QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DANIEL FAULKNER||Claimant|
|(1) SECRETARY OF STATE FOR JUSTICE|
|(2) THE PAROLE BOARD||Defendants|
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Mr S Kovats (instructed by Treasury Solicitors) appeared on behalf of the First Defendant
Mr D Manknell (instructed by Treasury Solicitors) appeared on behalf of the Second Defendant
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"(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."
"The claimant's behaviour shows such a disregard for the law and for his own liberty that it would be an abuse of the process of the court for him to pursue the present claim."
"An issue as to the lawfulness of the continued detention of an IPP prisoner is raised as soon as his tariff period has expired. At that point and at reasonable intervals thereafter he becomes entitled to a review by a judicial body of its lawfulness. Lawfulness depends on there being a causal link between the objectives of the sentencing court and the prisoner's remaining in custody."
"In R (Walker) v Secretary of State for Justice (Parole Board intervening)  1 WLR 1977, para 67 the Court of Appeal said that, if Mr Walker were to be unable to make a meaningful challenge to the lawfulness of his sentence at the time his case was heard by the Parole Board, a review of his case would be an empty exercise that would be likely to result in a breach of article 5(4). In para 68 it made the same assessment of the position in the case of Mr James. I cannot find anything in the jurisprudence of the Strasbourg court that goes that far. 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) [article 5(1) is not raised in this case], 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."
Lord Carswell agreed with the judgment of Lord Hope, and with the judgments of Lord Brown and the Lord Chief Justice.
"Does article 5(4) require not only that the Board is available to decide whether the prisoner has satisfied it that he can safely be released but also that the Secretary of State has enabled him to establish this — in the words of the court below (para 65), has enabled him to make 'a meaningful challenge to the lawfulness of his detention'."
"In the end, however, I have come to the contrary view. 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."
"I have reached the conclusion that article 5(4) simply has no part to play in all this. As Mr Saini submits, it is concerned with procedure, not substance."
"I would accordingly hold that Mr James's article 5(4) claim must fail. It follows that I regard Mr Lee's and Mr Wells's article 5(4) claims as also having been unsustainable. Since, however, the former was conceded and the latter held established and unappealed, the House has no alternative but to remit their consequential claim for damages to the Administrative Court for assessment. Article 5(5) provides that: 'Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.' Unless the claimants can establish that, had they been given the opportunity to demonstrate their safety for release, they would have been (or at least would have had a real chance of being) released, it is difficult to see how they could be entitled to any substantial award of damages."
"Stripped to essentials, and without reference to authority, the right provided by article 5(4) postulates the requirement that everyone in detention shall be entitled to challenge the lawfulness of that detention. This right predicates the availability of a tribunal vested with appropriate jurisdiction before which the prisoner is provided with the opportunity to address argument that it is not."
"That leaves the question of the exercise by the Parole Board of its section 28(6) responsibilities if and when the consequence of the deficiency in the arrangements made by the Secretary of State is the absence of sufficient material with which to make a fully informed but fresh assessment of risk. At the risk of repetition, there can be no problem with continued lawfulness of the prisoner's detention. The possibility of a judicial challenge to its continuation can only arise if and when the Secretary of State has failed to comply with a release direction by the Parole Board. The question whether the Parole Board believes itself to be sufficiently informed is a matter for the Parole Board. We know that the criticisms by the Chairman of the Board of the operation of the IPP regime contributed to the setting up of the Lockyer Review and the subsequent improvements in the process. If the Parole Board failed to comply with its own public duty, or if complaints legitimately made by the Board were ignored by the Secretary of State, then the Administrative Court might see fit to intervene, to direct either the Parole Board better to fulfil its responsibilities, or the Secretary of State to comply with the reasonable requests by the Parole Board for improvements to the IPP regime, sufficient to enable the Parole Board to be satisfied that it can fully discharge its own section 28(6) public law responsibilities. The precise form of order would be for debate but an appropriate declaration would probably suffice."
"In expressing myself in this way, I am not to be taken to being encouraging applications by prisoners for judicial review on the basis that the prisoner may somehow direct the process by which the Parole Board should decide to approach its section 28(6) responsibilities either generally, or in any individual case. These are question pre-eminently for the Parole Board itself. Although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the Administrative Court cannot be invited to second-guess the decisions of the Parole Board, or the way it chooses to exercise its responsibilities. Your Lordships were told that the Board is frequently threatened with article 5(4) challenges unless it requires the Secretary of State to provide additional material. Yet it can only be in an extreme case that the Administrative Court would be justified in interfering with the decisions of what, for present purposes, is the 'court' vested with the decision whether to direct release, and therefore exclusively responsible for the procedures by which it will arrive at its decision."
"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."
"This is a case which has turned upon its particular facts, as the Strasbourg court has recognised is appropriate. 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."
That qualification applies equally here.
"7. You told the Panel that you sought release, and had learned a great deal from the disappointments of your previous refusals of transfer to open conditions by the Secretary of State. You explained the recent mobile phone incident and the Panel accepted the honesty of what you said, as had Ms Pixley in her report. The Panel also noted that this adjudication had not affected your enhanced status within the prison and that otherwise, your recent prison behaviour had been excellent. It was satisfied that you had learned from this experience [that is the mobile phone experience]. It was also satisfied with your plans for release and strategies for dealing with any problems that might arise.
8. At the conclusion of the evidence, upon submissions to the Panel, it was said on behalf of the Secretary of State that 'it was now apparent that the Secretary of State's view had not taken account of the further significant information placed before this Panel'. The Panel felt that this was an honest assessment of the evidence that it had heard."
On that basis, the Panel directed the claimant's release and, as I have said, he was released some days later.
"No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made."
Furthermore, under the Strasbourg jurisprudence, an award of damages is made in circumstances in which the court considers it to be "equitable" to do so.