QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| IAN GRAY
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
THE PAROLE BOARD
Simon Murray (instructed by The Treasury Solicitor) for the First Defendant.
Matthew Slater (instructed by The Treasury Solicitor) for the Second Defendant.
Hearing dates: 10th November 2009
Crown Copyright ©
Mr. Justice Burnett:
(i) The delay in convening the claimant's Board hearing gives rise to a violation of Article 5(4) of the European Convention on Human Rights ["ECHR"]. The claimant recognises that such delay would not render his detention unlawful or that his release should be ordered. Rather he seeks a declaration and such other just satisfaction pursuant to section 8 of the Human Rights Act 1998 as is appropriate;
(ii) The period of time between the Board's decision on 24 February 2009 and 1 August 2010, the date set for the claimant's next hearing, represents further unlawful delay in breach of Article 5(4);
(iii) The Secretary of State's directions to the Parole Board were unlawful and irrational because they required the Board to apply the same test to the release of a prisoner or detainee serving a sentence of imprisonment for public protection as for a life sentence, when the tests are different, and the test set out in the directions was wrong; and,
(iv) There was an unlawful approach to transfer to open conditions in that there was a failure to take account of the Claimant's status as a short tariff DPP prisoner. That was because the reports before the Board dealing with the possibility of transfer to open conditions dealt with the question in the same way as happens with life sentence prisoners and took no account of the short minimum term in this and similar cases. The Secretary of State has acted unlawfully in failing to produce guidance concerned explicitly with short tariff prisoners as has the Board in failing to generate its own guidance.
12 February 2007 The claimant was sentenced to DPP with a minimum term of two years' detention.
14 January 2008 The claimant's case was referred to the Board by the Secretary of State with a target review date of September 2008. That was designed to achieve a review before the earliest release date.
4 March 2008 The Board wrote to the Offender Management Unit at Warren Hill (where the claimant was located) indicating a provisional hearing date of September 2008 and sought the complete dossier by 6 May 2008. A list of documents was enclosed with the letter.
5 May 2008 The claimant's dossier of documents ["the dossier"] was sent by the Prison Service on behalf of the Secretary of State to the Board. It was incomplete. Whilst it is unclear precisely what was missing, later communications suggested that an undated report from Kaye Garwood (Seconded Probation Officer) and a report dated 11 April 2008 from Cliff Regan (External Probation Officer) were omitted. A report from a social worker from the Lucy Faithfull Foundation is dated 16 June 2008 and so cannot have been with the dossier when it was sent to the Board. Directions relating to an oral hearing should have been, but were not, issued by Intensive Case Management ["ICM"] following receipt of the dossier by the Board.
23 June 2008 Directions given in connection with an oral hearing should have been complied with. The parties and witnesses should have provided dates to avoid in respect of the indicated hearing date in September.
25 July 2008 The claimant's solicitors receive the dossier for comment from Warren Hill.
10 September 2008 The claimant's solicitors were informed by Edward Eaton of the Board that the dossier the Board had received on 5 May 2008 was incomplete. It lacked the Probation Officers' reports with the result that the case could not go to ICM for directions in anticipation of a hearing. The absence of these reports from the material provided in May to the Board does not appear to have been noticed earlier. The claimant's solicitors informed Mr Eaton that they had received both the Internal (Seconded) and External Probation Officers' reports on 25 July 2008 direct from the prison. Mr Eaton agreed to seek those reports from the Secretary of State to complete the dossier. He did not suggest that anything else was missing. The natural inference is that the report from the Lucy Faithfull Foundation had found its way to the Board and that nothing else was missing.
18 September 2008 The claimant's case had by this date been passed from Mr Eaton, who had left the Board, to Ms Scannapieco. Ms Scannapieco was asked by the claimant's solicitors if the missing probation reports had been obtained by the Board to complete the dossier. They had not. Ms Scannapieco immediately requested the missing probation reports from the Prison Service. They were obtained the same day. Ms Scannapieco confirmed to the claimant's solicitors that the dossier was complete and that directions were being sought within seven days from ICM.
2 October 2008 Expiry of the Minimum Term.
6 October 2008 ICM directions were issued in the claimant's case, No further reports were considered necessary. Kaye Garwood, the Seconded Probation Officer, was directed to attend at the oral hearing to update the Board on various matters. Cliff Regan, the External Probation Officer, was not directed to attend. That was because none of the reports prepared for the Board, of which there were many, recommended transfer to open conditions. Such transfer was not a realistic option at the time. He was, however, invited to attend 'if there is significant information to add to his report dated 11 April 2008'. The ICM directions were produced on a standard form that records the 'target date' for the hearing in an unchangeable form. Therefore, although the request for directions was submitted to ICM on 18 September and the directions issued on 6 October, the form continued to identify the 'target month for hearing' as September 2008. Furthermore, the form noted that in order to meet that target the directions contained in the document should be complied with by 23 June 2008. There were, as it happens, no further directions that needed to be complied with before the hearing. Nonetheless, the time scale noted in the form reflected the reality that hearings take some months to arrange. The form requested dates to avoid, technically to be submitted by the June date. The directions scheduled the case for a 1.5 hour hearing on a date to be notified.
21/22 October 2008 The claimant's solicitors received a copy of ICM directions dated 6 October 2008. They queried the June date for compliance. It was explained that both target date, and thus the earlier date for compliance, were immovable on the form even when they had been passed. The Board informed the claimant's solicitors that his case would be listed for hearing in January 2009. A date would be set in the following couple of weeks.
December 2008 The claimant's solicitors were informed by the Board that the oral hearing date had been delayed because they were waiting for dates from Mr Regan the External Probation Officer, even though his attendance had not been directed. The Board indicted that the claimant's case had missed obtaining a hearing in February and could now not be heard until March 2009 at the earliest. It was this further delay that prompted the claimant to threaten proceedings and send a letter before action. This timescale reflects the same gap of about three months between readiness for hearing and allocating a hearing date found in the ICM document.
13 January 2009 The Board responded to the letter before action and agreed to ensure that the hearing would take place on 13 February 2009.
5 February 2009 The papers were reviewed by the Chairman of the panel due to hear the claimant's case. Updated reports were requested. Mr Regan provided a detailed additional report dated 12 February 2009.
13 February 2009 The Board heard the claimant's case. The claimant, Mr Regan and Mr Jones (the claimant's personal officer) gave evidence. The Board considered the dossier, comprising a total of 160 pages. The claimant was represented by counsel. It was not submitted that the claimant should be released nor that he should be moved to open conditions. Neither release nor transfer to open conditions was recommended although the Board considered each in the light of the material before it. The Board considered that the claimant still posed a high risk of harm to the public and that work on offending behaviour still needed to be done in closed conditions.
24 February 2009 The Board's decision was reduced to writing. It indicated that the claimant's next review would benefit from a comprehensive report and assessment from a consultant forensic psychiatrist specialising in learning disability. That flowed from the presence of a forensic psychiatrist on the panel and its tentative view that a placement in a specialist secure learning disability unit may be appropriate.
6 March 2009 The Secretary of State informed the claimant that his next Board hearing was scheduled for 1 August 2010. The gap was to allow for further work to be done to address sexual offending and thinking skills, to allow for work on other outstanding areas of concern, and to allow for a psychiatric assessment of the nature suggested by the Board to be undertaken.
Ground 1: Delay and Article 5(4) ECHR
"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."
It is not in dispute that Article 5(4) imposes an obligation on the State to provide a speedy and meaningful review of the legality of detention of a person subject to an indeterminate sentence for public protection. That review is conducted by the Board which is independent of the executive and whose decisions on release are binding upon the executive. Although at one point disposed to contend that the review conducted by the Board in this case was not 'meaningful', Mr Rule rightly did not press that point. The sole question became whether the chronology I have sought to outline, in the circumstances of this case, should lead to the conclusion that the review was not 'speedy' for the purposes of Article 5(4).
"(6) The Parole Board shall not give a direction under sub-section (5) above with respect to a life prisoner to whom this section applies unless
(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time
(a) after he has served the relevant part of his sentence; and
(b) where there has been a previous reference of his case to the Board, after the end of the period of 2 years beginning with the disposal of that reference; and
(c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one half of that sentence "
"so that if the Parole Board wishes to direct release it can do so, either on the expiry or as soon as practical after the expiry of the tariff period. If that does not happen the prisoner is entitled to obtain a mandatory order. The failure may also constitute a breach of Article 5(4), but it does not make the detention unlawful under Article 5(1)" (at  per Lord Woolf CJ).
The need to refer the case in good time to the Board was reflected in Prison Service Order 4700 (the former 'Lifer Manual' in force at the time of the reference in this case, but now superseded by PSO 6010). Rule 6 of the Parole Board Rules specifies the material which the Secretary of State is obliged to serve on the Board and the prisoner.
"what is required of [the Parole Board] is that it proceeds with reasonable despatch."
Ground 2: The delay until the next review in August 2010
18. It is common ground between the parties that Article 5(4) requires that a detained person must be able to challenge his detention at reasonable intervals: X v United Kingdom  ECHR 188 at ; Weeks v United Kingdom  10 EHRR 293; Blackstock v United Kingdom (app no 59512/00 at ).
"may be contrary to those of the prisoner, and even in material respects contrary to the views and findings of the Parole Board [He may] choose in accordance with his own views and for his own convenience to set a date for future reviews What the circumstances require by way of regularity of review for continued detention are clearly matters calling for an independent and judicial opinion otherwise the continued detention can or will become arbitrary set not by judicial decision but by [the] executive."
" It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place on 1st August 2010 for the following reasons:
The Secretary of State notes the concerns raised by the Parole Board and report writers concerning the outstanding areas of risk in your case. He notes that you have undertaken some work in the past with the Lucy Faithfull Foundation and JETS to address the area of sexual offending and thinking skills, but the Secretary of State concurs with the Parole Board and Report writers that further work, particularly in relation to your sexual offending and thinking skills, is still necessary. The period before the next review will allow time for that work, as well as work in the other outstanding areas of concern and the psychiatric assessment recommended for the next panel, to be completed."
The terms of the decision make clear three things. First, that the interval was being set to enable the claimant to do the work necessary to reduce risk and thus achieve release. Secondly, there is no hint in this reasoning of the timetable being set for the convenience of the Secretary of State or otherwise because of a lack of resources. Thirdly, the Secretary of State was seeking to achieve what the Board had in mind. There was no question of his contradicting or confounding the views of the Board.
"8. It is the responsibility of the PPCS, on behalf of the Secretary of State, to set review dates. The maximum period that can elapse between the Parole Board's consideration of post tariff expiry cases is 2 years (see section 28(7) (b) of the Crime (Sentences) Act 1997). All decisions on the timing of future reviews are based on the individual circumstances of each case. Consideration of the review date must take into account such factors as:-
• The extent and nature of the outstanding risk reduction work needed in each case;
• The period of testing and monitoring needed to demonstrate the impact and efficacy of such work on the prisoner;
• The need to recognise the review and report writing process begin weeks before the provisional hearing date;
• Whether or not the period of time between reviews needs to be reliant on a transfer to another prison, to complete offending [sic] a behaviour course, for example. In such cases it may be appropriate to set the next hearing date to take place a certain number of months after transfer (but no late that the 2 year maximum).
9. The reasons for any decision on the timing of a Parole Board review in each case are recorded on the prisoner's file and these reasons are also provided to the prisoner. The PPCS letter sent to the Claimant on 6 March 2009 records the reasons for the date of the Claimant's next parole hearing being set for August 2010. These reasons refer to the Parole Board's concerns that further work, particularly in relation to the Claimant's sexual offending and thinking skills, was still necessary. They refer to the Parole Board's suggestion that the Claimant undergo psychological assessment prior to his next parole hearing.
10. In my view, in light of the work required to be completed prior to his next hearing, a hearing date of August 2010 is reasonable.
11. I understand that the Claimant was assessed for SOTP on 29 April 2009 and assessed as suitable to complete the Core SOTP rather than the adapted version, as his IQ level was judged as suitable for the core SOTP. I have spoken to the facilitator at HMP Swinfen Hall, who has confirmed that Mr Gray is due to complete the course at the end of September after which time a Treatment Needs Analysis (TNA) will be drawn up about 1 month afterwards. The TNA will highlight the risks that have been identified.
12. The facilitator also informed me that within the following 6 months a post course review will be conducted at which all the interested parties will consider the case. The next course of action will depend on the treatment needs that are identified, they may recommend the Extended SOTP (lasting about 4 months) or a booster programme.
13. The generic parole review process commences 26 weeks before the oral hearing date (February 2010 in Mr Gray's case) with reports being requested which ties in with the 6 month post course review.
14. I have also discussed Mr Gray's case at length with the Claimant's Offender Manager, Cliff Regan. Mr Regan has confirmed that he will be preparing the OASys report shortly and will be arranging with the Offender Supervisor, with whom he is in close contact, a sentence planning meeting in early November (separate to the post course review meeting) after the TNA has been drawn up. Mr Regan has confirmed that this particular type of Sentence Planning Meeting could take place earlier but it makes sense to tie it in with the outcome of the SOTP work and recommendations, including the TNA.
15. The Parole Board considered that a comprehensive report and assessment by a consultant forensic psychiatrist who specialises in learning disability would be of benefit to those responsible for Mr Gray's future management. They also considered it essential that enquiries be made into an alleged arson offence. These had been recommended by Mr Regan to the Parole Board. Also the timing of what was required was discussed with the panel at the hearing. Mr Regan confirmed to me that his evidence before the panel was that the comprehensive specialist report should not be commissioned until the SOTP and TNA had been completed, but in time for the next Parole Board hearing. Mr Regan stated that he made the panel aware that at the earliest, by Spring/early Summer 2010, when Mr Gray would have completed his SOTP work he could only have left the Sexual Offending Relapse Prevention work to do. However, this would be dependent on the progress made by Mr Gray. Mr Regan recalls that the Claimant's representatives were present during these discussions and did not raise any objections to the timescales which would necessarily lead to Mr Gray's next hearing not being listed until August 2010."
Mr Regan provided a very short statement dated 9 November 2009 in which he says that he recalls outlining the SOTP to the Board and indicating that one could not predict how the claimant would respond. Whilst not contradicting Ms Gambling's evidence he wished to explain that 'it was not [his] intention to direct the board when the next parole hearing should be heard, believing that the Secretary of State for Justice would be responsible for setting the future date.'
Ground 3: Unlawful Direction by Secretary of State to the Board to apply the 'Lifer Test'.
"the test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined, is whether the lifer's level of risk to life and limb of others is considered to be more than minimal."
The same language was used in PSO 4700 (the Lifer Manual) and is repeated in the recent Prison Service Instruction 22/2009 at paragraph 1.13.
"We would only add that, although it is not necessary for the decision of this appeal, we also accept the submission that it is not appropriate for the Secretary of State to restate the statutory test. The Board should indeed be left to decide what principles to apply by reference to the case law in the light of appropriate submissions on behalf of the prisoner and the Secretary of State." 
That observation came in the context of a broad attack on the directions which the Court considered were otherwise innocuous. The Secretary of State had argued that the restatement of the test was in line with the decided cases, but the Court of Appeal in Girling considered it unnecessary to decide the point (see  and ). This aspect of the directions was considered again by the Court of Appeal in R (Brooke and others) v the Parole Board and the Lord Chancellor  3 All ER 289. In paragraph 82 of his judgment the Lord Chief Justice said:
"The decision of this court in Girling has demonstrated that the statutory power of the Secretary of State to give directions to the Board is severely limited when these relate to decisions in relation to release on licence. The directions can do no more than provide guidance on the matters for which, as a matter of law, the Board is in any event required to have regard. Provided that due regard is had to this decision, no further action is necessary in relation to directions." 
"Those responsible for the completion of the main risk assessment reports prepared by suitably qualified staff (referred to above) must ensure that those reports address the question of risk of re-offending and serious harm and the tests which the Parole Board has to apply (set out in the Secretary of State's Directions (now guidance) "
So the position now is that those providing reports are reminded of the 'serious harm' test in the context of re-offending albeit with an additional reference to the directions, which include a passage which the Court of Appeal has said should not have been there. Nonetheless, it is for the board to decide. Its decision can be successfully challenged on judicial review if it applies the wrong test (having gone through the process suggested by the Master of the Rolls in Girling) when the right test would have arguably delivered a different result.
Ground 4: The approach to transfer to open conditions
"that all Young Offenders must be regarded as probably suitable for open conditions unless the algorithm indicates that closed conditions are appropriate or there are justifiable grounds for overriding the algorithm."
He accepts that this paragraph does not directly apply to those sentenced to a DPP but it reflects the undoubted fact that young offenders in many respects are treated differently from adult prisoners. He also accepts that a balance must be struck between the risks of a move to open conditions against the benefits to the prisoner. He submits that in striking that balance the Board should recognise that short tariff prisoners will have difficulty in demonstrating significant progress before their minimum terms expire and should also have particular regard to the youth of a detainee.
"(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part; and in giving any such directions the Secretary of State shall in particular have regard to
(a) the need to protect the public from serious harm from offenders; and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
He is not obliged to issue directions. It is impossible to see how the language of the statute could give rise to a positive duty to issue directions of the sort envisaged by the claimant.