England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE HICKINBOTTOM
CO/1022/2015

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/07/2017

Lord Justice Davis:

Introduction

1. The claim in this case ultimately is based on a failure on the part of the Parole Board (occasioned by the huge pressures which it is under) to convene a required hearing within the timetable set by the Parole Board Rules. The particular issue arising on the present appeal, put compendiously, comes to this. Is the claimant, an indeterminate sentence prisoner, entitled to a remedy from the courts on the basis that a failure promptly to provide him, in accordance with the Rules, with a Parole Board hearing during the currency of his tariff term has deprived him of a reasonable opportunity to demonstrate, on the expiry of such tariff term, that he could safely be released?
2. By a reserved judgment handed down on 24 February 2016 Hickinbottom J, sitting in the Administrative Court, upheld the claim. He granted the claimant declaratory relief and made an award of damages accordingly: [2016] EWHC 288 (Admin).
3. The Parole Board appeals, with permission granted by Hallett LJ. Before us the Parole Board was represented by Mr Ben Collins QC and Mr Richard Moules. The respondent claimant was represented by Mr Tim Owen QC and Mr Philip Rule. In addition, the Secretary of State for Justice was subsequently granted permission to intervene; and written and oral submissions were advanced on behalf of the Secretary of State by Mr Tom Weisselberg QC and Mr David Lowe. I wish to acknowledge the thoroughness and care with which the respective arguments were advanced on behalf of all parties.

Background Facts

4. The background facts, and procedural chronology, are these.
5. The claimant, who was born on 11 April 1989, was involved in a violent incident on 1 August 2005, at a time when he was aged 16. In the course of that incident a man was stabbed to death. There was evidence that the claimant, in the company of others, had come to the scene armed with a knife and had played the main role in the attack, which was said to be unprovoked. The victim was stabbed thirteen times, including a wound to his heart.
6. On 18 December 2006 the claimant, after a trial at the Central Criminal Court, was convicted of murder. He was sentenced on that date to detention during Her Majesty's pleasure – the sentence appropriate for one of his age but in reality corresponding to a life sentence for an adult – with a minimum term specified as 12 years. In sentencing him, the trial judge indicated his view that remorse was not a word in the claimant's vocabulary. The Pre-Sentence Report had itself indicated that there was scant insight with regard to his offending.
7. It is common ground that, giving credit for time spent on remand, the tariff expiry date is 19 August 2017.
8. The indications are that the claimant had made considerable progress while in custody: coupled also, no doubt, with the fact that he was maturing. He also undertook and completed a number of courses. At all events, following what is called a sift assessment, a Sentence Planning and Review Report dated 22 January 2014 was prepared. In the light of that the Secretary of State referred the claimant's case to the Parole Board for a pre-tariff review, requesting advice as to the suitability of the claimant for a transfer to an open prison. Such a request is by no means invariably or routinely made in every case: on the contrary, it is only made where it is considered that there is a realistic prospect of such a transfer being recommended by the Parole Board (hence, indeed, the prior sift assessment).
9. The reference of the Secretary of State to the Parole Board was dated 16 April 2014: that is to say, some 3 years and 4 months before the expiry of the tariff period on 19 August 2017. The reference itself noted that the next review of the case "will normally be set to take place shortly before the expiry of the tariff". The claimant was at that time detained in closed conditions – at HMP Parc, on the enhanced regime – and the Parole Board was asked "to consider whether the prisoner is ready to be moved to open conditions. If … the Board decides to make such a recommendation, it should comment on the degree of risk involved." The Parole Board was also asked to identify any areas of concern to be tackled and to give full reasons for any recommendation it made. The Parole Board was further asked to note that, if it did not recommend a move to open conditions, then there were various matters upon which it was not being asked to comment.
10. Thereafter a number of reports were obtained recommending a transfer of the claimant to open conditions. A dossier was supplied to the Parole Board on 19 June 2014. Legal representation was obtained for the claimant on 28 July 2014.
11. On 5 August 2014 directions were given for an oral hearing. Further reports were obtained and the availability of relevant witnesses sought. The case was ready for listing by September 2014. On 23 September 2014 a listing exercise for hearings in December 2014 was undertaken. But because of the pressures on the Parole Board and consequent lack of panel capacity the claimant's hearing did not take place either then or in the immediately following months. In fact it was only on 8 March 2015 that his case was listed for hearing: the scheduled hearing date being 22 May 2015.
12. In the meantime, by reason of the delay, a pre-claim letter was sent on 23 February 2015; and a claim for judicial review was issued on 3 March 2015.
13. Thereafter the hearing before a panel of the Parole Board did go ahead on 22 May 2015, at HMP Parc. A full set of papers was presented and evidence taken. By a detailed decision letter sent out on 27 May 2015 the panel stated that it considered that the test for a move to an open prison had been met and recommended to the Secretary of State that the claimant be moved to Category D (open) conditions. The panel recorded that it was impressed by the open way in which the claimant gave his evidence and considered that he had made significant progress since he was sentenced. It also, however, among other things recorded: "Over 2 years remain before your tariff expiry and the risk management plan has yet to be fleshed out….".
14. That recommendation was accepted by the Secretary of State on 24 June 2015 and the claimant so notified. In due course, at around the end of August 2015 the claimant was transferred to open conditions (HMP Leyhill). This was, therefore, just about 2 years before his tariff expiry. Unfortunately, there were then incidents of disruptive behaviour and a failure to comply with open prison routines. At all events the claimant was returned to closed conditions on 30 October 2015.
15. In the meantime the judicial review proceedings continued: the hearing before Hickinbottom J taking place on 3 and 4 February 2016. It may be noted that the claimant had in fact been seeking significantly more extensive relief than the judge was prepared to grant. But nothing now turns on that. It also may be noted that, then as now, the claimant did not in the events which had happened seek to say that his release date had in fact been adversely affected by the asserted breach of duty in failing to arrange a timeous hearing before the Parole Board. Thus the damages were limited to the frustration and anxiety occasioned by the delay. We were told that they were subsequently agreed in the amount of £300.

The legal context

16. There is a most detailed and helpful exposition of the legal background contained in the judgment of the judge: to which reference can be made. However, for present purposes I think that I can be selective in summarising the legislative scheme.
17. It is, of course, elementary that a minimum term set by way of tariff for an indeterminate sentence such as this does not connote an entitlement to be released on the expiry of such minimum term. On the contrary, the offender will not be released unless and until it is assessed that it is safe and proper for the offender to be released on licence into the community. The minimum term thus is geared towards the punitive element of the sentence: whereas the indeterminate aspect of the sentence is geared towards the protection of the public from unacceptable risk. It is precisely that latter aspect with which the Parole Board is concerned in a case of this kind.
18. By s. 239 (2) of the Criminal Justice Act 2003 the Parole Board has a general duty to advise, among other things, on the early release of prisoners. In the context of mandatory life sentences (of which the present is deemed to be one) it is provided by s. 28 of the Crime (Sentencing) Act 1997 that the Secretary of State is required to release a prisoner if he has served the minimum term and if the Parole Board has directed release. It is further there provided that the Parole Board is not to direct release unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be detained.
19. Overall, as explained by the judge, an indeterminate sentence prisoner needs to be in a position to produce evidence that he no longer poses a risk – typically by showing the successful completion of relevant courses, good behaviour, a positive attitude and so on.
20. For this purpose it is acknowledged by the Secretary of State that for most prisoners who are the subject of mandatory life sentences a period of time in an open prison is necessary to help show the suitability of an offender for release into the community on licence. It is however possible, and sometimes can happen, that such a prisoner may be released on licence directly from closed conditions.
21. The actual lawfulness of confining a prisoner in any prison is conferred by s. 12 of the Prison Act 1952. Rule 7 (1) of the Prison Rules 1999 confers wide powers on the Secretary of State with regard to classification of prisoners.
22. As empowered by s. 32 (6) of the Criminal Justice Act 1991, and subsequently by s. 239 (6) of the Criminal Justice Act 2003, the Secretary of State has also given guidance to the Parole Board with regard to assessing a transfer to open conditions. In the Directions (issued in April 2015) to the Parole Board with regard to indeterminate sentence prisoners this, among other things, is said:

"1. A period in open conditions can in certain circumstances be beneficial for those indeterminate sentence prisoners (ISPs) who are eligible to be considered for such a transfer.

2. Open conditions can be particularly beneficial for such ISPs, where they have spent a long time in custody, as it gives them the opportunity to be considered for resettlement leave (although there is no automatic entitlement to such leave and any decision to grant such leave will depend upon a careful assessment of risk). It is not necessary in every case, however, for an offender to spend time in open conditions in order for the Parole Board to direct their release.

3.  The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed prison estate. The focus in open conditions is to test the efficacy of such core risk reduction work and to address, where possible, any residual aspects of risk.

4. Prisoners who are not eligible for transfer to open conditions will be considered by the Secretary of State as to their suitability for the Progression Regime. For such prisoners, this is designed to be an alternative regime to open conditions; however, the Parole Board is not invited to advise the Secretary of State on the suitability of a prisoner for the Progression Regime.

5.  A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board's emphasis should be on the risk reduction aspect and, in particular, on the need for the ISP to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered."

23. In similar vein, in Prison Service Instruction (PSI) 36/2010, issued on 2 July 2010, the following is said at paragraph 4.8.1:

"In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence. A similar approach will apply to many other indeterminate sentence cases, but decisions will need to be taken on a case by case basis. In general terms, the longer the time in custody served by an ISP, the more likely they are to require a period in open conditions as part of a phased release."

24. In the Generic Parole Process issued by the National Offender Management Service with effect from 3 December 2012 (PSI/36/2012) the following is stated at paragraph 4.1:

"Pre-tariff ISPs are eligible to have their cases referred to the Parole Board to consider their suitability for transfer to open conditions up to three years before the expiry of their tariff. In order to target Parole Board and NOMS resources effectively, the Secretary of State refers only those pre-tariff cases to the Parole Board where there is a reasonable prospect of the Board making a positive recommendation."

25. We were also referred to PSI 40/2011, issued by the National Offender Management Service with effect from 1 September 2011 with regard to Categorisation and Recategorisation of Adult Male Offenders. It is stated by paragraphs 4 and 5 of its preamble to apply to all adult male prisoners who are categorised and recategorised, and to life sentence prisoners (not category A) and other indeterminate sentence prisoners. This is then stated in Section 1.1:

"1.1 The purpose of categorisation is to assess the risks posed by a prisoner in terms of:

likelihood of escape or abscond

the risk of harm to the public in the event of an escape or abscond

any control issues that impact on the security and good order of the prison and the safety of those within it and then to assign to the prisoner the lowest security category consistent with managing those risks.

Two years is considered to be the maximum time a prisoner should spend in open conditions. However, assessment of a prisoner's individual risks and needs may support earlier categorisation to open conditions. Such cases must have the reasons for their categorisation fully documented and confirmed in writing by the Governing Governor. Indeterminate sentence prisoners (ISPs) will be considered for categorisation to open conditions in line with the provisions of PSO 4700 (PSI 36/2010)."

And at Section 5.4 this is stated:

 

"Two years is considered to be the maximum time a prisoner should spend in open conditions. However, assessment of a prisoner's individual risks and needs may support earlier recategorisation to D. Such cases must have the reasons for their categorisation fully documented and confirmed in writing by the Governing Governor."

At paragraphs 29 and 30 of Annex B to that guidance it is further said:

"Although each case is considered on its individual merits, a prisoner should not generally be categorised as Category D if they have more than 2 years to serve to their earliest release date. (Fuller guidance on eligibility dates can be found in Annex E.) Two years is considered to be the maximum time a prisoner should spend in open conditions. However, assessment of a prisoner's individual risks and needs may support earlier categorisation to D. Such cases must have the reasons for their categorisation fully documented and confirmed in writing by the Governing governor – see Part 2 of ICA1.

Prisoners serving an indeterminate sentence (ISPs) will be considered for category D in line with the provisions of PSO 4700 (PSI 36/2010)."

At paragraph 8 of Annex D the following is included as one of the points made:

"Two years is considered to be the maximum time a prisoner should spend in open conditions. However, assessment of a prisoner's individual risks and needs may support earlier recategorisation to D. Such cases must have the reasons for their categorisation fully documented and confirmed in writing by the Governing Governor (Annex E gives fuller guidance on release dates)."

26. In dealing with the actual referral made in this case by the Secretary of State in April 2014 there was no dispute that the procedural position was governed by the Parole Board Rules 2011. Those Rules, among other things, set out a required procedural timetable. Thus in the ordinary case it is prescribed (by Rule 16) that a single member of the Parole Board should consider the matter on the papers within 14 weeks. If, as here, it is decided to refer the matter for an oral hearing before a panel it is provided (by Rules 18 and 20) that the case should be considered and the hearing held within 26 weeks of referral. In point of practice, that reference to 26 weeks is taken to run in the appropriate calendar month taken from the first day of the month following the referral.
27. For present purposes, however, precise dates do not matter. Given that the original referral was made in April 2014 and given that the actual hearing only took place in May 2015 it is common ground that the hearing took place some six months or so after the time at which (under the Rules) it should have taken place. It is that fact which has prompted the present claim.
28. Before turning to the issues on this appeal, I should make clear what this appeal is not about:

(1) First, there is a right available to an offender such as the claimant to seek a review and reduction of his tariff in appropriate circumstances. That point has not featured before us.

(2) Second, there was a great deal of evidence and argument before the judge as to just how it was that the Parole Board in this case (as in many other cases) was not able to list for hearing within the time prescribed by the Rules. It is plain enough that was occasioned by the insufficency of resources available to deal with the huge volume of cases required to be considered by the Parole Board in the aftermath of the decision of the Supreme Court in R (Osborn) v Parole Board [2013] UK SC 61, [2014] AC 1115. But that point also does not form part of the present appeal.

(3) Third, there can be circumstances where the Secretary of State may decide to remove a prisoner from closed conditions to open conditions without involving the Parole Board at all. That too is not relevant in the present case.

(4) Fourth, the fact that when the claimant was eventually removed to open conditions he misbehaved and had to be returned to closed conditions is not of itself, as is accepted, an answer to the present claim. As Mr Owen put it, the principal focus here, in this particular case, is on the opportunity afforded: not on the actual outcome.

The relevant duties of the Secretary of State and the Parole Board.

29. There was little real dispute in general terms between the parties as to the duties resting on the Secretary of State and the Parole Board.
30. Thus in R (James and Ors) v Secretary of State for Justice [2009] UKHL 22, [2010] AC 533, the debate concerned the failure of the Secretary of State to provide rehabilitative courses which indeterminate sentence prisoners needed to complete with a view to persuading the Parole Board that at the time of the expiry of their tariffs (or reasonably soon thereafter) it was not necessary for the protection of the public to keep them in detention. It was held by the House of Lords that there was a (public law) duty on the Secretary of State to provide the systems and resources needed to afford indeterminate sentence prisoners a reasonable opportunity to demonstrate that, at tariff expiry or reasonably soon thereafter, they were no longer a risk to the public. Nevertheless, in the circumstances of that case, notwithstanding a failure to provide such systems the continued post tariff detention of the appellants – that case primarily, it may be noted, concerned post-tariff detention - was not unlawful at common law and no breach of Article 5 (1) or (4) of the Convention was involved.
31. On a application to the European Court of Human Rights however, the Court in Strasbourg, Fourth Section, held that, on the facts, there had been a breach of Article 5 (1): [2013] 56 EHRR 399. The issue was then reventilated before the Supreme Court in R (Kaiyam and Haney & Others) [2014] UKSC 66, [2015] AC 1344. The Supreme Court declined to follow the decision of the Fourth Section of the European Court in James, for the reasons there given (save, at paragraph 36, to accept that rehabilitation is one of the purposes of the indeterminate sentence).
32. However, what is of particular relevance for present purposes is the ruling of the Supreme Court in Kaiyam and Haney that it was implicit in the scheme of Article 5 that the state was under a duty to provide an indeterminate sentence prisoner with a reasonable opportunity for such prisoner to rehabilitate himself and to show at tariff expiry (or reasonably soon thereafter) that he no longer posed an unacceptable risk to the public. It was said that that was an "ancillary duty" in this regard existing throughout the period of detention (albeit breach of which did not directly impact on the lawfulness of the detention itself); and the appropriate remedy for such a breach was not release of the prisoner, where the tariff had expired, but an award of damages for "legitimate frustration": see paragraphs 36 to 40 of the joint judgment of Lord Mance and Lord Hughes. It was further said at paragraph 43 that whether there was a breach of this ancillary duty, owed to each individual prisoner under Article 5, "is a highly fact-sensitive question in each case." At paragraph 48, it was reiterated that the ancillary duty existed throughout the period of detention:

"It is geared toward the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period. A failure before the tariff expiry may thus constitute a breach if it remains uncorrected so that he is deprived of such reasonable opportunity which he ought to have had…."

33. I might add that a subsequent application by some of the claimants to the European Court of Human Rights was deemed inadmissible: (2016) 62 EHRR SE13.
34. As I have said, there was no real dispute before us as to the existence and scope of those duties: what I may call "the James duty" and "the ancillary duty". The question is whether or not, in the circumstances of this case, there was a breach.

The judgment of Hickinbottom J

35. The very careful and thorough judgment below fully set out the background, the legislative context and the effect of the Parole Board Rules. The judge reviewed all the relevant legal authorities. He decided that the systemic failure which had arisen (through a want of resources available to the Parole Board) gave rise in turn to a breach of the ancillary duty owed to the claimant by the Parole Board, occasioned by the six month delay in listing his case for hearing. He considered that, by reference to the published guidance, and in particular paragraph 4.1 of PSI 36/2012, the Secretary of State had decided that the appropriate time to transfer indeterminate sentence prisoners to open conditions was at, or reasonably soon after, a point three years before expiry of tariff. That, as the judge saw it, was the Secretary of State's assessment of what would enable such prisoners to have an appropriate opportunity to be able to demonstrate an acceptable risk, on expiry of tariff, so as to allow for their release: see paragraph 24 of the judgment (contained in the part of the judgment headed "legal background").
36. Having so held, the judge came back to the point later in the judgment. He was to say this at paragraphs 94 and 95 of his judgment:

"94. As I have described, in pre-tariff cases, the Secretary of State identifies what he considers to be a reasonable opportunity through the Rules and his own guidance, promulgated in part to comply with the state's duties at common law and under the ECHR. As I indicate above (paragraphs 23-30), his own policy recognises that, where the risk-benefit analysis is appropriately positive, an ISP should be transferred to open conditions at a point about three years before the expiry of his tariff period. That is identified by the Secretary of State as the appropriate period in open conditions to give those prisoners a reasonable opportunity to prove themselves suitable for release at tariff.

95. Having made that assessment, it is incumbent on the state to satisfy the James public law duty, namely to establish and operate systems that will ensure that that reasonable opportunity is afforded. Here, it demands that appropriate prisoners are identified and are transferred to open conditions at or about that stage of their sentence. The Secretary of State has established what he considers to be an appropriate scheme, through the Rules and his guidance. They provide a timetable designed to ensure that, generally, prisoners are identified, assessed and transferred to open conditions at, or reasonable shortly after, the point three years from their expiry of tariff, if the assessment made of them is to the effect that the risk is sufficiently low for such transfer then. In an appropriate case, that timetable is triggered by the Secretary of State, who considers, first, whether the individual prisoner's case is one in which the Board might recommend transfer to open conditions at or about the three-year point; and, if so, to refer the prisoner to the Board for advice and a recommendation. In the Claimant's case, the Secretary of State triggered the timetable by making a reference to the Board about three years and four months before his tariff expiry."

At paragraph 97 he said this:

"In the Rules and policy, the Secretary of State thus defines "reasonable opportunity" to demonstrate, at tariff, that a particular prisoner would no longer present an unacceptable danger to the public, because they set a provisional review date and set mandatory time limits from the date of referral by which a case must be heard by the Board to ensure that that review date (and, thus, the date for transfer deemed appropriate by the Secretary of State) is met. The Rules and policy require the referral of a particular prisoner to the Board by the Secretary of State, when he assesses that there is a reasonable prospect of the Board recommending transfer, with a mandatory timetable that ensures that the prisoner will be afforded a reasonable opportunity to rehabilitate in open conditions and to satisfy the Board as to his level of risk at tariff expiry."

And then at paragraph 101 of his judgment he said this:

"In the Claimant's case, the Secretary of State assessed that an appropriate period for the Claimant to demonstrate a sufficiently reduced risk in open conditions was about three years. He considered that to be essential to afford the Claimant a reasonable opportunity to satisfy the Board as to his level of risk at tariff expiry. As a result of the failure of the Board to list the hearing in a timely manner, the Claimant had available only about thirty months in open conditions prior to his tariff expiry. That was less than the time in open conditions considered by the Secretary of State to be necessary to afford the Claimant that reasonable opportunity. There is no evidence – indeed, there is no suggestion – that that diminution in opportunity would have been "corrected" in some way prior to the Claimant's tariff expiry."

37. The judge went on to find that the systemic failure which had occurred had resulted in breach of the James duty. He further held that the consequence of this systemic failure was that the claimant's transfer to open conditions was delayed: "thus depriving (the claimant) of a reasonable opportunity to demonstrate at his tariff period expiry that he will no longer present an unacceptable danger to the public. Therefore the ancillary article 5 duty is also breached" (paragraph 105 of the judgment). The judge also, in holding that the Secretary of State here had essentially "defined" what was the reasonable opportunity to demonstrate an appropriately reduced risk, had held in the course of his judgment that the present case was "materially indistinguishable" from the individual case of Mr Haney before the Supreme Court in Kaiyam and Haney.

Arguments

38. I intend no disrespect to the detailed and skilful arguments if I drastically summarise them here. In a nutshell Mr Collins and Mr Weisselberg submitted that the judge erred in his assessment of the requirements of the guidance and Rules. Simply because there was, by reason of the systemic failings, an (admitted) failure to comply with the Parole Board Rules, so that a six month delay in the hearing occurred, it did not of itself follow that the claimant was wrongly deprived of a reasonable opportunity to demonstrate at tariff expiry, or reasonably soon thereafter, that his continued detention was no longer necessary.
39. Further, the judge was wrong to say that the Secretary of State had himself identified a three year period in open conditions as the requisite reasonable opportunity, in this respect, whether for this claimant in particular or for indeterminate sentence prisoners in general. The Secretary of State had never made any such identification. Further, there then was no evidential basis for saying that the two year period before tariff expiry which the claimant was in fact afforded at the time of his transfer to open conditions in August 2015 did not constitute a reasonable opportunity for the claimant to demonstrate at tariff expiry, or reasonably soon thereafter, that his continued detention was no longer necessary. Thus the (admitted) failure to comply with the Parole Board Rules, giving rise to a six month delay in the hearing, had not, when the position was assessed overall, resulted in a breach of the ancillary duty.
40. On behalf of the claimant, Mr Owen disclaimed any reliance on what may be called a generic approach. He both accepted and asserted that all such cases were fact specific. He further accepted that in the present context a "systemic" breach, so called, does not necessarily give rise to an individual breach of the ancillary duty (although, of course, in some cases it may do so). But his essential point was that this was the judge's evaluation, on the circumstances of this case, as to what constituted the requisite "reasonable opportunity". By reason of the six month delay that occurred, contrary to the Rules, this claimant had been found to have been deprived of a reasonable opportunity to demonstrate suitability for release at, or shortly after, tariff expiry. There was no proper basis, he said, for an appellate court interfering with the judge's evaluation of the position on the facts of the case.

Disposition

41. I am in no doubt that the appellant's and intervener's submissions are to be preferred. It seems to me that, with all respect, the judge took a wrong starting-point; and, having taken a wrong starting-point, he reached a wrong ending-point.
42. It was the foundation for the judge's reasoning that, as he found and as repeated several times in his judgment, the Secretary of State's own policy, contained in the guidance and Rules, was such that it identified that indeterminate sentence prisoners (where the risk-benefit analysis on a sift was positive) should be transferred to open conditions at, or about, three years before tariff expiry. But that is, in my view, simply wrong.
43. Paragraph 4.1 of PSI 36/2012, properly and naturally read, connotes that the three year period (in fact, "up to" three years) there referred to relates to the eligibility to have the case referred to the Parole Board. It does not relate to the prisoner's actual transfer to open conditions. That is the plain interpretation to be given to the wording of that paragraph; and it also accords with other paragraphs within that same PSI. With respect, the judge misconstrued this guidance.
44. There is nothing else in any of the guidance or Rules which lends any support to the judge's conclusion on this point. There is nothing in such guidance which indicates any required minimum period of time such as three years to be spent in open conditions by indeterminate sentence prisoners generally in order to establish the requisite reasonable opportunity. To the contrary, PSI 40/2011 in terms states that two years is considered to be the maximum time a prisoner should spend in an open prison (although, as Mr Collins rightly stressed, this does not mean that there is a two year "rule" either). Mr Owen argued that, on its wording, that particular provision in PSI 40/2011 did not apply to indeterminate sentence prisoners. I cannot agree. It is elsewhere made clear in PSI 40/2011 that it does apply to the generality of indeterminate sentence prisoners: see, for example, paragraphs 4 and 5 of the section headed "Scope of this Instruction". The references to indeterminate sentence prisoners and to PSI 36/2010 are simply designed to connote that the two PSIs are to be read in conjunction with each other. Accordingly, there is nothing in the published guidance or Rules to indicate any requirement for a particular minimum period of time to be spent in open conditions as a pre-requisite for an indeterminate sentence prisoner demonstrating appropriate rehabilitation at tariff expiry.
45. Mr Owen, however, sought to say (as also seems to be said by the judge) that, by the Secretary of State referring, as he did, the matter to the Parole Board in April 2014 – some 3 years and 4 months before tariff expiry – the Secretary of State (knowing the timetable applicable under the Parole Board Rules) had himself in effect set the timetable appropriate for this particular prisoner and thereby in effect set the required period for detention in an open prison. I cannot possibly agree with that either. It may in fact be noted that, even on this argument and even had the timetable set by the Parole Board Rules been scrupulously complied with, the claimant still would not have had three years in open conditions. But, quite apart from that, I simply do not think that one can extract any identification by the Secretary of State of the requisite reasonable opportunity either from the fact that this referral was made in April 2014 or from the contents of the referral letter.
46. The referral letter is entirely neutral. It does not convey, either explicitly or implicitly, any decision or representation of any relevant kind. It simply seeks the Parole Board's advice as to whether or not transfer to open conditions is recommended: no more, no less. It certainly is not seeking any advice from the Parole Board as to the optimal time to be spent in open conditions to promote the claimant's rehabilitation. Moreover, had such a recommendation thereafter been made within the time-frame contemplated by the Parole Board Rules there would, as I see it, still have been no obligation on the Secretary of State immediately to give effect to it. He would, for instance, have been entitled to prioritise other prisoners (the pressure in terms of availability of open prison places being well known): provided always of course that, if the recommendation of the Parole Board was accepted, the Secretary of State did not then delay unreasonably in giving effect to it and, in particular, did not deprive the prisoner of a reasonable opportunity to demonstrate that, on tariff expiry, he no longer posed an unacceptable risk.
47. In this regard, I found the submission that, having regard to the referral letter of 16 April 2014, this case was materially indistinguishable on the facts from that relating to Mr Haney (in Kaiyam and Haney) to be surprising. I found it even more surprising that the judge accepted that submission: albeit, as I read his judgment, he did not primarily base himself on the timing or contents of the referral letter but, rather, based himself on what he perceived the general guidance to be.
48. The facts relating to Mr Haney are, to my mind, plainly and materially different. As the recital of facts set out in paragraphs 46 to 50 of the joint judgment of Lord Mance and Lord Hughes shows, Mr Haney's case was not in any way founded on a referral by the Secretary of State to the Parole Board for advice. Rather, the Secretary of State had in that instance specifically decided for himself to forego a Parole Board assessment; and then, having so decided, made a further decision approving Mr Haney's transfer to an open prison for the purpose of assessing whether the risk he presented could be managed. That was then specifically communicated to Mr Haney by letter of June 2011 sent by the Secretary of State. Nothing then happened for over a year: indeed Mr Haney was only transferred to an open prison just some four months prior to the expiry of his tariff. In such circumstances he was deprived of the requisite reasonable opportunity.
49. As the Supreme Court held (at paragraph 49) the letter of June 2011 sent to Mr Haney identified – nothing else being outstanding or required apart from time in open conditions – what the reasonable opportunity was to be: and, by its terms, had adjudged that, as the Supreme Court held, Mr Haney should have that opportunity "there and then". Of that reasonable opportunity he was deprived. But that is wholly different from the instant case. Likewise the position of Mr Massey in Kaiyam and Haney is similarly distinguishable.
50. In fact, the present case has perhaps altogether more in common with - though I accept it too is itself in some respects factually different from – the case of Mr Robinson in Kaiyam and Haney. In that case, notwithstanding the failures at various stages during the custodial term to provide the requisite courses, it was held, by the majority, that, viewed overall, Mr Robinson still had not been deprived of a reasonable opportunity to demonstrate that at tariff expiry, or within a reasonable time thereafter, he no longer posed an unacceptable risk. At all events, while the case of Mr Robinson was itself fact specific it is a good illustration of the point that a failure promptly to provide, pre-tariff, one or more requisite courses or steps at a given moment in time does not of itself by any means compel a conclusion that, overall, no reasonable opportunity will have been offered to demonstrate at tariff expiry a lack of continued risk. A further good illustration of the (correct) appreciation of this point and of the (correct) approach to be adopted is to be found in the decision of Dove J in the case of R (Dunn) v Governor of HMP Frankland Prison [2015] EWHC 858 (Admin). It is essential, therefore, in my opinion, not to look at individual failures occurring before expiry of tariff on, as it were, a snapshot approach. Rather, the situation is to be assessed as a matter of totality and by reference to the entire custodial term in considering whether or not overall there has been shown a deprivation of a reasonable opportunity to demonstrate at tariff expiry (or a reasonable time thereafter) the appropriate rehabilitation. It thus is always, in this kind of case, most important to focus on the prospective position as at tariff expiry (or a reasonable time thereafter).
51. In reality, as it seems to me, the judge in the present case did not treat this case as fact specific (contrary to what was stated in paragraph 43 of Kaiyam and Haney). Instead he took from the guidance, as he interpreted it, a general requirement relating to indeterminate sentence prisoners for a three year period in open conditions as a pre-requisite for demonstrating a lack of continuing risk at tariff expiry or within a reasonable time thereafter. That, as will be gathered, was erroneous.
52. As I have said, this claimant was in fact transferred to open conditions in August 2015, around two years before tariff expiry. Since he advanced no other evidence that such a period of time – viz. two years – represented a lack of reasonable opportunity for him the case must fail. Indeed, given that PSI 40/2011 indicates that two years was considered to be the maximum time that prisoners should spend in open conditions, it is difficult to see how a case on this basis could be advanced.
53. Putting it another way, the circumstances of this case show that, although there was a failure to comply with the timetable laid down in the Parole Board Rules, the failure had (in the language of Kaiyam and Haney at paragraph 48) not remained "uncorrected" so as to deprive the claimant of the reasonable opportunity which he ought to have had. That was Mr Collins' submission and I agree with it.
54. I do not propose to say more. Mr Weisselberg did also seek to argue, by reference to the decision on admissibility of the European Court of Human Rights in Kaiyam (cited above) and to various other European authorities which he cited, that the case was in any event doomed to fail on the stringent approach to Article 5 adopted in Strasbourg. Doubtless he is right. I need however, express no concluded view on that. This claim was ultimately founded and is to be decided on the domestic authorities of James and of Kaiyam and Haney and their application to the facts and circumstances of this case. By that yardstick, for the reasons above given, it fails.

Conclusion

55. In my opinion, there was no breach of the ancillary duty so as to entitle the claimant to a declaration or an award of damages. I would allow the appeal and set aside the judge's Order.

Lord Justice Beatson:

56. I agree.

Lady Justice Gloster:

57. I also agree.