QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Parratt
|- and -
|(1) Secretary of State for Justice
(2) Parole Board of England & Wales
Stephen Whale (instructed by the Treasury Solicitor) for the Secretary of State
Ben Hooper (instructed by the Treasury Solicitor) for the Parole Board
Hearing date: 18th December 2012
Crown Copyright ©
Mr Justice Males :
"(4) 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."
"Due to a lack of member resources, the Claimant's Parole Board hearing could not be listed until 20 May 2010. In these circumstances, the Parole Board accepts that the delay experienced by the Claimant between the date of his tariff expiry, on 21 January 2010, and this listed hearing on 20 May 2010 gave rise to a breach of the Claimant's rights under Art, 5(4) of the European Convention on Human Rights.
For the avoidance of doubt the Parole Board does not accept that the Claimant is entitled to damages as a result of this breach: declaratory relief is sufficient to ensure 'just satisfaction'."
"The review period will allow you:
- To undertake ROTL's and home leave;
- To enable you a period of testing, to put into practice and consolidate the offending behaviour work and strategies that you have developed whilst in closed conditions;
- To put into practice and apply good thinking skills;
- To enable you to work on a risk management plan with the aid of your Offender Manager to begin to work towards a new drug and alcohol free lifestyle, put into practice and continue relapse prevention strategies and include the completion of any programmes or booster work to assist with this, as deemed appropriate by treatment managers;
- To remain adjudication free;
- To allow you to prepare a robust and fully tested release, resettlement and risk management plan to include accommodation and employment, to allow a steady reintegration back into the community and build a strong network of support both professionally and personally in the community.
Your next parole review process will be undertaken in accordance with the Generic Parole Process, a new centrally monitored process. Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and co-ordination of various parties, including the Public Protection Casework Section, the Prison Service, National Probation Service and the Parole Board. Your review will commence in March 2011, and the month for your oral hearing by the Parole Board is August 2011.
The review period is made up of the following:
- 2 months to enable you to transfer to an open prison establishment.
- 6 months Generic Parole Process
- 7 months to allow for testing and consolidation. This will also enable you to fully test your release plan and allow for gradual re-integration into community."
"At this stage Mr Parratt has not been fully tested whilst on ROTL although his progress in prison has been very good. Therefore I am unable to recommend release on licence at this time however, an addendum report, prior to the oral hearing will be able to furnish more up to date information."
"It is perhaps unfortunate that the administrative demands of the parole process require reports some months ahead of any oral hearing. As such, at the time of writing, Mr. Parratt has had time to complete just two ROTLs and I see that some prison based report writers view this as too few upon which to base a recommendation for release. Whilst I acknowledge the limitations this places on any assessment, evidence can, in this case, be gathered from other sources to build a wider case for release. I consider the very positive assessments of Mr. Parratt's response to the offence focussed courses and counselling sessions he has undertaken. His behaviour both in prison and on his many day release town visits has given no cause for concern. On the contrary, he has shown himself to be responsible and reliable and amply demonstrated his level headedness when he immediately removed himself from the scene of the New Year disturbances at the prison.
By the time the Oral Hearing takes place, report writers will be able to offer addenda to these reports and complete their assessments. I fully anticipate that Mr. Parratt will continue to demonstrate that he is firmly set on a path of rehabilitation and have already formed the view that the risk he presents can be (and already is) safely managed in the Community with the risk management plan that has been provided. It follows that I support his release with the licence conditions as outlined above."
Delay from January to May 2010 in holding the post tariff review
a) Should the court entertain the claim against the Secretary of State for delay in holding the post tariff review when the Parole Board has already admitted liability?
b) If so, is the Secretary of State liable in addition to the Parole Board?
Setting the review period at 15 months
c) Was it an infringement of the claimant's Article 5(4) rights for the Secretary of State to set a period of 15 months before the second review?
d) To what if any damages is the claimant entitled? In particular, is he entitled to recover damages for (i) frustration, anxiety and stress, (ii) delay in the move to open conditions and/or (iii) delay in his eventual release?
Delay in holding the post tariff review
Should the claim against the Secretary of State be entertained?
Is the Secretary of State liable in addition to the Parole Board?
Setting the review period at 15 months
a) Article 5(4) of the ECHR creates a right to a speedy review of the lawfulness of a prisoner's detention at or about the expiry of the tariff period, so that a prisoner who no longer constitutes a danger to the public can be released.
b) Thereafter, if release is not ordered, the prisoner is entitled to periodic reviews at reasonable intervals by the Parole Board to assess his continuing dangerousness or lack thereof.
c) It is for the Secretary of State to fix the period before the next review, but his decision can be challenged by judicial review. In the event of such a challenge, it is for the court to reach its own decision as to the appropriate review period and not merely to determine whether the decision of the Secretary of State was reasonable. However, in arriving at its own decision, the court will have due regard to the view of the Secretary of State and, where applicable, the Parole Board, bearing in mind that the Secretary of State has particular expertise in these matters and is in a good position to assess all the relevant circumstances.
d) What review period is appropriate in order to comply with Article 5(4) depends on all the circumstances of the individual case, with no maximum review period prescribed by the European Court of Human Rights.
e) There is no formal legal presumption that a Parole Board review must be heard within 12 months of the last review and this cannot be regarded as a "default setting" or "benchmark". In practice, however, at least in circumstances in which the prisoner is making progress, 12 months will often represent a convenient starting point. Thus a review period of 12 months or less will generally be regarded as compliant with Article 5(4) unless there is some particular reason to the contrary, while the Secretary of State will generally have the burden of justifying by reference to the particular facts of the case a review period of more than 12 months. How heavy a burden that will be will depend on the facts of the case. The greater the period between reviews beyond 12 months, the more cogent the Secretary of State's justification for the review period will need to be. Nevertheless there are cases where review periods substantially in excess of 12 months have been held to be justified.
f) In order to justify a review period, the Secretary of State must normally identify the progress which the prisoner needs to make before the next review and the time within which it can reasonably be expected that such progress can be properly monitored and reported on so that the Parole Board can sensibly be expected to order (or recommend, as the case may be) a change in the prisoner's status. It must be borne in mind here that in order for the Parole Board to make such an order or recommendation it will need to be satisfied that doing so will not involve unacceptable risk to the public.
g) Failure to conduct a review in accordance with these principles does not of itself make further detention unlawful, but it does constitute a breach of a prisoner's Article 5(4) rights and this will entitle the prisoner to an appropriate remedy.
Application of the principles
"In the light of all these observations on the learning I would venture to describe the principles which are to be applied for the resolution of the damages issue in this case in the following way. (1) Damages are only to be awarded where that is necessary to afford just satisfaction under section 8(3) of the 1988 Act. (2) In an article 5.4 delay case the Convention right will ordinarily be vindicated and just satisfaction ordinarily achieved by a declaration. The focus of the Convention and of the court is on the protection of the right rather than compensation of the claimant. (3) But if the violation involves an outcome for the claimant in the nature of a trespass to the person, just satisfaction is likely to require an award of damages. The paradigm of such a case arises where the claimant's detention is extended by reason of the delay. Another case might be where the delay occasions a diagnosable illness in the claimant. (4) Other cases where the outcome or consequence of the delay is stress and anxiety, but no more, will not generally attract compensation in the absence of some special feature or features by which the claimant's suffering is materially aggravated. I consider that Ouseley J's decision in the Guntrip case can only be supported on the footing that it was such an exceptional case. The Strasbourg court's observation in Silver v. United Kingdom (1983) 13 EHRR 582, para 10, which was concerned with prisoners' correspondence is worth noting:
'It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage.'
The words 'of such intensity' were emphasised not by the court but by Stanley Burnton J quoting that observation in R (KB) v. South London and South and South West Region Mental Health Review Tribunal  QB 936, paragraph 71."
"In the present case neither proposition (3) nor proposition (4) above applies. The case is not made exceptional on its facts by the possibility that a timely decision would or might have led to an earlier transfer to open conditions."
Application of the principles – delay in holding the post tariff review
Application of the principles – setting the review period