QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
|- and -
THE PAROLE BOARD OF
ENGLAND AND WALES
for the Claimant
Ben Collins and David Bedenham (instructed by Government Legal Service) for the Defendant
Hearing dates: 3-4 February 2016
Crown Copyright ©
Mr Justice Hickinbottom:
The Legal Background
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
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.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."
"In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence."
Similarly, paragraph 4 of Annex A to PSO 2300 (Resettlement), recognises that phased release enables:
" life sentence prisoners [to] be tested and monitored under varying degrees of supervision to enable the Parole Board to take an informed view of their suitability for release on licence."
"1. A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.
2. The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed lifer estate. In this context, the focus in open conditions is to test the efficacy of such core risk reduction work and to address, where possible, any residual aspects of risk.
3. A move to open conditions should be based on a balanced assessment of risk and benefits ".
This guidance was replaced on 1 July 2015 by Annex O to PSI 22/2105 (Generic Parole Process for Indeterminate and Determinate Sentenced Prisoners); but it was not suggested by Mr Collins that the earlier guidance did anything other than appropriately reflect the importance of transfer to open conditions for a life prisoner, and set out the reasons for it.
" the case shall be considered by an oral panel within 26 weeks of the case being referred to the Board";
and rule 20(1) provides that:
"The hearing shall be held within 26 weeks of a case being referred to the Board."
The date for the oral hearing by the Board is thus, like other procedural dates, determined by reference to the date of referral by the Secretary of State to the Board; which is itself determined by reference to the date by which the Secretary of State considers prisoners should be transferred to give them the opportunity he considers appropriate to demonstrate reduced or reducing risk in open conditions.
"(1) Directions may be given, varied or revoked
(a) before the appointment of a panel, by a member of the Board; or
(b) after the appointment of a panel, by the chair.
(2) Such directions may relate to
(a) The timetable for the proceedings ".
The Board is required to serve notice on the parties of any directions given (rule 10(9)). There is an appeal to the Chairman of the Board against any direction made (rule 10(3)).
"Pre-tariff ISPs are eligible to have their cases referred to the Parole Board to consider their suitability for transfer to open conditions up to three years before the expiry of their tariff. In order to target Parole Board and NOMS resources effectively, the Secretary of State refers only those pre-tariff cases to the Parole Board where there is a reasonable prospect of the Board making a positive recommendation."
Thus, ISPs may be referred to the Board for consideration of transfer to open conditions at any time after a point three years before the expiry of their tariff. This recognises that, for ISPs who have made such progress in their risk reduction that they may be in a position to be released at tariff, the Secretary of State considers that the appropriate time for transfer to open conditions is at, or reasonably soon after, a point three years before expiry of tariff, which (in the Secretary of State's assessment) will enable them to have an appropriate opportunity to be able to demonstrate an acceptable level of risk at tariff to allow for their release.
"3.1 The GPP timescale and process is divided into 3 parts:
- Part 1: 26 week period starting at week 26 and leading up to Week 0, which is the 1st day of the calendar month period in which the Parole Board hears the case. The dossier compilation and disclosure and Parole Board directions are completed during this stage.
- Part 2: the calendar month during which the Parole Board hears the case. The Parole Board may list the case anytime during that month.
- Part 3: follows on from the oral hearing, and requires that the Parole Board provide the decision and supporting reasons within 2 weeks of the oral hearing date. After the decision has been issued [the Public Protection Casework Section, on behalf of the Secretary of State] must consider any Parole Board recommendation to transfer to open conditions in cases where the Secretary of State has invited the Parole Board to consider such a transfer, and/or set a new further review date if the Parole Board does not direct release.
3.4 The GPP sets out the key milestones that are required to be achieved at various stages during the process ".
i) Rules 18 and 20(1), of course, do impose requirements on the Board.
ii) The Board in practice appears generally to consider the guidance timetable to apply to it. Mr Collins did not suggest otherwise.
iii) In their own guidance document current at the relevant time (i.e. the ICM Guidance), the Board quote this guidance; and make provision for late referrals to ensure that the appropriate review date is met (see paragraph 19 above). In fact, the ICM Guidance has a timetable for a pre-tariff case in which the oral hearing takes place within 22 weeks (rather than 26 weeks) of referral; but no point is taken by Mr Rule as to that (see paragraph 52(i) below).
"At the moment your case is proceeding as swiftly as possible but we have not been able to secure a date for your oral hearing at this time. We fully acknowledge that this may cause you concern and that any long wait term delay is unacceptable. Should you hearing date be further delayed you may want to discuss your options with a legal representative."
The Board's Action Post-Osborn
i) The failure of the Board to comply with the ICM Guidance timetable. Mr Rule does not rely on the Board's own ICM Guidance, which provided for a timetable from referral to hearing of 22 weeks, rather than 26 weeks (see paragraph 29(iii) above).
ii) The precise calculation of when the Claimant's oral hearing ought to have taken place. Despite the 26 week period for a hearing date fixed by rules 18 and 20(1) of the Rules being in mandatory terms and the practice of extending that for reasons of operational practicality (see paragraph 20-21 above) for the purposes of this claim, Mr Rule does not contend that a hearing in November or even December 2014 would have been unlawful. For his part, Mr Collins conceded that the hearing was delayed by about six months as a result of lack of panel hearing capacity (although he denied that that delay amounted to a breach by the Board of any public law or ECHR duty). It is common ground that, but for the shortage of panel hearing capacity, the Claimant's hearing would have taken place (and his transfer to open conditions would have been effected) about six months earlier than in fact occurred.
iii) The holding of the ICM directions hearing (when there was a direction for an oral hearing) on 5 August 2015, rather than any earlier. That, in any event, had no material impact upon the hearing date fixed.
iv) The period from the setting of the hearing date on 8 March 2015, to the Board's direction on 27 May 2015 to transfer the Claimant; and indeed to the Claimant's actual transfer to open conditions at the end of August 2015.
" the duty (i) to act rationally in the provision of courses and assessments; (ii) to provide and operate a reasonable and sufficient system of courses and assessments in accordance with the statutory scheme and its underlying policy; and (iii) to follow his own policy at the material time".
The duty to provide and operate systems and resources
" to provide the systems and resources that prisoners serving [indeterminate] sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention";
or, as Lord Dyson himself later reformulated it (at ), a duty:
" to provide systems and resources necessary to afford to [ISPs] a reasonable opportunity to demonstrate that they are no longer dangerous."
As Lord Dyson indicated (again, at ), this is the only public law duty to be derived from James (hence its common appellation as "the James public law duty"); although, out of the same or similar circumstances, other common law duties of the Secretary of State, referred to below, may be engaged.
"We understand the tight financial situation across the entire prison estate and the difficulty of allocating limited resources between a range of competing demands. But the duty is to make reasonable provision, and that duty plainly requires sufficient resources to be made for its fulfilment."
i) In Noorkoiv, Buxton J said (at ):" [I]t is the obligation of the state to organise its legal system to enable it to comply with Convention requirements"
ii) In R (Cawley) v Parole Board  EWHC 2649 (Admin), Sullivan J said (at :"Both defendants [i.e. the Board and the Secretary of State] must ensure that systems are in place which enables hearings [before the Board] to be arranged 'speedily' in accordance with article 5(4) ".
iii) That passage from Cawley was reiterated and approved by Slade J in R (Smith) v Parole Board  EWHC 2998 (Admin) at .
iv) R (Biggin) v Secretary of State for Justice  EWHC 1704 (Admin) was a case concerning a delay in a prisoner's on-tariff review, caused in part by a late referral by the Secretary of State and in part by the failure of the Board to list a hearing in a timely manner. Although an at tariff hearing, the claimant prisoner did not press for his immediate release; but rather contended that, at that stage, he ought to be transferred to open conditions. As a result of the delay in the review process, his transfer to open conditions was delayed by several months. Having reviewed the authorities, Cranston J said (at ):"In relation to responsibility for the delay, clearly in this case the Ministry of Justice bears the major share of the blame. They needed to ensure that the matter was referred to the Parole Board at the appropriate time . Nonetheless, in my view, the Parole Board cannot escape completely. The Ministry of Justice and Parole Board need to work together to ensure that article 5(4) is satisfied . In terms of their [ICM] system there is a responsibility on the Parole Board, as Slade J made clear in the Smith decision, to ensure that the proceedings work smoothly. Consequently, while they do not have the primary responsibility for delay, they bear a secondary responsibility."
The duty to provide systems and resources in a rational way
The duty to act in accordance with rules and policy
Article 5 of the ECHR: The Ancillary Duty
" to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public".
"This ancillary obligation clearly exists throughout a prisoner's detention, and is separate from any obligation to release, whether under domestic law or the Convention. It is geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period. A failure before the tariff expiry may thus constitute a breach if it remains uncorrected so that he is deprived of such reasonable opportunity, which he ought to have had " (emphasis added)
The Claim: The Parties' Arguments
The Claim: Discussion
"48. The question [in Mr Haney's case] is accordingly this: was Haney afforded a reasonable opportunity to reform himself and (crucially in his case) to demonstrate that he no longer presented an unacceptable risk to the public.
49. The answer to this question is, in Haney's case, given by letter to him from the Secretary of State of June 2011. By this letter the Secretary of State identified what a reasonable opportunity was for Haney to demonstrate that he was no longer a danger that is to say a transfer to open conditions and adjudged that he should have that opportunity there and then. Unlike the other claimants, there was no other opportunity which could be afforded to him to demonstrate this. That he did not have this reasonable opportunity was the result of the systemic failures identified in [James]. It is clear that but for those failures, Haney would have been transferred to open conditions in or about late summer 2011. What he would have made of that opportunity cannot be known, nor can it be known when or whether the Parole Board would have adjudged him safe for release on licence which would endure for the rest of his life. But that he was deprived of the reasonable opportunity which the Secretary of State himself said that he should have is clear." (emphasis added).
" [T]he Secretary of State by the formal letter of October 2010 effectively defined what was regarded as a reasonable opportunity for Massey to build on the partial progress which he had made and to demonstrate (if he could) that he was safe to release, namely over a two-year period. Neither this timetable nor anything approximating to it was honoured. Instead, it was not until after that period had come and gone that he was able to begin the [course], and the letter shows that even if this produced a successful outcome, a further year or thereabouts was contemplated. We conclude that in Massey's case there was a failure to provide him with the opportunity to try and demonstrate that he was safe for release which the Secretary of State regarded as unreasonable." (emphasis added).
"10. Damages should not be awarded merely for the loss of a chance of earlier release.
11. Nor should damages be adjusted according to the degree of probability of release if the violation of article 5(4) had not occurred.
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 are 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."
i) "a declaration that the Board is not sufficiently resourced or managed, and consequently the state is failing to properly resource and provide a parole system that meets its obligations under the ECHR"; and
ii) "a mandatory order that the state must supply to the Court its proposals within 35 days of judgment identifying what steps are to be taken to remedy the systemic problem with the Parole Board lacking the resources to meet, inter alia, the requirements of article 5(4) of the ECHR. Thereafter the Court shall determine whether to make any further mandatory order."
"If the Parole Board failed to comply with its own public law duty, or if complaints legitimately made by the Board were ignored by the Secretary of State, then the Administrative Court might see fit to intervene, to direct either the Parole Board better to fulfil its responsibilities, or the Secretary of State to comply with the reasonable requests of the Parole Board for improvements to the IPP regime, sufficient to enable the Parole Board to be satisfied that it can fully discharge its own section 28(6) [i.e. of the 1997 Act] public law responsibilities."
i) In James, immediately after the passage quoted above, Lord Judge went on to emphasise that, although the court had power to make such orders, they would be highly unusual reserved, he said, for "extreme cases" because: "Although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the Administrative Court cannot be invited to second-guess the decisions of the Parole Board, or the way in which it chooses to exercise its responsibilities", the Board being " exclusively responsible for the procedures by which it will arrive at its decision" (at ). I accept that that was said in a slightly different context; but it rightly emphasised that the Secretary of State and the Board have the primary role here. Whilst the court is able to determine whether the Board is acting unlawfully, a lawful scheme may be developed in a wide variety of ways; and the court is not equipped to supervise how that might be done.
ii) The evidence before me suggested that the Board are confident that the new model of working that has been set up will eradicate the hearing backlog by April 2017 (see paragraphs 50-51 above). If this court were to make an order requiring the Board (and/or the Secretary of State although he is not currently a party to these proceedings) to produce proposals for the establishment of a lawful scheme, that scheme is bound to take some time to set up. Mr Rule asserted without any apparent evidential foundation that it should be possible to set up a new system and get rid of the current hearing backlog within, say, six months, i.e. by about August or September. However, the court is not well-equipped to consider whether proposals for eradicating the backlog which the Board (and, it seems, the Secretary of State) are committed to do are the "best" or most expeditious that can be devised in the current circumstances.
iii) Although Mr Rule appeared in Fletcher, in determining the court's intention in that case, I can only read and interpret the judgments of Dingemans J. They appear to me to be clear. He gave three judgments reported as  EWHC 3586 (Admin),  EWHC 4338 (Admin) and  EWHC 3451 (Admin); which I shall refer to as simply the First, Second and Third Judgment respectively. The judge rightly emphasised that it is not for the court to determine how public law duties (including those that arise from the ECHR) should be discharged, "management" being ultimately a matter for the Secretary of State (see, e.g., the Second Judgment at , and the Third Judgment at ). Although he required the Secretary of State to address the continuing breach of the James public law duty in the form of further evidence, he did so because he "hoped would lead to a situation where the claimants were put on the [relevant] course" (the Third Judgment, at ). Once it became apparent that the individual claimants had been put on courses or it was imminent that they would be he considered it was "no longer necessary to make a mandatory order" (the Third Judgment at ). Whatever Mr Rule had understood, it seems clear from these judgments that Dingemans J was only concerning himself with mandatory orders requiring the individual claimants to be put upon the relevant course; and not more general relief.
iv) The declaration that Mr Rule seeks is little more than a declaration that the Board comply with their legal obligations. It appears to do no more than reiterate in the form of an order, the findings of law and fact that I have made. In the circumstances of this case, I do not consider such further relief necessary or appropriate: it would not be helpful to attempt to encapsulate those findings in the manner proposed.
v) The mandatory order sought said by Mr Rule in his oral submissions to be a mere proposed "direction" requires the Board to produce proposals for a new system of dealing with oral hearings, with a lead-in time, which the court is ill-equipped to assess. In terms of the mandatory relief proposed, if and when proposals were forthcoming, it is difficult to see how the court could mandate particular steps to be taken. Again, I do not consider such relief to be necessary or appropriate.