England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		29th October 2007

MR JUSTICE SULLIVAN:

Introduction

1. In this application for judicial review the claimant seeks a declaration that the delay after mid-August 2007 in arranging his Parole Board hearing is in breach of his right to a speedy decision as to the lawfulness of his continued detention under Article 5(4) of the European Convention on Human Rights. The hearing is now due to take place in January 2008. Although Mr Straw's skeleton argument on behalf of the claimant sought a mandatory order that a hearing be arranged as soon as possible, that claim was not pursued in oral submissions before me in the light of a witness statement of Mr McCarthy, the second defendant's Head of Casework, that there are no panel members available for an additional hearing before Christmas. It would be possible to arrange an earlier hearing for the claimant, but only at the expense of delaying a hearing for another prisoner, who would be no less entitled to a speedy decision under Article 5(4).

Background facts

2. The claimant is 53 years old. He was convicted of murder on 24th April 1992 and sentenced to life imprisonment with a minimum tariff of 12 years on 28th January 1993. That tariff expired on 27th April 2004.
3. On 7th February 2006 the second defendant accepted the first defendant's recommendation that the claimant be transferred to open conditions, saying that the next Parole Board hearing should conclude by July 2007.
4. The claimant's case was referred to the first defendant by the second defendant in February 2007 and a hearing was listing for 2nd July.
5. The parole dossier was filed on 13th April. That dossier included a report from a psychologist, Ms Horsley dated 1st March 2007. Ms Horsley's report referred to the claimant's earlier psychiatric history and mentioned an assessment of psychopathic disorder by a Dr Bullard. Ms Horsley did not recommend release.
6. On 6th June addendum reports were submitted to bring the position up to date. They included an addendum report by Ms Horsley — again she did not recommend release.
7. On 12th June the panel gave directions, firstly, as to witness attendance, two probation officers were to attend to comment on the release plan, and Ms Horsley was to attend to comment on historic psychiatric treatments. Further reports were sought in relation to the psychiatric history of the claimant, referred to in Ms Horsley's reports. There can be no criticism of those directions. They were eminently sensible in the light of the material that had been supplied to the first defendant.
8. The second defendant instructed a psychiatrist, Dr Ghadiali, and her report was submitted on 26th June. That report recommended that the claimant be released.
9. On 8th May the claimant's solicitors had asked Mr Forde, a Chartered Forensic Psychologist, if he would be prepared to prepare a psychological report. His formal instructions were confirmed on 29th May. Unfortunately, the claimant's solicitors did not warn the first defendant that they would be calling expert psychological evidence until 13th June, when they asked permission for Mr Forde to give evidence. Mr Forde's report was completed on 20th June and served on the first defendant on 26th June. Mr Forde's report was highly critical of Ms Horsley's report. He recommended release.
10. On 27th June the first defendant wrote to the claimant's solicitors, saying:

"1. Directions for the oral hearing of your case were given by the Chairman on 11th June 2007. At that stage there was no application on your behalf for witness attendance; nor specifically for the presence of any independent psychologist. Those Directions were despatched to all parties on 12th June. On 13th June your solicitors asked for permission to call Dr Robert Forde as a witness at the hearing. Because the Chairman was abroad between 13th June and 17th June inclusive, he dealt with that application on 18th June. He declined to authorise the attendance of Dr Forde without sight of his report. The report of Dr Forde (dated 20th June) has been supplied by your solicitors to the Parole Board today, 26th June. It is based on an interview which occurred on 13th June. The report is dated 20th June.

2. The report is critical of the Trainee Psychologist at HMP Sudbury. Her supervisor is known to be absent on leave. No other Chartered Psychologist is available at short notice to give evidence at HMP Sudbury on behalf of the Prison Service.

3. It is simply unacceptable for expert evidence to be supplied so late. There is no psychologist member on the Panel. In the circumstances this case is deferred until:

(a) A Chartered Psychologist can be available to give evidence at HMP Sudbury; and

(b) If practicable a psychologist member of the Parole Board is available to sit on the Panel.

4. Your case has now been re-listed to be heard in October 2007. The exact date of which will be notified to you in due course."

11. The lawfulness of the decision to adjourn the hearing on 2nd July is unsurprisingly not challenged by Mr Straw. The claimant's solicitors had been on notice since 13th April that the psychologist's report prepared by Ms Horsley did not recommend release, but for whatever reason they did not choose to tell the first defendant until 13th June that they themselves wished to call expert evidence in rebuttal, and that evidence was not served until days before the hearing.
12. It is important to bear in mind the character of that evidence. I have said that Mr Forde was highly critical of Ms Horsley's report. That is perhaps an understatement. In addition to the numerous criticisms he made, he specifically drew attention to the fact that she was a trainee psychologist and he made the point, for example, that the addendum to her report had not apparently been properly countersigned by her supervising psychologist. Thus one can understand the observations in paragraph 2 of the first defendant's letter dated 27th June 2007, noting that the supervising psychologist was known to be absent on leave.
13. The only question, therefore, given that an adjournment of the 2nd July hearing was inevitable, was the length of the adjournment that would be necessary.
14. Following the decision of 27th June, the claim form in these proceedings was issued. That claim form raised a large number of issues, not simply related to delay. Almost all of those issues apart from the question of delay have not been pursued in this hearing.
15. On 13th July Collins J, having considered the papers, said that he was not persuaded that there had been a breach of Article 5(4). Having made various other observations, he said that the only question was whether October was too long a delay, "That is in my view arguable." He added, "In the circumstances, the Board should look to an earlier hearing (if possible)."
16. That was on 13th July. Unfortunately, on the very same day a letter was written by the first defendant, on behalf of the High Court judge who was due to chair the hearing. That letter said, under the heading "Further directions for deferral to first open date after 1st December 2007":

"1. Since giving general directions deferring your hearing which was to have occurred on 2nd July 2007, the Chairman has had the opportunity to discuss your case with the Panel member who is a Professor of Psychiatry. Your case is now deferred to the first open date after 1st December 2007, with the following specific directions:

(1) Your psychiatric history includes 9 years as a patient in Rampton; and a further 18 months in Moss Side. Reference is made to a report from Dr Bullard dated 12th October 1982. The Panel which hears your case will require full details of the treatment which you received in both these hospitals; your clinical history; the report of Dr Bullard; and a report from a psychiatrist instructed by the Prison Service which comments on the historical diagnosis of psychopathic personality. Such report must be obtained by 30th September 2007.

(2) A Chartered Forensic Psychologist instructed by the Prison Service must respond to each of the points made in the report of Dr Forde by 30th September 2007; and that further report should include, first, comment on the extent to which the psychologist relies on the vague material identified in paragraph 3.13 of Ms Horsley's report dated 1st March 2007, and if so the reasons for such reliance; ..."

17. A second matter is dealt with. There is also reference to a long period of institutionalisation in hospital and in prison, and the question is posed as to whether that:

"... will permit you to cope in the community: does the resettlement plan adequately reflect that background? Third, was the assessment of 'borderline IQ' ... a consequence of formal psychometric testing. If so, does this remain a valid assessment? If not, what information can be supplied in relation to your cognitive ability?"

The Chairman then stated that he was available to give further directions if necessary.

18. The first defendant was asked to rescind those directions and it refused to do so, saying, amongst other things:

"The judge [that is the High Court judge who was to chair the Panel] noted that there was a significant gap in the information on the dossier provided by the Secretary of State. In Part B of Schedule 1 to the Parole Board Rules, the Secretary of State is required to provide information relating to the prisoner while he was subject to a transfer under the Mental Health Act 1983. The directions of 13 July 2007 reflect that gap in the material before the Board and it is the view of the psychiatric member of the Board, whom the judge consulted when issuing the directions, that this information is likely to be relevant to the Board's decision in the case.

The judge and psychiatrist consider it essential for a psychiatrist instructed by the Secretary of State to review the case and comment on the historic diagnosis of psychopathic personality. Since this will entail a consultant having to read the clinical notes, visit [the claimant] for at least one interview, and write a report, 30 September was regarded as a tight deadline. Our experience is that [it] often takes far longer to obtain a psychiatric assessment.

There is also the need for a chartered forensic psychologist to respond point by point to Dr Forde's report. ..."

19. On 13th September the claimant's solicitors e-mailed the first defendant, saying:

"I'm writing to inform you that Mr Forde, our independent forensic psychologist, is unavailable to attend on the 9th October. Unfortunately Mr Forde is away for almost the whole month of October and then his availability in November includes 12th, and then 14th through until 28th."

20. That was followed by a letter on 19th September saying that the hearing of the judicial review was listed for today, 29th October, adding:

"Clearly, [the claimant's] Oral Hearing should not now proceed before that date."

21. In response to that letter, the first defendant wrote to the claimant's solicitors:

"1. Consideration of your case was due to take place on the date shown above [9 October 2007].

2. Your solicitor has requested that this matter be deferred for two reasons. First your witness Forde is unavailable. This on its own would not warrant a deferral, especially raised at this late stage after the panel have all read the dossier. Secondly, and more importantly, objection is taken to the hearing proceeding in the face of an unresolved application by you for judicial review, for which permission has been granted and which is therefore proceeding to a substantive hearing. The Chair of the panel consider it therefore inappropriate for the panel to express their views before the judgment of the Administrative Court is known and can be assimilated, as it may well contain highly relevant advice as to the future conduct of your review.

3. The hearing is therefore deferred until a date to be fixed, not before the determination of the current claim by you for [judicial review], after which it may need to be reconsidered for further directions in the light of the Judgment of the High Court.

4. This case has be re-listed and will now take place in January 2007 in order to allow for the pending Judicial Review to be concluded."

Submissions and conclusions

22. There is no dispute between the parties as to the relevant statutory framework or as to the nature of the obligations that places on the first defendant and the second defendant. Both defendants must ensure that systems are in place which enable hearings to be arranged "speedily" in accordance with Article 5(4). Whether a hearing takes place "speedily" will depend on looking "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" — see R (Hirst) v Secretary of State for the Home Department [2005] EWHC 1480 (Admin), paragraph 37.
23. Of their very nature cases such as this, since one has to look at all the material circumstances, will very much depend upon the particular facts of the instant case. It is therefore of limited assistance to cite other cases in which, in very different circumstances, various periods of time have been found to be, or not to be, speedy in accordance with Article 5(4).
24. Whilst the need for hearings to be arranged speedily is acknowledged, it is also important to bear in mind that there is an overriding need that the first defendant's hearings should be fair. Fair to the claimant and fair to the public. The latter is of no less importance than the former, since it is for the first defendant to be satisfied that it is no longer necessary for the protection of the public that the prisoner should continue to be confined. Thus the Board should not be discouraged from requesting more information where it considers that it is necessary to do so in order to obtain a proper appreciation of any potential risk factors, and generally the first defendant should be encouraged to actively case manage the cases coming before panels, and that is precisely what occurred in the present case.
25. Thus it was the Board of its own motion that realised the significance of Ms Horsley's report and on 12th June 2007 requested, not merely her attendance, but also particulars of the psychiatric history that had been referred to in her report. I reject Mr Straw's submission that that history should have been contained in the original dossier. The claimant, sadly, is someone who spent very many years in psychiatric hospitals before he committed the index offence in 1992. The extent to which his earlier psychiatric history was relevant to the question of risk was debatable prior to Ms Horsley's first report. She alone among the report writers had not recommended release. In those circumstances, it could fairly be said that the earlier psychiatric history did not appear to be of direct relevance. However, since she not merely referred to that history but in part relied on it, it is entirely understandable that the first defendant would wish to reassure itself on the matter and to receive further information. In this context it is not without significance that the claimant's solicitors, who would of course have had access to the claimant's earlier medical history, did not suggest that the original dossier was deficient in omitting this information. Indeed, for some time they persisted in the contention that it was unreasonable for the first defendant to ask for additional psychiatric evidence and contended that such evidence was unnecessary — see, for example, their letter of 24th July 2007, in which it was said:

"There is therefore no need for a further psychiatric report. The evidence can, if still considered to be necessary, be given by Dr Ghadiali."

26. The adjournment of the hearing on 2nd July was directly caused by the very late service of the claimant's own expert psychologist's evidence. I appreciate that there may have been difficulties in obtaining that evidence earlier, but the claimant's solicitors could and should have notified the first defendant earlier, as soon as it was known that they might well wish to call such evidence. In those circumstances, the decision on 27th June 2007 to adjourn, and to seek to ensure that the supervising psychologist was available and that there could be a chartered psychologist on the panel, was eminently reasonable.
27. Although Mr Straw refers to the State's obligation generally to ensure that sufficient staff are available and says that if people are on holiday, then substitutes should be available, it will be remembered that Mr Forde was saying that Ms Horsley's supervising psychologist had not properly countersigned her report. It was thus important to hear, not merely from Ms Horsley, but also from her supervisor.
28. The decision of 27th June was followed by the decision of 13th July. It is not now suggested that the first defendant was unreasonable in requiring the additional information; that is to say, the information about the claimant's psychiatric history, with full details of the treatment that he had received, the report of Dr Bullard and a report from a psychiatrist which commented on the historical diagnosis of psychopathic personality. The sole question, therefore, is whether in the light of that evidence being required the first defendant should have ordered a hearing in mid-August, as contended for by Mr Straw.
29. Notwithstanding Mr Straw's valiant attempts to persuade me that that would have been a sensible course, I am wholly unpersuaded of that submission. It seems to me that it would have been wholly unrealistic on 13th July for the Board to order a hearing in mid-August. While I accept in principle that the fact, for example, that the judge is on holiday is not a sufficient excuse for failing to comply with Article 5(4), nevertheless judges in making case management decisions do have to take account of holiday periods, particularly if witnesses are to be called to give evidence, and in this case there were a number of witnesses. Although Mr Straw says that substitutes can be obtained, that is not always practicable or fair. In particular, if an individual's report is criticised it may be important that that particular individual attend to answer the criticisms rather than a substitute be fielded. Those are all the kinds of questions which confront a judge and/or a Parole Board chairman in making case management decisions, and they demonstrate how each of these Article 5(4) cases will turn very much on its own facts. In some cases a delay of six weeks may be unduly long, in other circumstances it may be far too short. In the circumstances of this case, as at 13th July, a four or six-week adjournment to the middle of August would have been unreasonably short.
30. It is said that the obtaining of the reports relating to the claimant's psychiatric history was a purely administrative task which it should have been possible to complete in four weeks or so. In my judgment, that understates the nature of the exercise that was being, rightly, required by the first defendant. First of all, records relating to the claimant's psychiatric history had to be obtained. This was a history that went back a very long time before the index offence. The claimant had been released following a Mental Health Review Tribunal hearing way back in 1982. So the records were at least 25 years old, and in many cases much older. The claimant has spent much of his adult life in and out of psychiatric hospitals. So, firstly, the information had to be collated.
31. Secondly, and of particular importance, the information had to be given to a psychiatrist appointed by the Prison Service, who would then have to see the claimant, at least once, in order to prepare a report. Preparing the report of course was not the end of the process, because the report would then have to be sent to the parties and they would have to have a sufficient time in order to digest its contents to prepare themselves for the hearing. We now know, of course, with the benefit of hindsight that Dr Ghadiali's further report recommended release and was a relatively short report, but that could not have been known by the first defendant when it requested that a further report be prepared. It was entirely possible that the psychiatrist appointed by the Prison Service to review the claimant's psychiatric history might have reached conclusions that were adverse to the claimant. Plainly the claimant's solicitors would then have needed sufficient time to consider those conclusions, and quite possibly to instruct their own independent psychiatrist to respond. That after all is what they had done in response to the adverse psychologist's report prepared by Ms Horsley. All of those factors when put together make it clear that the submission that a hearing should have been rearranged by mid-August is manifestly unreasonable.
32. Further, whilst it is true that it is possible that a response to Dr Forde's report could have been obtained at an earlier stage, the report that is on the critical path is the new psychiatry report, rather than the rebuttal to the psychology report. Thus it seems to me that there could have been no possible criticism of the date of 9th October 2007, bearing in mind all of those factors.
33. Due to a misunderstanding, at least in part contributed to by the claimant himself, the additional reports were not commissioned by the second defendant until mid-September. However, that is entirely beside the point because on 13th September, as I have said, the claimant's solicitors wrote to say that the claimant's own witness, Mr Forde, would be unable to attend on 9th October. They then backed that up by the letter of 19th September which said that, in any event, the oral hearing should be postponed until after today's hearing on 29th October.
34. In these circumstances, it is manifestly absurd for the claimant now to complain of a period of delay that was requested for his own purposes by his own solicitors. No possible criticism could be made of the decision on 2nd October 2007 to adjourn the 9th October hearing. That delay lies fairly and squarely at the claimant's own door. I say that because it was at least in part due to the fact that judicial review proceedings had been commenced that led to the confusion (regrettable though the confusion was) amongst the second defendant's officials that resulted in the instruction for the reports to be prepared not being given. But as I say that is beside the point. The claimant's solicitors having asked for a delay, it does not lie in their mouths now to criticise that delay.
35. It was known that this judicial review was to be heard today. Some time thereafter would have to be allowed in case judgment was reserved, and it was known that Mr Forde would not be available until mid-November. In those circumstances, the very earliest that a hearing could have taken place would have been after mid-November. But that is to assume that as soon as the claimant's solicitors notified the first defendant of Mr Forde's availability, the first defendant should then have been in a position to arrange a hearing immediately after Mr Forde became available. I do not consider that that is a realistic proposition. What is required of the first defendant is that it proceeds with reasonable dispatch. It was not told that Mr Forde would not be available for very lengthy periods of time until 13th September. Again, it is quite unrealistic to expect that, having been told very belatedly that the claimant's own witness could not be available for very lengthy periods of time, the first defendant would immediately snap to it and arrange a hearing the day after the claimant's witness became available. Thus there can be no complaint from the claimant that the hearing did not take place until either the latter part of November or early December this year.
36. After that time, the claimant does in my judgment have a legitimate cause for complaint under Article 5(4). I say that because it is clear from Mr McCarthy's evidence that the reason why a hearing cannot be arranged before Christmas is that there is a shortage of Parole Board members. That shortage is not peculiar to this case. It is a shortage that has become well known and the first defendant is taking steps to address the problem.
37. In the event, the furthest that I am prepared to go in response to the claim for declaratory relief is to say that there will be a delay which will not be justified in terms of Article 5(4) from early December 2007 until January 2008 when the hearing is due to take place. But I would make no further order, indeed none is sought, and I should record that no claim for damages has been made.
38. I conclude by saying that whilst I have stated that the delay from early December to January is not justified in terms of Article 5(4), the fact remains that most of the delay has been caused by the claimant himself; that is to say, by the late delivery of an expert witness statement and, most importantly, by these judicial review proceedings. As I have mentioned, the proceedings in part contributed to the misunderstanding that led to reports not being requested when they should have been. It is clear that if a co-operative approach rather than a litigious approach had been adopted to this case, then the hearing would probably have taken place in October. As it is, the claimant is very largely the author of his own misfortune as a result of commencing these proceedings.
39. To the extremely limited extent set out in paragraph 37 above, this application succeeds.
40. Yes, any applications?
41. MR STRAW: My Lord, to the limited extent that the application succeeds against the first defendant, I make an application for the claimant's costs just in relation to that particular part of the claim.
42. MR JUSTICE SULLIVAN: What about all the bits of the claim that failed and have not been pursued?
43. MR STRAW: My Lord, in relation to....
44. MR JUSTICE SULLIVAN: Yes. What I am thinking of, I make no bones about it, is simply no order as to costs. Unless there was an application from either Mr Jaffey or Miss Weir for some other order, it seems to me the claimant would get away quite lightly with no order as to costs, bearing in mind the overall balance of the way the argument has gone.
45. MR STRAW: Sir, I will make no application.
46. MR JUSTICE SULLIVAN: It might be sensible to lie doggo, if I was you, and then it may be that Mr Jaffey and Miss Weir would also lie doggo.
47. Are you lying doggo?
48. MR JAFFEY: My Lord, yes.
49. MR JUSTICE SULLIVAN: On the basis that everybody lies doggo, I think the sensible thing to do is make no order as to costs. I think that is a fair reflection of the extent to which this claim has succeeded.
50. Thank you all.