QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Craig Smith
|- and -
|Secretary of State for Justice
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Christiaan Zwart (instructed by Treasury Solicitors) for the First Defendant
Victoria Wakefield (instructed by Treasury Solicitors) for the Second Defendant
Hearing date: 30th October 2008
Crown Copyright ©
The Honourable Mrs Justice Slade:
The Relevant Facts
i) That the Claimant was to be subject to a full prison psychologist risk-assessment to be arranged by HMP Doncaster.
ii) That the Claimant was to receive a full sentence plan.
iii) That the Claimant be considered for re-categorisation following his sentence plan.
iv) The Claimant was to receive any appropriate course assessment following his sentence plan.
v) Reporting officers were to provide addendum reports to take account of the documents referred to in the deferral decision letter.
vi) Copies of all further documents referred to in the decision letter were to be provided to the Parole Board by 28th February 2008.
vii) The Lifer Manager, prison psychologist and seconded Probation Officer were to attend the deferred hearing. The Parole Board was to hold a deferred hearing in March 2008 in the establishment in which the claimant was located. The Parole Board was to notify the parties of the hearing date by 28th February 2008 and the case was to be referred to the ICM system.
The deferral letter containing these directions was to be sent to the prison, the Ministry of Justice and the claimant's legal representative.
The Relevant Provisions of the European Convention on Human Rights
"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 the procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;"
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The Contentions of the Parties
Contentions of the Claimant
Complaint under ground 1 against each Defendant
The Complaints under grounds 2 and 3
Contentions of the First Defendant
Contentions of the Second Defendant
Domestic Statutory Provisions
"(5) As soon as, in the case of a life prisoner to whom this section applies –
a) he has served the part of his sentence specified in the order or direction ('the relevant part'); and
b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless –
a) the Secretary of State has referred the prisoner's case to the Board; and
b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
"lifers with short tariffs are managed differently from lifers with longer tariffs, because of the overall objective to release lifers on tariff expiry, if risk factors permit. The Statutory entitlement to review by the Parole Board may, for a short tariff lifer, be triggered relatively shortly after conviction… the essential elements of the policy for short tariff lifers, and arrangements for their management through their period in custody are as follows:
They must be prioritised for offending behaviour programme according to the length of time left until tariff expires. … In other words lifers must be given every opportunity to demonstrate their safety for release at tariff expiry." (p4.13.2)
"Subject to paragraph (4), the Chair of the panel may at any time give, vary or revoke such directions as he thinks proper to enable the parties to prepare for the consideration of the prisoners case or to assist the panel to determine the issues."
"Directions under paragraph (1) may be given, varied or revoked either –
a) of the Chair of the panel's own motion, or
b) on the written application of a party which has been served on the other party and which specifies the direction that is sought;"
"The legality of the post-tariff period of an indeterminate sentence imposed for the public's protection is dependent upon the prisoner remaining a threat to the public. Article 5(4) requires this legality to be subject to periodic review by a body with the qualities of the Court."
In context the body with qualities of the Court is the Parole Board.
"The evidence is that prisoners serving life imprisonment and IPP have no realistic prospect of being released at the direction of the Parole Board unless they have attended relevant offending behaviour programmes that are run by the Prison Service."
"65. If the Parole Board is not placed in a position in which it can decide whether a prisoner is a danger to the public it will not be able to determine whether the detention of the prisoner is still necessary and thus whether the detention is still lawful under Article 5(1)(a). In such circumstances the prisoner will have been deprived of the opportunity of satisfying the statutory pre-condition of release and will have been prevented from making a meaningful challenge to the lawfulness of his detention as required by Article 5(4). Is that the position of IPP prisoners?
"66…Without a sentence plan and monitoring of the prisoner's performance against that plan, realistically the outcome of any review by the Parole Board will be a foregone conclusion."
"There was, however, at the time that his case was heard, a likelihood that he would not be able to make a meaningful challenge to the lawfulness of his sentence within the requirement of Article 5(4) once his tariff was completed. The fact that Mr Walker remains in the local prison to which he was first sent would not formally prevent a review by the Parole Board; but, as a matter of substance rather than form, it would at the present time be an empty exercise. That is not an acceptable situation and, if it continues, it is likely to result in a breach of Article 5(4)."
"So far as the appeal in the case of Mr Walker is concerned, the Secretary of State has not succeeded in overturning the declaration of the Divisional Court that the Secretary of State has acted unlawfully by failing to provide for measures to allow and encourage prisoners serving IPPs to demonstrate to the Parole Board by the time of the expiry of their tariff periods or reasonably soon thereafter that it is no longer necessary for the protection of the public that they continue to be detained. We have, however, held that the Divisional Court erred in holding that this breach of duty under public law had the result that the imprisonment of IPP prisoners became unlawful once they had served their tariff periods. Notwithstanding this significant success for the Secretary of State, the appropriate order is that his appeal is dismissed."
"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."
"…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."
"That the Parole Board has an obligation to ensure that it has the material necessary for it to reach a proper decision on the issues which it has to grapple with."
"24….The [Parole Board] should not be discouraged from requesting more information when 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."
i) The legal obligations of each Defendant to which the application of Article 5(4) gives rise in the circumstances of this case.
ii) Whether on the facts of this case, the Defendants were in breach of those obligations.
iii) If there was a breach by either or both of the Defendants, the appropriate remedy.
A Breach of Article 5(4)?
The First Defendant
The Second Defendant
1. MRS JUSTICE SLADE: In this matter, there was an application for judicial review against the Secretary of State and the Parole Board. For reasons given in the judgment handed down, there is to be an order that there be a declaration that both defendants failed to comply with their obligations under Article 5(4) of the European Convention on Human Rights, in that the Ministry of Justice caused severe delays in providing the claimant, who was a prisoner on a sentence of imprisonment for public protection, with essential behavioural coursework, namely a CALM course, and in preparing necessary reports so as to facilitate a speedy review of his detention.
2. So far as the Parole Board, the second defendant, is concerned, there is a declaration that it failed to actively case manage the claimant prisoner's case so as to facilitate a speedy review of his detention. Accordingly, the applications for judicial review succeed and there will be orders in the terms I have outlined.
3. Thank you, Mr Stanbury.
4. MR STANBURY: Thank you, my Lady.
5. MRS JUSTICE SLADE: There are no consequential requests?
6. MR STANBURY: No.
7. MRS JUSTICE SLADE: The order will be in terms agreed between the parties.
8. MR STANBURY: An agreed order in respect of costs has been reached between the parties.
9. MRS JUSTICE SLADE: That is that they be subject to detailed Community Legal Services funding assessment, the costs be paid by the defendants on a 50:50 basis and detailed assessment to be made if not agreed.
10. MR STANBURY: My Lady, yes.
11. MRS JUSTICE SLADE: Thank you, Mr Stanbury.