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
		16 October 2008

1. DEPUTY JUDGE: The claimant applies for judicial review of the decision by the defendant on 9 May 2008 not to advance the date for the claimant's next Parole Board review set for March 2009. He claims that the decision was in breach of his right under Article 5(4) of the Convention for speedy determination by a court of the lawfulness of his detention, which for a lifer means whether the review period was in all the circumstances reasonable.

The facts

2. The claimant was sentenced to life imprisonment in February 2001 for multiple armed robberies. He had a considerable criminal record including robbery, violence and dishonesty, but credit was given for his assistance to the police. The tariff element was four years.
3. On his first Parole Board review on 4 April 2004, the Board recommended that as he had not completed his offending behaviour work, he should remain in closed detention. On the next review on 11 March 2005, the Board recommended that because he had successfully completed specific behavioural courses, he should move to open conditions. That recommendation was accepted by the defendant on 29 April 2005, with the next review provisionally set for March 2007.
4. The length of review was challenged by the claimant and brought forward to October 2006. However, in November 2005, in breach of the conditions of his licence, the claimant travelled to Leeds, as a result of which the open condition was suspended, albeit subsequently restored on 14 March 2006.
5. On 22 September 2006, while he was on release on temporary licence ("ROTL"), he returned to the hostel apparently drunk and was violently sick. It has subsequently been accepted by the Parole Board, in the light of representations on his behalf, that that condition was consistent with an adverse reaction to treatment for a gastro condition and having had a modest amount of wine consumed with a meal; it was not necessarily indicative of being drunk. However, at the time he was directed to return to prison the next morning, he did not do so, but absconded, as he was later to say, to take his mother, who was suffering from Alzheimer's, out as he had previously arranged. He did not return at the end of that day (23 September) and only surrendered to prison on 27 September. As he was to comment to the probation officer, "In for a penny; in for a pound". As a result, he remained in closed conditions in a category B prison, and his case was reviewed by the Parole Board on paper on 4 December 2006. The Board had, among other reports, a report from Mrs Duncan, the probation officer, which said, among other things:

"The consistent theme from all report writers is the criminal sub-culture into which Mr Ashford has been socialised from an early age, and it is against this formidable tide that he has been forced to swim to accomplish the degree of attitude change that he currently demonstrates. When he focuses upon the index offences in isolation and is able to separate them from the lifestyle and associations from which they emanated, he can acknowledge their true impact upon the victims and the potential for even greater harm which his actions represented. Whilst the particular circles in which Mr Ashford moved may have predisposed him to commit the sort of offences for which he received his current life term, Laura Beck, in her recent report for Mr Ashford's last review, highlights those other factors which were instrumental in retaining him in the ... [words omitted from the copy].

In order that Mr Ashford's risk remains at a level which allows him to be safely managed within a community setting, he must therefore derive status and self-satisfaction from sources which are both legitimate and pro-social. It would seem, however, that this process has already begun."

6. Later she continued in the report:

"Mr Ashford recognises his decision not to return to prison the following day after he breached the conditions of his ROTL was ill-considered and impetuous. It clearly demonstrated his failure to "stop and think" or to put his theoretical knowledge of the problem solving strategy, well rehearsed during the Cognitive Skills Booster Programme, into practice. His overriding concern, however, was to fulfill the promise he had made to his mother the previous evening that they would spend the day together at Shipley Glen."

Finally she concluded:

"Mr Ashford cannot expect to move back to open conditions immediately, but must continue to focus on his thinking deficits and his tendency to act on impulse. He also needs to produce a concrete release plan that can be assessed by his home area for its feasibility both in terms of risk and his own vulnerability.

It must nevertheless be borne in mind that Mr Ashford has not re-offended, and prior to his return to custody had enjoyed many successful periods of day release, plus two overnight stays at Elm Bank Hostel.

He has, therefore, shown himself equal to the task of beginning to restructure his life upon a foundation that is offence-free and non-criminogenic in character. That process needs to continue and a prolonged interruption will, in my view, serve no useful purpose. He is demoralised at present and rightly so, but if he can see no "light at the end of the tunnel" his previous enthusiasm and positive application is unlikely to be recaptured. This would render him less capable in the long run of making the significant adjustments that a return to community living will require of him."

7. In their report dated 7 December 2006 at paragraph 4, the Panel referred to Mrs Duncan's report where she had identified that he could not expect to go back to open conditions immediately, but should continue to focus on his thinking deficits and a tendency to act on impulse. In the result, the Panel determined to adjourn the hearing to 5 March 2007, directing that further reports would be supplied together with a revised view of the Secretary of State, and that Mrs Duncan, if it was convenient, should attend the deferred hearing.
8. At the deferred hearing, there was a report from the life manager, explaining that in the intervening time it had not been possible to transfer the claimant from the category B prison to a category C prison to enable him to do work because there was insufficient time to do so. There was also a supplemental report from Mrs Duncan dated 28 February 2007 where she said:

"Lack of problem solving skills, an inflexible thinking style and inability to perspective-take have all been raised as areas of concern by those who tutored him on the Cognitive Skills Booster Programme. This concern has been echoed by the Parole Board. It is my opinion, however, that further structured courses will not satisfactorily address these issues. My personal knowledge of Mr Ashford over time inclines me to the view that real change will only occur in the context of a positive one-to-one relationship of a therapeutic nature. He is a man who, prior to sentence, was steeped in a criminal sub-culture based ... [words omitted from passage] Ashfords businesslike and unemotional manner when discussing this offence. My own 2004 report, however, makes reference to a degree of vulnerability that belies this seeming callousness, but which only surfaces when he feels comfortable within a casework relationship. Mr Ashford is, for his part, prepared to look in detail at his thinking deficits and to consider a more robust and reality-based release plan, but he needs to do so in the context of a community-based setting, the setting to which he will eventually be returned. Those deficiencies which have been identified could then be addressed in a more systematic way by linking them to real life situations. I am aware that this is the stated aim of the Cognitive Skills Booster Programme but the value of that same work being undertaken on a one-to-one basis cannot in my submission be underestimated.

Ideally, a measure of preparatory work in closed conditions would aid the process but some three months have passed since Mr Ashford was last reported on and the situation is stagnating, with Mr Ashford becoming more demoralised and demotivated by the day. It is my cautious view, therefore, that he should now be returned to open conditions, but only on the strict understanding that the work identified can be readily and speedily provided by the receiving establishment.

It should, however, be made clear to Mr Ashford that if such a progressive move is granted, it is not simply to afford him a greater degree of freedom, but in order that all aspects of risk can be more closely monitored. Thus the privileges that accrue to such a status ought to be wholly dependent on Mr Ashford's willingness to engage his overall performance and some substantive proof of a fundamental change in attitude and behaviour."

9. In their decision dated 7 March 2007, the Board referred to the previous incidence of breach and absconding. They went on to set out in summary form the advice from Mrs Duncan, including that the claimant's requirements were for further one-to-one work with a probation officer. They referred to her evidence directly to the Panel: that what the claimant requires is a constant reinforcement of the lessons he had already learned in a practical setting, and that he would achieve nothing by engaging in further group work, which might even possibly be harmful in the sense that if he were to remain in closed conditions, not only is it likely that he would lose his community living skills, but would become to that extent institutionalised. In the opinion of Mrs Duncan, what the claimant then needed was to consolidate the lessons which he had already learnt, and that this consolidation could most appropriately be undertaken in open conditions.
10. The Panel also reported that they raised the issue of risk in the OASYS assessment, which had put it at high. She had said that it gave a wrong picture of current risk, which she considered as low, that the life manager had agreed with that, and that Mrs Duncan concluded that the claimant was very genuinely distressed by his recall to closed conditions and that he had learned his lesson from that failure and he would not make it again.
11. The Panel concluded as follows:

"As will be apparent from the Panel's reasons, the Panel unhesitatingly adopt the recommendations of Mrs Duncan, reinforced as they have been by [the life manager]. The Secretary of State has for practical purposes invited the Parole Board to make a choice between the competing recommendations, and the Panel has done so, for the reasons stated above."

12. On 15 May 2007, the Secretary of State wrote, saying that he considered that recommendation and agreed to the claimant's transfer to open conditions. He went on to say:

"It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in March 2009 for the following reasons:

In order for you to transfer to an appropriate open conditions establishment. Once there you should complete further work on your cognition in particular on the areas of impulsivity, flexible thinking and perspective taking. You should also use this time to demonstrate that you are able to practically apply the skills you have acquired in relation to your thinking skills. In addition you should develop and test a robust release plan and have a sustained period of employment."

13. The letter then referred to notification of the date of the future hearing, and went on:

"At your next review the Parole Board will consider your suitability for release by way of a paper panel. This consideration will take place approximately 12 weeks prior to your provisional hearing. If you are not content with the paper panel's decision you may request that the case proceeds to the arranged oral hearing."

14. There was no challenge to that decision, formally or otherwise. The claimant was transferred to open conditions on 13 June 2007 at Kirklevington Grange. On 22 February 2008, solicitors who had been previously acting for the claimant wrote to the defendant's officer, Mr Ubom, referring to the claimant's case and saying:

"Given that my client is currently in open conditions and is well on the way to completing all targets set [out] in your Section's decision letter of 15 May 2007 (please see the enclosed summary sheet) I would request that this decision of 15 May 2007 is reviewed in the light of this and that Mr Ashford's next review is convened in October 2008."

The letter went on to refer to the claimant's rights under Article 5(4), and that the period of two years between reviews had previously been found potentially in breach of that right.

15. The schedule attached set out that the claimant had been transferred to open conditions; that he had completed the Think First course; that the development of a release plan was subject to the date of the next review; and that in respect of a sustained period of employment:

"My client has an interview for a job (by October 2008 he would have had this for a period of 8 months)."

16. A chaser was sent to that letter on 26 March 2008, and a reply from the defendant was given on 9 May 2008, which is the subject of the present challenge. It said, having acknowledged the two earlier letters and apologising for the delay:

"Mr Ashford's next review period was set at 2 years for the reasons given in our letter of 15 May 2007; this is a cautious view given Mr Ashford's previous failure in open conditions in September 2006 and to allow him to complete further work in the areas of impulsivity, flexible thinking and perspective taking as well as allowing a period of time for Mr Ashford to demonstrate the practical skills he had acquired in relation his thinking skills.

I have reconsidered the detail of the Parole Board's decision and the decision in relation to the review period. I have also reviewed the circumstances prior to the failure in open conditions and made more recent enquiries regarding Mr Ashford's progress to date. I have been advised that Mr Ashford has completed group work for the "Think First" programme and his one-to-one work is to be arranged. However, the current view of the Offender Management Team is that Mr Ashford also requires a number of ROTLs to allow for testing and to consolidate his thinking skills in adverse situations. In addition he needs sufficient time to acquire and practice his resettlement skills. In connection with this, we have recently been advised that Mr Ashford is to be the subject of a report from the bail hostel regarding his reaction to a request for a breath test. We are currently awaiting receipt of the report.

Against this background, I do not consider Mr Ashford's review day should be advanced to October 2008 at this stage."

17. I pause briefly to comment on that letter. It reflected a review of the circumstances and progress of the claimant; thus to that extent it was part of monitoring the review process including the provisional hearing date. It set out the advice that the author had as to the claimant's progress, including that he had completed the Think First programme, and that he had not undertaken one-to-one work, but that was to be arranged. That is a matter to which Mrs Duncan had attached considerable importance. It also required a number of ROTLs to allow testing and consolidation of the claimant's thinking skills in adverse situations.
18. I should say that the ROTL can take a number of forms: from supervised outside activities, to staying licence for periods of five days and paid work. In the relevant prison order, various periods in open conditions are advised before eligibility for particular types of ROTL, but it stressed that each case depends on its individual merits and the timetable should be used flexibly.
19. The letter also draws attention to the advice that the claimant needed time to acquire and practise his resettlement skills, and referred to the incident involving the breathalyser. That was explained in the letter in response from the solicitors; that he had initially refused to take a breath test on return to the hostel; that he had not been angry about that, and had subsequently taken it and that it had proved negative.
20. Finally the letter ends by making clear that it is a decision made "at this stage", thus clearly leaving the door open to further review against progress that was actually made.
21. The response from the solicitors on 6 June 2008, essentially in the form of a pre-action letter, referred to the incident of the breathalyser and dealt with the points raised in the letter, reiterating that the claimant had made very significant progress without giving any further details, and saying that ROTLs could be arranged in time for the review in October 2008.
22. The defendant responded in a letter of 10 July 2008. The writer does not repeat the reasons set out in the earlier letters of 15 May 2007 or 9 May 2008, but goes on to comment on the practicalities of timing, indicating that the earliest date for a board hearing would be January 2009. As I indicated during the hearing, I was unimpressed by that reasoning, in that if there is a breach of Article 5(4), then the absence of administrative support will be no answer for the defendant. It would be for the defendant to consider how to remedy the breach, most obviously by bringing forward the review.
23. Proceedings were issued on 16 July 2008, an acknowledgment of service filed on 6 August, and permission was given by Goldring J on 19 August 2008 with expedition.

Legal framework

24. Article 5(4) provides that the claimant is entitled to take proceedings by which the lawfulness of his detention should be determined speedily by a court and his release ordered if the detention is not lawful. In the present context, that is through periodic review by the Parole Board, with recommendation to the Secretary of State. There is a considerable amount of jurisprudence in Europe and this country as to the principles governing the lawfulness of that process and regularity of review, principles which are now well-established. The authorities have been recently and comprehensively reviewed by Stadlen J in R(Lock) v the Secretary of State for Justice. I do not propose to repeat that analysis, but simply set out some of the principles relevant to the present case.

(1) While the system of periodic review through the Parole Board is legitimate for the purpose of addressing Article 5(4), the review must be at reasonable intervals (Oldham, paragraph 30).

(2) What for this purpose enables a speedy decision through periodic review is fact or case specific (Oldham, paragraph 31).

(3) However, European jurisprudence does indicate that where the interval is in excess of one year, there will be a greater intensity of examination as to the justification for that period (Murray, paragraph 22).

(4) As this engages human rights, it is for this court to determine for itself whether in fact there has been a breach of Article 5(4) (Spence, paragraph 35).

(5) In doing so, the court can and should give due weight to the conclusions of the Board and the Secretary of State as to what is appropriate for the particular circumstances of the claimant.

(6) Monitoring is an integral part of the process to ensure that the provision remains reasonable.

(7) If the period is excessive and in breach of Article 5(4), logistical difficulty is no answer. The remedy must be provided by the Secretary of State (Murray, paragraph 24; Day, paragraph 58 and Conrad, paragraph 15).

The issue

25. The issue here is the lawfulness of the defendant's decision on 9 May 2008. There was a provisional review date set for March 2009, with the paper review some 12 weeks earlier. The letter of 9 May 2008 makes clear that it was a decision "at this stage". Thus the system was, as it had to be, flexible to take account of particular circumstances as they evolve, including the progress of the claimant. Having said that, the decision on 15 May 2007 was not challenged, and set a framework for subsequent decision, including what the Secretary of State considered was required to be demonstrated in the claimant's case. However, these proceedings are not concerned directly with the lawfulness of the original decision to set a provisional date for review in March 2009; the issue is the lawfulness of the decision not to bring that date forward in May 2008, or rather its compatibility with the ongoing obligation on the defendant to respect the rights of the claimant under Article 5(4) of the Convention.

Submissions

26. Mr Southey, who appears for the claimant, submits that it is for the defendant to justify that the period of detention is reasonable and justified. This is particularly the case here, he submits, because the period of review was well in excess of one year. The Secretary of State has provided no evidence to demonstrate why the necessary steps for release identified in the 15 May 2007 letter have not been taken or could not have been completed to enable an October review. He points out that the claimant has been transferred to an open conditions establishment. He has completed the Think First course on cognitive skills, and he had an interview for a job then and subsequently employment.
27. As to the request for the ROTL in the 9 May 2008 letter, that was, he submits, an afterthought, but that could also have been readily arranged to allow for an October review. He submits that the defendant cannot second guess the Parole Board. It was essential that the Board reviews the progress made, particularly as the claimant had had a significant time in open conditions and must be more likely to be fit for release, and that it was accepted that he had made significant progress.
28. Finally, the absence of direct evidence as to progress from the defendant made independent review even more important to elicit the evidence. Thus, he submits, there was plainly no speedy determination available to the claimant in accordance with Article 5(4).
29. Mr Dunlop, who appears for the defendant, submits that, at the time of consideration on 9 May 2008, the claimant had not carried out the one-to-one work, but that was proposed to be carried out. There was the breathalyser incident. He had not started employment, and in fact did not do so until 14 July 2008. The claimant was a man who had a serious case history and had breached his licence conditions on two occasions, one involving four days absconding. It was clear that the basis for the Parole Board recommendation was to enable the claimant to prove himself in open conditions in accordance with the advice from Mrs Duncan, which she categorised as cautionary, and that had simply not yet occurred. Thus, he submits, the May 2008 decision was rational -- indeed the only responsible decision that could have been made at that time.
30. He also submits that no criticism should be made of the progress before May 2008 because no one had in fact complained of the original decision in May 2007. Indeed, the letter of 22 February did not directly criticise that decision, but simply looked for review in the light of reported progress. In any event, he submits, it was a matter of discretion, there being no practical purpose in relief having regard to the administrative problems set out in the letter from the defendant dated 10 July 2008.

Consideration

31. The starting point has to be, as I have said, the position in which the defendant found herself in May 2008. First, the claimant was a man who had a history of violence and who had plainly in the past represented a considerable risk to the public. He had undoubtedly made good progress, but in 2005 and 2006 there had been breaches of licence, including a serious breach in 2006. Those incidents demonstrated spontaneous reaction and impulsivity without thought for the consequences, which was the subject of the reports from Mrs Duncan.
32. In the reports leading to the decision to release, there had been cautious support for a return to open conditions so that the claimant could prove himself in those conditions, including exposure to the community. The provisional period of two years was to enable that to be done. By May 2008, he had been in open conditions since June 2007, and I am told that he had enjoyed a number of periods on temporary release. But he had not commenced the one-to-one work, nor at that time had he been in a sustained period of employment. There was not a release plan in position. The question for the Secretary of State was whether the evidence of progress at that stage supported reducing the period for review originally allowed, bearing in mind the claimant's rights under Article 5(4).
33. I approach this matter against the reasons given in the letter of 9 May 2009. First, the letter makes clear that it was a decision taken at that stage, giving a clear signal to the reader that, if matters changed, including the progress of the claimant, it would be reconsidered, as indeed it should be. It explains that the period of two years was cautious because of the previous failure and allowing time to complete further work and demonstrate the claimant's practical skills. The officer explains that he has carried out a review of the decisions of the Board and the circumstances, and made enquiries as to progress of the claimant to date. It has not been questioned that that did not take place, and shows the matter was, on the face of it, properly investigated. The officer accepts that the claimant has completed the Think First programme, but that was group therapy, to which Mrs Duncan referred. It goes on to make clear that the one-to-one work has not been carried out, but is to be arranged. Again, that has not been the subject of any challenge, either as to the failure to have arranged it earlier or any question that it was not in fact proposed to be put in place. The fact is, even if it had been put in place, it was the results that would be important -- that is whether the claimant had succeeded or failed -- at May 2008 that of course was not known.
34. Next, the advice had been given to the officers, which he reported, for a number of ROTLs to allow testing and to consolidate the claimant's thinking skills in difficult situations. The emphasis, in my view, is not so much on the ROTLs because they were necessarily all part of the open condition regime, as on their purpose, which was the testing and consolidation in adverse conditions in the community -- to see, in other words, how the claimant would react when he was confronted with those situations. That may well be critical, and it has not been suggested that the advice was inappropriate. The case as put on behalf of the claimant is simply that it could have been carried out by October. But, in my judgment, that misses the point to this extent: it is the result of that exposure and that experience which will inform any decision as to continuing detention, and it is that that would have to be demonstrated. The result may well influence the decision as to bringing forward a review, but at May 2009, it was yet to take place.
35. Lastly, the letter records the advice as to the need for sufficient time for the claimant to acquire and practise his resettlement skills, in other words proving himself in the community. At that time there was also reference to the breathalyser incident, but that does not appear to have formed any major part of the decision that was taken. What the letter in effect was saying is that there was no case for bringing forth the review period at that stage. In my judgment, that seems entirely reasonable and pragmatic because on the evidence by May 2008 the proof of behavioural and social competence of the claimant had not been demonstrated. There is nothing on the papers before me to demonstrate that the reasons given by the defendant were factually incorrect. No particulars have been asked and there has been no challenge to what was asserted in the letter (at least in fact), other than that the Secretary of State should have advanced the review date in anticipation of a favourable outcome. It is not clear on the papers before me or in submissions whether there was intended to be a 12-week paper review before the October review, but I have dealt with the matter on the basis that the main review would be fixed for October.
36. I do not consider that the decision taken in May 2008 was, for those reasons, either unreasonable or unjustified given the advice to the Secretary of State as reflected in the 9 May 2008 letter. In my judgment, there was no breach of Article 5(4) in May 2008, and this application is accordingly dismissed.
37. Is there any application?
38. MR WILLIAMS: I do have an application. Perhaps I should wait for my learned friend first.
39. MR PATEL: My Lord, I appear for the Secretary of State this morning. We are not asking for the costs today. I think the appropriate order would be no order for costs, save for the legal aid assessment that my learned friend needs.
40. DEPUTY JUDGE: Yes, that really is a matter for Mr Williams.
41. MR WILLIAMS: Yes, I am grateful for that indication by my learned friend; that would have been the order I would have asked for. In addition, as your Lordship will appreciate, I was not counsel for the application yesterday, I think therefore it is my duty to ask for permission to appeal to the Court of Appeal. It is difficult obviously extempore --
42. DEPUTY JUDGE: Would it be for the reasons advanced by Mr Southey in his submissions to the court?
43. MR WILLIAMS: That is the first thing I would say. The second point I would wish to make is that your Lordship's judgment is very much grounded on the situation as it was in May of this year. I would submit that there is an ongoing duty of the court to consider whether there is presently a breach of Article 5(4), whether there has been sufficient progress in the intervening period since May which might justify this court to say that there has been a breach of Article 5(4), and therefore the Secretary of State ought to reconsider the matter, and that I suppose there would be a mandatory order or a quashing order -- well, both mandatory and quashing order, I suppose -- for the decision in May. Those are my submissions.
44. DEPUTY JUDGE: I am very grateful. I need not trouble you, Mr Patel.
45. This application is refused. In my judgment, there is no realistic prospect of success, for the reasons given in my judgment.
46. In respect of the second point relied on by Mr Williams, who appears today but did not appear during the hearing, the matter was considered throughout on the basis of the position at May 2008, and there was no evidence before the court as to the position at the time of the hearing to address that matter insofar as it was relevant. Thank you very much.