Neutral Citation Number: [2010] EWHC 186 (Admin)
Case No: CO/12916/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Manchester Civil Justice Centre
1 Bridge Street West
Manchester M3 3FX

Date: 09/02/2010

Before :

MR JUSTICE FOSKETT
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Between :

	The Queen on the application of HOOLE	Claimant	
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	The Parole Board	Defendant	

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Miss Melanie Plimmer (instructed by Messrs Jackson and Canter) for the Claimant
Mr Rory Dunlop (instructed by The Treasury Solicitor) for the Defendant

Hearing date: 1st February 2010
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Judgment

Mr Justice Foskett : 
The background

1.	On 10 July 1996, when he was aged 52, the Claimant, who had no previous convictions and no history of violence, was sentenced to life imprisonment for the murder of his sister's former husband.  His sister was also convicted of murder.  He was made the subject of a 12-year tariff which expired on 24 April 2008.  He is now aged 65 and will be 66 shortly.

2.	About a month before the tariff expired, on 17 March 2008, in accordance with its usual policy, the Parole Board undertook a first pre-tariff review of his case.  The Claimant, who had not yet had a period in open conditions, but who had good prison reports, sought a transfer to open conditions and the Board did indeed recommend that he be transferred to open conditions, a recommendation accepted by the Secretary of State for Justice on 15 May 2008.  On that date the Secretary of State for Justice advised him that his case would be referred to the Parole Board for a provisional hearing to take place in March 2009.  Miss Melanie Plimmer, who represents him in this application, draws attention to the fact that the contemplated period between the first and second reviews was approximately 12 months whereas in many cases it is 2 years or thereabouts.

3.	The transfer to HMP Sudbury, an open prison, took place in June 2008.  The Parole Board had said in its decision letter of 17 March 2008 that "the only outstanding offending behaviour work is a Cognitive Skills Booster course" which could be completed in either open or closed conditions.  The view of Mr Rhys Matthews, a Consultant Forensic Psychologist, that he was suitable for open conditions and that he represented a low risk of the commission of further violent offences was accepted by the Board.

4.	Once transferred to HMP Sudbury sentence targets were set and completed.  The Cognitive Skills Booster course was completed on 12 November 2008.  It is suggested on the Claimant’s behalf (and not contested by the Parole Board) that his case was ready and suitable for a hearing in March 2009 as planned. 

5.	On 13 November 2008 the Secretary of State for Justice referred the Claimant’s case to the Parole Board for hearing and on 24 November 2008 the Parole Board notified him that, due to a late receipt of the referral, they were targeting his pre-tariff review hearing for April 2009, a month later than originally planned.

6.	Whilst that hearing was pending, and in about January or February 2009, the Claimant learned that his wife of some 30 years, who had stood by him and to whom he intended to return on his eventual release, had been diagnosed with breast cancer.

7.	The Parole Board had received the dossier from the Secretary of State for Justice on 21 January 2009 and on 23 January 2009 the Intensive Case Management ('ICM') Parole Board member issued directions indicating that the case was ready to be listed for a hearing.  However, by then all the cases had been put forward for the April 2009 listing.

8.	On 9 February 2009 the Claimant's wife underwent a lumpectomy and his solicitors made representations to the Home Office asking for a March date or earlier if possible.  Nothing was heard in response and various further communications were sent over the next few months also with no response.

9.	Eventually, on 18 August 2009, the Claimant received a letter from the Parole Board in the following terms:

“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.”
10.	As will be apparent from that letter - and indeed as will be common knowledge amongst those concerned in these matters - a considerable backlog of reviews had been building up, largely because of insufficient numbers or availability of legally qualified Chairs of review panels.   The Claimant was and is not the only person affected: very many were and indeed still are.  However, his solicitors were suggesting in an e-mail to the Home Office of 1 October that his case was worthy of prioritisation, particularly having regard to his wife's position.  She had undergone a 3-week course of chemotherapy in April 2009 and, albeit in remission, was on medication and undergoing regular scans.  Understandably, this was (and remains) a matter of anxiety both for the Claimant and for his wife.

11.	In their e-mail they referred to a case called R v the Parole Board ex p Betteridge [2009] EWHC 1638 (Admin), a case that had come before Collins J on 23 June 2009.  It was a case (as is this case) where reliance was placed on Article 5(4) of the European Convention on Human Rights and Fundamental Freedoms which provides as follows:

“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.”
12.	There is no dispute that Article 5(4) requires there to be reviews at reasonable intervals of the lawfulness of the detention of post-tariff life prisoners.

13.	There is no need to extend this judgment by extensive citations from Betteridge, but it is clear that Collins J had the overall position concerning the backlog of cases as at that time put before him.  Reference was made to new systems being put in place to try to deal with the problem.  Collins J was referred to various figures and statistics and said this:

"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."
 
14.	In that case (as in this) there was recognition that Article 5(4) had been breached.  However, Collins J concluded in these terms:

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.

15.	This approach suggested that "special circumstances" would be necessary before a claim based on the delays to which I have referred could succeed and indeed reflected a discouragement from bringing proceedings unless there were proper grounds for suggesting the existence of "special circumstances". The Claimant's solicitors, in the e-mail to which I have referred, did indeed suggest that "special circumstances" existed in this case.  They launched judicial review proceedings on his behalf on 29 October complaining of the continuing delay.  The papers were served on the Parole Board on 3 November 2009 and on 10 November 2009 Blake J, sitting in Manchester, gave directions for the application to be expedited.

16.	On 13 November 2009 Ms Blom-Cooper, an ICM member, considered the request for prioritisation dated 1 October (ie. the foregoing e-mail from the Claimant's solicitors).  Ms Blom-Cooper did not accept that the case was sufficiently exceptional to be prioritised over other cases which were longer overdue.  She did, however, put the Claimant at the top of the list of prisoners at HMP Sudbury with the same due date. She gave her reasons as follows:

“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.”

17.	On 18 November 2009 the Claimant amended his statement of grounds to challenge the decision of Ms Blom-Cooper.  

18.	On 23 November 2009 the Parole Board promulgated formally updated internal guidance on how to respond to prioritisation requests.  Ms Blom-Cooper’s decision was made before this guidance was promulgated formally, but it is accepted that it was taken into account and acted upon internally prior to its formal promulgation and indeed that she took it into account and sought to comply with it.  The guidance was entitled ‘Oral hearing listing prioritisation framework’ and described as a ‘Listing tool for prioritisation of oral hearings - revised November 2009’.  The starting point was that the Parole Board would “initially prioritise cases according to the date the review was due.”  For the category of prisoner of which the Claimant is a member (a post-tariff expiry lifer) the “due date” is the “date set by the Secretary of State for Justice upon referral to the Board.”  In the Claimant’s case that was March 2009.  The initial prioritisation by date is for all types of cases and it is “only after the initial prioritisation by due date is completed and there is a choice between 2 cases and one available listing that the type of case will have a bearing on whether or not a case achieves a hearing date that month.”  Later in the guidance note is a priority list which, for present purposes, is immaterial.

19.	This approach provides the framework within which the priorities are chosen.  However, the following appears under the heading “Exceptional circumstances”:
“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.”
20.	A further 9 pages of guidance to members of the Parole Board are provided under the heading ‘Listing Backlog requests for prioritisation or expedition on grounds of exceptional circumstances - Guidance to Parole Board members’.  It identified two categories for prioritisation: (i) a prisoner who was a "real candidate for immediate release" at his last review and (ii) a more generic category of those situations which may constitute "exceptional circumstances".    

21.	So far as (i) is concerned, the guidance included the following:
“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.”
22.	Reference to what is “explored below” is to a further paragraph headed ‘Requests for high prioritisation where exceptional circumstances are cited’.  The relevant part of that paragraph for present purposes is as follows:

“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.”
23.	I should say that Miss Plimmer did not seek to suggest that there was anything irrational about this policy as a whole although she did observe (in the context of her submissions concerning prioritisation) that this policy could result in other lifers with “due dates” in March 2009 (perhaps recall prisoners) who had no prospect of being released being prioritised over those with good prospects of release.  I will return to these issues later, but her essential argument was that the policy was not applied rationally or sufficiently fexibly to the Claimant’s case.

24.	In these proceedings (for the bringing of which His Honour Judge Stephen Stewart QC, sitting as a High Court judge, granted permission on 25 November 2009) the Claimant challenges (1) the continuing failure on the part of the Defendant to list his case for a hearing and (2) the decision of the Defendant, through Ms Blom-Cooper, of 13 November 2009 not to prioritise his case over other cases outside the normal existing listing framework.

25.	Given the acknowledgment on behalf of the Board that Article 5(4) has been breached, two issues remained for consideration in the proceedings before me: (a) is it appropriate to grant a declaration that Article 5(4) has been breached?  (b)  Is the decision on the part of the Board not to prioritise the Claimant’s hearing an irrational one and/or in breach of Article 8 of the ECHR?

26.	Before turning to those issues, I should complete the history as things stood at the time the arguments took place before me.  

27.	The net effect of the second paragraph of Ms Blom-Cooper’s decision (see paragraph 16 above) was that the Claimant became (and indeed remains) second in line of those prisoners at HMP Sudbury who are due for a review.  In reality he is joint first in line because the other prisoner, like the Claimant, requires only a half-day hearing and, accordingly, both could be accommodated in one day of Parole Board hearings.

28.	The hearing of the present application had been scheduled for 11 January 2010, but it was adjourned given the prospect then held out by the Parole Board Listing Office that there was a 90% chance of the Claimant’s case being listed in March this year, although no promises could be made and the position would not be known until 16 January.

29.	Unfortunately, this prospect did not materialise.  Ms Natalya O’Prey of the Parole Board, in her witness statement of 28 January 2010, explained the background.  As I understand the statistics contained in her statement, there were 482 post-tariff lifer prisoners whose cases were ready for consideration by way of review.  Of those, 80 were listed for March 2010, the balance being carried forward to the April 2010 listing exercise.  Some of those listed for March 2010 (34 in total) had “due dates” later than March 2009 (which, as indicated above, was the Claimant’s “due date”) but that was only because they filled an otherwise empty slot for a particular Parole Board panel that was scheduled to hear a higher priority case.

30.	Mr Rory Dunlop, on behalf of the Parole Board, suggested that the Claimant was very unlucky not to have got into the March listing and that there was “every chance that he will make it next time.”  Mr Dunlop may well be justified in saying that, but a 90% prospect of a hearing was held out for March which did not materialise and, against that background, I do not think in the circumstances that there is any reason for me not to proceed to give a ruling in this case notwithstanding that there is apparently a fair chance that the decision will become academic.

A declaration?

31.	As I have indicated, it is accepted that the Board has breached Article 5(4).  The precise (or even broad) time at which it became in breach has not been acknowledged and it is not an issue before me.  Equally, the precise time when the admission of a breach was made is somewhat unclear.  Miss Plimmer says (accurately) that it was not acknowledged specifically in the Acknowledgement of Service or in the Summary Grounds of Defence served on 17 November 2009, although the latter acknowledged “delays in the listing of the Claimant’s hearing” and that that the delay in considering his request for prioritisation (between 1 October and 13 November) was “regrettable” and arose from “an administrative oversight by the Parole Board.”  Nonetheless, consistent with an approach adopted in other cases, a breach of Article 5(4) has been conceded, although, as I have said, the concession does not appear to have been made until after permission to apply for judicial review was granted.

32.	Mr Dunlop has submitted that, in view of the concession of a breach of Article 5(4), the fact that the breach will be reflected in this judgment and that a further hearing concerning any compensation payable will take place, there is no need to grant a declaration to that effect.  He asks “What purpose would it serve?”  He submits that in all the other cases where a breach of Article 5(4) has been conceded the court has not granted a declaration because it would be unnecessary.  In  Betteridge Collins J said this (at [29]) about the claim for a declaration:
“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.”
33.	In The Queen on the Application of Benjamin Alcock v The Parole Board [2009] EWHC 2401 (Admin), Timothy Brennan QC, sitting as a Deputy High Court Judge, said this of the claim for a declaration in a case where prioritisation had been sought:
“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.”
34.	In the one case there was no practical benefit to be gained by a declaration; in the other, it was felt that it might give the claimant an unjustified advantage.  In Ian Gray v The Secretary of State for Justice, The Parole Board [2010] EWHC 2 (Admin), Burnett J found, after a contested hearing, that a declaration was appropriate.  Referring to the decision of Collins J in Betteridge, he said this:
“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.”
35.	My view on this (frankly, relatively insignificant) issue has wavered.  In one sense, why should there not be a declaration when there has been an acknowledged breach?  Whilst it is a discretionary remedy, why should the Claimant be deprived of a formal judicial recognition of the breach?  If there is concern that too ready a willingness to grant declarations in these cases might encourage time-wasting and expensive litigation which would yield no practical benefit to a claimant, Miss Plimmer says (a) in the generality, no public funding is ever likely to be granted for such a claim and (b) in the particular circumstances of this case the claim is not merely for a free-standing declaration in relation to Article 5(4), but for other substantive relief relating to the decision taken on 13 November 2009 and, accordingly, the case would not be seen as one in which there is any kind of encouragement to seek a wholly inconsequential declaration.

36.	Given that the concession of a breach was arguably made only when permission was granted, I had been inclined to think that this case fell nearer to the position revealed in Gray than in either Betteridge or Alcock.  However, on balance, I have come to the conclusion that a declaration really adds nothing to what already appears in this judgment and which would have been apparent on a reading of the papers in the case and, since the question of precisely when the “culpable” delay started running remains to be resolved, any declaration would have to be too widely expressed to be meaningful.  In those circumstances, and bearing in mind the need not to encourage time-wasting and expensive applications which would yield no practical benefit, I do not think it is appropriate to grant a declaration at this stage.

37.	It is agreed that any claim for compensation should be adjourned to await developments in the listing of the review hearing and its outcome.  At that stage, should it become necessary, all aspects arising from the delay can be considered including the terms of any declaration.

The challenge to the decision not to prioritise the Claimant’s case

38.	A large part of Miss Plimmer’s argument was predicated on the basis that the Claimant has a very good prospect of release when a review takes place and that this is a factor that was not considered by Ms Blom-Cooper in the prioritisation exercise.

39.	She draws attention to the fact that, having been transferred to open conditions, the Claimant completed the one outstanding piece of offending behaviour work by November 2008 and that Mr Rhys Matthews, whose views were previously accepted by the Parole Board (see paragraph 3 above), recommended him for release following a detailed report prepared in May 2009.  It will be for others to evaluate that report as part of the process that will take place in due course, but, on any view, it is a report that reads well from the Claimant’s point of view.

40.	Miss Plimmer submitted that where the prospects of release are assessed as good, then any compassionate circumstances are made the more powerful and compelling as a result.  She says that the first part of what Ms Blom-Cooper says in her reasoning indicates that she had not taken into account the prospects of release and had, in effect, undervalued the strength of the compassionate circumstances as a result.

41.	Mr Dunlop’s essential answer to that submission is that the strength of any compassionate circumstances relied upon is not affected by the strength of the case for release:  the compassionate circumstances are to be judged alone.  If they are judged to be very strong then, when considering prioritisation, the strength of the case for release may make a case sufficiently “exceptional” for a degree of “queue jumping” to be permitted.  But absent the initial strength of the compassionate grounds relied upon, the strength or otherwise of the case for release is of no, or at least little, relevance.  He makes that as a broad proposition of commonsense, but he submits that it is borne out by and reflected in the guidance at paragraph 4.1(a) referred to in paragraph 22 above.  His submission is that the approach is to work through the effects of the continued incarceration of the particular prisoner on the third party whose interests are being considered and to consider how serious those effects are and then, if they are serious, to take into account the prospects of release.

42.	Whilst, naturally, one should not construe guidance such as that to which I have referred as if it were a statute or a contract, there is, to my mind, a more compelling logic to that approach than to try to assess the effects on a third party of a prisoner’s continued incarceration by reference to the prospects of release.  That factor does, in my judgment, come into the picture after the alleged compassionate circumstances have been examined.  At all events, that seems to me to be a rational approach which, if applied conscientiously, will produce a decision which cannot be characterised as irrational or otherwise challengeable on public law grounds.

43.	Mr Dunlop has persuaded me that that is what Ms Blom-Cooper did.  Whilst expressing sympathy with both the Claimant and his wife in the circumstances, she decided that the effects on Mrs Hoole were not, in the circumstances, so great that the threshold was passed before it became necessary to consider the Claimant’s prospects of release.  Mr Dunlop submits, and I accept it, that Ms Blom-Cooper had concluded that the Claimant was not the “sole carer” of his wife or that her situation “will deteriorate or be adversely affected” by the ongoing delay in the Parole Board considering the question of release.  Given those conclusions (which cannot, in my judgment, on the evidence available to Ms Blom-Cooper be characterised as unwarranted or irrational), it is legitimate to say, as Mr Dunlop argues, that the strength or otherwise of the Claimant’s potential for release is largely irrelevant.  Whilst this is, in effect, the consequence of a literal interpretation of the guidance to which I have referred, it also represents a purposive interpretation of the underlying policy.

44.	Any other approach would involve a difficult and time-consuming balancing of the competing strengths of the compassionate circumstances relied upon by every prisoner in the Claimant’s position (numbering in the region of 400 currently) and the prospects of his (or her) release following review purely for the purposes of listing the hearing.  I am unable to accept that that, even with the availability of all the resources needed (which, plainly, are not available at the moment), is a necessary or proportionate exercise.
.
45.	No system of prioritisation can be perfect and there will be those who consider their cases stronger than those of others.  However, judgements have to be made and, save in very clear cases, it is difficult to see how the court is in a position to say that a decision of those sifting those cases for listing purposes is irrational.

46.	This does seem to be an area where the words of Lord Judge CJ in R (on the application of James) v Secretary of State for Justice [2009] UKHL 22 at [134] have a particular resonance:

“ … 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.”
47.	There are, in my judgment, no grounds for characterising this as an “extreme case”.

Article 8

48.	Miss Plimmer submits that the continued delay on the part of the Board and its failure properly to prioritise the listing of the Claimant’s case constitutes a disproportionate interference with his right to family and private life contrary to Article 8 of the ECHR.  

49.	Article 8, so far as relevant, reads as follows:

“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.”
50.	Miss Plimmer’s argument is (i) that the view was formed by those considering the Claimant’s position that it was likely that there would be a significant reduction in the risk to the public within one year of the Claimant being transferred to open conditions, (ii) that the evidence supports the proposition that that risk has reduced sufficiently to justify the Claimant’s release since November 2008, (iii) that his continuing detention is closely linked to the failure of the Board to hold an oral hearing and (iv) that the delay continues to interfere with the his ability to support his wife through very difficult times and, accordingly, the interference is disproportionate because it is caused by administrative delay and not the actual or perceived risk to the public of the Claimant’s release.

51.	She contends that the burden is on the Board to establish that it is not disproportionate to prioritise the Claimant’s case.

52.	Mr Dunlop’s response is, irrespective of where the burden lies, that Article 8 adds nothing to the argument under Article 5(4), each being based on the same considerations.  To the extent that the circumstances are “within the ambit” of Article 8 (as Mr Dunlop accepted was the position), it is not accepted that there has been a breach of Article 8 because resources can be taken into account when considering measures which interfere with a prisoner’s right to respect for his family life whereas they cannot be taken into account under Article 5(4).  Miss Plimmer accepts that resources can be taken into account under Article 8: see Dickson v United Kingdom (2008) 46 EHRR 41.

53.	Although it is a fair observation by Miss Plimmer that the point was not taken in the Acknowledgement of Service, Mr Dunlop submitted that prioritising the Claimant’s case would involve advancing it ahead of many other cases with the result that the Article 8 rights of those relegated down the list would be affected.  Article 8(2) requires a balance between the rights of the individual and the rights of others and the effect of prioritising one case would almost inevitably involve compromising the Article 8 rights of others.  This seems to me to be a compelling argument on this issue and I accept it.

Conclusion

54.	It follows, therefore, that, sympathetic though one is to the position of the Claimant’s wife and the anxieties to which she must currently be exposed without the Claimant being immediately “on hand”, there are no public law grounds upon which Ms Blom-Cooper’s decision can be challenged successfully and, for the reasons I have given, the Article 8 claim also fails. Accordingly, I dismiss the claim relating to those grounds.

55.	Equally, for the reasons I have given, I see no reason to make the acknowledged breach of Article 5(4) the subject of an express declaration at this stage.  If issues of compensation are still pursued in due course, then, as already agreed between the parties, an appropriate hearing can take place at which those issues can be resolved.