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
		21st June 2005

Tuesday, 21st June 2005

1. MR JUSTICE CRANE: In 1980 the claimant was sentenced to life imprisonment for manslaughter. On 12th May 2004 he was released on life licence. On 2nd August 2004 his licence was revoked. Following a Parole Board hearing he was, on 23rd November, again released on licence. He seeks to challenge, by way of judicial review, several aspects of his recall. His application for permission to apply for judicial review was initially rejected on the papers. On 2nd February 2005 Walker J granted permission, on what was described as ground 3 in somewhat discursive grounds.

2. At the outset of the hearing I invited Ms Krause, counsel for the claimant, to define the issues on which the court was being asked to adjudicate. There were four, all of which counsel for the first and second defendants accept are within the ambit of the permission granted.

3. The claimant's primary case is that the scheme for recall, in section 32(1) of the Crime (Sentences) Act 1997, is incompatible with Article 5 of the European Convention on Human Rights. The claimant's case was that any process by which a person on licence is detained must be a judicial process. It was argued that a person might, in very limited circumstances, be detained before a judicial determination, but, at the very least, a very speedy judicial determination thereafter is required. Delays, so it is said, are built into the scheme as enacted. In fact that primary case was later somewhat modified. The proposition that only by way of a judicial process can a person on licence be taken into custody, is no longer pursued. The primary case now is that after the person is taken into custody there must be a prompt judicial determination.

4. The other contentions are, in a logical order: (ii) that there was a failure to give reasons on the claimant being taken into custody; (iii) that there was a delay between the detention and the determination of the Parole Board that the claimant should again be released; and (iv) that there was a further delay between that determination and the actual release.

5. Section 32 of the 1997 Act reads as follows:

   "(1) If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under this Chapter, the Secretary of State may revoke his licence and recall him to prison.

   "(2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.

   "(3) A life prisoner recalled to prison under subsection (1) or (2) above-

   (a) may make representations in writing with respect to his recall; and

   (b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

   "(4) The Secretary of State shall refer to the Parole Board -

   (a) the case of a life prisoner recalled under subsection (1) above who makes representations under subsection (3) above; and

   (b) the case of a life prisoner recalled under subsection (2) above.

   "(5) Where on a reference under subsection (4) above the Parole Board -

   (a) directs in the case of a life prisoner to whom section 28 above applies; or

   (b) recommends in the case of any other life prisoner,

   His immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation.

   "(6) On the revocation of the licence of any life prisoner under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."

6. Article 5 of the European Convention reads as follows:

   "1. Everyone has the right to liberty and security of 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;

   B the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

   C the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

   D the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

   E the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

   F the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

   "2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

   "3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

   "4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

   "5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

7. I turn to the salient dates in the present case. The release on licence was on 12th May 2004. There were undoubtedly certain difficulties. Their nature was disputed. The most convenient way of dealing with those difficulties is to quote paragraph 10 of the determination, dated 12th November 2004, of the Parole Board:

   "From the outset there were difficulties in your relationship with the hostel staff and a list of their concerns appears at pages 101 to 104 of the dossier. Your conduct includes failure to abide by the hostel rules, being abusive to staff and residents and telling a lie to justify your breach of curfew. You also fell into arrears with your maintenance charge payments. There were concerns over your level of alcohol consumption and its effect on your conduct. You were also seen to spend time near the children's playground and, despite a police warning, repeated the conduct. You showed a reluctance to cooperate with supervision and missed appointments on 1st and 10th July."

8. The claimant's case was referred to the Parole Board by the Secretary of State in accordance with section 32. On 30th July the Parole Board recommended his recall to prison. On 2nd August the Secretary of State, acting on that recommendation, recalled the claimant to prison. On 3rd August the claimant was arrested and taken to Her Majesty's Prison Hull.

9. On 31st August the Secretary of State received the formal notification from the claimant that he wished to make representations against recall at an oral hearing. The Secretary of State referred the case to the Parole Board which, on 9th November, held an oral hearing. That oral hearing resulted in a ruling dated 12th November, paragraph 10 of which I have already quoted. Paragraph 11, in part, reads as follows:

   "The panel found that the combination of events during your time at the hostel gave risk (sic) to serious concerns about your increased risk and fully justified your recall."

10. However, the panel went on to consider the evidence they had heard and the special features of the claimant's case, and took the view that the claimant did not pose a threat to life and limb and that the threat imposed could be managed in the community. They directed his release on licence which later took place.

11. Hitherto the recall to prison of a person on life licence has been considered by the European Court of Human Rights and the English courts as governed by Article 5(1)a. In other words, it is the original conviction that is capable of justifying the detention. That is subject to a limitation. The most important cases are Weeks v United Kingdom[1988] 10 EHRR 293 and Stafford v United Kingdom [2002] 35 EHRR 32. In Weeks the European Court of Human Rights said:

    "39. In what it described as its central submission, the Government argued that the applicant's recall to prison in 1977 had not deprived him of his liberty because both his liberty and his right to liberty had been taken away from him for the rest of his life by virtue of the sentence of life imprisonment imposed on him in 1966. The applicant was on this ground alone said to be precluded from claiming a breach of Article 5, whether of paragraph 1 or paragraph 4. The Government drew a distinction between liberty, properly understood, and a life prisoner being permitted to live on licence outside prison. In the latter case, the Government explained, the prisoner was still serving his sentence, albeit outside prison as a result of a privilege granted to him by the Home Secretary, but his right to liberty had not been restored to him. In sum, it was one and the same deprivation of liberty in June 1977 as in December 1966, based on his original conviction and sentence, and no new issue arose under Article 5.

    "40. The Court is not convinced by such reasoning. It is true that in terms of English law, except in the event of a free pardon or an exercise of the Royal Prerogative commuting the sentence, a person sentenced to life imprisonment never regains his right to liberty, even when released on licence. That is not to say, however, that Mr Weeks lost his 'right to liberty and security of person', as guaranteed by Article 5 of the Convention, as from the moment he was sentenced to life imprisonment in December 1966. Article 5 applies to 'everyone'. All persons, whether at liberty or in detention, are entitled to the protection of Article 5, that is to say, not to be deprived, or to continue to be deprived, of their liberty save in accordance with the conditions specified in paragraph 1 and, when arrested or detained, to receive the benefit of the various safeguards provided by paragraphs 2 to 5 so far as applicable."

12. The court also said:

    "41. Following his 'conviction by a competent court' in December 1966, Mr Weeks was sentenced to life imprisonment. The issue in the present case is whether his re-detention on recall to prison some 10 years later was 'in accordance with a procedure prescribed by law', 'lawful' and undergone 'after' that conviction.

    "42. It was not contested that Mr Weeks' re-detention as from 30 June 1977 was in accordance with a procedure prescribed by English law and otherwise lawful under English law. That, however, is not necessarily decisive. The 'lawfulness' required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of Article 5(1). Furthermore, the word 'after' in sub-paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue."

    At paragraph 51 the court took the view that there was in fact a sufficient connection for the purposes of sub-paragraph (a) of Article 5(1) between the conviction and the recall to prison.

13. The case of Weeks was decided before the Parole Board hearings were set up to deal with matters of recall.

14. Stafford, in contrast, was a case in which a person on life licence committed offences of forgery and served a sentence of 6 years. The Secretary of State declined to release him at the end of that sentence. In that case the European Court took the view that there was no sufficient causal connection between the original sentence and the continued detention.

15. It is argued on behalf of the first defendant that in the present case the findings of the Parole Board demonstrate that there was in fact a causal connection between the claimant's original conviction and the concerns that led to his recall. It is argued on behalf of the claimant that the causal connection is broken when he is released on licence, and that only a judicial determination could re-establish that causal connection.

16. As I understand counsel's argument, a judicial determination was therefore required before detention as a result of recall at least in most cases. However, as I have indicated, that argument was not in fact pursued. It seems to me that modification of the claimant's case was correct, because it is not accurate to say that the release on licence breaks the causal connection. If one returns to the case of Weeks, in paragraph 49 the court said:

    "The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court."

17. The issue whether the causal connection exists in a case such as this only arises when a further detention takes place. The same issue would arise if there were a refusal to release. However, it is argued for the claimant that the executive decision to recall and to detain is nevertheless contrary to Article 5. The argument is based on a reading of Article 5(1)c and Article 5(3).

18. Counsel for the claimant draws attention to the words in Article 5(1)c: "... when it is reasonably considered necessary to prevent his committing an offence..." The argument is that when a person is detained in circumstances such as the present, the justification for the detention falls within those words and that therefore Article 5(3) applies. Therefore, it is argued, there is a need for a prompt judicial hearing analogous to the appearance of a person arrested for an offence before the Magistrates' Court. It is submitted that there could be, if necessary, an interim hearing and that there could be an opportunity for what, in effect, would be a grant of bail.

19. I accept that the reliance on the wording of Article 5(1)c has certain attractions. Although the recalled person will not necessarily have committed an offence, and the immediate concerns may be of non-compliance with the terms of the licence or other behaviour, the need for a causal connection does mean that the ultimate purpose will be the prevention of offences.

20. However, counsel for the first defendant, Ms Kate Grange, argues that Article 5(1)c and Article 5(3) must be read together. Article 5(3) undoubtedly refers to a forthcoming trial, which is not a natural way of referring to a hearing such as that before the Parole Board, or the kind of adjudication which they are required to make.

21. I have come to the conclusion that the claimant's new argument fails. I prefer the arguments of counsel for the first defendant. I take the view, as have previous courts, that the decision required is a decision in accordance with Article 5(4) and that Article 5(1)c is not designed to cater for circumstances such as the present. It follows that the scheme under section 32 is compatible with Article 5 in principle.

22. I turn to the question of the giving of reasons. It is accepted on behalf of the first defendant that Article 5(2) applies. Although there is no direct authority in relation to circumstances such as the present, Van Der Leer v Netherlands [1990] 12 EHRR 567, supports the proposition that Article 5(2) should be interpreted autonomously. It extends even beyond the circumstances of criminal offences or detention in prison to such circumstances as the detention of persons of unsound mind.

23. The principal authority is Fox, Campbell and Hartley v United Kingdom [1991] 13 EHRR 157. In that case certain applicants were detained in Northern Ireland on suspicion of terrorist offences. The European Court said:

    "40. Paragraph (2) of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph (2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed 'promptly' (in French: 'dans le plus court délai'), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.

    "41. On being taken into custody, Mr Fox, Ms Campbell and Mr Hartley were simply told by the arresting officer that they were being arrested under section 11(1) of the 1978 Act on suspicion of being terrorists. This bare indication of the legal basis for the arrest, taken on its own, is insufficient for the purposes of Article 5(2), as the Government conceded.

    "However, following their arrest all of the applicants were interrogated by the police about their suspected involvement in specific criminal acts and their suspected membership of prescribed organisations. There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation."

24. When the claimant was actually arrested he was simply told that he was being recalled to prison. The history is taken up in the statement of Christopher Hardy, a senior prison officer at Her Majesty's Prison Hull. He said this:

    "I recall that Mr Hirst arrived at HMP Hull on 3 August 2004. Two to three days later I telephoned the LRRS to find out the reasons for recall. When I learnt that the recall process had been initiated by the Probation Service I contacted Mr Hirst's supervising probation officer, Phil Hurst. Phil Hurst told me on the telephone the reasons for Mr Hirst's recall. As I remember, these included an altercation with staff in the hostel, being warned by police about sitting in his car by a park and threatening old people living near the hostel...

    I remember that Mr Hirst knew exactly why he had been recalled. He was very angry with Phil about the reasons and claimed they were trivial."

25. However, Mr Hardy completed a document entitled "Recalled Lifer Immediate Needs Assessment" and under the heading "What is the Lifer's initial reaction to his/her Recall?" he entered the following: "Very angry about being recalled states he does not know why he is here or understands it."

26. The evidence is that the first defendant aims to provide a recalled lifer with the dossier that has been prepared within three days. Here, in fact, the dossier was delayed. It is argued on behalf of the first defendant that the claimant would in fact have known the reasons for his detention, as indeed Mr Hardy suggested in his statement. It is argued that the claimant was aware before his recall of serious concerns about his behaviour, having received one written and several verbal warnings; in addition, a notice of eviction from his probation hostel, questioning by the police and a failure to attend appointments. It is pointed out that he had been released on life licence only two months earlier.

27. There was, in the course of these proceedings yesterday, an application on behalf of the claimant that he should be permitted to give evidence, principally on the question of how much he did know about the reasons for his recall. It did not appear to me appropriate for him to give oral evidence. He could have filed a statement but in any event it is extremely rare for this court to resolve issues of fact and of course there would have been no opportunity, without great inconvenience, for Mr Hardy to be cross-examined on his version. In my judgment it was also unnecessary to hear oral evidence.

28. Here the claimant was told that he was being recalled but nothing more for at least eight days. To be told simply that he was being recalled was not sufficient. If the dossier had arrived in three days it may be that the situation would have been different, but it did not. In my view eight days cannot possibly be described, in the circumstances of this case, as "prompt".

29. I am not in a position to decide exactly what was said to him, but I note, because of the conflict between Mr Hardy's evidence in his statement and the document that he completed, that the reasons are certainly not established as having been adequate. Reliance, as I have indicated, is placed on what the claimant already knew.

30. In circumstances of arrest for an offence the Police and Criminal Evidence Act 1984, section 28(4), specifically requires reasons for arrest to be given even when the reason is obvious. In other circumstances it seems to me that in assessing the adequacy of reasons it may be relevant to take into account how obvious those reasons are, but reliance on alleged past knowledge of misbehaviour is in my view a very dubious basis for dispensing with the giving of adequate reasons.

31. In the case of Fox the situation was, in my view, entirely different. Those applicants wanted to know why they had been arrested and why they were in fact, as the European Court held, told during interview in effect why that was. In the present case, although no doubt the claimant was aware of some of the previous problems, it is likely, in such a situation, that some of the allegations will be denied and that the individual's perception of the alleged problems may be very different from those of the authorities.

32. That was exactly what happened here. I find that there was a breach of Article 5(2). Reasons were not given promptly and it is not established that even when they were given they were adequate.

33. I turn to the question of delay. The crucial word in Article 5(4) is "speedily." I have been referred to, among others, three authorities. In E v Norway [1994] 17 EHRR 30, the proceedings related to a review of detention of an untreatable psychopath. The court said:

    "63. In the view of the applicant and the Commission, the period of approximately two months from the institution of proceedings in the Oslo City Court on 3 August 1988 to the delivery of the judgment on 27 September 1988 did not correspond to the notion of 'speedily.' They pointed to the lack of rules providing for the speedy conclusion of proceedings as well as to delays in arranging for hearings and subsequently in giving judgment."

34. The court went on:

    "65. Five weeks elapsed between the filing of the application for judicial review and the date of the hearing. To begin with, there was a delay of some 12 days pending the return from holiday of the judge responsible, and thereafter some nine days seem attributable to difficulties in reaching the applicant's lawyer. A further period of somewhat less than two weeks was allegedly needed to 'put the case on the right track'. However, once contact with the applicant's lawyer was established, the applicant did not complain of any undue delay in fixing the date of the hearing. Following the hearing, a further period of three weeks elapsed before the court's judgment was pronounced.

    "66. Admittedly, the judge to whom the case was assigned required a certain amount of time to carry out the necessary inquiries. However, it is evident that the initial delays were caused by administrative problems due to the lodging of the application for judicial review during the vacation period. The Convention however, requires the Contracting States to organise their legal systems so as to enable the courts to comply with its various requirements. It is incumbent on the judicial authorities to make the necessary administrative arrangements, even during a vacation period, to ensure that urgent matters are dealt with speedily, and this is particularly necessary when the individual's personal liberty is at stake. Appropriate provisions for this purpose do not appear to have been made in the circumstances of the present case.

    "As regards the period of three weeks required to write the judgment, it may well be, as the Government contended, that this period would have been much shorter had the Oslo City Court reached another conclusion after the hearing. Nevertheless, Mr E was entitled to a speedy decision, whether affirmative or negative, on the lawfulness of his custody."

35. The second of the three cases is R (Noorkoiv) v Secretary of State for the Home Department & Anr [2002] 1 WLR 3284. This case related to the fixing of periods between Parole Board reviews of detention. Buxton LJ in his judgment said at paragraph 24:

    "First, it is the obligation of the state to organise its legal system to enable it to comply with Convention requirements: Bezicheri v Italy (1989) 12 EHRR 210, 215, para 25. The excessive workload of the judge assigned to a particular case cannot be prayed in aid. Nor can the fact that the judge is on holiday: E v Norway (1994) 17 EHRR 30, 57, para 64. The latter case is of some importance because the holiday period was one of only 12 days, and although the total delay condemned was one of eight weeks it seems clear both that the 12-day period, taken on its own, would in view of the reason for it had been regarded as unsatisfactory; and that the case was understood in that sense by this court in R(C) v London South and West Region Mental Health Review Tribunal[2002] 1 WLR 176, 184, para 41."

36. Paragraph 25 of the same judgment:

    "Second, no direct assistance is to be gained from cases decided in relation to the prompt hearing obligation imposed by article 6(1). The fact that the state is dealing with people who are at least presumptively detained unlawfully, and the legality of whose detention is controlled by article 5(4), imposes a more intense obligation than that entailed by the need for a prompt trial of people who are not in custody. I therefore view with some caution in this context cases such as Dyer v Watson [2002] 3 WLR 1488, relied on by the Secretary of State, that address article 6(1). But even there it is conspicuous that Lord Bingham of Cornhill, at p 242, para 55 of the judgment, drew a distinction between general faults in or underfunding of the system, which provide no defence even in relation to article 6(1), and 'the practical realities of litigious life even in a reasonably well organised legal system'. I find it hard to characterise the Parole Board's submissions, which are that because of lack of resources they are incapable of improving the system, as appealing to the second of the categories identified by Lord Bingham.

    "26. Third, contrary to Miss Richards's submissions there is no general principle that 'administrative necessity' excuses..."

37. The third case is the case of R(C) to which reference has been made. In paragraph 43 of the judgment of Lord Phillips MR he said:

    "This underlines the approach of the Strasbourg Court in a case such as this. The court does not attempt to decide in principle whether a particular period of delay is, or is not, compatible with the requirements of Article 5(4). It looks at the facts of the particular case to see whether there was a failure to proceed with reasonable despatch having regard to all the material circumstances."

    Thus it is clear that what is "speedy" depends on the nature of the case and the other circumstances including whether the case is simple or complicated.

38. Here there was some delay caused by the fact that the dossier did not reach the claimant until 26th August. It was apparently not ready until 13th August, although little required to be added at that stage to what had been already submitted to the Parole Board before the recall. There was then delay until 26th August in getting the dossier to the claimant. It is said that twice it went astray within the internal postal system and I have no reason to doubt that that was the problem.

39. On 31st August an oral hearing request was received. It is true that in a letter dated 17th August the claimant's solicitors had asked for a reference to an oral hearing but that was not treated as a request by the claimant before the receipt of the dossier.

40. On 3rd September, as I have indicated, the Lifer Review and Recall Section (LRRS) referred the matter to the Parole Board and thereafter the hearing was fixed for 9th November. The ruling was dated 12th November. It was received by the LRRS on 16th November and release took place on the 23rd.

41. Bearing in mind that the dossier substantially existed before recall, there was no good reason why that should not have been supplied to the claimant earlier. There appear to have been something like two weeks' delay at that stage. But there was no delay open to criticism between 31st August and 3rd September.

42. Naturally the Parole Board are most concerned with the question whether there was delay between then and the hearing. It is pointed out that it is the practice, and the very proper practice, to fix the hearing before a panel chaired by a judge, but it is not suggested that that caused particular delay in the present case.

43. In my judgment, bearing in mind the need for necessary preparation by all concerned, the period until 9th November is not reasonably open to criticism. As counsel for the second defendant, Ms Stern, pointed out, if a date is fixed too soon there is a danger both of inadequate preparation or the possibility of an adjournment. The decision had to be made in September to fix the date of the hearing. It was no good waiting until things were ready and then trying to fix a date. That would only have led to delay.

44. It is clear that lengthy reports had to be prepared. The dossier before the Parole Board ultimately contained over 200 pages, Schedule 2 of the Parole Board Rules require various information to be placed before the Parole Board.

45. I digress for a moment to deal with the directions to the Parole Board which have been the subject of challenge in this context before Walker J in Girling v Parole Board & Secretary of State for the Home Department [2005] EWHC 546 (Admin). I understand that that case is to be appealed to the Court of Appeal. Although I mention that issue, the appropriateness or otherwise of those directions is not relied on by the claimant in this case and is not said to have caused any difficulty or delay.

46. I am impressed by the fact that the claimant's solicitors had certain preparations to carry out. They were, of course, hampered by the initial delay which I have mentioned. But once the dossier had been seen they needed to take statements and plainly took trouble in preparing the claimant's case. On 19th October they wrote to the Parole Board seeking various directions and mentioning various witnesses and enclosing statements. On 1st November they wrote again enclosing further statements, the last of which was dated 25th October. It is pointed out that no complaint was made in those letters about the timetable.

47. It seems to me that when the claimant's solicitors, in the event, were writing to the Parole Board, as late as 1st November, enclosing the last of the statements relied on, it is extremely difficult to say that the length of time allowed for preparation of a proper hearing was too long. It seems to me that it was a justifiable length of time in the present case bearing in mind the issues that had to be canvassed. It was not a straightforward case and in the context was decided speedily.

48. As to the period between 9th and 16th November, in my view there was clearly no delay. After the hearing on the 9th a reasoned ruling was dated the 12th and was sent to the Secretary of State arriving on the 16th.

49. The period between the 16th and 23rd November has been the subject of criticism. It is apparent from the statement of Mr Stephen Watson, Senior Executive Officer in the LRRS, that when the ruling was received that same day the LRRS contacted the prison at which the claimant was held to inform the prison of the direction and it was agreed that the release date would be 23rd November and that the claimant would be informed of that.

50. It is explained in a second statement of Mr Watson that certain steps have to be taken between a decision to release a day and the actual release. His statement reads:

    "LRRS has a target to set the release date and notify all relevant parties of that date within five working days of receipt of a Parole Board direction to that effect. Mr Hirst's release was effected within that time. The interval is due to the fact that various procedures have to be completed prior to release. Specifically, LRRS must check that the Parole Board direction is factually correct in content, draw up the draft life licence based on the Parole Board minutes, complete a release minute to the LRRS Senior Manager and amend the life licence according to the Senior Manager's comments. LRRS must also liaise with the prison and hostel concerning the release date and must discuss the licence conditions and release date with the Home Probation Officer. They must prepare the release paperwork and release a pro-forma to the policy section to notify the police of the release. They must then send copies of the finished licence to the Probation Service and prison and agree the final release date."

51. As I understand it, the reference to "five working days" relates to the fixing of the release date. In fact, release took place in seven days. The release of a lifer on life licence plainly must involve some preparation in his and the public interest. It seems to me that to fix seven days for all that to take place was not unreasonable.

52. I find, therefore, that there was a breach of Article 5(2) in relation to the giving of reasons. I also find that there was a breach of Article 5(4) to the limited extent that the effective start of the process was delayed because the dossier did not promptly reach the claimant to enable him to initiate the process of making representations. Thereafter, in my view, there was no delay which breached Article 5(4). Such delay as took place was the responsibility of the first and not of the second defendant.
    (Submissions on entitlement to damages)
53. MR JUSTICE CRANE: Ms Krause, counsel for the claimant, submits that damages should be awarded to the claimant for the breaches of Article 5(2) and 5(4) which I have found. The breach of Article 5(2) amounted to the failure to provide prompt and adequate reasons for the claimant's recall. The Article 5(4) breach consisted of a failure to proceed speedily with the early part of the process by which the claimant could obtain a decision as to whether his recall was justified.

54. As far as the latter is concerned I found a period of approximately 14 days. As Stanley Burnton J said in the case of KB & Ors v Mental Health Tribunal and Secretary of State for Health [2003] EWHC 193 (Admin), such estimates of delay must inevitably be, to some extent, impressionistic.

55. There was a delay in getting to the applicant the dossier which effectively was capable of triggering his application for an oral hearing before the Parole Board. His solicitors were writing, as I have indicated, on 17th August. The dossier in fact reached him on 26th. The aim is to get the dossier to the individual within three days. That will not necessarily be achieved in every case.

56. In my view, and I have so found, doing the best I can, a period of 14 days is the fair period to take as the period that can be regarded as breaching Article 5(4). It does not necessarily follow that any period beyond the three days will breach the article.

57. The submission on behalf of the claimant is that there should be an award of damages, both in respect of the failure to give reasons and in respect of the additional period in custody. I have been referred not only to the case of KB but also to the recent decision of the European Court of Human Rights in Lloyd & Ors v United Kingdom decided on 1st March 2005, [ BAILII: [2005] ECHR 147 ]. I have regard to the various conclusions to which Stanley Burnton J came in the course of his judgment and I see no reason to disagree with the principles which he adopted. There is nothing, so far as the passages to which I have been referred, in the case of Lloyd, to cast doubt on the principles which he adopted.

58. It is right to say that in the case of KB & Ors the learned judge was concerned with those detained under the Mental Health Act and in the case of Lloyd the European Court was concerned with a number of individuals who had been taken into custody for failure to pay either community charge, council tax, or non-domestic rates, or in some cases, fines.

59. I have to consider whether in either case Ms Grange is correct when she argues that a finding in the claimant's favour amounts to just satisfaction and that there should be no award of damages.

60. Let me consider, first, the failure to give adequate and timely reasons. Although, as I have found, the Secretary of State and the prison authorities were not entitled to assume that the claimant knew why he had been recalled, the Parole Board later found that the concerns that had been expressed, and hence the recall, were justified. It must follow that because of their nature the applicant must have been aware, at least to some extent, of the difficulties that were arising, and certainly ought to have been aware, if he was not. Nevertheless there was a breach of Article 5(2). I have come to the conclusion that the finding in his favour is in the circumstances adequate recompense.

61. I turn to the question of the breach of Article 5(4). I must bear in mind that the detention has been found to be justified. There is no finding that it was in any way unlawful. Therefore the unpleasantness of being taken back into custody is not something of which the claimant is entitled, as a matter of law, to complain. What he is entitled to complain about is that during the initial part of that period he was, at least to some extent, ignorant of precisely why he had been brought back, despite what I have already found, and that the conclusion must be that he was released some two weeks later than he would otherwise have been.

62. I am sure that the experience of being detained again after his release, and after such a very long period of previous incarceration, must have been a distressing experience. He is recorded as being angry, but I am prepared to accept that it must have been not just a matter of anger but of distress. Nevertheless, as I have indicated, he is not entitled, as a matter of principle, to complain of being detained or of the distress that that caused. The extra period of custody was, as it were, when he had had some period to reflect, to take advice and to know at least that matters were moving towards a hearing as time went on.

63. I have been referred to some of the individual cases within the KB decision. Quite apart from the fact that they were mental health cases, it is difficult to see any of the individual cases as a precise parallel for the present case. Each case inevitably depends, to some extent, on its own facts.

64. I have been referred to the earlier case, decided in the Court of Appeal, R v Governor of Brockhill Prison, ex parte Evans (No 2) [1999] QB 1043, in which the Court of Appeal increased, from £2,000 to £5,000, damages for the extra period of 59 days in custody as a result of a misconstruction of statutory provisions.

65. I have been referred to the levels of compensation awarded in Lloyd. There were 26 applicants. They received sums, in most cases, of 5,000 euros, and in a limited number of cases, of 6,000, 7,000, or 9,000 euros. The assessment of compensation did not in all cases relate simply to the period of incarceration, but related to other breaches such as failure to provide legal representation.

66. It is also apparent from the awards in Lloyd, and indeed from dicta in the case of Evans, that an approach by which damages are awarded at so much for a particular number of days is wrong. It is quite plain in the case of Lloyd that the primary fact behind the award of damages was the fact of incarceration. The length of incarceration became a secondary matter. Those claimants also had not committed any criminal offence and even in the fine cases had not been sentenced to custody.

67. The claimant in the present case is someone who has a previous criminal record and served the lengthy period of imprisonment as a result of his index offence of manslaughter. All those matters are relevant when one compares awards to the Lloyd claimants and the position of the claimant.

68. Nevertheless, I have not been referred to any case where somebody has spent additional time in custody, or the equivalent, where a declaration of his rights or her rights was regarded as sufficient. Quite apart from any evidence of particular distress, and quite apart from any background, the court must take seriously any additional and unjustified loss of liberty. It seems to me for that reason that I should not regard the finding as providing just satisfaction and should make an award of compensation in relation to the breach of Article 5(4).

69. Nevertheless, in the circumstances of this case, taking into account the length of the period, the fact that redetention has been found to be justified, and there is no finding of unlawfulness in relation to that, the background, and the lack of any specific evidence of either psychological injury or distress at the stage that I am primarily considering, I take the view that the award should be a modest one. In my view the award in this case should be one of £1,500. There will be that award of damages in relation to that aspect of the case.

70. MS KRAUSE: My Lord, yes.

71. MR JUSTICE CRANE: There will be declarations as to the two breaches. Could I ask counsel to draw up an order --

72. MS KRAUSE: My Lord, yes.

73. MR JUSTICE CRANE: -- consult, and let me have it for initialling?

74. MS KRAUSE: My Lord, yes.

75. MR JUSTICE CRANE: That leaves questions of costs and you mentioned the possibility of appeal.

76. MS KRAUSE: My Lord, yes. I would invite your Lordship to make an award of costs in favour of the claimant because he has been successful on two of the three points he raised and also because, unless there is such an award, the non-pecuniary damages will not go to him, they will simply be recouped by the Legal Aid Board so it would be a hollow award for him.

77. MR JUSTICE CRANE: Do you say there should be an unqualified award of costs? He has failed on the incompatibility point.

78. MS KRAUSE: Yes, yes.

79. MR JUSTICE CRANE: That is what you say, right. I take it that you wish for a certificate for public funding purposes, in any event? Has a certificate been filed?

80. MS KRAUSE: It ought to have been.

81. MR JUSTICE CRANE: It has not been. On the undertaking of filing within 7 days that part of the order plainly must follow. Yes. What do you say about costs?

82. MS GRANGE: In terms of costs, my Lord, I think I have to accept that we ought to pay some costs and that should only be the Secretary of State not the Parole Board.

83. MR JUSTICE CRANE: Yes, I think that was really dealt with earlier.

84. MS GRANGE: I do not accept we --

85. MR JUSTICE CRANE: You are not asking for costs against the Parole Board are you? I thought we settled this earlier that you were not.

86. MS GRANGE: My Lord, there can be no order for costs against the Parole Board, they have been completely exonerated. I am not here to represent them but in terms of the Secretary of State's costs I would suggest that it should be just a proportion of the claimant's costs given that substantial time was spent arguing the 5(1)c and 5(3) point. That is more a fundamental point from the Secretary of State's point of view and a key reason why, had it just been limited to the 5(2) and 5(4) point there is a possibility that one could have compromised this matter. But that fundamental challenge, saying that it was incompatible, was obviously something which the Secretary of State sought to resist quite vociferously. So, my Lord, I would suggest it should be a proportion of the claimant's costs. I would leave you to award the appropriate proportion.

87. MR JUSTICE CRANE: What do you say?

88. MS KRAUSE: Your Lordship has my arguments, your Lordship can see the difficulty that the claimant would be in. It is entirely a matter for your Lordship.

89. MR JUSTICE CRANE: Though I follow that, it seems to me that so far as the question of costs is concerned that must be governed by the principles in the CPR. The claimant's primary case was the incompatibility point on which he had leave. The others were important but subsidiary. It seems to me that the first defendants should pay half costs of the claimant, there should be a public funding order so far as the claimant is concerned, and there will be no order for costs so far as the second defendant is concerned.

90. MS KRAUSE: Thank you, my Lord. My Lord, there is an application for permission to appeal on the applicability of Article 5(1)c and 5(3) in this case. This is a novel approach. It is not something which has ever been canvassed before any court, not even the European Court of Human Rights, as far as I am aware. It is not an entirely fanciful argument because the concept of the rational connection to the index offence under 5(1)a, and which Article then, under Article 5, kicks in, in terms of the protection of Article 5, given that somebody is considered to be at liberty for the purposes of Article 5 when they are on licence, as a life sentence prisoner, has never been examined and it really ought to get some more airing as a matter of public interest.

91. My Lord, that is my application for permission to appeal. I suspect, if I took instructions, I would also be invited to apply for leave to appeal on your Lordship's findings as to Article 5(2), but in any event if we get leave to appeal and we can look at the lawfulness of the recall itself which was before your Lordship and rejected, that would again throw the award of damages into a different type of award in any event should that be successful in argument in the Court of Appeal. So there is probably no need for me to ask your Lordship for anything else at this point.

92. MR JUSTICE CRANE: Well, thank you. No, I am against you on leave to appeal. Without being so impolite as to describe the argument as fanciful, which I certainly do not, it seems to me that on the main point the construction of Article 5 is reasonably clear, but I do not regard there as being a reasonable prospect of success in relation to the main point.

93. As to the individual findings on reasons and on delay it seems to me that those are the kind of decisions very much a matter within the trial judge's decision and not suitable for appeal or offering a reasonable prospect of success. Of course you can always ask the Court of Appeal to differ from those conclusions, but I am afraid the answer is no.

94. MS KRAUSE: Thank you.

95. MR JUSTICE CRANE: If I could have, within the next day or two, a signed order. Can I just take the opportunity, and it extends to Ms Stern who is not here, to thank you both for your submissions. If I may say so, Ms Krause, you have said everything possible on behalf of Mr Hirst who plainly, I accept, feels very strongly about these matters, and I think he can rest assured that, as I say, you have said everything possible on his behalf.

96. MS KRAUSE: I am obliged.

97. MR JUSTICE CRANE: Can I also say that although he left us at one or two points in the proceedings, I entirely follow why he is concerned about the matter, to put it mildly, and certainly any behaviour of his has not adversely affected the result of the case in any way.

98. MS KRAUSE: He will understand that, my Lord, thank you very much.

99. MR JUSTICE CRANE: Thank you.