QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BENJAMIN ALCOCK||Claimant|
|THE PAROLE BOARD||Defendant|
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Mr Simon Murray (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"By virtue of section 28 of the Crime (Sentences) Act 1997, when the tariff comes to an end the prisoner in question has the right to a hearing before the Parole Board, and if the Parole Board directs his release then the Secretary of State must release him on licence. The Act does not require the Secretary of State to refer the case to the Board unless the prisoner applies for that to happen, but the reality is that the Secretary of State routinely does refer posttariff lifers to the Parole Board. The reason behind that is that it is common ground that Article 5(4) of the European Convention on Human Rights requires there to be a speedy hearing before an independent judicial body, and the Parole Board it is accepted is the equivalent for the purposes of the Convention, to determine whether the continued detention is lawful. In fact it is the practice of the Secretary of State, in cases where the tariff exceeds 3 years, to provide a dossier to notify the Parole Board 6 months before the end of the tariff. The purpose behind that being the obvious one, to enable the Board to put in train steps to ensure that there is a hearing as soon as reasonably possible after the tariff is served."
"Where there are more than one case with the same due date, cases will be listed in the following priority
1. Recalls (lifers/IPPs/extended sentences)
2. First review at tariff expiry (lifers/IPPS)
3. Further reviews after tariff expiry (lifers/IPPs) and ESP annual reviews after recall
5. Pre-tariff (lifers/IPPs)
Prioritisation can be further refined within each category, by the length of delay and number of occasions it has been deferred.
Once the initial list is produced, where there is only one case on a particular day at a particular prison, other cases can be slotted in accordingly using the same order of priority.
This policy is flexible. In particular, where special circumstances are put forward by the prisoner for prioritising (such as medical/mental health issues, compassionate reasons etc) the case must be put before the duty ICM member for assessment. The member may direct that a case has a higher priority than would normally be indicated by the list above and should accordingly receive precedence."
"If there are special circumstances that should be taken into account when prioritising listing, these will also be communicated (for example medical/mental health issues, compassionate reasons etc). In such circumstances, if this information became known to the Board after the case had been assessed at ICM stage, the dossier and any accompanying evidence of special considerations would have been put before an ICM member or a duty judge to consider directions to expedite due to special circumstances. If the special considerations were known at the time of initial ICM assessment, any expedition directions would be made along with the usual ICM directions for reports and witnesses.
On occasion, the circumstances will call for an ad hoc listing, for example if the reason for expedition is particularly urgent. If that is the case, the matter will be removed from the general listing exercise and a consideration will be made either to deferring [sic] a case already listed to enable the expedited case to be heard in its place, or attempts will be made to constitute an additional panel in order to hear the case earlier than ordinary listing practices will allow."
"In accordance with Rule 11(2) of the 2004 Parole Board Rules, it has since 2004 been the practice of the Board for a single member to take an initial decision as to whether there is a realistic prospect of release in any particular case. Cases where there is a realistic prospect are referred for hearing before a three member panel. Cases where there is not a realistic prospect of release are refused by way of a paper decision.
The prisoner then had a right under Rule 12 to request an oral hearing. In other words, although Rule 11(2)(b) of the 2004 Rules were worded as permitting the single member panel to 'make a provisional decision as to the prisoner's suitability for release", in fact it was the Board's policy to send directly to an oral hearing, any case assessed as having a realistic prospect of progression (either for a recommendation to move to open conditions or to direct release). Effectively, this stage acts as a 'sift' to 'weed out' cases where there is no realistic prospect of progression.
Under the Parole Board (Amendment) Rules 2009 which came into force on 1 April 2009 it is now made explicit that this is what the single member panel or ICM member is to do, ie that they are to consider whether or not the prisoner is 'unsuitable' for release. If they consider a prisoner to be unsuitable they make a decision on the papers to that effect and the prisoner can either accept that decision, of if s/he believes that there are reasons for holding an oral hearing, must make a request for a reconsideration of his case by the full panel at an oral hearing. There is no longer an entitlement by right to an oral hearing.
Thus, insofar as the Claimant is now claiming that there has been a failure to take into account the merits of his case by the Board, this is not correct. His case has been referred to an oral hearing because the ICM member thought there was a chance he may be suitable for ... release.
However, it is important to emphasise that this is not a detailed consideration of the merits of the Claimant's case, and nor could it be. Having passed the initial 'not suitable' threshold it is not administratively workable for there to be any further detailed consideration of the likely merits of each individual case that is ready for listing so as to enable listing decisions to take account of the relative merits of all the cases at issue. It would also be inappropriate for a single member panel to effectively tie the hands of the future oral hearing panel who will hear oral evidence not, obviously, available to that single member."
"... would support his release to the community under the supervision and management of probation ... It will be particularly important to ensure that his thinking and behaviour does not regress to the previous pattern of perceiving hostile intent and over-reacting to provocation."
"... 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 ... 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."
"... what is being said is that the 5(4) rights have been breached and the claimant is entitled to a declaration at least that that is the case. He also sought, in the claim as originally formulated, a mandatory order requiring that his case be heard in September. That is no longer pursued, and rightly so, if only because it would be inappropriate for an individual, by making a claim for judicial review, to jump the queue at the expense of those who do not seek judicial review."
He continued at paragraph 28:
"I am satisfied, as I have said, that the Parole Board was correct to accept that there is here a breach of Article 5(4), because, and only because, in the circumstances of this case the reason why it was not heard at an earlier date was because of the lack of necessary man power having regard to the pressures upon the Board. But, I am equally satisfied that there is no conceivable claim for damages which will follow, because the inevitable result of a hearing which complied with Article 5(4) would have been that the claimant was not entitled to release. The very best he could have hoped for was a decision that he ought to be placed in open conditions with a view to possible release at the next review hearing..."
"29. The question then is whether I should grant any specific declaration. [Counsel] accepts that it is not of the greatest importance whether a declaration is granted or not, because the terms of the judgment can show what the situation is. In all the circumstances I do not think that it is necessary for me to make any formal declaration in the circumstances of this case. I have already recorded that there was a breach, but it is a breach that will not provide, for this particular claimant, any great advantage. It does make the point, and it is a point that needs to be made, that there is an independent requirement under 5(4) for a speedy period. However, there is no question but that steps are now being taken by the Board in conjunction with the Ministry to ensure that the breaches that have occurred, and certainly were capable of occurring, will no longer occur.
30. It is obvious that the measures put in place to alleviate the problem will not have immediate effect. The evidence before me ... makes it clear that the delays continue and the backlog has not improved, and indeed that latter point is made clear by evidence produced by the Secretary of State and by the Parole Board. But, as I say, one has to recognise that the changes can not be expected to take place overnight. I do not doubt that the authorities will now appreciate the need to get on top of this problem and to ensure that the hearings that are required are provided, and that the requirements of Article 5(4) are met. While, as I say, in the circumstances of this case, it does not particularly avail the claimant because he will not have achieved release, there may well be cases where that is not the case, and I am glad to see that one of the measures put in place is a more flexible approach by the Board to consideration of cases which do need priority. Obviously, if it has been made clear, perhaps in a pretariff hearing, that a particular prisoner, once he has served his tariff, is a real candidate for immediate release, then the sooner that particular individual has a hearing the better."
"In the light of what is being done, it is not now appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5(4) unless there are very special circumstances, something has gone badly wrong despite the new arrangements in that prisoner's particular case. It will not be helpful, either to the prisoner or to the court, if claims are brought which in reality, because of the existing situation, are not likely to achieve any sensible redress and merely add to costs. Of course, one has sympathy with those who may stay in prison longer than they perhaps, on one view, ought to. That is a thoroughly unsatisfactory state of affairs. But, equally, the court cannot do the impossible. We cannot make orders which are only going to create difficulties for others and are not in any way desirable, because, as I have already said, it is not helpful that prisoner A gets relief which may advance him in the queue but which inevitably means that prisoner B has a longer wait. As I repeat, absent special circumstances, claims of this nature should now be discouraged."