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, WC2A 2LL
		02/06/2009

Mr Justice Bean :

1. The Claimant is now 69 years old. In 1987 he murdered a 23 year old foreign student. There was a sexual element to the killing. He was convicted at the Central Criminal Court, and sentenced to life imprisonment with a 17 year tariff. The Parole Board decided not to direct his release on the expiry of the tariff and again decided not to direct his release when his case was reviewed in December 2005. His next parole hearing was then fixed for December 2007.
2. This hearing was deferred by the Board in a decision of 23^rd November 2007 because a full dossier of reports had not been prepared. In particular, the Claimant had completed a Sex Offender Treatment Programme in 2007 and the Board required a Structured Assessment of Risk and Need ("SARN") report in order to assess the impact of that programme on the risk the claimant posed. The Board directed that the SARN report was to be prepared by 29^th February 2008. It was in fact completed on 11^th February. It included the observation that the claimant still had "a number of outstanding treatment needs to address before it can be reliably said [that] his risk of re-offending is reduced". It was recommended that (if found suitable, as he was) the claimant should complete another course, known as Adapted Better Lives Booster ("ABLB") programme, in Category C conditions. Following completion of this treatment his risk would need to be reviewed again through completion of a post-treatment risk assessment. The Claimant was given a place on such a programme which started on 21^st April 2008.
3. The Parole Board had fixed the claimant's deferred review for 29^th/30^th May. The claimant was rightly advised that it was in his interests to seek deferment of that review until the appropriate reports on his attendance on the ABLB program had been completed. In response to an enquiry from the claimant's Solicitor, the BLB treatment Manager, Mr Pykett, wrote on 25^th April:-

"With regards to the ABLB post program report. This will completed within two weeks of the course finishing, however this cannot be used as an assessment of risk. A SARN (Structured Assessment of Risk and Need) report which gives an assessment of risk would not be completed at least until 17 weeks after the program depending on priorities. However I will flag this up with the SARN co-ordinator for his SARN to be allocated a writer."

4. On this basis the Claimant's solicitor, Mr Purdon asked the Parole Board to defer the review until December 2008. The Board replied, in a letter to the claimant himself:-

"On 12^th May 2008 the panel received a deferral request from your legal representative, requesting that your hearing be postponed to enable you to complete the Better Lives Booster Program. The panel agreed that this is a sensible request and have deferred your hearing to enable you to complete this work. Your case will be re-listed once the Better Lives Booster Course Assessment has been provided to all parties. It is thought that this will be in November 2008; therefore we shall aim to re-list your case for an oral hearing in December 2008. You will be notified of the exact date in due course."

5. Sadly, this was not to be. On 8^th September Mr Pykett wrote to Mr Purdon:-

"Mr Mehmet finished the Adapted Better Lives Booster on 6^th August 2008 to which [sic] he has his own copy of the ABLB product pack. This contains his own record of his progress and facilitator comments of which he can send you his copy. However this cannot be used to assess risk as this is the role of the SARN report, which will not be completed until the minimum of 26 weeks from 6^th August. I apologise for the length of time it takes for these reports, this is due to the large amount of men we put through treatment at HMP Whatton."

6. Mr Purdon replied:-

"I enclose a copy of the letter you sent me previously on 25^th April 2007. This stated 17 weeks was needed to complete the post programme report. This would take Mr Mehmet to November 2008 and a deferral was agreed with the Parole Board to December 2008 on this basis. It now seems 26 weeks is required, though there is no explanation why.

As I calculate it, this 26 week period means that his post course report will now be ready by February 2009. This would make his oral hearing March 2009 at earliest, but in all likelihood later, as addendums from report writers would also need to be produced.

I feel that Mr Mehmet should be a priority, given his previous deferrals and the fact that he was not told reports would be this late when he chose to defer his oral hearing. I do not see why his ABLB report cannot be completed by mid November, as previously indicated, and would be grateful if you could reconsider this decision.

If it remains the case that Mr Mehmet's report can not be prioritised, I would be grateful for full and detailed reasons why not."

7. Mr Pykett's response was to confirm that the SARN report on risk would take a minimum of 26 weeks, adding "this is due to other prisoners being a higher priority than Mr Mehmet".
8. After sending a carefully argued letter before action on 23^rd October 2008 Mr Purdon issued these proceedings on 11^th December 2008. The Defendant's Acknowledgment of Service, which was not served until 5^th February 2009, states:-

"There are currently 18 post tariff lifers ahead of [the claimant] in the waiting list. They are ahead of him because they have been assessed as posing a higher risk than the Claimant. The waiting list is ever changing, and depends upon prisoners ending treatment programme who may present as being of a greater level of risk, etc. The Claimant will be informed as soon as the Defendant is in a position to allocate him his post-treatment risk assessment."

9. On reading this document the Claimant must have wondered whether the new SARN report would ever be produced at all. However, the Defendant's skeleton argument served the day before the substantive hearing indicates that the report is expected to be completed no later than 26^th June 2009, though in oral argument Mr Steven Kovats, for the Secretary of State, was at pains to emphasise that this date, or indeed any other date, cannot be guaranteed.
10. The Acknowledgment of Service had also referred to and exhibited a document dated 10^th January 2008 entitled "Strategy for managing SARN report backlog". This states that "because many prison psychology departments have vacancies, the Service has a backlog of reports that has reached serious proportions. There is a risk to public protection where prisoners are released without proper risk assessments, and there is a risk to prisoner progress where prisoners are delayed from moving through the system because risk assessments are not completed." It summarises the backlog as totalling 541 reports from across the Prison Service, 358 of them at HMP Whatton where the claimant is presently serving his sentence. Only one other prison, HMP Frankland, had a backlog in excess of 30 reports. The two authors recommend that prisons with a report backlog should prioritise the reports in a backlog in 5 categories. Indeterminate sentence prisoners who are post-tariff such as the Claimant, are in category 3.
11. The report also states:-

"Most prisons believe there is a deadline for SARN reports of 6 months after treatment. They then interpret this as the "SARN falling due" at the sixth month point. This does not encourage well planned working. We propose to issue clear guidance that the SARN report should be started as soon as post-treatment psychometric tests are received (usually about two months after treatment)".

12. The report also indicates that £250,000 had been allocated to meet the costs of the strategy "to be spent by April 1^st 2008".

The priorities in the strategy document

13. The first priority category in the January 2008 strategy document was "high risk determinate sentence prisoners who are due for release in the next 12 months". For the Claimant Mr Hugh Southey submits that this prioritisation is unlawful in the light of the subsequent decision of the House of Lords in R (Black) v Secretary of State for Justice [2009] 2 WLR 282, in which it was held that decisions about the release of determinate sentence prisoners cannot engage Article 5(4). The strategy document, he argues, can now be seen to be giving priority to the wrong cases. In the light of my conclusions on the main issue in the case set out below it is unnecessary to decide the point. But I do not find the Claimant's argument immediately attractive. Risk assessment reports are necessary not only to assist in decisions about whether prisoners should be released but also about managing the risk which offenders pose once released on licence. It is not surprising that the Prison Service should regard as a matter of particular urgency decisions about risk management where a prisoner who has served a long determinate sentence is shortly to be released as of right. But this may have to be a question for another judge and another case.

The resources argument

14. The defendant has not adduced evidence to indicate that the repeated delays in the production of the fresh SARN report are attributable to an unforeseen event such as an outbreak of illness among psychologists working at HMP Whatton or a series of unexpected resignations. Rather the argument is put in general terms (paragraphs 24 and 25 of Mr Kovats' skeleton argument):

"There is unfortunately a backlog for the completion of SARNs. This is due to a shortage of psychologists in the Prison Service. The defendant has taken steps to address this backlog. On 10^th January 2008 the Defendant produced a strategy for eliminating the backlog. The Defendant is completing SARNs in accordance with the priorities identified in the strategy document."

15. The Acknowledgment of Service similarly stated that "it takes time and money to recruit and train psychologists". No doubt it does. But there is no explanation of (a) why HMP Whatton had two thirds of the entire national backlog of SARNs in January 2008; (b) whether any attempt has been made since that date to allocate psychologists from other parts of the Prison Servíce to assist at HMP Whatton; (c) whether the backlog at HMP Whatton has got better or worse since January 2008; (d) whether any consideration has been given to the fact that what is sought in respect of the Claimant is an assessment of how his performance on a course between April and early August 2008 impacts on the assessment of his risk.
16. Lord Bingham of Cornhill in Dyer v Watson [2004] 1 AC 379 drew a distinction between general faults or underfunding of the system and "the practical realities of litigious life even in a reasonably well organised legal system". The present case is plainly in the first category rather than the second.
17. Mr Kovats, relying on R(Cawser) v Home Secretary [2003] EWCA Civ 1522, submits that the Defendant "is under a duty to act rationally within the constraints of available resources". I accept that proposition. But for the reasons given in paragraph 15 above I am not satisfied that in this case the Secretary of State has done so.

Delay in holding a review

18. Article 5(4) of the ECHR provides that "everyone that 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". It is now well established in both domestic law and the jurisprudence of the Strasbourg Court that this entitles a life sentence prisoner to a hearing before the Parole Board when his tariff expires and thereafter at reasonable intervals. In Oldham v UK (2001) 31 EHRR 34 the European Court, finding that the two year delay between reviews of Mr Oldham's case by the Parole Board was unreasonable, held that the question of whether periods comply with Article 5(4) must be determined in the light of the circumstances of each case, since there are significant differences in the personal circumstances of the prisoners under review. The fact-sensitive nature of the question is similarly illustrated by R (MacNeil) v the Parole Board [2001] EWCA Civ 448. In that case the Parole Board had fixed an interval of two years to allow Mr MacNeil's progress in open conditions to be tested fully before his release was considered. The Court of Appeal upheld that decision, but Lord Phillips MR said that "no general proposition can be based upon it to the effect that a two year interval will satisfy the requirement derived from Article 5(4) of the Human Rights Convention that a person deprived of his liberty shall be entitled to have the lawfulness of his detention reviewed at reasonable intervals".
19. In the present case it is now more than three years since the last review by the Parole Board. But I do not consider that significant in itself in the present case. Mr Mehmet could have had a review by the Parole Board in May 2008. He was (in my view correctly) advised that it was not in his interests for that review to take place, since given the terms of the February 2008 SARN report the outcome was likely to be unfavourable, and that it was in his interests to await the outcome of the ABLB programme.

Delay in producing the report

20. The Secretary of State's directions to the Parole Board under Section 32(6) of the Criminal Justice Act 1991 indicate that "the test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined is whether the lifer's level of risk to the life and limb of others is considered to be more than minimal". The Parole Board Rules, by rule 6(1) and Schedule 1, require the Secretary of State to serve on the Board information and reports generally known as the Rule 6 dossier. By paragraph 3 of Part B of Schedule 1 this is to include "current reports on the prisoner's risk factors, reduction in risk and performance and behaviour in prison, including views on suitability for release on licence as well as any sentence plan". [emphasis added]
21. Until Mr Mehmet completed the ABLB course at the beginning of August 2008 it cannot be said that the Secretary of State was in any way at fault. Nor could complaint have been made of a short period after completion of the course to enable reports to be compiled on his progress and its impact, if any, on his risk assessment, and for a hearing to take place before the Board. But the repeated delays since then mean that the SARN report will, even if the Prison Service keeps to the date of 26^th June 2009, not be available until 46 weeks after the Claimant's completion of the course. Since the SARN report is, as I understand it, to be a psychologist's opinion of how the Claimant's performance on the ABLB course (as reported on by others within two weeks or so of the end of the course) impacts on the assessment of the risk he poses, it may then be open to the criticism that it is seriously out of date and no longer a "current report" within the meaning of the Rules.
22. The Claimant was put on the ABLB course last year in an attempt to reduce the risk which the February 2008 SARN report found that he posed. The Parole Board were and are under a duty to inform themselves as to what progress he made on that course and thus whether the risk has diminished sufficiently for him to be transferred to open conditions. Mr Kovats' skeleton argument for the oral hearing submitted that "the Parole Board does not need a further SARN to determine whether a prisoner should be released" and that "so long as the Parole Board can determine whether the prisoner should be released, there will be an effective review and any duty to comply with Article 5(4) will be satisfied". The absence of a fresh SARN report would not formally prevent a review by the Board; but, in the words of Lord Brown in James v Secretary of State for Justice [2009] UKHL 22, "it would be impossible for the Board to reach any judgment as to his dangerousness, so that the review would in that sense be an empty exercise and the default position of continued detention would inevitably result."

The effect of James v Secretary of State for Justice

23. I heard oral argument in this case on 21 April 2009 and reserved judgment. The House of Lords gave their decision and speeches in James on 6 May, following which, at my invitation, both Mr Southey for the Claimant and Mr Kovats for the Defendant lodged two rounds of supplementary skeleton arguments.
24. James concerned the Government's implementation of the provisions of the Criminal Justice Act 2003 relating to imprisonment for public protection (IPP). At first instance the Divisional Court (Laws LJ and Mitting J, [2008] 1 All ER 113) had granted a declaration that the Secretary of State had acted unlawfully by failing to provide for measures to allow and encourage prisoners serving sentences of IPP to demonstrate to the Parole Board by the expiry of their minimum term or reasonably soon thereafter that it was no longer necessary for the protection of the public that they continue to be detained. That declaration was upheld in the Court of Appeal ([2008] 1 WLR 1977 at 1999] and not challenged by the Secretary of State in the House of Lords.
25. The House of Lords held that the failure to provide such measures did not, however, render the appellant prisoners' continued detention unlawful under Article 5(4). Lord Brown of Eaton-under-Heywood said:

"60. I have concluded that article 5(4) requires no more than that "a court" (the Parole Board) shall speedily decide whether the prisoner continues to be lawfully detained, and this will indeed be the case unless and until the Board is satisfied of his safety for release (or so long has elapsed without any effective review of his dangerousness that the article 5(1) causal link must be presumed broken as discussed above). I accept that article 5(4) requires the basic rule 6 dossier to be made available: without this the Board simply cannot function. But I cannot accept that article 5(4) requires anything more in the way of enabling the Board to form its judgment. Not infrequently, your Lordships were told, the Board and the Secretary of State find themselves disagreeing as to just what, if any, further material is necessary to enable the Board to decide the question of dangerousness. The Board want the prisoner to undergo another course to ensure that this, that or the other aspect of his offending has been satisfactorily addressed. The Secretary of State thinks this unnecessary and suggests that the Board is well able to decide the question on the material available. Sometimes the prisoner himself wants the review postponed on the basis that soon he will be better able to demonstrate his safety for release whereas were he now to fail he might have to wait two years for the next review. Regularly, your Lordships were told, the Board is threatened with an article 5(4) challenge unless it requires from the Secretary of State some further report or information designed to improve the prisoner's prospects of release.

61.  I have reached the conclusion that article 5(4) simply has no part to play in all this. As Mr Saini [counsel for the Parole Board] submits, it is concerned with procedure, not substance."

26. Lord Hope of Craighead said:

"Article 5(4) requires that a system must be in place for making that assessment at reasonable intervals which meets the requirement of procedural fairness. How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs, to conclude that for whatever reason the information that is available for the time being is inadequate and to set its own timetable for the information that it needs to be made available. It is entitled to expect co-operation from those who are responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not of itself mean that there will be a breach of article 5(4). As in the case of article 5(1)(a), it will only be if the system which the statutes have laid down breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary that the guarantee that article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages."

27. Lord Judge CJ noted the distinction to be drawn between article 5(4) and claims and domestic judicial review:

"132.  In my opinion article 5(4) is not directed to the operational inadequacies of a prison regime which may make it impossible for the prisoner to address his offending in the hope of or with a view to his reform and rehabilitation. In the context of the exercise of the Parole Board's section 28(6) responsibilities, article 5(4) addresses the prisoner's ability to take proceedings to demonstrate that his continued detention is no longer justified just because the basis on which it would otherwise continue no longer applies: in short, that the risk he represented at the date of sentence has dissipated. It is not the forum for addressing complaints about the inadequacies of the prison regime in relation to the provision of opportunities for reform and rehabilitation, or the consequences of the Secretary of State's breaches of his public law obligations. They may be and are addressed in judicial review proceedings."

28. Mr Kovats derives two points from Lord Brown's phrase "I accept that article 5(4) requires the basic rule 6 dossier to be made available". The first is that he mentions Article 5(4), not the common law. The context, however, is an appeal in which the Divisional Court's declaration of unlawfulness set out in paragraph 24 above was no longer in issue: their Lordships were considering whether the Claimants' continued detention constituted a breach of Article 5(4): I do not consider that Lord Brown was saying that article 5(4) requires the basic rule 6 dossier to be made available whereas the Secretary of State's public law obligations in domestic law do not.
29. Mr Kovats' second point is that Lord Brown's phrase 'basic rule 6 dossier' "was clearly intended to mean a basic set of reports, not to [sic] any and every new report that might be produced or required. This is consistent with paragraph 6 of the defendant's directions to the Parole Board on the release and recall of life sentence prisoners, which require the Board to consider certain information 'where relevant and where available'".
30. Paragraph 6 of the Secretary of State's directions sets out a number of items of information which the Board are to consider, where relevant and available, when assessing risk. These include whether the lifer has made positive efforts to address the attitudes and behavioural problems which led to the commission of the index offence; and his awareness of the impact of the offence on the victim's family and others. But the use of the words "where relevant and available" in this part of the directions cannot detract from the unqualified obligation which the Rules impose on the Secretary of State to provide the Board with a current report on risk. I have no doubt that when Lord Brown spoke of "the basic Rule 6 dossier" he meant the items which Rule 6, taken with Schedule 1, make mandatory.
31. I derive from James the following propositions relevant to the present case; (a) failure by the Secretary of State in providing the opportunity for a prisoner serving an indeterminate sentence to demonstrate to the Board at a first or subsequent review that it is no longer necessary for the protection of the public that he be detained does not render the prisoner's continued detention unlawful under ECHR Article 5(4); (b) such a failure can, however, constitute a breach of the Secretary of State's public law obligations susceptible to judicial review; (c) an example of such a failure constituting a breach of the Secretary of State's public law obligations is where it results in the Board being deprived for a long period of the reports which constitute the prisoner's rule 6 dossier, such as a current report on risk.
32. Mr Kovats emphasises that in the present case the Board gave no direction under rule 8 of its Rules for the production of the relevant report. But it is rule 6, not rule 8, on which Mr Southey relies.
33. In my judgment the failure, without good cause, to provide to the Board for nearly a year a report on how the Claimant's performance on the ABLB course impacts on the assessment of risk in his case is a breach of the Secretary of State's public law obligations and accordingly unlawful. The Claimant is entitled to a declaration to that effect.
34. Mr Southey sought a mandatory order for the report to be produced within 14 days: I will not make such an order, but if the report is not produced by 26 June 2009 the Claimant is to have liberty to apply.