England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21 February 2003

1. MR JUSTICE PITCHFORD: In this application I am being asked to review the decision of the Secretary of State for the Home Department to set a review date for a mandatory life sentence prisoner two years after his last review in April 2002. By implication, if not expressly, it is accepted that a two-year period of review in the circumstances of this claimant would be unlawful.
2. Since the claim form was issued (11 September 2002) much has occurred. In effect, I am being asked to review the Secretary of State's interim arrangements following the decision of the European Court of Human Rights in Stafford v United Kingdom as they have been applied to this claimant. The relief which is sought is an order that the Secretary of State forthwith refer this claimant's case to the Parole Board for review.
3. The following is a summary of relevant events. The claimant on 10 April 1974, following a trial at Glasgow High Court, was sentenced to life imprisonment for murder. He was convicted of other offences for which he received a sentence of ten years. His tariff period was set at 16 years and not long after the sentence was imposed he was transferred to England to serve it. He was released on licence, following a period in open conditions and at a pre-release hostel, on 11 May 1994. On 2 August 1994 he was arrested in Bristol, allegedly in possession of crack cocaine and for an offence in connection with over 2,400 Ecstasy tablets. He was remanded and on 8 September 1994 the Secretary of State revoked his life licence.
4. In the result, the claimant was not prosecuted for the drugs offences but on 15 March 1996 the Parole Board considered his case, confirmed his recall and recommended a transfer to open conditions. That recommendation the Secretary of State rejected and returned him to a closed prison, directing a review nine months after transfer to a suitable closed prison. At his next review on 3 July 1998 the Parole Board recommended, exceptionally, that the claimant should be given a provisional release date subject to satisfactory completion of a six months' stay in either a pre-release hostel or a resettlement prison. The panel noted that the coursework completed by Mr Murray and his behaviour since recall had been impressive. They felt that the risk of reoffending was low. The Secretary of State accepted that recommendation and, as a result, in October 1998 he was transferred to a pre-release hostel in Nottingham with a provisional date for release of 21 April 1999.
5. He was released on resettlement leave on 24 December 1998 until 3 January 1999 and he was directed to report to his probation officer on 30 December. He failed to do that and he failed to return to the hostel when his licence had expired. He remained unlawfully at large until he was arrested on 12 August 1999 at an address in London on suspicion of supplying drugs. He was charged with offences but they were later withdrawn.
6. The Secretary of State referred the case to the Parole Board for advice as to the claimant's return to open prison conditions. The Parole Board considered the case on 28 January 2000 and recommended that he should remain in closed conditions, with a further review in twelve months. It identified further work that needed to be done by the claimant and in August of 2000 he was transferred to HM Prison Wellingborough.
7. His next and last review was completed on 19 April 2002. The reference by the Secretary of State to the Parole Board sought the Board's opinion whether the prisoner was ready for a move to open prison conditions. The Board was reminded of the Secretary of State's statement to the House of Commons on 7 December 1994 that he regarded a period in open conditions as vital for the claimant's preparation for a successful return to the community. Normally there should be a further review in an open prison before release. It would be wholly exceptional for a prisoner to be released on licence before spending a period in open conditions. The Board could recommend such a release but should in doing so give its reasons why it saw the case as exceptional.
8. The board expressed its conclusion as follows:

"In view of Mr Murray's previous failures in the community, it is felt appropriate that he is tested in open conditions, preferably in the Bristol area, in order to establish regular resettlement leaves at an approved hostel. Assuming that he makes the adjustment well, a review in 2 years after transfer, should allow for the preparation of a sound release plan, and for Mr Murray to benefit from further work in the area of relationship skills. The panel are of the view that any risk to the public is suitably low for a move to open conditions."

9. On 29 May 2002 the claimant was notified of his transfer and informed that his next review would begin in two years time. That was an error corrected by a further notice delivered on or about 13 June 2002. The claimant's next review would now commence 18 months from the date of transfer with a view to completion at the end of the second year. It is this decision which was challenged by the claimant. It is the length of the period set before his next review which is the subject of complaint.
10. Article 5(4) of the European Convention on Human Rights 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."

11. On 28 May 2002 the European court published its judgment in the case of Stafford v United Kingdom [2002] 35 EHRR, 1121. Stafford reversed the decision of Wynne v United Kingdom 19 EHRR 333 and effectively eliminated the distinction between mandatory life sentences for murder and discretionally life sentences of life imprisonment. The Stafford decision is now so well known that I need refer only to paragraph 87 of the judgment:

"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."

12. On 17 October 2002, five weeks after the issue of the claim form, Mr Hilary Benn on behalf of the Secretary of State announced in Parliament his response to the Stafford judgment:

"... As an interim measure, the Home Secretary has decided to change the administrative arrangements for the review and release of mandatory life sentence prisoners. These administrative arrangements will apply to all such prisoners whose next Parole Board review begins on or after 1 January 2003. The changes will mean that in most instances these prisoners' cases will be heard initially, as now, by the Parole Board on the papers which will make a provisional recommendation. If prisoners wish to make representations about provisional recommendations it will then be open to them to request an oral hearing before the Parole Board at which they may have legal representation. They will normally receive full disclosure of all material relevant to the question of whether they should be released. They will also be able to examine and cross-examine witnesses. Similarly the Secretary of State may also require an oral hearing of the Board in cases where he believes further examination of the evidence is required.

If, at the end of the review process, the Parole Board favours the release of a mandatory life sentence prisoner once the minimum period has been served the Home Secretary will normally accept such a recommendation .... "

13. This claimant is affected by the judgment of the European court in Stafford since his last review on 19 April 2002 took place under a framework set by the Home Secretary before the decision in Stafford, which now requires that considerations of risk and dangerousness are those upon which the suitability of a prisoner for release must be judged following service of the tariff period.
14. The Home Office issued the detailed interim arrangements to Prison Governors, Lifer Managers and Lifer Unit Staff on 1 November 2002, arrangements which I shall need to consider in a moment. On 22 November 2002, in the light of those arrangements, the claimant's solicitors were informed by the Treasury Solicitor that the Secretary of State had reviewed the time of the claimant's next review. The oral hearing, if an oral hearing became necessary, would take place in September 2003. That period was required, it was said, in order to assess how the claimant had responded during the seven to eight months he would have spent in open conditions at HM Prison Leyhill.
15. There then followed an attempt in correspondence to bring forward the date for review still further. The claimant's solicitors wanted to be notified of the Parole Board's decision no later than the end of April 2003. The Secretary of State declined and this application was first listed for hearing before me on 4 February 2003, permission having been given on an earlier occasion by Gray J. It appeared to me that the submissions being made by Mr Patel on behalf of the Secretary of State were not adequately supported by evidence. I granted an adjournment for reconsideration of the timetable as it applied to this claimant and in the absence of agreement leave to file further evidence.
16. Miss 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 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 periods 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. These were of course discretionary life cases. Stafford applied the same reasoning to mandatory life cases.
17. The Secretary of State was thus faced with a huge administrative task if he was to reconsider reviews for all mandatory life prisoners approaching or past their tariff dates. The Secretary of State has submitted statements from Samuel Asiedu and Christine Foulger, who are, respectively, a case worker and a casework team leader at the Prison Service Lifer Unit. Miss Foulger's statement has been filed since 4 February.
18. There are currently about 450 mandatory life sentence prisoners who each year will have their detention reviewed. It will require a considerable increase in Parole Board resources. It takes, for example, nine months for an appointment to be made to the Parole Board. In order to cope with the demand, the Secretary of State has been required to set priorities. Those first in the queue are prisoners who have reached tariff, are serving their sentences in open conditions and are awaiting their first review. The second level of priority is given to prisoners in the claimant's position, those in open conditions who are tariff-expired. These prisoners have had their review dates reset in the order in which their reviews were previously scheduled. I am not concerned with those further down the queue. Exceptional cases are given exceptional consideration.
19. In each case a timetable has been set, designed to identify the outside limits for the nine stages of each review. Stage 1 is the preliminary stage of the review. Reports are gathered and a skeleton dossier on the prisoner is issued at stage 2 by the Lifer Unit to the prisoner and the Parole Board. Stage 3 is the period within which the prisoner may make representations direct to the Board. Stages 4 and 5 comprise a paper examination of the case by the Parole Board which makes a preliminary decision, either "minded to release" or "minded not to release". On the assumption that the preliminary decision is to release, the Secretary of State will consult the judiciary, as he is bound by statute to do. The Secretary of State and the prisoner have 28 days to consider whether to apply for an oral hearing. At the end of the stage 6 period, week 11, if an oral hearing is not requested, the Board's "minded to" decision becomes firm and will normally lead to release within 10 working days. Should either the prisoner or the Secretary of State request an oral hearing, it will take place at stages 7, 8 and 9 some seven weeks later. The period between stages 6 and 7 (that is, the request for the oral hearing) was set after consultation with a cross-section of legal representatives. Within two weeks of the request, directions should be given and the oral hearing will commence five weeks later. Those periods were set in consultation with the Parole Board.
20. The timetable is flexible. Early preparation of reports can advance the whole timetable. Expedited representations on behalf of the prisoner can bring forward the paper consideration.
21. The claimant's timetable has been set as described by Miss Foulger:

"(1) The review begins at the start of week zero when a complete dossier is disclosed to the prisoner (21 May 2003). The prisoner then has twenty-eight days in which to make his representations (18 June 2003).

(2) Between weeks four and seven, the complete dossier is sent to and considered by the Parole Board. By the start of week 7 (9 July 2003), the prisoner and his legal representatives are informed of the result of the Parole Board's decision on the papers.

(3) From receipt of the decision of the Parole Board on the papers, the prisoner has twenty-eight days, until the beginning of week eleven, in which to apply for a further review by way of oral hearing (6 August 2003). It was decided that this was the appropriate period after a cross section of prisoners' legal representatives were consulted about the proposed timetable in October 2002 (and specifically asked about this point). The legal representatives expressed the view that they would generally need a period of twenty-eight days to allow sufficient time, after a paper decision, to complete preliminary work, including arranging visits with and advising their clients.

(4) By the beginning of week thirteen directions are given for the management of the oral hearing review. The hearing itself takes place not more than five weeks later (24 September 2003) and the prisoner and representatives are notified of the decision not more than one week thereafter (1 October 2003). The reason for the five week period between the giving of directions and the hearing derives from the Parole Board's past experience of dealing with oral hearings. In giving directions, the Panel chair may have granted requests for the appearance of witnesses or the production and submission of further evidence, including reports. In order to allow time for these matters to be dealt with, a five week period was thought appropriate without being unduly long. In setting this period and in devising the interim arrangements generally, the Secretary of State and the Parole Board have balanced the prisoner's interest in a speedy hearing against the need to ensure that all relevant material is before each Panel. Due regard has also been paid to the consideration that a foreshortened period of preparation may lead to a failure to complete the necessary steps, adjournment of the hearing and potential delays before it can be re-listed."

22. I have received a witness statement from Angela Hogg, the claimant's solicitor, in reply to that from Miss Foulger. She has carried out a survey of solicitors' firms practising in the field of prison law in an attempt to gather information whether timetables set in other cases are in fact being kept. She has received 15 replies, indicating that there has been slippage in timetables largely caused by the delay in preparing reports. I am informed by Mr Patel that the report-writing process is already under way in the claimant's case and that the completion of stage 1 will take place by 21 May 2003. I observe that this is of course not a first review, and much of the relevant material is already to hand.
23. In the circumstances I have described, the question I have to consider is whether the outside period of 15 months complies with the requirement of speediness within the meaning of Article 5 § 4.
24. These are, I recognise, important matters affecting the liberty of the individual. It is the claimant's case that the last time he was reviewed, the almost unanimous view of the reporters was that he was suitable for release, and that is confirmed by an examination of the dossier considered by the Parole Board. One report in particular was of concern. On 14 June 2001 the visiting psychiatrist expressed the following view:

"I would think that he would still require to do work on impulsivity and decision making, and also to undertake a course on Relationship Skills. However, these could be undertaken appropriately in open conditions. Should, however, concerns arise over the health of his daughter again or indeed her welfare, he may be tempted to 'sort it out' his own way. Nevertheless, he is determined at present to maintain access through appropriate legal channels."

It is this tendency to impulsiveness which the Secretary of State regards as important to a consideration whether the claimant still poses a risk to life or limb. These are echoes of circumstances in which (many years ago, it has to be said) he became involved in the original offence. The claimant, however, believes that it is almost certain that the next recommendation of the Parole Board will be for release. Accordingly, any period he remains in custody will be spent while he does not satisfy the Stafford criterion of risk.

25. Miss Krause accepts that the legal and administrative burden faced by the Secretary of State required him to take some time to prepare a strategy for dealing with mandatory lifer reviews. She concedes that a review by a competent authority was required before the claimant could be considered for release. Her point is that in effect the Secretary of State is saying that lack of resources limits his capacity to bring forward the date of review further than he has. In this regard she has drawn my attention to the case of Noorkoiv v Secretary of State for the Home Department and the Parole Board [2002] EWCA Civ 779, a decision of the Court of Appeal, Lord Woolf CJ presiding. Mr Noorkoiv was serving an automatic life sentence. His tariff expired but his review date was set up to three months later. The Court of Appeal found that the system of listing which caused a batch of cases to be listed at the same time but heard sequentially over a following period of up to three months was not compliant with Article 5 § 4. The Court of Appeal did not accept that a system which so organised review by the Discretionary Lifer Panel was resource-driven and in any event one arm of government could not, as its excuse for not complying with Article 5 be heard to complain about the restrictions imposed by another. Either the state was complying, or it was not.
26. As Mr Patel 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 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 prisoner 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 Waldon v Lichtenstein Application no 33916/96, a decision which Miss 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.
28. MISS KRAUSE: There is an application to appeal. I have not considered, obviously, your Lordship's judgment fully, but the point will be on likely to be in any event on the area of your Lordship's judgment which deals with the report-writing. In this case your Lordship says the report-writing has started. Our understand is that it has not yet started and at the last hearing we were told that it would start in April or it would be done in April. It is now going to be done in May. I apologise: there is one more point. The last point is that at that particular prison where the claimant is located, there may only be the claimant who needs to have reports written on him. We do not know the resources there in terms of the report-writers required to do the work.
29. MR JUSTICE PITCHFORD: You need not be concerned, because I do think this is a matter of sufficient importance where you should have leave to appeal.
30. MISS KRAUSE: I am obliged. The only application is for legal aid assessment.
31. MR JUSTICE PITCHFORD: Is the certificate with us? You may have your assessment.
32. MR PATEL: I would ask for our costs under the usual order. The claimant is legally assisted I think the defendant is entitled to an order they have their costs, but not to be enforced, I think. I cannot remember ---
33. MR JUSTICE PITCHFORD: Not to be enforced without leave.
34. MR PATEL: I am not sure it is expressed quite in those terms any more, but that is the effect.
35. MR JUSTICE PITCHFORD: I think the proper order in this case is no order for costs.
36. MR PATEL: So be it.
37. MR JUSTICE PITCHFORD: Shall I explain why?
38. MR PATEL: Please do.
39. MR JUSTICE PITCHFORD: The claim form was issued in September. At the time when it was issued, the review period which had already been set was not in fact compliant. We have since been arguing about the steps taken by the Secretary of State during the period following the issue of the claim form, and that is the reason why I take the view I do.
40. MISS KRAUSE: My Lord, there is one final matter. Would your Lordship order an expedited transcript today to enable the grounds of appeal to be formulated.
41. MR JUSTICE PITCHFORD: Expedited? My experience is that they are coming thick and fast at the moment; for example, I had the transcript in Middleton at lunchtime.
42. MISS KRAUSE: Marvellous. I am obliged.
43. MR JUSTICE PITCHFORD: Unless you want to work over the weekend, I suggest we leave it as it is.