QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BETTERIDGE||Claimant|
|THE PAROLE BOARD||Defendant|
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MR S GRODZINSKI (instructed by Treasury Solicitors) appeared on behalf of the Parole Board
MR S KOVATS (instructed by Treasury Solicitors) appeared on behalf of the Secretary of State
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"9) The panel, which included a psychologist and a psychiatrist among their number, noted the recommendations for open conditions made by report writers, but they also noted the identification of remaining areas of treatment need specified within both the July/August 2007 PIT and the June 2008 SARN. They feared that there had been an underestimate of risk within the RM-2000 and an insufficient attention to the sadistic elements of the offences in other assessments. They would therefore counsel against the formulaic approach in this case, which appears at least partly to be responsible for the conclusion that once RSOTP has been completed no further work is required and would recommend that further individual assessment should be undertaken, which takes account of their specified comments.
"10) In reaching their conclusion the panel also noted from your answers (while making due allowance for oral hearing conditions and obvious intellectual limitations) that you appear to have no more than a superficial understanding of the reasons why you committed the index offences or of the risk management strategies, which will be necessary on release to manage the sexual attitudes and responses which you still but partially acknowledge.
"11) Thus while the panel acknowledge the support of report writers for a move to open conditions, the panel were not prepared to accept that those conclusions were soundly based. They therefore make no recommendation to the Secretary of State on the occasions of this review; that is because, balancing your interests in sentence progression against the interests of public safety, they were not satisfied that sufficient evidence exists that your risk of sexual and/or violent offending has yet reduced to a level such that that risk can be safely managed out of closed conditions".
It follows inevitably from that, that the panel, if asked, would not conceivably have recommended that the claimant was suitable for release.
"I do not detect any departure from these principles in the procedure of the statutes laid down, or the role that is performed by the Parole Board. 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. Section 27 of the 1997 Act is applied if a person serving an IPP beats that requirement. The function of the Parole Board is to determine whether it is no longer necessary for the protection of the public that the prisoner should be confined, and if it is of that opinion to direct his released. The Parole Board has all the powers that it needs to carry out that assessment on the expiry of the tariff period, and thereafter at reasonable intervals. The question is, what more is demanded of this system if the guarantee of an effective remedy, in a case where continued detention has become unlawful, that Article 5(4) provides is to be satisfied?"
"It was said in R (Walker) v Secretary of State for Justice  1 WLR 1977, paragraph 67: '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 paragraph 68 it made the same assessment of the position in the case are 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 requirements 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 cooperation from those who are responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not in itself mean that there will a breach of Article 5(4). As in the case of Article 5(1)(a), it will only be inconsistent once the statutes it laid down breaks down entirely, or else the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary, and the guarantee that Article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages."
"The guarantee that Article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages."
It seems to me, in the context, that the likelihood is that Lord Hope was focusing upon that, and his observations are to be regarded as made in that context.
"Concerned although inevitably one is to note the passage of some 8 1/2 years before a substantive decision was finally reached at an oral hearing in August 2005, upon allegations of buggery which as long ago as March 1997 would have prompted the respondent's recall to prison, not least in the context of a statutory regime allowing the prisoner to be called for reviews of his continuing detention at 2 yearly intervals, any blame there may be for delay cannot properly be laid at the Commissioner's door. Clearly however, the Secretary of State should take this opportunity to remind himself of the need to ensure that the system as a whole functions efficiently and is effective to overcome whatever obstacles may lie in the path of speedy determinations. Having myself been party to the decision of the European Court of Human Rights in Blake v the UK (2007) 44 EHRR 29, I cannot entirely put it from my mind. True it is that the overall time it took to reach a final decision there was just over 9 years, but the dispute there was a civil one and the case fell to consideration under Article 6 which calls for a hearing within a reasonable time, rather than, as here, under Article 5(4) which expressly requires decisions to be made speedily. The word 'speedily' carries its own emphasis. These however, are exhortatory words directed at the future."