England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER

		Manchester Civil Justice Centre, 1 Bridge Street West, Manchester M60 9DJ
		30 September 2015

His Honour Judge Stephen Davies:

SUMMARY

1. In this case the claimant, a former prisoner at HMP Manchester, complains of what he says was unacceptable delay by the prison service in 2013-2014 in providing a psychological assessment and report which the parole board had recommended should be obtained in respect of him. He contends that the unacceptable delay was of the order of 5½ months, alternatively 4 months, and that but for that delay he would have been released from prison on licence earlier by an equivalent period. He seeks: (a) a declaration that the defendant, as the minister responsible for the prison service, acted in breach of duty under public law and/or article 5.4 of the European Convention on Human Rights; and (b) damages for breach of those duties.
2. The defendant has accepted that there was what it describes as "resource related delay in the assessment of the claimant measured in months". It contends however that when the case is viewed in the round, rather than focusing narrowly on that delay in assessment, there was no unacceptable delay overall in the performance of its duty to the claimant.
3. Permission having been refused on the papers His Honour Judge Raynor QC granted permission at the oral renewal hearing in relation to ground one, being the claim summarised at [1] above, on the basis that it was reasonably arguable.
4. Accompanying its detailed grounds of defence the defendant served witness statements from: (1) Georgina Vince, the prison service lead psychologist for three prisons, including Manchester; and (2) Louise Jackson, the prison service psychologist who produced the psychological assessment report in this case.
5. I am greatly indebted to both counsel for their extremely helpful written skeleton arguments and able oral submissions.
6. In summary, I dismiss the claim, for the reasons which follow.

THE RELEVANT FACTS

7. On 10 July 2000 the claimant, then aged 25 years, was sentenced to life imprisonment for an offence of conspiracy to commit robbery and to 15 years' imprisonment for offences of possession of firearms with intent to commit robbery. He had agreed to participate in a planned armed robbery, which was foiled by police intervention, during which there was an extensive car chase involving the kidnapping of a member of the public and multiple discharges of firearms, both at police officers and at members of the public. Because he was not centrally involved in the planned robbery, and because he was not personally involved in the kidnapping or discharges of firearms, the minimum tariff which he was required to serve under the sentence of life imprisonment was set (on appeal) at only 5 years.
8. Whilst in prison he successfully engaged in a number of offending behaviour programmes and, in July 2009, was transferred to open conditions. In February 2011 he was released on licence, having persuaded the parole board of his genuine intention to sever all contact with his previous criminal associates. However he was unable to keep that promise and, in October 2012, he was recalled to prison following his arrest on charges of involvement in offences of murder, attempted murder and causing an explosion. These arose out of his involvement with the notorious Manchester criminal, Dale Cregan, in the months between Cregan having murdered one of his rivals and his proceeding to murder two serving police officers. Following a trial lasting some five months he was acquitted of those charges but remained in custody.
9. On 16 September 2013 there was an oral hearing before a panel of the parole board to consider whether it was appropriate to direct his release from custody or, if not, to consider advising on his suitability for transfer to open conditions. The parole board panel determined that it was not appropriate to direct his release from custody or to recommend his transfer to open conditions because of its conclusion that his level of risk of re-offending and of serious harm to the public was high. The panel was satisfied that even on the claimant's version of events it was clear that he had not gained as much as had been thought from his previous offending behaviour work, that he was still seeking to minimise his involvement and potential for harm through his actions, and that there remained core risk factors which had not been addressed.
10. Significantly, they also considered the question of "whether there is any further work which can be done to help you to avoid making the same sort of mistakes in the future". Their answer was that "you should now undergo the psychological assessment which was proposed prior to your release on life licence, with a view to determining what further work should be completed in closed conditions to reduce your levels of risk of reoffending and serious harm before you can be considered for release or progressive transfer to open conditions".
11. It is not clear what proposals for assessment had been made before his previous release. However what is clear in my view is that the panel was proposing a sequential process involving:

(a) The claimant undergoing a psychological assessment, resulting in the production of a report which would identify what further intervention work needed to be completed in closed conditions to reduce his risk.

(b) Consideration of that report by the defendant, with a view to deciding what if any further intervention work the claimant should undertake.

(c) The claimant undertaking the appropriate further intervention work, with the production of a post intervention work report on completion in order to demonstrate that it had been positive.

(c) The production of an addendum psychological report, perhaps after a period of consolidation if recommended, to confirm that his risk levels had reduced sufficient to justify the psychologist recommending his release or transfer to open conditions.

(d) The convening of a further parole board review at which the question of release or transfer could be considered in the light of the updated dossier, including the above reports and the usual updated reports from the probation and prison services.

12. Although I accept Mr Wagner's submission that the panel did not state in terms that further intervention work would be required, so that it was at least theoretically feasible that a psychological assessment report might recommend his release or transfer to open conditions without any such work being first undertaken, I am satisfied on the balance of probabilities, having regard to all of the circumstances and particularly the parole board determination together with the evidence of the subsequent psychological reports and parole board determination, that there was no realistic prospect either of that being recommended or of any further parole board panel accepting such recommendation, if made.
13. It is not in dispute that at the oral hearing the seconded probation officer present informed the parole board panel that it normally took "6 to 8 weeks plus 3 to 4 weeks" for a psychological assessment and report to be obtained. Although there is no further evidence about this, other than Georgina Vince's evidence that "a psychological assessment normally takes about 37 hours including the interview and the report", I consider that it is reasonable to infer, and I find, that at that stage the expectation was that in normal circumstances it would take around 6 to 8 weeks to schedule and undertake the assessment, and a further 3 to 4 weeks to produce the report, giving a likely timescale of between 9 to 12 weeks.
14. There is no suggestion that the parole board panel was informed that HMP Manchester was experiencing delays in the production of psychological assessments and reports. Indeed there is no evidence that as at September 2013 delays were being experienced. However it is also plain from the contemporaneous internal records now disclosed that when, on 1 October 2013, the probation officer requested the relevant prison service officer to arrange for a psychological assessment to be made, he was told that "the psychology department has stated that they will not be able to complete his report for approximately 12 months and therefore I have requested that his next parole review is in 18 months".
15. Georgina Vince does not address this directly in her witness statement, but it can reasonably be inferred from the above evidence and from what she does say, and I find, that as at October 2013 it was anticipated that there would be significant delays in producing such reports over the next few months. The principal problem was that 2 of the 4 full-time or equivalent psychologists in the department were on maternity leave and not expected to return until January 2014, the third was due to go on maternity leave in December 2013 and could not undertake any assessments before that time, and the fourth, Louise Jackson, had a full month's leave planned for January 2014. The ancillary problem was that the trainee psychologists who might otherwise have been involved were all either too busy on other assignments or - in one case - also on maternity leave.
16. I accept Mr Wagner's submission that if, as I find was the case, it was known by October 2013 that the cumulative effect of these problems was that reports which would normally be expected to take around three months to complete were likely to take up to 12 months to complete, steps should have been taken to attempt to address that situation, for example by investigating the possibility of transferring psychologists from other prisons or recruiting maternity cover. There is no evidence from the defendant that this was attempted but, for reasons outside its control, no cover could be obtained. Having said that, there is no evidence that prior to October 2013 this was a longstanding or endemic problem^[1]; it is clear from the evidence that it was a short to medium term problem which the defendant could reasonably have anticipated would largely resolve during the course of early to mid 2014, once the first and second psychologists had returned from maternity leave and Louise Jackson was back from leave. Furthermore, it is reasonable to infer that the defendant would not have been aware until some time in summer 2013 that the third psychologist would become pregnant and thus unavailable to undertake psychological assessment reports from that time onwards. In short, there is no evidence, and I am not satisfied, that over the relevant period there was an endemic, systemic or egregious failure on the defendant's part.
17. On 21 October 2013 the National Offender Management Service (NOMS) wrote to the claimant giving formal notification that it accepted the recommendations of the parole board, identifying the risk factors which remained outstanding. It continued as follows:

"The responsibility for addressing your risk reduction rests with you. However the secretary of state has identified from the information contained within your dossier the following further interventions in closed conditions to help you address these factors:

undertake a psychological assessment

honestly engage with the professional staff working around you in order to identify the best ways to reduce your outstanding risks.

demonstrate over a period of time, necessary reduction in your risk, by applying the skills you will gain and had gained from offending behaviour work, while remaining adjudication and substance free.

...

Your review period is therefore set at 18 months and is made up of the following:

18 months (from the date of last review) to complete intervention work, for consolidation and post programme reports to be ready.

…

Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and coordination of various parties

…

Your parole review will commence in September 2014 and will aim to be concluded by May 2015."

18. Mr Wagner submitted that only the psychological assessment could properly be regarded as an "intervention". He also submitted that the letter failed to disclose that the true reason why it would need 12 months before the review process could begin was due to the expected delay in producing the psychological assessment report, and pointed out that this left no time for any post report interventions to be undertaken. I agree with these submissions. In my view the proper approach would have been to set the review process on the basis of a realistic estimate for the time which it would reasonably take to produce the psychological assessment report, undertake the recommended interventions, and obtain an addendum report.
19. The defendant's contemporaneous records revealed that the claimant was informed about the 12 month time frame on 23 October 2013 and, not surprisingly, that he was upset when he found this out. He made an official complaint, which produced the response on 11 November 2013 that he was on the waiting list, and it was anticipated that the assessment would commence early next year.
20. To his credit, the claimant decided to take matters into his own hands, insofar as he was able. He asked to be included on the Thinking Skills Programme (TSP) which HMP Manchester was running from 6 November to 5 December 2013, with a report to follow. This was an accredited cognitive skills development programme, aimed at addressing cognitive deficits related to criminal behaviour. He was assessed as suitable; indeed there is a contemporaneous note recording that he attended the TSP in anticipation of what the psychological assessment might recommend. His attendance on the course, later described by his independent psychologist as "closely tailored to his needs, in that it actively addressed his failure to apply previous learning", was successful and the post-course report dated 19 December 2013 positive.
21. In the meantime, the claimant also raised the delay in obtaining the psychological assessment report on an informal basis with the second-in-command governor at HMP Manchester. He claims [par. 12 claimant's grounds] that he was informed that the psychology department had personnel problems and limited resources and was told to "seek resolution by obtaining an independent psychological assessment". The defendant has not disputed this in its grounds or in its evidence, and it is consistent with a further complaint submitted by the claimant at that time. However, the claimant has never said that the governor made any specific commitment as to what would be done should such report be obtained; specifically it is not said that the governor gave an assurance that it would be accepted by the defendant in lieu of an assessment produced by the prison psychology department.
22. The claimant, through his solicitors, instructed an eminently qualified and impeccably independent consultant forensic psychologist, a Professor Crighton, to undertake a psychological assessment and produce a report. Mr Crighton saw the claimant on 16 December 2013 and produced a report on 20 January 2014, which concluded that the claimant had benefited from completion of the TSP intervention, primarily as a means of revising and reinforcing prior learning from previous intervention and could, subject to a "suitably rigorous risk management plan", be released so that he could undertake further identified ongoing work in the community.
23. That report was promptly submitted by the claimant's solicitors to the prison, who sent it on to NOMS. The response from the lead psychologist was that "it is not usual practice to accept an externally completed and solicitor commissioned report as meeting the needs of the parole board recommendation. To do so would enable prisoners to choose their own psychologists. I am not in any way suggesting that this is not a perfectly fine report, it's more a matter of precedent". She was however willing to agree to a suggestion that the psychology department at Manchester might "review the report and submit their own brief report in addition to this with their own recommendations".
24. Although the defendant's evidence is rather thin about this, it appears from the e-mail chain at p.102 of the bundle and from Louise Jackson's evidence that the matter was allocated to her on her return from leave in early February 2014 on this basis of these exchanges, but also on the basis that she would need to interview the claimant as well. Her statement shows that, having reviewed the work which she needed to do and prioritised it in terms of urgency, she timetabled the claimant for interview in April 2014, with the report to be produced by the end of May 2014. In the end, although there was some further slippage in the interview date, she was able to produce the report by the end of May 2014.
25. In her reports Louise Jackson reached substantially the same conclusions as Mr Crighton, which it is plain she had before her. She referred to the positive feedback from the TSP, and to the positive impression he gave during her assessment meeting. She also recommended his release subject to "robust risk management plans" and "relapse prevention work".
26. Upon receipt of the report in mid June 2014 the claimant's solicitors wrote to the defendant requesting that the parole board review date be advanced. By letter dated 26 June 2014 NOMS agreed to advance the review date by two months. Mr Wagner submitted, and Mr Thomann did not contest, that given the time which it would take for pre-submission reports to be obtained, a two month acceleration was as much as the claimant could realistically have expected by that stage. That is important, because in the event the parole board panel hearing which recommended his release did not take place until 3 February 2015, and the claimant was not released from custody on licence until 30 March 2015. Although the claimant does not seek to criticise the delay in convening the further parole board panel hearing, he submits that had the psychological assessment report be made available earlier, a request to advance the review date could have been made equivalently earlier, and there would have been no rational basis for the defendant not to have agreed to do so, with the result - submits the claimant - that he is able to establish a clear causal connection between the delay in producing the psychological assessment report and the delay in his eventual release.
27. That concludes my review of the facts, and I shall now turn to the law.

THE RELEVANT LAW

28. Although I have been referred to a good number of authorities, both domestic and European, fortunately there is no need to make extensive reference to the majority of them. That is primarily because the law, at least in relation to the article 5.4 claim, has been authoritatively determined by the Supreme Court in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66. In short, the Supreme Court had to consider whether the defendant was under a duty under article 5.1 or article 5.4 ECHR to provide life prisoners and IPP prisoners with a reasonable opportunity to rehabilitate themselves in order to facilitate their release post tariff expiry, in the light of the conflicting decisions of the House of Lords in R (Walker) v Secretary of State for Justice [2010] 1 AC 553 and the European Court of Human Rights in James v United Kingdom (2012) 56 EHRR 399.

The Supreme Court held [36] that it was implicit in the scheme of article 5 that the state was under a duty to provide an opportunity reasonable in all the circumstances for such prisoners to rehabilitate themselves and to demonstrate that they no longer presented an unacceptable danger to the public, and [38] that this duty to facilitate the progress of such prisoners towards release by appropriate courses and facilities was a duty arising by implication and analogous to the express duty arising under article 5.4. In [39] they held that the appropriate remedy for breach of such a duty was not release of the prisoner, but an award of damages for legitimate frustration and anxiety, where such could properly be inferred, together, in those rare cases where it was possible to establish a prolongation of detection as a result, with damages to reflect that prolongation. They indicated that the approach should be similar to that applied in relation to delayed parole board hearing cases, as analysed in the earlier Supreme Court decision in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23, to which I shall return.

29. In [41] they considered the precise terms and the precise level of this duty. They held that it was not equivalent to the recognised existing public law duties in this area of the law, since it was a right in favour of each individual prisoner whose satisfaction or otherwise would depend on the particular circumstances of the individual case. Thus there was no need to prove systemic failure, Wednesbury unreasonableness, or failure to apply established policy. In [42] they went on to hold, referring to European authority including James v UK, that the court should not insist on standards of perfection that would be unrealistic, bearing in mind the numbers of prisoners involved and the limits on courses, facilities and resources in the prison system. They accepted that the court should look at the matter overall, and the period of detention as a whole, and to accept that no system was likely to be able to avoid some periods of waiting and delay.
30. In examining the individual cases, they also made some further pertinent observations. Thus at [60] they said that the court should not substitute, with hindsight, its own view of the quality of the management of a single prisoner, and that what article 5 required was for an opportunity to be afforded to the prisoner which was reasonable in all the circumstances "taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitate opportunity as there has been". At [91] they said that "the availability of limited resources, particularly at a time of the kind of national financial stringency which characterised the years of delay 2008 - 2013 is an unavoidable factor".
31. So far as the quantification of awards of damages is concerned, I should refer to the Faulkner case in which, as already said, the Supreme Court had to consider the circumstances in which there should be an award of damages under article 5 to prisoners whose parole board review hearings had been delayed due to the default of the prison service or others for whom the Secretary of State was responsible, and the quantum of such awards. Their conclusions were summarised by Lord Reed at [13] and, as relevant to this case, they included the following:

"(6) Where it is established on a balance of probabilities that a violation of article 5.4 has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention.

(7) The appropriate amount to be awarded in such circumstances will be a matter of judgement, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European Court, or by domestic courts under section 8 of the 1998 Act in comparable cases.

(12) Where it is not established that an earlier hearing would have resulted in earlier release, there is nevertheless a strong, but not irrebuttable, presumption that delay in violation of article 5.4 has caused the prisoner to suffer feelings of frustration and anxiety.

(13) Where such feelings can be presumed or shown to have been suffered, the finding of a violation will not ordinarily constitute sufficient just satisfaction. An award of damages should also be made.

(14) Such damages should be on a modest scale.

(15) No award should however be made where the delay was such that any resultant frustration and anxiety were insufficiently severe to warrant such an award. That is unlikely to be the position where the delay was of the order of three months or more."

32. Although I have been taken to, and I have read, the judgments as a whole, given the summary of conclusions it would be otiose for me to make any further extensive reference to the judgments. All that I need to say for present purposes is that: (1) in the case of Faulkner the court substituted an award of £6,500 for the award of £10,000 allowed by the Court of Appeal for a period of 10 months' delay which had caused an equivalent delay in the prisoner being released on licence; (2) in the case of Sturnham the court upheld an award of £300 for a period of six months' delay which had caused frustration and anxiety. (I should also say that in Kaiyam the court concluded, consistently with Sturnham, that an unacceptable delay of about a year justified an inference of legitimate frustration and an award of damages of £600.)
33. I have been referred to authority on the question of the relevance of resources. It will be apparent from the parts of the judgement in Kaiyam to which I have already referred that the Supreme Court stated in clear terms that the availability of resources was something to which the court should have regard. However Mr Wagner referred me to authority in support of his submission that what would otherwise be unacceptable delay could not be justified by difficulties caused by a lack of resources. In particular he referred me to the first instance decisions of Bean J. in Mehmet v Secretary of State for Justice [2009] EWHC 1202 (Admin) and of Dingemans J in Fletcher v Governor of HMP Whatton [2014 EWHC 3586 (Admin).
34. In my view the answer to the question as to the relevance of resources depends on the context in which the question is being asked. Thus, in relation to the public law duty recognised in Walker a failure to provide the appropriate systems and resources is in itself a breach of that duty, so that a lack of resources cannot be a defence. That is what I understand Dingemans J to have emphasised in Fletcher. It does not mean however that the question of resources is completely irrelevant when one is considering whether or not the duty owed to an individual prisoner, whether under public law or under the article 5.4 analogous duty, has been satisfied. Moreover, as Bean J accepted in Mehmet at [16] and [17], a distinction is properly to be drawn between general or systemic under resourcing and the practical realities of life even in a reasonably well organised system, where the constraints of available resources are not irrelevant. In short, I am satisfied that in a case such as the present the court can and should have regard in general terms to the realities of availability of resources, but that if the defendant is seeking to justify what would otherwise be unjustifiable delay by reference to a specific lack of resources, especially if ongoing, the court should examine that suggestion with care and consider whether or not that problem could and should have been remedied by reasonable preventive steps being taken.
35. In this case, as in many if not all post Supreme Court Kaiyam cases, reliance on the public law duty adds nothing to the article 5.4 analogous duty, for the reasons explained by the Supreme Court at [41], namely that there is no need in a claim founded on the article 5.4 analogous duty to show either systemic failure, Wednesbury unreasonableness or failure to apply established policy. It is apparent from what Cranston J said in Weddle v Secretary of State for Justice [2013] EWHC 2323 (Admin) at [42] and from what Dingemans J said in Fletcher (ante) at [55-57] that:

(1) Systemic failure is a shorthand reference to the Walker duty, breach of which lies in the failure to make available appropriate systems and resources to allow indeterminate sentence prisoners the means to demonstrate their reduction in risk sufficient to enable their release or transfer to open conditions. Importantly, however, breach of this duty does not confer on an individual prisoner a right to a remedy in his particular case – see Cranston J at 42(3).

(2) Wednesbury unreasonableness is a shorthand reference to the duty to act rationally and in accordance with, and only with, relevant matters when making choices in relation to the allocation of resources to allow indeterminate sentence prisoners the means to demonstrate their reduction in risk sufficient to enable their release or transfer to open conditions. It follows from what Cranston J said at 42(5) that in order to succeed a prisoner would have to establish unreasonableness to a very high degree.

(3) Failure to apply established policy is a shorthand reference to the duty to act, in the ordinary course of events, in accordance with the defendant's own policy – see Dingemans J at [57].

36. The only other points appearing from the other authorities to which I should make particular reference are as follows:

(i) In Spence v SSHD [2003] EWCA Civ 732 Brooke LJ, giving the judgment of the court (in a parole board review timetable challenge), noted at [35] that whilst in Article 5.4 cases the court does not apply the Wednesbury test, it should give appropriate weight to the views of the Secretary of State and the parole board.

(ii) In Parratt v Secretary of State for Justice [2014] EWCA Civ 1478, Burnett LJ noted at [28] that the question as to whether or not any delay in the process had resulted in a prolongation of detention was "not concerned with refined concepts of causation, rather it is a straightforward "but for" test".

THE ARGUMENTS AND MY CONCLUSIONS

37. It is convenient for me to deal with the case on the basis of the article 5.4 analogous duty first because, as Mr Wagner rightly accepted, if he failed on that basis he could not succeed under the public law duty.
38. Mr Wagner's starting point, and his end point on his primary case, was that the 5½ months delay between the time when the psychological assessment report should have been produced (3 months from mid September 2013, namely mid December 2013) and when it was produced (end May 2014) was unreasonable and unjustified and, hence, a breach of the article 5.4 analogous duty. Whilst he accepted, rightly having regard to the domestic and European authorities, that each case was fact specific, he submitted that: (a) this, as with any other prisoner case, had to be approached on the footing that particular weight should be given to the right to liberty – see [194] James; (b) the European Court of Human Rights had accepted that even a delay of 6 months could not be regarded as acceptable – see Brand, referred to in [194] James; (c) in Faulkner the Supreme Court had indicated [66] that a delay of 3 months or more was "likely to merit an award".
39. Mr Thomann's starting point was that this analysis focussed on the wrong question, namely the delay in production of the psychological assessment report in isolation, whereas the right question was whether or not there was unreasonable and unjustifiable delay in arranging for the steps to be taken which had to be completed before the next parole board review could be held^[2]. In that context he submitted that:

(a) By reference to the steps which had to be taken, as to which see [11] above, it could quite reasonably have taken around 3 months for the psychological assessment report to be produced, followed by a further equivalent period or even longer for the necessary intervention work to be decided upon, processed, undertaken and reported, with perhaps a further equivalent period for the psychological addendum report (and any necessary period for consolidation work) to be completed, with the result that it could quite reasonably have taken around 9 months for the parole board review process to begin.

(b) By reference to what actually happened, the intervention work took place before the psychological assessment report was begun let alone completed, with the result that the report writer was able to conclude that no further intervention work was necessary and nor, therefore, any addendum report, so that – contrary to initial expectations – the report was the start point and the end point of the process.

(c) In the circumstances, in fact the overall time taken for the steps to be taken so that the case was ready to be reviewed by the parole board was well within a reasonable time, and there was therefore no basis for finding a breach of the article 5.4 analogous duty.

40. I accept Mr Thomann's submission that as a matter of principle the court should not be focussing on individual delays in undertaking individual steps, but at the overall time taken compared with what would have been a reasonable time for the steps as a whole to be undertaken.
41. Nonetheless Mr Wagner criticised the conclusion for which Mr Thomann contended, for a number of reasons.
42. First, he submitted that it was entirely possible that the report would have reached the same conclusion even if the claimant had not already undertaken the TSP. I reject this however, essentially for the reasons given in [12] above.
43. Second, Mr Wagner submitted that it would be wrong to include any allowance for the time it would have taken for any intervention work recommended in any psychological assessment report to be undertaken, in circumstances when in fact the claimant had of his own volition undertaken the TSP and completed it within the 3 month period within which the psychological assessment report should have been completed.
44. I am unable to accept this submission. I accept that the claimant took the initiative in requesting a placement on this course. However, as Mr Thomann submits: (a) it is apparent from the evidence, and I am satisfied, that he did this because of his concern as to the delay in arranging the psychological assessment report, so that but for that delay he would not have asked to undertake that course in advance of the report; (b) it is also apparent from the evidence that the defendant was required to, and did, assess him as suitable for the course and to agree that he should attend it, and that it did so in part because it anticipated that TSP was what would be recommended anyway.
45. In my view the starting point is to compare what ought reasonably to have happened with what actually did happen, and on that analysis I prefer and accept the defendant's submission that overall there was no unreasonable delay. I accept that in fact the defendant was able to arrange for the claimant to attend the TSP within a relatively short time, that in fact the TSP only took a month or so, with only another 2 weeks or so to produce the post course report, and that in fact no consolidation period was required. Nonetheless it seems to me that what the court has to consider is what ought reasonably have happened, rather than to measure the defendant's compliance by reference to what was, in this case, a speedy timetable which the defendant achieved without being obliged to do so. It follows, in my view, that it would not be correct to measure the defendant's compliance with its article 5.4 analogous duty claim by reference to that particularly speedy timetable.
46. However Mr Wagner's fallback position was that, by reference to what actually happened, by November 2013 the prison psychology department was aware that the claimant had been accepted onto the TSP, and thus that its assessment and report should be timetabled to allow that process to be completed and the results taken into account. He submitted that it followed that the prison psychology department could and should have scheduled the claimant for assessment and report by end January 2014, with the result that matters would have been advanced by 4 months from end May 2014 as actually happened. He reinforces this submission by pointing to the fact that Mr Crighton was able to produce his report within a short time of the completion of the TSP. He also submits that, had the prison psychology department simply reviewed the Crighton report, rather than undertaken its own assessment process from scratch, then the same position would still have been reached by end january 2014.
47. Mr Thomann accepted, properly and correctly in my view, that the defendant was under a duty to review timetabling on an ongoing basis and, hence, that it both could and should have reviewed matters once it was known – as it was in November 2013 – that the claimant would be undertaking the TSP and that the report would probably be available in around late December 2013. He also accepted, again properly and correctly in my view, that but for the problems being experienced at the prison psychology department that process could have been scheduled in November 2013 on the basis of an assessment being undertaken in around mid – late January 2014 and the report being available in around mid – late February 2014. Since the report was produced in late May 214, any relevant period of delay on this analysis is of the order of 3 – 3 ½ months.
48. I accept Mr Thomann's assessment of the period of relevant delay as being around 3 – 3 ½ months on the basis of this analysis.
49. Mr Thomann next submitted that the court should not ignore completely, or refuse to make any allowance whatsoever, for the vicissitudes of running a prison psychology department, with inevitable occasional delays due to staff shortages and other reasons, so that the court should not completely exclude any allowance for the fact that, as transpired, January 2014 was a particularly difficult time for the department with members returning from and going on maternity leave and Louise Jackson on a month's leave, and with the result that Louise Jackson had to prioritise her work on her return, as she did on perfectly rational grounds, as she explains in her witness statement.
50. He also submits that I should have regard to the particular circumstances of the claimant's case. He observed that the claimant was a man, convicted of serious crimes, who had already received substantial access to offender behaviour programmes and who had, as a result, progressed through open conditions to release on licence. He observed that he had been returned to custody as a result of his involvement with Dale Cregan and thus, as it transpired, in the most serious criminal activity which, although acquitted of criminal responsibility as regards that involvement, was the subject of serious and justified criticism by the parole board. He submitted that the parole board was perfectly entitled to take the view that he was not safe to be released until he had demonstrated the necessary reduction in risk, and that it was perfectly rational and reasonable for NOMS and the prison psychology department to take the view that this had to be demonstrated to their satisfaction, by individual assessment and report, rather than by reliance on an independent psychologist's report, no matter how eminent the author and impressive the report. He submits that against that background, and by reference to a delay of around 3 months, that delay was not such as to amount to a breach of the article 5.4 analogous duty.
51. As I have already said, Mr Wagner disputed that I should have any regard to staffing related difficulties. He stressed the fundamental importance of liberty and the European cases – see [38] above. He submitted that the delay, whether around 3 – 3 ½ months or around 4 months, fell within the bracket of unacceptable delay. He submitted that it was unreasonable and irrational for the second in command governor to advise the claimant to obtain his own psychological assessment and report, and for the lead psychologist at NOMS to accept using it as the basis for a "brief report", only for this to be ignored by the prison psychological department.
52. These are powerful arguments running both ways. However in the end I prefer those advanced by Mr Thomann, for the following reasons:

(a) I do consider that I should make some allowance for the short to medium term staffing difficulties which existed in early 2014. On this hypothesis I am considering whether the defendant ought reasonably to be criticised for not arranging an assessment in January 2014 and a report in February 2014. It is clear from the defendant's evidence that this would, for the reasons given, have been extremely difficult to accommodate, and would have led to other prisoners, who Louise Jackson reasonably considered had greater priority, being prejudiced. What is clear is that overall the timetable was advanced considerably from the 12 months originally indicated, and I do not accept the claimant's argument that no part of this 3 – 3 ½ month delay can be excused by reference to what I am satisfied were short to medium difficulties caused by the vicissitudes of department life – albeit ones which the defendant has been unable to establish it took prompt, proactive steps to seek to address - as opposed to long term, systemic, endemic and egregious under-staffing or other under-resourcing defaults.

(b) I do also accept that the defendant cannot properly be criticised for taking the approach which it did as regards Mr Crighton's report. It is clear from the documents that the defendant was not adopting a blanket policy in relation to external reports. I am however satisfied that there is no basis for regarding a policy of usually seeking to rely on internal reports as in any way irrational or unreasonable. In this case, given the offending history and return to custody, I am satisfied that the defendant was perfectly entitled to proceed with extreme caution, and to decide that it was necessary for the prison psychology department to undertake its own assessment as well as having regard to the external report. By this time it was expected that Louise Jackson would be able to assess the claimant in April 2014, so that this was not a decision taken in the context of what was envisaged would be a particularly substantial delay going forwards. This is not a case where the claimant can rely on some clear and unequivocal assurance given by the second in command governor, and there is no permission to argue breach of legitimate expectation.

(c) Overall, having regard to matters in the round, including the claimant's access to programmes overall, I am satisfied that a culpable delay of something around 3 – 3 ½ months is not such as to render the defendant in breach of the article 5.4 analogous duty.

53. Given what I have already said I can deal with the public law duty very quickly. There is no basis for finding systemic failure, and in any event the claimant could not obtain a declaration and/or damages on a personal basis for such a failure. There is no basis for finding irrationality or Wednesbury unreasonableness, nor a failure to apply established policy in the individual circumstances of the claimant's case.
54. If the claim had succeeded, then I would have been satisfied that the claimant had established his entitlement to a declaration that the article 5.4 analogous duty had been breached and also to damages, to satisfy the need for just satisfaction. I would also have been satisfied that he had established a direct causative correlation between the delay and the delay in his obtaining his eventual release on licence, and I would have awarded damages of £650 per month, with a total (based on 3 ¼ months) of £2,112.50. Counsel were agreed, rightly, that this would have included allowance for frustration and anxiety. If I was wrong in finding a causal link then the appropriate award for frustration and anxiety would have been £50 per month, total
55. £162.50.

Note 1   If it had been, then it is unlikely that the probation officer would have informed the parole board that it normally took between 9-12 weeks to obtain a psychological assessment report.     [Back]

Note 2   Mr Thomann also submitted that the question had to be considered in the context of the 18 month review period set by the defendant, which had not been challenged by judicial review by the claimant, but I am unable to accept this submission because: (a) the period was set by reference to a 12 month anticipated timetable for production of the psychological assessment report, which I am satisfied was plainly unreasonable in the circumstances; (b) it was, in this case and others, always open to the prisoner to request an acceleration of the review if circumstances justified it, so that it was never a period set in stone.     [Back]