Neutral Citation Number: [2010] EWHC 2 (Admin)
Case No: CO/7665/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/01/2010

Before :

THE HON MR. JUSTICE BURNETT
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Between:

	IAN GRAY	Claimant	
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	THE SECRETARY OF STATE FOR JUSTICE

And

THE PAROLE BOARD	First Defendant

Second Defendant 	

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Philip Rule (instructed by Mark Williams Associates) for the Claimant.
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
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Judgment
Mr. Justice Burnett: 
Introduction

1.	This is a rolled-up application for permission to apply for judicial review in connection with the process of review of the claimant’s continued detention following a sentence of Detention for Public Protection [“DPP”] imposed on 12 February 2007 by the Recorder of Winchester pursuant to section 226 of the Criminal Justice Act 2003 [“the 2003 Act”]. The claimant was born on 28 May 1990. He was 16 years old when sentenced in respect of two sexual offences committed in 2006. Had he been an adult the sentence would have been one of Imprisonment for Public Protection. The minimum term specified by the Judge was two years. The impact of that specification was that the claimant was to serve at least two years, his release thereafter being conditional upon an assessment by the Parole Board [“the Board”] that it is safe to release him. The claimant had spent 133 days in custody before he was sentenced which were directed to count towards the minimum term. In the result, the claimant’s earliest release date was 2 October 2008. For reasons to which I shall return, the Board did not consider the claimant’s case at a hearing until 13 February 2009 and thereafter issued its decision on 24 February 2009. The Board did not order his release or recommend that he be transferred to an open establishment. The claimant was informed on 6 March 2009 by the Secretary of State that his next Board hearing will take place in August 2010.

2.	The claimant now seeks judicial review of the actions and decisions of the two defendants on the following grounds:

(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.

3.	The defendants resist each of these grounds on their merits. Additionally, the Secretary of State (but not the Board) submits that permission to apply for judicial review should be refused because of delay in bringing the claim. The proceedings were issued on 14 July 2009 and thus were not brought within three months of the various decisions the subject of challenge. In so far as there is a challenge to the basis upon which the Board considered the claimant’s case the relevant information about its approach was known at the latest in the summer of 2008. The claim form provides little information about the reasons for delay. However, the position was explained by Mr Rule, who appeared for the claimant. The claimant made an application to the Legal Services Commission for funding in January 2009. Funding was only forthcoming on 23 June 2009. Furthermore, in the intervening period the House of Lords heard a series of cases concerning indeterminate sentences and their review by the Board in the context of a lack of provision of courses by the Secretary of State. The decision of the Committee was given on 6 May 2009 (see James v Secretary of State for Justice [2009] UKHL 22; [2009] 2 WLR 1149). Whilst there has been delay in this case, it has had no practical impact upon the defendants. In the circumstances, I do not consider that delay should act as a bar to the grant of permission (if otherwise appropriate) in this case.

The Chronology

4.	The chronology and basic facts relevant to the Board’s consideration of the claimant’s case may be summarised as follows:

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

5.	The law concerning Article 5(4) ECHR and the requirement for a review of the legality of detention by the Parole Board at the expiration of minimum terms in life imprisonment and imprisonment for public protection cases have been traversed in numerous decisions of this Court, the Court of Appeal and the House of Lords. Many of those cases had features not present in this case. They arose particularly from the lack of suitable arrangements made by the Secretary of State for prisoners to undertake necessary rehabilitation work before the expiry of their minimum terms or the inability of the Secretary of State and the Board to cope with the large number of cases resulting from new determinative sentences imposed since April 2005. Article 5(4) provides:

“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.	 A large number of cases illustrating the principles and their application to different facts were cited in argument. Given that there was no dispute about the principles in play they do not call for detailed analysis. A summary will suffice.

7.	The Board’s involvement in the process of release of prisoners detained for public protection is provided for by section 230 of the 2003 Act together with  paragraph 3 of Schedule 18 by including a person sentenced to detention for public protection within the definition of ‘life prisoner’ for the purposes of the statutory provisions relating to parole. Those provisions include section 28 of the Crime (Sentences) Act 1997 [“the 1997 Act”] which by subsection 5 requires the Secretary of State to release a prisoner who has (a) served half his sentence and (b) in respect of whom the Board has directed his release. Subsections (6) and (7) provide:

“(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…"

8.	In Noorkoiv v The Secretary of State for the Home Department [2002] 1 WLR 3284 (a case involving life prisoners) the Court of Appeal held that the Secretary of State must refer the case to the Board before the expiry of the tariff period

“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 [69] 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.

9.	It is clear from the judgment of Lord Woolf that it is not a strict requirement of Article 5(4) that a Board hearing should take place before the expiry of a minimum term although, as the material before me demonstrates, it is the aim of the Board and the Secretary of State to achieve that goal. Lord Hope adopted the same language as Lord Woolf in his review of Article 5 in James. In life sentence cases the Board will often have been involved in a review long in advance of the expiry of the minimum term because there is sufficient time given the length of most such terms. In cases involving detention or imprisonment for public protection, where the minimum terms will usually be much shorter, that will generally not happen. Yet it is obvious why the first review by the Board should be linked closely with the end of the minimum term: if the prisoner can safely be released there is no reason for his continued detention. 

10.	Whether there has been a ‘speedy determination’ is fact specific in any given case. In R (Cawley) v The Parole Board [2007] EWHC 2649 (Admin) Sullivan J cautioned against reliance on periods identified as falling one side of the line or the other in previously decided fact specific cases. In doing so he was echoing the approach of the Strasbourg Court (e.g. Oldham v United Kingdom (2001) 31 EHRR 34 at [31]). Such an inquiry proceeds against the clear background that the Board is an experienced and independent body familiar with the realities of organising hearings and marshalling the evidence needed to perform its statutory functions.  It was in that context (and particularly in a dispute about whether the Board has sufficient material available to it) that Lord Judge in James indicated that it would only be in extreme cases that the Administrative Court would intervene.

11.	The material before the Court demonstrates that the claimant’s case was referred by the Secretary of State to the Board timeously. It is also clear that the Board’s procedures initially worked well. In March 2008 the Secretary of State was prompted to put together the dossier and send it to the Board in good time (early May) to enable the ICM to consider the papers and issue directions that could be complied with by the end of June. All that was done to achieve a hearing in September shortly before the expiry of the minimum term. It is clear that one report (that from the Lucy Faithfull Foundation) was late. Two others may not have been included in the dossier when it was sent to the Board. As at 10 September 2008 they were missing from the copy of the dossier from which Mr Eaton was working. It was not until that date that the absent paperwork was picked up by the Board. There is no material before the Court to suggest that the dossier was reviewed earlier by the Board or that any attempt was made to enable ICM to issue directions shortly after the dossier was sent in early May.  That was clearly contemplated by the procedures in place and necessitated by the dates for compliance with directions (23 June) and the anticipated hearing date (September). 

12.	The hearing of the claimant’s case was delayed by 4 1/2 months beyond the end of the minimum term. The procedures put in place by the Board should have delivered a hearing just before or very close to the expiry of the minimum term. The delay which occurred was a long one. It was entirely avoidable and caused by what seems to me to have been a lack of active case management caused by administrative failings. There are, no doubt, many cases which are delayed for very good reason. For example, there may be unavoidable problems in obtaining necessary reports. Perhaps witnesses may be ill or unavailable for some good reason. A case may be unusually complex.  It is not unheard of for a prisoner himself to seek a delay in a hearing to enable further material to be obtained. As Sullivan J said in Cawley:

“what is required of [the Parole Board] is that it proceeds with reasonable despatch.”

13.	In the light of the history of its dealings with the claimant’s case, I am unable to conclude that the Board acted with reasonable despatch.  There was no active case management at all before September 2008. The reality is that having received the dossier in early May 2008 the Board did nothing to move the case towards a hearing until prompted by the claimant’s solicitors in September, despite its own procedures dictating a timetable that would have fully complied with Article 5(4). Indeed those procedures (and those of the Secretary of State which led to the reference) are clearly designed to deliver adjudications which fully comply with Article 5(4). The current PSO 6010 Generic Parole Process (in place since 1 April 2009) has a procedure which involves the Board ‘rejecting’ an incomplete dossier, that is one which is missing mandatory components, with a requirement that the deficiency be made good by the prison establishment within a further three weeks. Its predecessor (PSO 4700), which governed the claimant’s first review, was less prescriptive. It stated that the Board’s secretariat would return an incomplete or otherwise defective dossier for remedial action. That did not happen in this case. Had it done so, the delay which occurred would have been avoided.
 
14.	This is not a case where the Court is being asked to review active decisions of the Board relating to the collection of evidence, or reasoned decisions relating to the timetabling of a hearing about which caution is appropriate before concluding that the process, looked at as a whole, has not been speedy. The delay which occurred in this case followed inaction which has not been explained. I conclude that the Board failed to provide a speedy hearing in this case.

15.	The Board submits that such delay as there was resulted, factually, from the failure of the Secretary of State to provide it with a complete dossier as required by 5 May 2008. Thus it is submitted that any responsibility for a want of speedy consideration in this case rests with the Secretary of State and not the Board. Whilst it is true that there is evidence that three reports were missing from the dossier as originally submitted (the Lucy Faithfull Foundation report certainly and the probation reports inferentially), I do not consider that their omission was responsible for the delay which followed. Mr Regan’s report was certainly available before the dossier was submitted in early May as probably was Ms Garwood’s even though that is undated. Both were provided instantly when they were eventually asked for. The late delivery of the Lucy Faithfull Foundation report (the reasons for which were not explored in the evidence before the Court) might have resulted in a delay of a few weeks in the hearing, but not more. Its late delivery may not have held up the proposed September hearing at all if the point had been picked up promptly.  

16.	Both defendants argue that the complaint about delay is entirely academic because the hearing took place in February 2009 and there was never any question that the claimant would be released or transferred to open conditions. Even declaratory relief, they submit, is inappropriate.  Mr Rule submits that the claimant is at least entitled to a formal declaration in the event that a breach of Article 5(4) is found. He emphasises that Article 5(4) provides freestanding procedural rights which are independent of the substantive rights guaranteed by Article 5(1). That is correct.  So, he submits, the fact that the claimant has had his hearing and that the result would have been the same (as he accepts) if it had occurred in September or October 2008 is irrelevant. Mr Rule did not abandon a claim for damages, contending that the claimant has suffered some anxiety and distress as a result of the delay. Mr Rule submits that the court should infer that the claimant has suffered significant anxiety and distress. I characterise the submission in that way because there was no statement in these proceedings from the claimant himself, nor from his solicitor dealing with the impact of the delay upon him. It is right that the claimant has long suffered from a constellation of behavioural difficulties with a background of mental health problems, but it does not follow that that he has suffered anxiety or distress in consequence which should be reflected in an award of damages. The evidential foundations for a claim for damages for a breach of Article 5(4) are far from deep. In the course of the hearing the issue arose whether it was appropriate to consider damages if a breach were established. Not only was the evidence produced by the parties not directed towards the question, it was barely touched on in the skeleton arguments. A little was said in oral argument. Mr Rule wished all matters to be dealt with together. That was plainly correct in the context of a claim which, on the Strasbourg authorities, would be very unlikely to attract a monetary ward of more than a few hundred pounds if the evidential foundations were established. See, for example, Oldham v United Kingdom (2001) 31 EHRR 813 where an award of £1,000 was made in 2001 for frustration, uncertainly and anxiety consequent upon a two year delay. Given the evidential shortcomings, and in the light of James at [63] (no substantial damages unless the claimant can establish that he would have been, or at least had a real chance of being, released had a timely hearing occurred)  I consider that it is unrealistic to contend for an award of damages. I am satisfied that the Strasbourg Court would not, on the facts and the evidence in this case, make a monetary award to provide just satisfaction.  It is not uncommon for the Strasbourg Court to hold that the finding of a violation of a procedural right is vindication itself for a claimant and provides just satisfaction for the purposes of the Convention. Collins J took a similar view in R (Betteridge) v Parole Board and Secretary of State for Justice [2009] EWHC 1638 (Admin). The context of a claim before him under Article 5(4) was systemic problems consequent upon lack of resources. The claimant was denied a speedy review but the best he might have hoped for at a timely review hearing was a recommendation that he be moved to open conditions. 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.

17.	Mr Rule developed further submissions on the delay in the hearing of his case by the Board by reference to the claimant’s relative youth.  He submitted that the adverse impact of custody on children, youths and young adults was such that the imperative for speed in considering the question of their release was all the greater. He located the legal duty to treat their cases differently from those of adults in the positive obligations found in Article 8 ECHR, drawing in particular on observations of Munby J in R (Howard League for Penal Reform) [2002] EWHC 2497 (Admin) at [65] to [69]. In view of my conclusion on Article 5(4) reached without the aid of this additional argument, it is unnecessary to explore it. A case may arise where it becomes essential on the facts for a claimant to pray in aid his age as a decisive factor when arguing that a review has not been speedy. Whilst the need to move with expedition when dealing with children (in particular) can readily be accepted as one of the factors that may come into play in any determination of a complaint under Article 5(4), it is doubtful whether an appeal to Article 8 is necessary to establish that proposition.  Nonetheless, these arguments are better considered in a case where they properly arise.

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 [1981] ECHR 188 at [52]; Weeks v United Kingdom [1988] 10 EHRR 293; Blackstock v United Kingdom	 (app no 59512/00 at [42]). 

19.	As noted in the chronology, it was the Secretary of State who decided that the review should follow after an interval of 18 months. In his grounds the claimant contended that it was unlawful for the Secretary of State to set the interval and that it should be set by the Board. In the light of the judgment of the Court of Appeal in R (Bayliss) v Secretary of State and Parole Board [2009] EWCA Civ 2016, where permission to appeal to argue the same point was refused, Mr Rule does not pursue that argument. He submits that the interval of 18 months set by the Secretary of State ‘is unjustified, disproportionate and irrational’ and that this Court should specify a shorter period. Mr Rule argues for a period of 12 months (a timescale which would be nigh on impossible to meet given the timing of these proceedings) but ‘certainly shorter than the proposed 18 months’.

20.	Mr Rule submits that this Court should recognise no margin of discretion in the Secretary of State and those who advise on these matters, but should approach the question afresh because the views of the Secretary of State:

“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.”

21.	I accept that it is a matter for this Court to determine whether the proposed interval is a reasonable one in the circumstances of the case and thus whether the proposed review is speedy for the purposes of Article 5(4). However, that does not mean that the question should be considered without regard to the views of those responsible on behalf of the Secretary of State for determining these matters. That is because the judgement made by officials about the interval is one informed by their experience and expertise in dealing with prisoners subject to life sentences and indeterminate sentences. They have practical experience of the nature of the work which will be done with a prisoner with a view to reducing risk, how long it will take and what is likely to flow from it. They thus have expertise in determining the period likely to be necessary before the circumstances may have changed sufficiently to enable the Board to consider release or a move to open conditions. That is a relevant factor in determining the interval. It is not in the best interests of a prisoner for a review to be arranged too quickly when it is foreseeable that the outcome would not be to his benefit. That is because the time at which he eventually secures a benefit (at a future review) might thereby be extended. A review after 18 months with a real prospect of a benefit to the prisoner is better than two reviews of 12 months each when the first is not likely to deliver a benefit.

22.	This is not a discretionary area of judgement in the accepted sense, such as the distribution of public expenditure, security matters and the like where a wide margin of discretion will be accorded to a decision maker. This is not a decision in respect of which the court should defer to the Secretary of State.  Nonetheless in having regard to the views of those who have decided the interval, the court does not accept those views without question. Having regard to the views of the Secretary of State does no more than recognise that those views and any conclusions are born of experience and expertise which the court itself does not share. They are therefore worthy of respect. This approach gives rise to no question of arbitrariness, still less that the court has abdicated to the executive the task of determining what, in any given case, is a reasonable interval. The period chosen and the reasons given for arriving at a particular interval must be subjected to close scrutiny.			

23.	The principal factual premise on which the claimant relies for arguing for a shorter time is that the claimant recently completed the Sexual Offenders Treatment Programme which, submits Mr Rule, is the most important aspect of the further work envisaged in the reports prepared for the last review and endorsed by the Board in its February decision. There is therefore no proper basis for waiting until August 2010 for a hearing of the next review. The claimant’s relative youth is also prayed in aid, it being emphasised that any period of detention after a date on which factually the material risk has dissipated bears particularly harshly on younger people. Additionally, it is submitted that the earlier delay in the context of a short minimum term also dictates the need for particular expedition.

24.	Mr Rule drew my attention to a number of decided cases dealing with the question whether a particular interval between reviews was reasonable for the purposes of Article 5(4). He submits that whilst there is no presumption that an interval of more than a year infringes Article 5(4), a claimant is likely to have difficultly in establishing a breach if the interval is a year or less and the Secretary of State must show by reference to particular facts why a period of longer than a year is justified to avoid a finding of infringement. That is fair distillation of the principles enunciated by the Court of Appeal in R (Murray) v Parole Board [2003] EWCA Civ 1561 per Sedley LJ at [14] Gibbs J in R (Day) v Secretary of State for the Home Department [2004] EWHC 1742 (Admin) at [21] and Stadlen J in R (Loch) v Secretary of State for Justice [2008] EWHC 2278 (Admin) at [44].

25.	Mr Murray, who appeared for the Secretary of State, submits that the decision to set an interval of 18 months is self-evidently a reasonable one in the face of the decision letter itself with the amplification of reasons found in a witness statement dated 21 August 2009 from Susan Gambling. She is the Head of Casework within the Public Protection Casework Section [“PPCS”] of the National Offender Management Service [“NOMS”] of the Ministry of Justice. It is her specialist unit which sets the dates of review.

26.	The decision letter of	6 March 2009 stated the reasons for the decision as follows:

“ 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.

27.	Miss Gambling amplified the reasoning set out in that letter in her witness statement:

“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.’

28.	It has been unnecessary for the purposes of this judgment to set out in detail the nature of the sexual assaults committed by the claimant. It is sufficient to observe that they were serious, the first involving a six year old child and the second a 36 year old woman. The claimant very clearly satisfied the test of dangerousness found in the 2003 Act (the contrary was not contended on his behalf). The sentencing judge expressly doubted whether the claimant would be ready for release at the expiry of the minimum term. All the reports show that there is indeed much work to be done with the claimant.

29.	In my judgment, it is clear that the interval before the next review was carefully considered by the Secretary of State in the light of the work that needed to be done with the claimant with an eye on the necessary timing for each step. Ms Gambling’s evidence that the timetable for review was discussed with the Board and the claimant’s representatives at the hearing goes to emphasise the care that was taken and is also a powerful indicator of its reasonableness. The SOTP has been a very important step for the claimant but it is not the only one that he must take before a meaningful further review can take place before the Board. I am satisfied that there were good reasons in this case, explained by Ms Gambling, why it was not possible to arrange a review within 12 months. Those reasons are not affected by the claimant’s relatively young age nor by the fact that his first review was not speedy. The work being done with the claimant is directed towards eliminating (or at least managing) risk with a view to his eventual release. On the facts of the claimant’s case, the Secretary of State’s decision to set an interval of 18 months does not bring with it a breach of Article 5(4).

Ground 3: Unlawful Direction by Secretary of State to the Board to apply the ‘Lifer Test’.

30.	 A DPP is only appropriate when various criteria are met which include a conclusion by the court that the offender poses ‘a significant risk to members of the public of serious harm occasioned by the commission of a further specified offence’ (section 226(1)(b) of the 2003 Act). The same test applies before a sentence of imprisonment for public protection may be passed on an adult (section 225).  Specified offences are principally offences of violence and sexual offences. Section 28(6)(b) of the 1997 Act (set out in paragraph [6] above) requires the Board to ask itself whether it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Mr Rule submits that there is a difference between the language of section 28(6)(b) and section 226(1)(b) of the 2003 Act, the former speaking generally of the protection of the public whilst the latter is concerned with the commission of further specified offences risking serious harm. So, he submits, when considering a prisoner sentenced under the dangerousness provisions of the 2003 Act section 28(6)(b) should be read subject to the 2003 Act.

31.	The ‘directions’ that the claimant attacks as inconsistent with the statutory test, as modified, were issued in August 2004 by the Home Secretary, who was then responsible for the Parole Board. He issued them pursuant to section 32(6) of the Criminal Justice Act 1991 [“the 1991 Act”]. The directions were concerned with life sentence prisoners. Paragraph 4 of the introduction stated:

“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.

32.	The statutory test under section 28 of the 1997 Act self-evidently begs a question. From what is the public to be protected? In connection with those sentenced pursuant to the dangerousness provisions of the 2003 Act the reason why the sentencing court imposed such a sentence, rather than a determinate sentence, was because the judge formed the view that there was a significant risk of serious harm to the public from the offender committing further specified offences. In line with the thinking expressed by judges in other cases (Latham LJ in R (O’Connell) v The Parole Board and Secretary of State for Justice [2007] EWHC 2591 (Admin) at [27]; Cranston J in R (Bayliss) v Parole Board and the Secretary of State for Justice [2008] EWHC 3127 (Admin) at [15] and Dyson LJ in the same case  [2009] EWCA Civ 1016 at [14]), I conclude that the appropriate test to be applied by the Board in such cases under section 28 of the 1997 Act should be read subject to the language of the dangerousness provisions of the 2003 Act. That said, I am very sceptical whether the potential different nuances in meaning would deliver different results. The underlying concern is to ensure that a prisoner is released only when it is ‘safe to do so’, a shorthand expression often used by sentencing judges (as it was in this case) when discharging their statutory duty to explain the effect of a sentence in language the defendant before them can understand. It is, nonetheless, unnecessary to decide the point in this case because it is wholly academic. 

33.	In so far as the claimant submits that the Board failed to appreciate any distinction between the unvarnished language of the section 28(6) and the test for dangerousness under the 2003 Act, it could be of no conceivable relevance to its decision in this case. There was never any question of the claimant being released whatever test the Board chose to apply to the risk of re-offending. In any event, a fair reading of the Board’s decision letter suggests that it had the provisions of the 2003 Act in mind. One section of the letter is headed ‘Factors which increase or decrease risk of re-offending and harm’. Another is headed ‘Panel’s assessment of current re-offending and serious harm’. The Board focussed on sexual offending but was also concerned about violence, anger and arson, all factors relevant to the commission of specified offences. It cannot sensibly be suggested that the Board was directing its mind to offences not relevant for the purposes of the 2003 Act. The Board recognised that continued detention would be necessary only if the significant risk of serious harm from re-offending remained. 

34.	The attack on the Secretary of State’s ‘directions’ is, in my judgment, also misplaced. The Board is an independent judicial body not subject to direction from the Secretary of State. In R (Girling) v Secretary of State and Parole Board [2007] 2 WLR 782 the Court of Appeal held that the directions issued by the Secretary of State under section 32 of the 1991 Act to the Board acting in its judicial capacity should be read as guidance. That was to avoid compromising the independence of the Board, necessary for Article 5 purposes. The main criticism arises from language used in the introductory section to the direction relating to release. The directions document is divided into two parts in respect of each of the activities of the Board: an introduction section and then the part headed ‘directions’. In paragraph 4 of the introductory section dealing with the release of life sentence prisoners the document suggests that the Board should apply the test set out above. In short ‘whether the lifer’s level of risk to life and limb of others is considered to be more than minimal.’  Mr Rule submits that this introductory section applies a gloss to the statute which, if the Board adhered to it, would be unlawful. The phrase ‘life and limb’ is unobjectionable shorthand for ‘serious harm’, at least in the context of physical injury. Where it is lacking is in recognising that non-physical harm can be serious. When dealing with sexual offending the serious harm caused to victims, and risked to the public if further similar offending occurs, is more often than not non-physical. However, in using the language of ‘more than minimal’ it might, without proper regard to the language of section 28 of the 1991 Act and the case law on its application, suggest a different test from that found in the statute, whether read in the light of the dangerousness provisions of the 2003 Act or not.  It was for that reason that the Court of Appeal, in Girling, in a judgment given by the Master of the Rolls, said:
	
“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.” [31]

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 [30] and [31]). 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 [2008] 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.” [82]

35.	The directions (now guidance) have not been redrawn to reflect the obiter observation in Girling.  The Parole Board, as parties to both Girling and Brooke fully appreciate the position.  However, paragraph 2.7.3 of PSO 6010 Generic Parole Process, in a section dealing with the quality of reports to be provided for the Board, says this:

“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. 

36.	Like the argument over the different language of section 28 of the 1997 Act from sections 225 and 226 of the 2003 Act, the impact of the ‘directions’ in this case is wholly academic because there was no question of the release of the clamant. That said, as the myriad reports prepared for the Board’s review in this case show, neither those reporting nor the Board itself have for a moment been diverted from considering the real issue in this case. It is the risk of sexual offending upon which they principally focus.

Ground 4: The approach to transfer to open conditions

37.	The Secretary of State’s directions issued in 2004 include a section on transfer of life sentence prisoners to open conditions. In the introduction to the relevant directions it is noted that a spell in open conditions ‘is essential for most life sentence prisoners’, not least because the facilities for dealing with the risk are mainly found in the closed estate. The guidance itself suggested that any recommendation for transfer should be based upon the individual merits of the case with an eye to particular factors and risk. PSO 6010 (in force from 1 April 2009) notes that indeterminate prisoners ‘will normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted … on behalf of the Secretary of State.’ This reflects the position that on questions of transfer to open conditions the Board recommends, rather than directs (as it does on questions of releases). It also recognises that a move to an open establishment is not conditional upon such a recommendation even though it usually follows one.

38.	The complaint made by the claimant is that the directions are not comprehensive enough in that they have not been amended to give guidance to the Board on how to deal with cases of short tariffs and those sentenced to DPPs. Mr Rule submits that the failure to produce new directions is unlawful and irrational. Equally, submits Mr Rule, the Parole Board has unlawfully failed to provide guidance to its panels on this matter.

39.	By way of analogy Mr Rule draws attention to PSO 0900 which deals with ‘Categorisation and Allocation’ and its approach to young offenders. In paragraph 3.3.4 it suggests:

“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.

40.	For reasons very similar to those which made the third ground of challenge academic, this attack on the Board’s approach to recommending transfer to open conditions of (a) those who are subject to short minimum terms; and (b) those who are children or young offenders, does not arise on the facts of the case. There was no question of such a recommendation in the claimant’s case. He did not seek it and none of the report writers supported a transfer. The panel independently ‘balanced the current high level of risk against the benefits of a progressive move’ but concluded that the ‘level of risk remains too high for transfer to open conditions’. The claimant does not challenge that assessment.

41.	In any event, the challenges to the failure of the Secretary of State to issue fresh directions or the Board itself to circulate guidance are unarguable. On analysis, the challenge to the Secretary of State amounts to a contention that he has irrationally failed to exercise his power under section 32(6) of the 1991 Act to issue directions. That provides:

“(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.

42.	 The argument that the Board has a positive duty to give guidance to its members on the same issues was not developed by reference to any statutory powers or duties. Instead, Mr Rule submits that the absence of specific directions or guidance relating to short tariff indeterminate prisoners who are young offenders does not respect the vulnerabilities of the children and young offenders in accordance with Article 8 ECHR and international law duties owed to children. The absence of guidance could lead to arbitrary detention. The failure to give guidance is therefore irrational.

43.	It may be possible to argue on the facts of a particular case that the balance of risk against benefit to the prisoner involved in a decision relating to open conditions should be struck differently because of the youth of the offender and the short duration of the minimum term. But that possibility, pregnant with difficulty as it would be, does not begin to provide support for an argument, essentially in abstract, that through the mechanism of a positive obligation under Article 8 ECHR the Board has a duty to issue guidance to its members on such issues.

Conclusion

44.	The claimant has established his claim that the Board’s failure to provide a hearing until 13 February 2009 gave rise to a breach of article 5(4) ECHR. Although he has failed in his other three grounds (the third and fourth of which I conclude were unarguable) I grant permission to apply for judicial review and allow the claim for judicial review under the first ground to the extent of granting a declaration that in failing to hear the claimant’s case until 13 February 2009 the Parole Board violated his right to a speedy hearing under Article 5(4) ECHR.