Case No: C3/2003/0473
Neutral Citation Number: [2003] EWCA Civ 1561
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR. JUSTICE PITCHFORD)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 6 November 2003

Before :

LORD JUSTICE MUMMERY
LORD JUSTICE SEDLEY
and 
MR. JUSTICE MUNBY
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Between :

	WILLIAM MURRAY	Appellant	
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	(1)	THE PAROLE BOARD
(2)	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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MS F KRAUSE (instructed by Nelsons, of Nottingham ) for the Appellant
MR P PATEL (instructed by theTreasury Solicitor, London SW1H 9JS ) for the Respondents

Hearing date: Monday 6 October 2003
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JUDGMENT 

Lord Justice Sedley:

This is the judgment of the court.

History
1.	The applicant received a mandatory sentence of life imprisonment for murder in April 1974. He was released on parole on the morning of the day fixed for the hearing of this appeal, 6 October 2003, upon the acceptance by the Home Secretary of the Parole Board's recommendation. The issues before us arise out of the process leading to this release, and out of its relationship with article 5(4) of the European Convention on Human Rights, which 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.
2.	It was not Mr Murray's first release on licence. Following the expiry of his 16-year tariff he had been released on two earlier occasions, in 1994 and 1998-9, but had been recalled each time upon revocation of his licence. Following the second recall the Home Secretary again asked the Parole Board to advise on Mr Murray's possible return to open conditions. In January 2000 the Parole Board recommended that he remain in closed conditions with a further review in twelve months' time. That review was not completed until 19 April 2002, when the Parole Board recommended that Mr Murray be tested again in open conditions with a further review to be completed at the end of two years. The Home Secretary accepted this recommendation and transferred Mr Murray in accordance with it.
3.	On 28 May 2002 the European Court of Human Rights issued its decision in Stafford v The United Kingdom [2002] 35 EHRR 1121. The decision held the United Kingdom's regime for the release of mandatory lifers to be in breach of article 5. (4) and required the United Kingdom in effect to assimilate the regime to that already in place for discretionary lifers. The key holding was in these terms:
The court has found…. that the tariff comprises the punishment element of the mandatory life sentence.  The Secretary of State’s role in fixing the tariff is a sentencing exercise, not the administrative implementation of the sentence of the court as can be seen in cases of early or conditional release from a determinate term of imprisonment.  After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence [for] murder.  These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of Article 5 § 4.  It can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of Article 5 § 1 of the Convention. 
4.	The notification to Mr Murray of his next review came too soon to take account of the Strasbourg decision, but in response to the issue of judicial review proceedings the Home Secretary accelerated his review programme so that it would be completed by September 2003 instead of May 2004. Although the end date of a review cannot be precisely calculated from its start date, counsel have agreed in these proceedings to treat the original review interval as two years and the revised one as 15 months.
5.	Meanwhile, in response to the Strasbourg decision, the Minister of State, Hilary Benn, had on 17 October 2002 announced to Parliament that pending new legislation the Parole Board would continue to make recommendations which, if favourable to release, the Home Secretary would normally accept. The new legislation (the Criminal Justice Bill 2003) is now well advanced and is expected to receive the Royal Assent in November 2003.
6.	Pitchford J on the hearing of the judicial review application concluded that there had been no breach of public duty on the part of the Home Secretary or the Parole Board. He held:
26.  As Mr Patel [for the defendants] submitted, the point at issue in Noorkoiv’s case was different from that which arises here.  A procedure had been planned and adopted, possibly from a misunderstanding of the legislation that review could only take place after the completion of the tariff, which could not be rectified because sufficient DLP [discretionary lifer panel] chairmen and psychiatrists could not be made available with current resources.  Here what has happened is that the claimant’s tariff has long expired.  He has had his licence revoked and has remained in detention under a regime by reason of Stafford which requires change.  His review has to be considered together with the competing interests of hundreds of others.  Here it is said that the report-gathering phase of the timetable will take until 21 May 2003.  I observe that extra resources cannot assist the Secretary of State in this regard because those who have already had the care of the prisoners are required to prepare those reports.  There is a limit on the capacity of those reporters to deal with the demands upon them.  This is not a case in which the Secretary of State has instituted an administrative procedure calculated to breach Article 5.  What he is doing is dealing with the interim period required to bring his procedure into compliance.

27. In the case of this particular claimant, I accept the submissions made on behalf of the Secretary of State that he does not present an exceptional case which requires him, as it were, to leap the queue and be one of the first to be considered.  I do not consider that the measures he has taken bring him out of compliance with article 5 § 4.  They are reasonable and they are set with a view to ensuring that others do not undeservedly suffer.  The European court has acknowledged that a Convention state may be justified in adopting a gradual but necessary approach to compliance -- see Walden v Liechtenstein (application no 33916/96), a decision which Ms Krause has heard me cite already this week.  In the particular circumstances of this claimant, I find that he does have access to proceedings by which the lawfulness of his detention will be decided speedily.  I therefore decline to order a Parole Board hearing forthwith and the claim is dismissed.

Is the appeal moot?
7.	Before turning to the substantive issues which have been argued - or sought to be argued - before us, it is necessary to consider the submission of Mr Patel for the Home Secretary (the Parole Board has taken no part in the proceedings) that the whole case had been rendered academic by the completion of the appellant's review and his release an hour or two before Ms Krause rose to open his appeal. This submission makes it necessary first to decide what the whole case before us consists of. 
8.	Pitchford J's decision was limited to the matters indicated by the passage we have cited from his judgment. Ms Krause had sought also to canvass in argument below a submission that the then current process was flawed because of the timing of the previous review. Pitchford J had indicated in argument that the point was hopeless, and it does not feature in his judgment. He did, however, grant permission to appeal on the ground that the issues he had decided were "of considerable importance to the SSHD's interim arrangements for mandatory lifers". Ms Krause appears to have taken this as an open-ended grant of permission to argue any point she wished to. It was no such thing. To reopen her point on the timing of the previous review she needed this court's permission, which she does not have. Nor does she have permission to argue, as she wished to do, that the Parole Board's conclusion was invalid in the absence of an oral hearing. Likewise her possibly important contention that the new procedures - which Mr Patel confirms will continue under the incoming legislation - still violate article 5(4) because they confine the Parole Board to making a recommendation and leave the decision in the hands of the Home Secretary is not on the present agenda and may have to await a case where the Home Secretary has rejected a Parole Board recommendation for release. We declined to allow the argument to be expanded in any of these respects.
9.	Returning then to what Pitchford J decided, in our judgment he was right to characterise it as he did in granting permission to appeal. It is likely to affect other cases in the aftermath of Stafford, and it is perhaps surprising that the Home Secretary should seek to head off the appeal rather than help to ascertain what his and the Parole Board's legal position is. Mr Patel has told us that under the incoming statutory regime it will continue to be possible for a two-year period to be set for a lifer's next review. We do not consider the issue academic and propose to deal with the appeal on the basis we have described. For reasons we will come to, however, this now involves looking at some important questions which go beyond the one decided by the judge below.
The judge's decision
10.	Before doing this, we should note that Pitchford J's reasons for rejecting the application for judicial review were founded entirely on the practicalities of affording Mr Murray a review at any earlier date than the re-set one. They did not involve, as they arguably should have done, the prisoner's interests and the requirements of the law. We will return at the end of the judgment to this.
What does the law require?
11.	In seeking to persuade us that there was no issue of law such as to make it appropriate for the court to consider the case once Mr Murray had been released, Mr Patel drew our attention to a series of leading cases which, he submitted, established that what interval between reviews was permitted by article 5(4) was a pure question of fact in each prisoner's case. This, however, was not how Pitchford J had approached it. Having been shown the authorities, he held:
"16. Ms. Krause, on behalf of the claimant, relies upon two decisions of the European Court on the subject of article 5(4), Hirst v United Kingdom (24 July 2001) and Oldham v United Kingdom  (26 September 2000). Mr Hirst was serving a discretionary life sentence for manslaughter. His tariff expired in 1994. His first review took place in December 1994, five and a half months after expiration of his tariff. Subsequent reviews took place on 9 October 1996 and 15 July 1998. A further review was fixed for July 2000. The court held that the period between these dates of 21 months and two years respectively were too long to satisfy article 5(4). It noted that in previous decisions it had approved periods of less than one year and rejected periods of more than one year. In Oldham the Court rejected a period of two years. Stafford applied the same reasoning to mandatory life cases."
12.	The significance of Mr Patel's submission was thus that it sought, without any respondent's notice and therefore without permission, to undermine the view of law which conditioned Pitchford J's approach. We decided to hear the argument nevertheless because it would not be right that, if Pitchford J was in error in this respect, his judgment should stand uncorrected.
13.	Accordingly we have looked with counsel's help at the cases. The key Strasbourg decision is that of the Court in Oldham v United Kingdom (Application no 36273/97, 26 September 2000). The applicant was a recalled life-sentence prisoner whose case had been scheduled by the Home Secretary for review by the Parole Board after a further interval of two years so that he could undertake further therapeutic work. This he completed within eight months.   The Court held:
29) The issue to be determined is whether this lapse of time complies with the requirement of Article 5 § 4 of the Convention that decisions concerning continued detention be taken “speedily”.
30) It is already established in the case-law of the Convention organs that this requirement implies not only that the competent courts must reach their decisions “speedily” but also that, where an automatic review of the lawfulness of detention has been instituted, their decisions must follow at “reasonable intervals” (see the  Herczegfalvy n Austria judgment of 24 September 1992, Series A no. 244, p. 24, § 75).  In practice, the system of review of discretionary life prisoners involves automatic reviews set at periods of two years or less, at the direction of the Secretary of State, who may or may not have received a recommendation as to timing by the DLP at the previous review.
31) It is true that the question of whether periods comply with the requirement must – as with the reasonable-time stipulation in Article 5 § 3 and Article 6 § 1 – be determined in the light of circumstances of each case (see the Sanchez-Reisse v Switzerland judgment of 21 October 1986, Series A no. 107, p.20, § 55).  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.
32) In previous cases, the Convention organs have accepted periods of less than a year between reviews and rejected periods of more than one year.  In the case of A.T. 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 DLP had recommended his case should be reviewed within one year (application no. 20448/92, Commission’s report of 29 November 1995, unpublished).  The Court in the Herczegfalvy judgment (cited above, pp. 24-25, § 77) found that periods between reviews of fifteen months and two years were not reasonable in the case of a person detained on grounds of mental illness. 
33) The Government pointed out that in this case, unlike that of A.T., the DLP made no recommendation for a review to take place before two years had elapsed.  This applicant, they agreed, had problems to address, and monitoring his progress could not realistically be done in under that period.  They also argued that the case of discretionary life prisoners, who are detained on grounds of risk to the public, should not be compared with that of persons detained on grounds of mental illness. 
34) The Court is not persuaded by the latter argument.  Article 5 § 4 was held to be applicable to discretionary life sentences since these were imposed on offenders due to considerations of mental instability and dangerousness which were susceptible to change over the passage of time (see, for example, the Thynne, Wilson and Gunnell v the United Kingdom judgment of 25 October 1990, Series A no. 190-A, p.30, § 76, and p.27. § 69, where the Court drew comparisons from its case-law concerning the detention of persons of unsound mind under Article 5 § 1(e)).  Nor have the Government substantiated their assertion that mental disorder in the context of mental illness is more susceptible to change over time than mental instability posing risks of dangerousness.
35) As regards the lack of recommendation by the DLP for a review of this applicant within a period of less than two years, the Court does not find this to be decisive ground of distinction.  While the applicant underwent courses aimed at addressing the perceived problems of anger, alcoholism and relationships, it appears that these were concluded within eight months of his recall.  No further courses were arranged for the applicant during the next sixteen months which elapsed before his next review.  The Government have referred to the need to monitor and make reports on his progress without specifying the nature of this process or how long it took.  In these circumstances, the Court is not satisfied that the period of two years was justified by considerations of rehabilitation and monitoring.
36) It was in any event open to the Secretary of Sate, the Government asserted, to bring forward the date of the review where a prisoner showed unexpectedly rapid progress in addressing problems.  The Court has already noted the flexibility in the system as mitigating the application of an automatic two-year review system.  However, while the DLP could recommend an earlier review and the Secretary of State direct an earlier date, there was no possibility for an applicant himself  to apply for a review within a two-year period.  The applicant in the present case, who had finished the rehabilitation work required of him in the first eight months of his recall, therefore had no possibility of bringing his case back before the Parole Board in the absence of the Secretary of State’s exercising his discretion in his favour as an exceptional case.
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 that provision.
14.	The reference in paragraph 32 to the Convention organs is, we infer, a reference to  decisions of the Commission (see M v Germany (1984) 38 DR 104), and more recently of the Court (see Herczegfalvy v Austria (1992) 15 EHRR 437), to reject as manifestly ill-founded applications based on review intervals of less than a year. There is an apparent tension between the suggestion in this paragraph that one year represents, generally speaking, the outer limit of a speedy review within article 5(4) and the insistence in the remainder of the passage that speediness is fact-dependent. It seems to us, however, that the sense of the passage is that, in the Court's (and previously the Commission's) practice, an interval of up to a year has ordinarily to be shown on some particular ground to be in breach of article 5(4) in order to be justiciable, whereas an interval of more than a year has generally to be shown not to be in breach of it: cf Herczegfalvy v Austria (above). In all cases the facts will thus be critical, which is why no principle of law is enunciated; but it is of value to national authorities as well as to prisoners and their advisers to know that this is how the question of a speedy review is approached in Strasbourg. It is noteworthy that in 2001 the Court took the trouble in Hirst v United Kingdom (Application no. 40787/98, 24 October 2001) to reiterate what it had said on this subject in Oldham the year before.
15.	These two decisions have been previously considered in this court. In R (on the application of MacNeil) v HM Prison Discretionary Lifer Panel [i.e. the Parole Board] [2001] EWCA Civ 448, Peter Gibson LJ said:
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.
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.
Lord Phillips MR, however, said:

28. 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.
16.	In R (on the application of Spence) v Secretary of State for the Home Department [2003] EWCA Civ 732, Brooke LJ, giving the judgment of the court (Brooke, Clarke and Arden LJJ), said:
30. The problem …. is that the ECtHR has conspicuously declined to be prescriptive about length of the detention period which would lead to a violation of article 5(4) in the absence of a review (see Oldham v UK (App No 36273/97), paras 30-37).  Strasbourg jurisprudence makes it clear that the question whether such periods comply with the article 5(4) requirement must be determined in the light of the circumstances of each case (Oldham, para 31), and the evolving Home Office policies, which we have described earlier in this judgment, follow the principles set out in that jurisprudence. It is therefore impossible to say on the particular facts of this case that, viewed prospectively, the Home Office’s January 2002 decision somehow or other violated Mr Spence’s Convention rights.  In R (MacNeil) v Parole Board [2001] EWCA Civ 448 this court applied the principles set out in the Oldham case when it held that there were proper reasons for setting a two year period before the next Parole Board review on the facts of that particular case.
Later he said:
34. If events subsequent to the initial fixing of the review date, but before the review date itself occurs, show that the interval initially prescribed should be shortened, Mr Watts has explained that there are internal procedures whereby a prisoner can request a review of the interval by the Home Secretary.  That point is important, not because it is suggested that any such review would be appropriate in this case, but because it demonstrates that the power to initiate a process which may lead to a shortening of the interval does not lie solely in the hands of the executive.
35. The decision as to the length of the interval is thus not one which under the Convention needs to be taken by a court for the purposes of  article 5 (4) (see Oldham v UK and Ashingdane v UK (1985) 7 EHRR 528 at paragraph 52).  It can be taken by the Home Secretary.  In determining whether the interval complies with article 5 (4) on the facts of a particular case, the courts asks itself whether the interval was reasonable.  The answer to this question is a matter for the court.  The court does not, therefore, apply the Wednesbury test and ask whether the interval was not one which a reasonable decision-maker could determine.  In considering the question of reasonableness, the court will give appropriate weight to the views both of the Home Secretary and the Parole Board.
17.	Mr Patel has submitted that the two latter paragraphs are part of the ratio decidendi of Spence.  This they clearly are not. The paragraph immediately preceding them reads: "For these reasons we dismiss this appeal". What follows is obiter; but because of the respect that it will nevertheless command, we venture to indicate our reservations about it.
18.	The judgment of the Court in Curley v United Kingdom (no 32340/96, 28 March 2000) contains this passage:
32. The Court recalls that prisoners detained during Her Majesty’s Pleasure are entitled, after the expiry of their “tariff”, to have the lawfulness of their continued detention reviewed by a court offering the necessary judicial guarantees, in particular, the power to order release and adversial proceedings (see Hussain v the United Kingdom, cited above,  §57; Singh v the United Kingdom, cited above, §66).  The applicant’s tariff expired in 1987.  Before his eventual release in May 1997, the applicant did not receive a review by a body fulfilling this criteria [sic] as the Parole Board, even under the interim arrangements, did not have the power to order the applicant's release.
19.	In Spence (above) this court noted:
24. We were told that the practice of asking the Board to recommend when the next review of a prisoner’s case should begin has now been abandoned because prisoners’ legal advisers had developed the practice of making legal challenges to the Board’s recommendations (and reasons) and to the Home Secretary’s response, as in the present case.
20.	It is clear from the Strasbourg jurisprudence that a review date must itself be subject to review if the prisoner's progress warrants it. It is not immediately obvious why reconsideration of the review date is not as much a judicial function as the review itself.   If so, we would respectfully question whether internal procedures by which the prisoner can request the Home Secretary to review the interval which has been set meet the standard set by the European Court of Human Rights. While we appreciate that the prisoner has the initiating role in the procedure, it seems to us that from that point on the review of the interval is entirely in the hands of the executive. The fact that on judicial review the court would retake the decision about the continuing reasonableness of the set interval may not be an answer to the want of a court (which the Parole Board is for these purposes) to take it in the first place.
21.	We record these concerns solely because the correctness of Pitchford J's legal premise about the proper interval between reviews of a recalled lifer's case has been called in question in the course of argument. We are enjoined by s.2 of the Human Rights Act 1998 to take into account all relevant Strasbourg jurisprudence. Our own understanding of the relevant Strasbourg jurisprudence is that which is set out in paragraph 14 of this judgment. 
22.	That understanding does not call in question the conclusions of this court in either Spence or MacNeil. It does indicate that there is factual significance for Convention purposes in the setting of a period of more than a year between reviews, and for that reason legal significance in the process by which review intervals are themselves reviewed. As the Master of the Rolls said in MacNeil, a two-year interval will not necessarily be Convention-compliant. In this light we return to the judgment under appeal.
Conclusions
23.	Pitchford J's summary of Oldham and Hirst was perfectly accurate. He did not deduce from it any rule of law that reviews must take place, absent special circumstances, within a year. His judgment was that any earlier review than had been arranged was impractical having regard to the novelty of the situation created by Stafford, the finite resources available to the Parole Board to cope with it and the needs of other life sentence prisoners. There is no finding in his judgment that but for these difficulties the 15-month interval  would have been too long.
24.	It follows from what we have said earlier in this judgment, and from this court's decision in Noorkoiv, that if there was excessive delay between reviews, logistical difficulties would not be an answer to it. The answer would be, generally speaking, that no mandatory relief should be granted despite the breach. If damages were claimed (they have not been claimed here) they might afford a remedy.
25.	But whether the delay of 15 months in this case was excessive has not been satisfactorily determined. Pitchford J gave no consideration either to the significance of the Strasbourg jurisprudence which he had earlier considered or to whether on the facts Mr Murray's case warranted an earlier review. There is no value in our now doing this. Mr Murray has had his review and has been released, and there is no claim for any relief which will be of use to him. We cannot be satisfied, in the particular circumstances in which this case comes before the court, that a correct approach would necessarily have resulted in a finding of principle in Mr Murray's favour, and we accordingly dismiss the appeal.