QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DAY||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
appeared on behalf of the CLAIMANT
MR S KOVATS (instructed by THE TREASURY SOLICITOR, LONDON SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"4. You spent several years of your sentence attempting to appeal but the appeal was finally dismissed in April 2003. The preoccupation with your appeal in the early years prevented you from doing offence related work save a short Anger Management Course done at Wormwood Scrubs in 1994.
5. Your behaviour has been generally good in prison although you have had 13 adjudications including 5 for the use of a controlled drug (one as recently as February 2003) and one for fighting. You have worked hard and well in the gardens in the last five years.
6. Your original risk factors were anger, loss of self control, alcohol disinhibitor, minimising responsibility, impulsiveness and peer group pressure. Report writers say that you have matured and improved your coping strategies. However, it is agreed that there is more work to be done in developing your understanding of trigger factors that may increase your risk of violence and expanding your repertoire of response thereto. At the oral hearing the panel also formed the view that you need to develop your insight into the effect of your behaviour upon the family of your victim.
7. It was urged upon the panel by Mr Lennon that your case was exceptional both because you were over tariff and there was only one possible risk factor namely immaturity which had evaporated by virtue of your maturity and because you have a good release plan. The panel carefully considered the options open to them including release but concluded that until you have addressed the issues outstanding the risk remains too great for release. The panel considered that the work remaining to be done could be undertaken in what the panel would hope would be a relatively short time in open conditions thus affording you the opportunity to be tested in the more demanding conditions thereby afforded to pursue resettlement opportunities and undertake release planning.
8. The decision not to release you is binding upon the Secretary of State, although it is a matter for him to decide whether to accept the recommendation that you be transferred to open conditions."
" ... that Mr Day's next Parole Board review should conclude, if it proceeds to an oral hearing, by August 2005 at the latest."
"In its consideration of Mr Day's case on 3 November 2003 the Parole Board highlighted that more work needed to be done in developing his understanding of trigger factors that could increase his risk of violence and in expanding his range of responses: paragraph 6 [p.34]. The Board also formed the view that Mr Day needed to develop his insight into the effect of his behaviour upon the victim's family: paragraph 6. But the Board nevertheless concluded that Mr Day should be transferred to open conditions: paragraph 7.
5. Following careful consideration of the case, the Secretary of State decided that the Board's recommendation that Mr Day be transferred to open conditions be accepted in principle, subject to Mr Day being re-assessed for and, if necessary, completing the R & R course in closed conditions.
6. In February 2004 the Secretary of State decided that delivery of the R & R courses would cease during 2004/5 due to financial pressures, taking account of the existence of the ETS progamme which has similar objectives and a similar target group, but is a shorter course. The Secretary of State then decided that Mr Day could progress to open conditions, where he could be assessed for and, if appropriate, complete the ETS course. The areas of concern arising from offending behaviour and cognitive deficits which the R & R and the ETS courses address are essentially the same.
7. The Secretary of State has decided that Mr Day's next Parole Board review should conclude, if it proceeds to an oral hearing, by August 2005 at the latest. However, if Mr Day and the Secretary of State are content with the outcome of the Board's consideration of Mr Day's case on the basis of the papers then the review is likely to be concluded earlier. This period has been set in order to enable the assessment of Mr Day's suitability for the ETS course to be carried out and, if required, for the ETS course to be undertaken and for the effects of the course on Mr Day to be assessed."
8. However, Mr Day's performance on the ETS course is not the sole factor to consider in determining the date of Mr Day's next Parole Board review. He will need testing on resettlement leave and show that he has put into practice skills learned from attendance on other offending behaviour courses, and that he is indeed suitable for release into the community. However, if the open prison consider that he has undergone all necessary testing well in advance of the hearing date, the Secretary of State would consider any request to bring forward the review.
9. It is long established practice that the primary role of open conditions for life sentence prisoners is to test their suitability for release and to assist the process of risk reduction in conditions closer to those which the prisoner will experience in the community. Where appropriate, measures can be taken in open conditions to support and enhance the risk reduction work undertaken in closed conditions and to assist relapse preventions. The monitoring of the impact of such work is carried out in open conditions and it is this continuing monitoring and assessment, including that of the lifer's performance in the community under temporary licence, which provides the practical test of how much the prisoner has learned from earlier and continuing work and how far the risk of re-offending has been reduced.
10. The Secretary of State decided that the period of time allowed until Mr Day's next Parole Board review takes place is necessary in the light of the factors set out in the previous paragraph of this statement. In addition, Mr Day is moving directly from category B to category D conditions and might well need a longer period of settling in than might be the case had he arrived in open conditions via the more usual route of spending a period in category C conditions. It should also be noted in this connection that sufficient time needs to be allowed for progress to be monitored effectively before the reports for the next Board review are prepared."
"29.-(1) if recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies.
(2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice."
"28. Duty to release certain life prisoners
[[(1A) This section applies to a life prisoner in respect of whom a minimum term order has been made, and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order]."
"(5) As soon as-
(a) a life prisoner to whom this section applies has served the relevant part of his sentence,](b) the Parole Board has directed his release under this section,it shall be the duty of the Secretary of State to release him on licence.
(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless-
(a) the Secretary of State has referred the prisoner's case to the Board; and(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
"(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time-
(a) after he has served the relevant part of his sentence; and(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference..."
"(1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court."
"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."
"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."
The applicant argued that the Parole Board's decision that his next review should take place 12 months later amounted to a decision that his continued detention was authorised for a period of 12 months only. The Parole Board could not be sure that the criteria for the lawfulness of continuing detention would be fulfilled after that date.
As the lawfulness of detention had to be decided 'speedily' by an independent tribunal, the applicant submitted that Article 5§4 required an independent domestic mechanism to be in place to decide what constituted a speedy review in each case. It was improper for a member of the executive to be able to override that determination and thereby prolong the detention for longer than authorised by the independent tribunal.
The applicant submitted that the availability of judicial review proceedings was insufficient as the violation of Article 5§4 stemmed from the Secretary of State possessing a power to overrule the recommendation of the Parole Board which he ought not to have had. In addition, as a matter of practice, judicial review proceedings took a number of months.
2. The Court's assessment
The right set out in Article 5§4 is a procedural one and it is for the State to ensure that it will be made effective. The State will be responsible if the review proceedings are not decided 'speedily'; and, it is likely that if an independent tribunal has recommended a particular timing for the next review of detention which is not followed by the executive, that that will be a matter which the Court will take into account in deciding whether the review was in fact carried out speedily.
Article 5§4 does not, however, contain any requirement for the 'court' referred to therein itself to have the power to set the timing of subsequent reviews of detention. As such, the Court finds that this part of the application is manifestly ill-founded within the meaning of Article 35§3 of the Convention and must be rejected pursuant to Article 35§4."
"In my judgement the claimant's fundamental rights are sufficiently protected by the requirement to be derived from Article 5(4), that the lawfulness of his detention must be reviewed at reasonable intervals (see Lord Phillips MR MacNeil v HM Prison Discretionary Lifer CA Transcript 21st March 2001). There is no basis in domestic law for the conclusion that the Board must set the timing of reviews."
"(1) Because the Home Secretary's original decision was unlawful, since the executive can have no power to make a decision which causes, or potentially causes, delay in the release of post tariff mandatory life sentenced prisoners;
(2) Because the decision to delay Mr Spence's review for 18 months after his arrival in open conditions violated his ECHR article 5(4) right to have the lawfulness of his detention reviewed 'speedily';"
"29. We consider that there is no substance in the first point. The Parole Board, which is to be equated with a court for this purpose, decided that he should stay in prison until his next review. He therefore continued to be detained in prison pursuant to an order of a court, and the Parole Board's statutory involvement in the case was for the time being at an end. The occasion to challenge the lawfulness of his continuing detention would arise if in the events that subsequently happened he could justly assert that this continuing detention was not being reviewed "speedily". This is Mr Lennon's second point, to which we therefore turn.
30. The problem with his second point is that the ECtHR has conspicuously declined to be prescriptive about the 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 (MacNeill) v Parole Board  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.
33. We consider that it would be helpful to expand a little on the matters raised in Mr Lennon's second ground of appeal (see paragraph 28(2) above). The detention of all mandatory life prisoners in open conditions is subject to automatic review. The issue for the purposes of ECHR article 5(4) in a case like this is accordingly whether the interval that is initially prescribed to take place between the reviews is a reasonable one taking into account all the facts of the case (see Oldham v UK (2000) 31 EHRR 813 at paragraph 31). If the interval is not a reasonable one, and there is a breach of article 5(4), the decision to impose too long an interval can be successfully challenged before a court under the Human Rights Act 1998, section 7(1).
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 court 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 of the Parole Board."
"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."