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 WC2A 2LL
		18 July 2007

1. THE DEPUTY JUDGE: This is an application for judicial review. Permission was refused on the papers by Crane J. However, at a renewal hearing, limited permission was granted by Langstaff J. The claimant prisoner initially challenged two decisions of the Secretary of State, both made in September 2006: the first being a decision to refuse to transfer him to open conditions, notwithstanding a Parole Board recommendation to the contrary (I am no longer concerned with that); and secondly and materially for present purposes, the further submission of the Secretary of State to say that the claimant's next review will conclude after two years in May 2008. The claimant alleges that this two-year period is contrary to Article 5(4) of the European Convention on Human Rights, which prescribes that the lawfulness of detention "shall be decided speedily". Langstaff J gave permission in relation to this latter challenge. He did so on the basis that, in his judgment, no reasons had been provided for determining that two years was appropriate.
2. The claimant was convicted in 1989 of murder. He was of course sentenced to life imprisonment. His 11-year tariff period expired in October 1999. His fifth parole review was on 4 May 2006. The murder may have been sexually motivated. The murder was of the claimant's former partner, when she was pregnant with the claimant's child.
3. The decisions of the European Court of Human Rights on the compatibility or otherwise of a more than one-year interval between lifer prisoner reviews were considered by Gibbs J in R(Day) v the Secretary of State for the Home Department [2004] EWHC 1742 Admin He concluded as follows, first at paragraph 43:

"The proper test by common consent is whether the court decides that the Secretary of State's decision succeeds or fails in providing a speedy review as required by Article 5(4) having regard to all the circumstances of the case giving due weight to the views of the Secretary of State, the Secretary of State being the person who through his servants or agents is in a good position to assess all the relevant circumstances."

4. At paragraph 48 of his judgment, Gibbs J said this:

"I do not accept that there is a presumption that an interval of more than a year between reviews infringes Article 5. I think that the question of whether the Secretary of State's decision provides for a speedy review depends on the circumstances of each individual case. However, I do think that the decisions of the ECHR provide a useful guide to what the law should or should not regard as speedy. It is plainly on the basis of case law easier to establish that a decision which sets an interval of more than a year falls foul of Article 5, than a decision setting one of less than a year. It is, however, a matter of fact and degree in my judgment in every case."

5. In paragraph 52, Gibbs J said this:

"What then is the correct conclusion about the Secretary of State's decision in this case? I take into consideration my previous finding that there is no presumption that an interval of more than a year is too long. I take into account that European jurisprudence is not prescriptive about the determination of intervals between reviews, which must depend on individual circumstances. I take into account several decisions which on their particular facts held that intervals of over a year and up to two years were or may be legally unobjectionable ..."

The decisions to which Gibbs J referred, Spence, Clough and MacNeil, have also been shown to me this afternoon.

6. Gibbs J continued at paragraph 53:

"I also bear in mind that it would be undesirable to encourage a proliferation of judicial review applications based on arguments about the precise timing of reviews. Such a proliferation would no doubt involve a great waste of time and expense, as well as causing administrative problems. On the other hand it must also be borne in mind that the decision challenged is a decision about a claimant's right to a speedy review. It is not about his right to release, but about his right to prompt consideration by the Parole Board of his case where circumstances require it. There is no doubt that such promptness may require a review in significantly less than two years' after the previous decision."

7. At paragraph 55, the judge said:

" If I were to apply the Wednesbury test to the Secretary of State's decision-making process it is doubtful whether it could be characterised as irrational, although I do not make any decision on that point. That, however, is not the test. Applying the test of whether the decision provides for the lawfulness of the claimant's detention to be decided speedily by the Parole Board, the answer in the context of this case must, in my judgment, be that it does not do so, even giving due weight to the Secretary of State's views ..."

8. At paragraph 56, Gibbs J says:

"I make two further observations about the context in this case. First, there may be many, perhaps the majority of cases, where a review in less than two years is quite unnecessary for the purposes of complying with Article 5; for example, a person who has by past history and by present evidence shown himself to be a continuing danger to the public, and where the situation is highly unlikely to change in the short term. Such cases may include that of a violent psychopath or serial sex offender."

9. Then at paragraph at 57:

"This case, whilst of course the claimant was found guilty of murder, falls at the other end of the spectrum where a process of change is, on the evidence, well under way and further improvement is anticipated in the short term. It is therefore the sort of case in my judgment for which the ECHR decisions on their own facts provide useful guidance."

10. Finally, I quote from the beginning of paragraph 58 of the judgment:

"Second, the question of the measures planned for the prisoner in anticipation of the next review and the speed at which they are implemented are bound up with the question of the timing of the next reference to the Parole Board. If objectively on the facts of the case the setting of a speedy review date requires a reference in 12 months, it is no answer, in my judgment, or insufficient answer, to respond by setting an unacceptably leisurely timetable for implementation of those measures and then to rely upon the delay as a reason for not making a speedy reference."

11. In the present case, the decision letter in September 2006 deals very fully with the reasons of the Secretary of State for rejecting the Parole Board's recommendation for transfer to open conditions. However, as Langstaff J observed, and I respectfully agree, it does not, expressly at any rate, give reasons for the two-year interval.
12. Following Langstaff J's order, the Treasury Solicitor wrote a letter to the claimant's solicitors dated 4 June 2007, and on 17 July 2007 submitted a witness statement. The claimant has also made a witness statement, and the Secretary of State's witness has made a supplemental witness statement.
13. In September 2006, the Secretary of State, given his view of the risk involved, concluded that a number of assessments and courses should be pursued before there was a transfer to open conditions. The decision letter does not, however, say how long these might have been expected to take.
14. In June 2007, the Secretary of State was of the view that there remained a number of outstanding treatment areas which needed addressing in respect of the claimant, and the witness statement does to some extent address timescales and seeks to justify at least 18 months from September 2006.
15. The problem however, in my judgment, is that the assessments and courses have not been taking place. As the Court of Appeal said (not for the first time) in Murray v Parole Board [2003] EWCA Civ 1616 at paragraph 24, if there is excessive delay between the reviews, logistical difficulties are not an answer to that. The defendant's witness statement does refer to some lack of co-operation on the part of the claimant, but the main emphasis is on logistical difficulties, lack of space, other priorities and so forth.
16. In my judgment, the Secretary of State has not given adequate reasons as to why in September 2006 a two-year period for review was set. A number of assessments were required; that would necessarily take some time. The assessments would identify what further work needed to be done. In advance of the assessments, it would not be known whether that work and/or subsequent consolidation could be done only in closed conditions. The letter of 4 June 2007 concludes:

"Should it transpire that following the necessary assessment particular areas of work need not be addressed, my client would reconsider the review period."

17. That seems to me to be somewhat back to front. In my judgment, no longer period should be set for review than reasonable. What, if anything, may be required after a review is a matter for the review. Release or transfer to open conditions may then prove to be premature. That, however, in my judgment, is insufficient reason for denying prompt consideration by the Parole Board. Resources are not readily to be taken as a defence to an alleged breach of Article 5(4): see Noorkoiv v the Secretary of State for the Home Department [2002] EWCA Civ 770, concerned with delay in a hearing before the Parole Board (from paragraph 23, especially at paragraphs 24, 28 and 30). Nor is the evidence in relation to resources in this case altogether adequate. However, one always comes back to the question whether or not there is a compliance with Article 5(4): in other words, whether or not the review period is such that the matter will be decided speedily.
18. My conclusion is that the setting of two years in this particular case was not compatible with Article 5(4) on an objective regard of all the circumstances of this particular case. The claimant no longer seeks a mandatory order. In my judgment, as in Murray and Day, it is not appropriate to go beyond declaratory relief, which I grant in the following terms. In September 2006 a review date in May 2008 did not satisfy the requirements of Article 5(4), and that the assessments that the Secretary of State requires, that is the SARN assessment, the CALM assessment, the PCL-R assessment, the personality assessment and the assessment for future violence, should take place by 30 September 2007. I do not consider it appropriate to allow an amendment, first intimated today, to enable damages to be claimed in these proceedings. An entirely new dimension would be added to the case if one were to be considering the requirements of just satisfaction and whether or not they included in the circumstances any award of damages.
19. In conclusion, I must emphasise the obvious. I am dealing solely with the interval between reviews, not with what the outcome of a review should be. It may be, given where we are now at, that a review cannot usefully be held in advance of May 2008, but if that is so, that underlines the importance of ensuring that steps are taken in the meantime to enable that review to be constructive, and it is with a view to that, that my declaration includes a provision in relation to at least the assessment stage of the process taking place with reasonable expedition. That in no way of course diminishes the importance of the post-assessment stages being pursued timeously.
20. MS WHITAKER: My Lord, may I make an application for costs?
21. THE DEPUTY JUDGE: You may make an application, yes.
22. MS WHITAKER: I would like to apply for costs, my Lord, in light of your judgement.
23. THE DEPUTY JUDGE: On the basis of costs following the event?
24. MS WHITAKER: Yes.
25. THE DEPUTY JUDGE: Mr Sachdeva?
26. MR SACHDEVA: My Lord, could you just give me a second.
27. THE DEPUTY JUDGE: Yes, of course. (pause)
28. MR SACHDEVA: My Lord, in principle, costs follow the event. There are two principle events: the challenge to the Secretary of State's refusal to accept the Parole Board's view or that transfer to open conditions is appropriate; and then there is this fourth ground of review, the Article 5(4) point. Clearly, the claimant has not succeeded on the first point. On the second point, I have no constructive submissions to you saying why costs should not follow the event on that Article 5(4) point. So it is an issue-based costs order.
29. THE DEPUTY JUDGE: Clearly, a pretty hefty proportion of the costs are attributable to the issue we have argued about today. What proportion to you suggest are attributable to the issues upon which the claimant failed, but which have not formed any part of the costs, as I understand it, since Langstaff J's decision? You might say you were entitled to your costs in relation to that.
30. MR SACHDEVA: We would get the acknowledgment of service costs in relation to that. Whether we get the attendance at the hearing, it is not self-evident, is it? My Lord, I say, looking at the weight of the bundle, probably half of the costs have been spent in preparing a bundle that is fit to challenge the substance of the Secretary of State's decision as to the transfer, because actually, although we have spent a couple of hours talking about it this afternoon, my Lord you said it yourself at 2.20 that Ms Whitaker's submission was rather a short one on the time period.
31. THE DEPUTY JUDGE: It was a rather short point, even though we took rather a long time after 20 past 2.
32. MR SACHDEVA: We cannot blame Ms Whitaker for that.
33. THE DEPUTY JUDGE: No. Nor necessarily you, but --
34. MR SACHDEVA: You could blame me for that, my Lord. But I say probably about 50 per cent. This bundle is pretty significant. It would not have needed to be anything like as large. It would not have needed all the reports. Judging by the lack of reference by either of us to the substance of the reports --
35. THE DEPUTY JUDGE: On my way of looking at the case, that your reasons do not deal with the question of the interval, I can see that very little of the documentation is relevant. But on your way of looking at the case, that one needs to look at the reasons because they really apply for both purposes, it is a little different, is it not?
36. MR SACHDEVA: My Lord, if I had been creating the bundle myself or advising on it, I am not sure I would have gone beyond the decision letters and the statement of the psychologists that was accepted. I do not think I would have put any of the other stuff in. Anyway, it is a matter for the court. I do not wish to trouble you.
37. THE DEPUTY JUDGE: There is a fair measure of duplication, but in terms of what there is, it is not by any means a bad case in terms of overloading the bundle.
38. MR SACHDEVA: My Lord, I do not say that. What I do say is that a substantial period of time was spent in drafting the grounds in relation to a challenge to the substantive decision. That failed, and clearly none of those costs should be allowed.
39. THE DEPUTY JUDGE: If anything, there should be some offset the other way.
40. MR SACHDEVA: That is one possibility, or you could make an issue-based costs order.
41. THE DEPUTY JUDGE: Whatever order I make will be a global broad-brush one.
42. MR SACHDEVA: My Lord, so be it. I say probably 50/50, but it is a matter for the court.
43. THE DEPUTY JUDGE: Ms Whitaker?
44. MS WHITAKER: My Lord, I suggest 50/50 for the permission hearing and all our costs since the permission hearing. That clearly must be right. There cannot have been any -- my learned friend should not have spent any time on the other issue.
45. THE DEPUTY JUDGE: I will award you two thirds of your costs: in other words, I am not go to go break it up, but of your total costs, you may recover two thirds of them from the defendant.
46. MS WHITAKER: I am grateful, my Lord. I think I may need to ask for community legal services funding in relation to this.
47. THE DEPUTY JUDGE: You may do, and if you do you may have it. Thank you both.