QUEEN'S BENCH DIVISION
1 Bridge Street West
Manchester M3 3FX
B e f o r e :
| The Queen on the application of HOOLE
|- and -
|The Parole Board
Mr Rory Dunlop (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 1st February 2010
Crown Copyright ©
Mr Justice Foskett :
"We refer to your parole review which was due to be conducted during April 2009.
The dossier for your review has been assessed and considered ready to be scheduled for an oral hearing. Your case has therefore been put forward for a listing date but so far we have been unable to secure a panel.
The parole board is currently experiencing a severe shortage of required members to chair hearings of indeterminate prisoners. A considerable number of cases therefore do not immediately receive a hearing date and yours was unfortunately one of these. We know these delays are frustrating and disappointing and we apologise.
The problem has been building up over recent months and we are urgently looking at ways to resolve the problem. We now have a listing priority framework to ensure that each application is dealt with in an order which reflects this urgency. A description of the listing priority framework is available on our website as is a description of the amendments to the Parole Board Rules which we hope will help us to reduce these delays."
"Everyone who 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."
"Again, all I think I need say is that they do not, unfortunately, show that, despite the efforts that are being made, there has yet been a reduction of the backlog that has grown in the hearing of cases which the Parole Board is required to deal with. But it is early days yet, and no doubt the new system has not had time to produce the necessary effects."
30. It is obvious that the measures put in place to alleviate the problem will not have immediate effect. The evidence before me, from a number of solicitors who have experience in dealing with these cases, 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 cannot 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 pre-tariff 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.
31. 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. But, this has at least brought home to the court, and enabled the court to make the point, that the situation that existed was unsatisfactory, potentially contrary to law, and the court welcomes the steps that are clearly being taken now to ensure that that situation does not continue.
"Whilst I sympathise with Mr Hoole's concerns for his wife, the evidence/statements indicate that she is currently in remission and has the support of her son at home. There appears to be no current definite employment opportunities which would be lost without a hearing in the short term.
Mr Hoole will therefore continue to be prioritised in line with the listing framework with a due date for hearing as March 2009. I have, however, instructed the listing office to take Mr Hoole's situation into account when undertaking the next listing exercise and making listing decisions between prisoners with the same due date. There are currently 5 prisoners at HMP Sudbury awaiting a hearing with March 2009 due dates."
"This framework is flexible. In particular, where exceptional circumstances are put forward by the prisoner for higher prioritisation (including but not limited to 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/or its current due date and should accordingly receive precedence.
In general terms, positive recommendations for release or a progressive move will not, by definition constitute exceptional circumstances as there will be many such prisoners in a similar position. Requests for prioritisation solely on the grounds of positive report recommendations will be refused.
It should also be noted that some exceptions will be identified on referral by the Secretary of State or by the ICM member at assessment. An example of such a case would be a prisoner currently held at a Mental Health Unit who has been discharged by a Mental Health Tribunal. Such a case would carry an ASAP due date as a matter of course and take appropriate priority for listing."
"Requests where the prisoner asserts that there was an indication at a previous review that he was a real candidate for release and that current reports make recommendations for release, should be passed to the duty ICM member for consideration for prioritisation.
The mere fact that report writers support (even unanimously) release will not in general be sufficient to render a case exceptional. The purpose of an assessment by the Board at a hearing or otherwise is to scrutinise the all the evidence as to suitability of release, and to question the cogency of the evidence given by report writers. There will often be cases where the Board does not recommend release, even where report writers have supported this. Indeed, there are many prisoners awaiting hearing dates where there are positive recommendations from report writers and these cases cannot be said to be exceptional, so as to warrant expedition. Thus in general, Team Managers will respond informing prisoners that such circumstances cannot be regarded as "exceptional".
Requests where the prisoner submits that positive recommendations from report writers mean that he is a real candidate for immediate release or for progression to open conditions and where there are additional submissions that suggest the case may be one of "exceptional circumstances" which mean it should be prioritised outside the listing framework are explored below."
"It is not possible to set out an exhaustive list of situations which may constitute "exceptional circumstances". The following is simply a guide to the type of situation where consideration should be given by an ICM member to requests for prioritisation.
4.1 Likelihood of release
The majority of requests will generally fall into 3 main categories (but are not limited to these and as such this provides a non exhaustive guide):
a) Where continued delay affects the life, welfare or human rights of a third party:
A prisoner with caring responsibilities where the dependant's situation will deteriorate or be adversely affected due to the ongoing delay in the Parole Board's decision. For example, a prisoner who is the sole carer for an elderly or disabled relative, where the prisoner has a realistic prospect of release and the relative's health is deteriorating and requires full time care from the prisoner;
A female prisoner who is pregnant and who will be unable to live with and care for their child once it is born while she remains incarcerated, where the prisoner has a realistic prospect of release (in such instances, ICM member's should consider the needs of the child);
b) Where continued delay will mean that circumstances will change or opportunities to contribute to society will be missed or irretrievably removed:
For example, a prisoner with a realistic prospect of release who will lose the opportunity of work or education if no release decision is made within a specified time. Caution should be exercised here, as there will be a fair number of prisoners in such a situation, so the decision maker must be sure that the individual circumstances are sufficiently special to mean that case "jumps the queue".
c) Where continued delay is causing deterioration to a diagnosed mental illness or condition."
"The question then is whether I should grant any specific declaration. Mr Southey 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."
"I turn to the claimant's contention that I ought to make a formal declaration of the breach of his Article 5(4) rights, given that the Parole Board has conceded that there has been such a breach. It is contended on his behalf that there would be some practical benefit to the claimant in such a declaration, but I have to say that I was unable to discern it …. In the light of my conclusion that his case does not give rise to any very special circumstances, I do not consider that it would be appropriate to make a declaration which might appear to give the claimant some badge of exceptionality which other prisoners who have not brought proceedings would not achieve. I have not been persuaded that the claimant's case ought to be prioritised over theirs and accordingly I decline to grant a declaration which might give the impression that I held a different view. In my judgment, this case is one of those squarely within the category of cases referred to by Collins J where, once his … judgment was given, it was not appropriate for the prisoner to take, or in this case to continue with, proceedings against the Parole Board."
"Collins J made no formal declaration of a violation of Article 5(4) (which had been accepted by the Board but not the Secretary of State). He considered that his finding of a violation, endorsing the view of the Board itself and rejecting the submissions of the Secretary of State, was sufficient. It may be that a formal declaration beyond the terms of the finding I have made will not provide the claimant with any great practical advantage. Nonetheless, the Board resisted the application and I consider it appropriate to grant a declaration by way of relief."
The challenge to the decision not to prioritise the Claimant's case
" … 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 … responsibilities either generally, or in any individual case. These are questions 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."
"1. Everyone has the right to respect for his private and family life ….
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."