QUEEN'S BENCH DIVISION
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Manchester M60 9DJ
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
| The Queen on the application of KEVIN PENNINGTON
|- and -
|THE PAROLE BOARD
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Mr Tim Buley (instructed by Treasury Solicitor) for the Defendant
Hearing date: 14th September 2009
Crown Copyright ©
HH Judge Pelling QC:
The Factual Background
The Relevant Legal Principles
"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 until the Board is satisfied of his safety for release. … I accept that article 5(4) requires a 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. …  … As Mr Saini submits, [article 5(4)] is concerned with procedure not substance … Clearly the Board is able to examine the substantive question of the prisoner's dangerousness. The fact that on the material before the Board the prisoner may be unable to demonstrate his safety for release no more involves a breach of article 5(4) than that those detained in Northern Ireland may have been unable on a habeas corpus challenge to refute the reasonableness of the suspicion grounding their arrest.".
The submission rejected by Lord Brown was obviously different from a submission that there has not been a speedy determination because the taking of the decision was delayed by a lack of resources available to the Parole Board and/or because of errors or omissions on the part of the Parole Board. Lord Brown's point was that Article 5(4) required a speedy decision. The fact that the decision is adverse to the prisoner because the relevant material is not available is not a breach of Article 5(4) because that provision is procedural in nature requiring that a speedy decision be taken and a decision has been taken speedily. The point that arises in the "pure" delay cases is not that there has been a speedy but ineffective decision but rather that there has been a decision that has not been arrived at speedily, which is an entirely different issue.
"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 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"
The Parole Board relies on the final sentence of Paragraph 21 of Lord Hope's Opinion as supportive of its case as to the effect of James on claims for damages for pure delay brought pursuant to Article 5(4). A similar submission was advanced on behalf of the Secretary of State for Justice, and rejected by Collins J, in R (Betteridge) v. The Parole Board  EWHC 1638 (Admin). The case was concerned with a review of an IPP prisoner's continued detention by the Parole Board. The matter was ready for a hearing by a panel in February and was expected to be listed for a hearing in May but due to a shortage of panels, the case could not be heard until September. The Parole Board accepted in that case that the failure to list the case for hearing between May and September amounted to a breach of Article 5(4). The Secretary of State contended otherwise relying in particular what Lord Hope said in James as set out above.
i) Delay to a hearing due to lack of resources and a fortiori where the delay is due to error or omission on the part of the Board or its staff or members is capable of being a breach of Article 5(4) – see Noorkoiv R(Robson) v. Parole Board and SSHD  EWHC 248 (Admin) per Cranston J at Paragraph 32(1) and Betteridge,
ii) The inability of the Parole Board to obtain the necessary reports from those responsible for providing such reports does not amount to a breach of Article 5(4) on the part of the Parole Board unless and until the point has been reached when the delay in providing information has continued for such a long period that continued detention has become arbitrary as that word is used by Lord Hope in James because the absence of such material does not preclude the Board from taking a decision – see James ; and
iii) Delays resulting from the Parole Board's own reasonable actions for example in requiring further information before a case is listed for hearing does not amount to a breach of Article 5(4) – see D v. SSNI  1 WLR 1499, Robson (ante) per Cranston J at Paragraph 36 and Betteridge per Collins J at paragraph 22;
The position in relation to (ii) above may be different in a claim against the Secretary of State if and to the extent that it can be demonstrated that the Secretary of State has failed to comply with his public law duties concerning the provision of information. However that issue does not arise in this case because the claim against the Secretary of State has been discontinued and I express no concluded view about it.