be justified on the basis adopted in Weeks and Thynne. I return below to consider whether that position, and other aspects of the issues that reach beyond the particular case of Mr Noorkoiv, have changed in the light of the approach to the automatic life sentence subsequently taken in Offen [2001] 2 Cr App R(S) 10.
20. All that, however, is not the end of this point. Miss Richards very resourcefully took us to a case originally shown to us for another purpose, Rutten v The Netherlands, [2001] Mental Health Law Reports 155. The applicant was the subject of a detention order that was due to expire on 4 September 1995. The public prosecutor applied for a further prolongation of the detention. That application was not heard until 22 September 1995, and a decision to prolong the order not made until 6 October 1995. Mr Rutten remained in detention between 4 September and 6 October, as national law provided. He complained that that period had been in breach of both article 5(1) and article 5(4). The Court agreed with the latter contention, a matter to which I shall have to return. It however held that the detention during that period had not been "arbitrary", as was required before a breach of article 5(1) could be found.
21. I would be less than frank if I did not express some reserve about that decision. The case seems to decide that detention pending a court determination of its lawfulness can be justified not on any of the particular grounds set out in article 5(1) but on the basis of a previous determination the effect of which has now expired. I am, however, acutely conscious of this court's duty under section 2(1) of the 1998 Act; and, in the light of that duty, the underlying legal structure in Rutten seems to me to be sufficiently similar to that applying in the case of the automatic life sentence to render it impossible for a national court to say that any period at all of detention between the expiry of the tariff period and the decision of the Parole Board must be struck down under article 5(1).
22. That said, however, the reference to article 5(1) in the context of the present case has served the valuable purpose of concentrating our minds on two fundamental considerations. First, detention between the expiry of the tariff period and the determination of the Parole Board does indeed need justification, and control in Convention terms. Second, the ECtHR has seen article 5(4) as the vehicle through which that control should be operated. I therefore now turn to the jurisprudence of article 5(4).

The jurisprudence of article 5(4)

23. Miss Richards took us to various authorities in both Convention jurisprudence and domestic law that establish that the issue of "speedy" determination must be decided in the light of the circumstances of each case (Sanchez-Reisse v Switzerland (1987) 9 EHRR 71[55]); and pointed to various periods that had been accepted or condemned on other occasions. Since it is accepted, indeed asserted, that there is no rule of thumb, no point would be served by going through those cases seriatim. I will, rather, draw attention to some pointers that assist us in our present task.
24. First, it is the obligation of the state to organise its legal system to enable it comply with Convention requirements: Bezicheri v Italy (1989) 12 EHRR 210[25]. The "excessive workload" of the judge assigned to a particular case cannot be prayed in aid (ibid). Nor can the fact that the judge is on holiday: E v Norway (1990) 17 EHRR 30[64]. The latter case is of some importance because the holiday period was one of only 12 days, and although the total delay condemned was one of eight weeks it seems clear both that the 12 day period, taken on its own, would in view of the reason for it have been regarded as unsatisfactory; and that the case was understood in that sense by this court in R(C) v South & West Mental Health Review Tribunal [2002] 1 WLR 176[41].
25. Second, no direct assistance is to be gained from cases decided in relation to the prompt hearing obligation imposed by article 6(1). The fact that the state is dealing with people who are at least presumptively detained unlawfully, and the legality of whose detention is controlled by article 5(4), imposes a more intense obligation than that entailed by the need for a prompt trial of people who are not in custody. I therefore view with some caution in this context cases such as Dyer v Watson [2002] SLT 229, relied on by the Secretary of State, that address article 6(1). But even there it is conspicuous that Lord Bingham, at paragraph 55 of the judgment, drew a distinction between general faults in or underfunding of the system, which provide no defence even in relation to article 6(1); and "the practical realities of litigious life even in a reasonably well organised legal system". I find it hard to characterise the Parole Board's submissions, which are that because of lack of resources they are incapable of improving the system, as appealing to the second of the categories identified by Lord Bingham.
26. Third, contrary to Miss Richards' submissions there is no general principle that "administrative necessity" excuses. That rubric is drawn from an observation of this court in R(C) at paragraphs 62-63 that the practice in that case of automatically listing cases eight weeks after application date was "bred of administrative convenience not of administrative necessity". A reading of the whole of the judgment makes it plain that the necessity that the court was referring to was not something forced on the administrators by the nature of the administrative machinery; but, rather, a need in some particular cases for preparation and review that might take up the whole of the eight week period. The latter is plainly not the present case. First, all cases are included equally in the quarterly batches irrespective of the perceived difficulty of their preparation; and are listed for hearing on the date when the panel is available at the relevant prison, again irrespective of preparation time. Second, unlike the position in R(C), where the period of eight weeks dated or might date from when the patient became subject to an order under the Mental Health Act, in the case of automatic life prisoners the authorities, under the scheme described in §7 above, have the case under consideration for many months before the expiry of the tariff period. It has never been suggested, nor could it be, that delay after the expiry of the tariff period is caused by necessity to give proper consideration to an individually difficult case, in the way envisaged in R(C): since, as with the practice condemned by this court in R(C), all cases, hard or easy, are treated exactly alike.
27. However, it is argued that the "necessity" in the present case is the lack of resources available to the Parole Board; and that the delays are not unreasonable in the light of that lack of resources. To that argument I now turn.

Resources and the responsibility of the state

28. The Parole Board lacks resources in terms of judges and psychiatrists because they have not been made available to it by other government departments. Miss Richards agreed, or at least did not formally disagree, that if this matter were proceeding in Strasbourg it would avail her not at all to say that failings on the part of one organ of the state were attributable to other organs of the state. But, she said, the position was different before the domestic courts. Here, it was not possible to bring an action against "the state". Specific defendants had to be identified, as Mr Noorkoiv had done by proceeding against the Board and the Secretary of State. The lack of judges might be attributable to the policy of the Lord Chancellor's Department and the lack of psychiatrists to the policy of the Department of Health; or, I would add, to the Treasury. But none of them were impleaded in these proceedings.
29. I readily acknowledge the general force of that submission, and would venture to refer to some remarks to that general effect that I made in R(K) v Camden and Islington HA [2001] 3 WLR 553[47]-[51]. But in that case the complaint was of failure of treatment on the part of the health authority which led to the patient's continuing detention. Such treatment was not in fact practicable for the health authority; so the complaint, if any, had to be about the detention. That was not the responsibility of the health authority, nor could the health authority act on any order that the detention should cease. I did, however, say about an action in relation to the patient's detention, at para 49:

Being a complaint about detention, it would seem that the complaint would have to be directed at the organ of the state actually responsible for the applicant's detention: that is to say, the authority responsible for Chase Farm Hospital [where the applicant was a patient]. Such an action would not depend on any actual fault on the part of that authority, but on the fact that, implementing the arrangements made by the state, that authority had detained the applicant when by reason of article 5(4) she should not have been detained.

30. That remains my view, which I venture to suggest is germane to the present case. Mr Noorkoiv was detained by the Secretary of State, who was implementing arrangements made by the state, including the slowness of consideration by the Parole Board forced on it by the limited resources made available to it by the state. The Secretary of State cannot therefore excuse any failing under article 5(4) by pointing to policies adopted by other departments; nor, I am constrained to say, should he seek to do so.
31. This aspect of the matter was not put to Dyson J in Ex p Norney, a case on which some reliance was placed by the Secretary of State; nor was it put to Henriques J. It did not feature in the case until Mr Gledhill appeared on the scene. But in the context of the prohibition on reliance on under-resourcing that is referred to in §24 above, I see no answer to the argument that the Parole Board and the Secretary of State cannot excuse delays that would otherwise be in breach of article 5(4) simply by pointing to a lack of resources that are provided by other arms of government.

Provisional conclusion as to breach of article 5(4)

32. On the basis of the jurisprudence set out above I conclude, subject to further considerations that will be discussed later in this judgment, that the present arrangements for determination of the status of both discretionary and automatic life prisoners infringe article 5(4); and that in particular that article was infringed in the case of Mr Noorkoiv. The factors that lead me in that direction are as follows.
33. The arrangements envisage a period of delay of up to three months. While sensitive to the importance of not reading mechanistically from one case to another, one cannot escape from the fact that much shorter periods than three months have been condemned by the ECtHR:

i) In De Jong Baljet and Van den Brink v The Netherlands (1984) 8 EHRR 20[58] the Court said of the ability of a detained serviceman to petition the Military Court that

The fact that this remedy could not be exercised until at least two weeks after the arrest prevented the applicants from being able to obtain a 'speedy' decision, even having regard to the exigencies of military life.

ii) In Rutten, referred to in §20 above, which I have already accepted in the context of article 5(1) to involve issues and procedures very similar to those in our case, the Court appeared to be clear that a period of two months and seventeen days was unacceptable. I am not persuaded that the Court was influenced in that consideration by the fact that the period limited by national law had been exceeded.

iii) In E v Norway, discussed in §24 above, the holiday period of 12 days appears to have been thought to be unacceptable in itself.

iv) In Sanchez-Reisse (see §23 above) delays of 31 and 46 days in determining requests to be released were found not to have been "speedy".

34. The ECtHR places some weight on the ease of the decision, in the sense of the existing availability of information to the court. Thus, it was influenced in Sanchez-Reisse, at paragraph 57 of the judgment, by the fact that the considerations that the court had to determine were apparent in a case file that had been under examination for approximately a year. When the prisoner reaches the end of his tariff period the authorities do not then start on consideration of his case "cold". As is set out in §7 above, the prisoner is in any event within the custody of, and well known to, the authorities; and the process of formally informing the Parole Board of the nature of his case starts many months before the date of his hearing, and a considerable time before his tariff period expires.
35. I consider to be relevant the nature of the detention to which the applicant is subjected during the time when he is awaiting a decision. He is not treated as a remand prisoner; nor, unlike for instance the applicant in Sanchez-Reisse, as a person detained for preventative reasons whilst awaiting extradition. Rather, as I understand it, the full penal regime continues to be imposed upon him. That would seem to be a strong reason for determining the lawful status of that treatment sooner rather than later.
36. To the extent that the present scheme is seen as imposed on the Parole Board by constraints of resources, that factor cannot offset what is objectively a breach on the part of the state: see §31 above.
37. The scheme operated by the Parole Board is, on the evidence before us, very much more carefully thought out than appears to have been the scheme condemned by this court in R(C). I would also emphasise that it would be quite unfair to characterise the Parole Board scheme as simply a piece of mindless bureaucracy; and I have well in mind what the judge said of it, as set out in §14 above. Nevertheless, it is impossible to escape from the fact that the scheme treats every case alike, and imposes delays for reasons that are unrelated to the nature or difficulty of the particular case. In that respect, therefore, it suffers from the characteristic that this court found unacceptable in R(C).
38. It was for these reasons that the court suggested, at the first hearing of this appeal, that consideration should be given to changing the timetable within something like the present process, so that the final decision was taken at or very close to the date of expiry of the tariff period. The Secretary of State resisted that suggestion, on three grounds. First, that it also would cause insuperable practical difficulties. Second, he was in any event justified by Convention jurisprudence in taking decisions after the end of the tariff period. Third, he was effectively obliged by the jurisprudence of article 5(4) not to take decisions until after the tariff period had expired. I will examine these claims in turn. The first and third points raise somewhat similar issues; so I start with the claim as to justification.

Is the Secretary of State justified by Convention jurisprudence in delaying decisions to a date after the end of the tariff period?

39. This is a short point. Miss Richards drew our attention to various statements by the ECtHR in relation to the parole scheme, which seemed to say that a prisoner was entitled to consideration of the lawfulness of his continued detention only after his tariff period had expired. Those statements are to be found in Thynne (see §18 above), at paragraph 76; Hussain v UK (1996) 22 EHRR 1[62]; and Curley v UK, application 32340/96 at paragraph 32, where the Court said that persons detained during Her Majesty's Pleasure

Are entitled, after the expiry of their "tariff", to have the lawfulness of their detention reviewed

40. Miss Richards argued that the entitlement therefore only arose after the tariff had expired. That is plainly not what the Court meant. I cannot put the point better than did Mr Gledhill: review of the lawfulness of detention after the tariff period means review of whether the prisoner should be detained after that period, and not that the review itself can only take place once that period has expired.

Completion of the review process before the expiry of the tariff period

41. The Board, in evidence submitted after the first hearing before this court, said that completion of the review process, effectively by the giving of a provisional decision before the end of the expiry of the tariff period, would cause severe practical problems. That was because the scheme of the 1997 Act (see §4 above) requires decisions to be taken in relation to the position at the end of the tariff period. If, as in the great majority of cases, the Board concluded before the end of that period that it could not direct release, the prisoner would be entitled under article 5(4) to a further hearing on or shortly after the expiry of his tariff. If the Board thought provisionally that the prisoner could be released, it was statutorily unable to direct release until the date of expiry of tariff: by which time the situation might have changed for the worse. In that case also, therefore, further hearings would or might be required. All of this would impose impossible burdens on the Board's resources.
42. I tread very warily when seeking to differ on matters of practicality from those who bear the burden of administering this scheme. I do however venture the following comments:

i) Reliance on lack of resources falls for the reasons already set out

ii) The emphasis on the need for the decision to be taken as at the date of expiry of the tariff underlines the unsatisfactory nature of the present scheme.

iii) Concern has never been expressed that under the present scheme the prisoner's condition may be different at the date of taking of the decision from what it was on the date of expiry: no doubt because it is unlikely that fundamental changes will occur over a two month period.

iv) The present system involves a very long period of gestation. As we have seen in §7 above, the dossier of relevant reports is prepared 16 weeks in advance of the hearing. No doubt it can be supplemented in the event of change of circumstances; but such a revision is not regarded as sufficiently likely as to cause it to be included in the formal timetable that is annexed to the Parole Board rules.

43. I therefore have to say that the Board has taken an unduly pessimistic approach to this task, to some large part based, as Miss Richards told us the Board's view was based, on its interpretation of the requirements of article 5(4). Provided there has been a full hearing at a stage reasonably close to the operative date, I cannot accept that article 5(4) requires, as the Parole Board asserts, a further such hearing perhaps a matter of weeks later simply at the demand of the prisoner. That would only arise if he could demonstrate a relevant change of circumstances; any such application being properly considered in the first instance on paper by the members of the panel or even by its (judicial) chairman. Similarly with reviews of the (very few) decisions to order release. Pending the final direction the prisoner will be under daily and immediate scrutiny by the prison authorities. Any change of circumstance will be immediately apparent, and would, I agree, then require a further hearing. I am however fortified in my view that radical developments, in either direction, are likely to be rare by the fact that the Parole Board has never, or at least never before us, expessed any concerns either about the fifteen week lead time between the completion of the dossier and the hearing; or about the fact that the hearing may be determining the position as it existed some three months earlier.
44. Granted that the present regime is unacceptable under article 5(4), the scheme here sketched out would seem to be the only way in which, without severe disruption, the regime of discretionary and automatic life sentences can be operated in conformity with the Convention. It will be for the Secretary of State to consider how in detail to proceed. If further resources are seen as necessary they must be provided.

The effect of Offen [2001] 1 Cr App R(S) 10

45. I mention this merely as a footnote, since some passing reference was made to the case in the context of the automatic life sentence. I have already mentioned, in §19 above, that Mr Noorkoiv was sentenced before the decision in Offen. It was suggested that after Offen, with "dangerousness" now in the minds of sentencing judges when considering an automatic life sentence, it was unlikely that persons who could safely be released at the end of the tariff period would in future receive such sentences. Such a consideration could not affect either the general concerns expressed about the regime or the particular case of Mr Noorkoiv, but in any event the assumption is in my view misplaced. I think that because:

i) The assumption remains that a person committing two qualifying offences is dangerous. It is for the defendant to displace that assumption: see Offen at paragraph 99.

ii) When considering whether that assumption can be displaced, the court is likely to be impressed in particular by the views of experts who have had experience of the defendant over a period of time: see for instance Kelly (No 2), referred to in § 19 above, at paragraph 34. Such experience is much more likely to be available in the case of a serving prisoner than in the case of a defendant at trial.

iii) The criterion to be applied by the sentencing court is expressed at paragraphs 79 and 103 of Offen in the same verbal terms as the criterion imposed by section 28(6)(b) of the 1997 Act, in terms of protection of the public. It is not, however, clear that in each case the public is to be protected from the same thing. In Richards [2002] Crim LR 144 the Criminal Division of this court held that risks to be taken into account under Offen included the risk not only of further commission of the scheduled offences, but also risk of offences such as drug dealing and residential burglary. The Parole Board however urged on us that the justification for continued detention of life sentence prisoners was to be found in the explanation given by the Criminal Division of this court in Wilkinson (1983) 5 Cr App R(S) 105 at p109 per Lord Lane CJ, that the prisoners are in a mental state "which makes them dangerous to the life or limb of members of the public". If that is indeed the way in which the Board interprets the protection of the public as required by section 28(6)(b) of the 1997 Act, different considerations as to dangerousness would appear to operate at the sentencing and at the parole stages.

46. As already indicated, however, it is not necessary to pursue this issue further, because it cannot affect the outcome of this appeal.

Disposal of the appeal

47. The first relief claimed, expedition of Mr Noorkoiv's hearing date, is now academic. Various inappropriate declarations were also claimed, which have now been passed over by the way in which the appeal has developed. I am however satisfied that the matter has now been properly and fairly considered, so as to enable this court to grant such relief as it thinks fit.
48. I am conscious that it is not for this court to give detailed directions to the Secretary of State and the Board as to how they shall arrange their affairs in order to comply with article 5(4); though in so doing they will no doubt wish to take account of the observations made by this court. With those considerations in mind, I would allow the appeal to the extent of declaring that the consideration of Mr Noorkoiv's parole application did not comply with the requirements of article 5(4) of the Convention. I would not grant any other formal relief.

Lord Justice Simon Brown:

49. This challenge has changed out of all recognition since it was first brought, since indeed it was first argued before us. It was conceded below that "there must be some delay between the tariff expiry date and a hearing" but it was submitted that "if short-term, automatic lifers were given priority over discretionary lifers … it would be possible to hear them all within one month" (Henriques J's judgment at paragraph 20). Now, however, the appellant no longer seeks to draw any relevant distinction between automatic and discretionary life prisoners; rather, he submits that all of them are entitled to a Parole Board hearing before the tariff expiry date thereby enabling their release on that date, provided always that "the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined" (section 28(6)(b) of the Crime Sentences Act 1977). The argument is advanced both under Article 5(1) and Article 5(4) of ECHR.
50. For my part I would unhesitatingly reject the argument under Article 5(1). So far as material, Article 5(1) provides:

"Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; …"

51. As the ECtHR made clear in Weeks -v- UK (1988) 10 EHRR 293, 308:

"… the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue." (paragraph 42)

52. The applicant in Weeks had been sentenced in 1966 to life imprisonment. Following release on licence in March 1976 he was recalled to prison in June 1977 by the Home Secretary, the recall being confirmed by the Parole Board in December 1977. In paragraph 49 of its judgment the court said this:

"Applying the principles stated in the van Droogenbroeck judgment [(1982) 4 EHRR 443], the formal legal connection between Mr Weeks's conviction in 1966 and his recall some ten years later is not on its own sufficient to justify the contested detention under article 5(1)(a). The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. 'In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5' [a citation from the van Droogenbroeck judgment]."

53. In the end, the court concluded that Mr Weeks's detention had not been incompatible with Article 5(1) but that his rights under Article 5(4) had been breached.
54. Discretionary life sentences are imposed for the very reason that the sentencing court cannot be satisfied that the prisoner will no longer be a danger when the tariff part of his sentence ends. (Post-Offen [2001] 1 Cr App R (S) 10, that is substantially true too in the case of automatic life sentences). That being their rationale, it seems to me impossible to suggest that at the tariff expiry date there ceases to be "a sufficient causal connection between the conviction and the deprivation of liberty" (Weeks paragraph 42). There is no question of the "decision not to release on that date" being "inconsistent with the objectives of the sentencing court" so as to transform the detention into "a deprivation of liberty that was arbitrary" (Weeks paragraph 49). True, paragraph 49 contemplates that the required causal link might "eventually" be broken. To my mind, however, that would be so only in very exceptional cases. Mere delay in Article 5(4) proceedings, even after the tariff expiry date, would not in my judgment break the causal link.
55. I turn then to the argument under Article 5(4):

"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."

56. I should first like to touch on the inter-relationship between this provision and Article 5(1)(a) with which I have already dealt. The continued detention of discretionary and automatic life prisoners after their tariff expiry dates can only be justified by the continuing need to protect the public. A prisoner's dangerousness can, of course, alter with time. Thus it is that Article 5(4) has been applied down the years to require the lawfulness of the prisoner's continued detention (ie, the question of his continuing dangerousness) to be examined periodically by a court. But, of course, it does not follow that if the court (the Parole Board under our domestic legislation) orders release, the detention up to that date was unlawful. When Article 5(4) speaks of deciding "the lawfulness of his detention" and ordering release "if the detention is not lawful", that is a reference to the detainee's future detention. Even, therefore, when an Article 5(4) hearing or decision is delayed, the antecedent period of detention is not to be regarded as unlawful. In short, unlawful detention is one thing, violation of the prisoner's rights under Article 5(4) quite another.
57. The real question on this appeal, therefore, is whether the requirement under Article 5(4) for a speedy decision by the Parole Board of the prisoner's continuing dangerousness requires that all practicable steps are taken to ensure that, whenever possible, those no longer dangerous can be released actually on or very shortly after their tariff expiry dates. If so, then the oral hearing of their cases must, as the appellant now submits, pre-date rather than post-date the expiry of the tariff period.
58. Perhaps somewhat surprisingly, - given the expertise and ingenuity of those regularly acting for prisoners both in our domestic courts and in Strasbourg, - no such argument appears previously to have been advanced. Many decisions, moreover, appear implicitly to sanction the Parole Board's existing practice. That notwithstanding, I am nevertheless persuaded, essentially for the reasons given by Buxton LJ, that the Parole Board's present scheme is not, after all, to be regarded as properly compliant with Article 5(4). Given the imperative need to release from prison any post-tariff prisoner who no longer remains a danger, (not least in these days of acute prison overcrowding), any system tending to delay such release (as the Parole Board's present system does) requires the most compelling justification. Although by no means unsympathetic to the Parole Board's difficulties, at the end of the day I am not persuaded that any such compelling justification exists, or at any rate that it need continue to exist. Further resources must be found. No less importantly, the Parole Board must devise a new system for pre-tariff expiry date hearings, which amongst other things will ensure, consistently with their statutory duty under section 28(5)(b), that they do not direct the release of a tariff-expired prisoner unless indeed at the date of that direction they are satisfied, as required by section 28(6)(b), that it is safe to do so. It can be done. As soon as reasonably practicable it now should be done.
59. I too, therefore, would allow the appeal to the limited extent indicated in Buxton LJ's judgment.

Lord Woolf CJ:

60. I have read the judgments of the Lord Justice Simon Brown and Lord Justice Buxton and I find their reasons for allowing this appeal convincing. However, I hope it will be of assistance if I indicate shortly my reasons for agreeing that this appeal should be allowed.
61. Insofar as the European Convention of Human Rights has a role to play in this appeal, it is Article 5(4) which is relevant and not Article 5(1). Article 5(1) is not relevant because the justification for the detention of a prisoner sentenced to life imprisonment (whether discretionary or automatic or mandatory) is that sentence and not the fixing of the tariff period.
62. The fixing of the tariff period determines when a prisoner has a right to have the question of his release considered by the Parole Board, but the expiry of the tariff period does not, by itself, make the detention unlawful. The detention is still lawful detention "after conviction by a competent court" and accordingly, detention which complies with Article 5(1)(a). It is, however, detention from which, both under domestic legislation and Article 5(4), on the expiry of the tariff period, the State is required to release the prisoner unless he constitutes a danger to the public (having given the prisoner an opportunity to establish that this is the position). Whether the prisoner does constitute a danger is a question which, again both under domestic legislation and Article 5(4), the Parole Board can determine. This has to be done "speedily". Otherwise the State will contravene Article 5(4) and be in breach of the duty it owes to a prisoner under domestic law.
63. In his extremely able submissions Mr Kris Gledhill relied upon the judgment of Mr Justice Dyson in R v Norney [1995] (unreported, 28 September 1995). In his judgment, Mr Justice Dyson indicated that the Home Office was correct to accept that the Secretary of State had a discretion to refer the case of a prisoner who was serving a life sentence to the Parole Board prior to the expiry of a prisoner's tariff. He went on to decide that in adopting a policy, as a general rule, of delaying a reference until after the expiry of the tariff, the Home Office was acting unreasonably "in the Wednesbury sense", and therefore unlawfully. He added that prisoners who are no longer dangerous ought to be released upon the expiry of their tariff periods, and that the policy produces results which are manifestly unjust and which "frustrates the intention of the sentencing judge, who when passing sentence intended that the prisoner should be released at the end of the tariff period unless at that time he continues to be a danger to the public" (p.13). Furthermore, Mr Justice Dyson went on to say, (p.14) "it cannot be stated too strongly that once the prisoner has served the tariff period, he or she has paid the penalty imposed by the court to meet the needs of retribution and deterrence; detention therefore cannot be justified unless the prisoner continues to be dangerous"
64. While these statements of Mr Justice Dyson correctly (in my judgment) make it clear that the question of release has to be dealt with quickly, they do not go so far as to suggest that if the question is not dealt with immediately on the expiry of the tariff period, the detention will become unlawful. On the contrary, he specifically suggested that a declaration which would reflect his views would be one which ensured the matter was heard "so far as practicable upon expiry of the tariff period" or "shortly thereafter" (p.17). I, therefore, regard the views expressed by Mr Justice Dyson, prior to the coming into force of the Human Rights Act, as being consistent with my own views.
65. As it cannot be assumed that a prisoner does constitute a danger because he was so regarded at the time of sentence, it is the duty of the State to arrange that an independent tribunal considers the question of whether a prisoner remains a danger either by the date of the expiry of the tariff, or as soon as practical thereafter. This is so that the prisoner, if he is no longer a danger, can be released. If the State fails to do this, it is in breach of Article 5(4) and also in breach of its duty under domestic law. In this jurisdiction the tribunal which has the responsibility for determining whether a prisoner remains a danger in the case of discretionary or automatic life sentences or offenders detained during Her Majesty's Pleasure is the Parole Board.
66. In the case of Mr Noorkoiv, his tariff expired on the 22 April 2001. The Parole Board wrote to his solicitors on 1 March 2001 in these terms:

"The Secretary of State referred Mr Noorkoiv's case to the Parole Board to be listed some time after the 22 of April 2001. Unfortunately, it is not always possible to schedule each case to fit in exactly with the date recommended, as we have a limited supply of Judges and Psychiatric members. Mr Noorkoiv's hearing was therefore scheduled to take place on the first available panel at HMP Wellingborough in the second quarter of 2001, on 20/21 June 2001." (emphasis added)

67. Having received a reference of this nature it was the practice of the Parole Board to arrange for a prisoner to have his tariff considered within three months of the date of the expiry of the tariff period. It is apparent from the papers in this case and the argument which was advanced before us by Miss Richards on behalf of the Parole Board and the Secretary of State, that her clients were under the impression that the assessment of whether a prisoner remained dangerous had to take place after the expiry of the tariff period. I was initially under the impression that this was based upon their interpretation of section 28 of the Crime Sentences Act 1997, (which does not apply to mandatory life sentences), the terms of which have been set out in the judgment of Buxton LJ (paragraph 4). However, an examination of the section makes it clear that the only requirements which have to be fulfilled prior to the Board directing release are that: (a) there should have been a reference by the Secretary of State, and (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (section 28(6)). Furthermore, the Board was under the impression that unless its consideration is after the expiry of the tariff, the prisoner would be entitled to have a further assessment as soon as the tariff expired. This impression is equally misconceived. It is not required under section 28(7) and is not required by any decision of the European Court of Human Rights.
68. The respondents rely on a lack of resources but exactly the same resources are required whenever a case is considered. To bring forward the consideration of prisoners release before the expiry of the tariff will temporarily involve limited additional resources. There will be the need to deploy resources to catch up, and there will also be a very small number of situations where, between the date of consideration of the case by the Parole Board and the expiry of the tariff, the condition of a prisoner changes, such that having ceased to be a danger he becomes a danger. However, the limited additional burdens this will occasion should be well capable of being met, given a reasonable time. The difficulty occasioned by this cannot justify the continuation of the present practice. The practice is based upon the misconceptions which I have identified that mean the practice is, as Mr Justice Dyson indicated, defective in a Wednesbury sense. The respondents have either misdirected themselves as to the law or have taken into account irrelevant considerations. If this practice had prejudiced Mr Noorkoiv then he would be entitled to an appropriate remedy, but in this case he has suffered no prejudice since we know the Board would not have directed his release.
69. However, this appeal has served a useful purpose in making it clear that both under domestic law and under Article 5(4), references to the Parole Board should be made before the expiry of the tariff period, so that if the Parole Board wishes to direct release it can do so, either on the expiry or as soon as practical after the expiry of the tariff period. If this does not happen the prisoner is entitled to obtain a mandatory order. The failure may also constitute a breach of Article 5(4), but it does not make the detention unlawful under Article 5(1).
70. I would therefore allow the appeal, to the limited extent proposed by Buxton and Simon Brown LJJ.
Order: Costs allowed. Legal Aid taxation. (Order does not form part of the approved judgment)