DAVID THOMAS v. THE UNITED KINGDOM - 55863/11 - Chamber Judgment [2014] ECHR 1195 (04 November 2014)

In the case of David Thomas v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          Päivi Hirvelä,
          George Nicolaou,
          Nona Tsotsoria,
          Paul Mahoney,
          Krzysztof Wojtyczek,
          Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 14 October 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 55863/11) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr David Thomas (“the applicant”), on 28 August 2011.

2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis, of the Foreign and Commonwealth Office.

3. The applicant alleged, in particular, that his detention following the expiry of his tariff was unlawful in light of the failure of the authorities to put in place the necessary resources to enable him to demonstrate to the Parole Board that his risk had reduced, and that his Parole Board Review was a meaningless exercise.

4. On 2 September 2013 the complaint under Article 5 § 1 was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and is currently detained in HMP North Sea Camp.

6. On 8 January 2008 he was convicted of attempted kidnapping. He received an indeterminate sentence for public protection (“IPP sentence”). A minimum term (“tariff”) of one year and nineteen days was fixed.

7. In July 2008 it was identified that the applicant was required to complete the Controlling Anger and Learning to Manage it (“CALM”) course to reduce his risk.

8. On 12 December 2008 he was transferred to HMP Stocken in order to participate in the CALM course.

9. The applicant’s tariff expired on 26 January 2009.

10. In March 2009 he commenced the CALM course. He completed it on 28 May 2009.

11. On an unknown date he completed the Alcohol Awareness and assertiveness and decision-making courses.

12. On 17 February 2010 an oral hearing took place before the Parole Board to review the applicant’s detention. On 26 February 2010 the Parole Board notified him that it had decided not to order his transfer to open conditions or release. It concluded that his level of risk remained incompatible with his safe management in open conditions.

13. By letter dated 21 June 2010 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. His review period was set at eighteen months. The review was therefore scheduled to commence in February 2011 with an oral hearing by the Parole Board in August 2011.

14. In September 2010 a sentence plan review took place and identified a further course, the Sex Offenders Treatment Programme (“SOTP”), for completion by the applicant. He had failed to admit before September 2010 that there was potentially a sexual element to his offence. Prior to commencement of the SOTP, a Structured Assessment of Risk and Need (“SARN”) was to be conducted.

15. In October 2010 the applicant complained to the prison requesting information on when the SARN would take place. On 17 November 2010 he was informed that he would have to be transferred to another prison establishment for assessment because of resource issues.

16. On 17 December 2010 he was moved to HMP Acklington for assessment.

17. On 20 January 2011 his solicitors sent a letter before claim to the governor of HMP Acklington and the Secretary of State indicating that judicial review proceedings were being considered in respect of the delay in arranging the assessment for the SOTP.

18. On 25 January 2011 the applicant’s offender supervisor contacted a forensic psychologist in training in order to discuss the applicant’s case. They agreed that an initial SOTP assessment should be completed.

19. By letter dated 8 February 2011 the Ministry of Justice informed the applicant that the assessment of his suitability for the SOTP would be completed by the end of February 2011. He would then be placed on a waiting list for the appropriate course.

20. The SOTP assessment was completed on 6 April 2011 and concluded that the applicant was motivated to engage in sex offender treatment.

21. On 7 April 2011 the forensic psychologist in training sought clinical guidance on the applicant’s case from the Operational Services Intervention Group (OSIG”). The OSIG decided that a Risk Matrix 2000 (“RM2000”) was required as well as a Treatment Needs Analysis (“TNA”) to assess the level of dynamic risk posed by the applicant.

22. On 23 June 2011 a forensic psychologist in training interviewed the applicant and told him that he had been referred for a TNA and RM2000. The applicant was informed that his case would be progressed over the next three months.

23. On 30 July 2011 the Parole Board reviewed the applicant’s case on the papers. By letter dated 18 August 2011 it informed him that it had not directed his release or recommended his transfer to open conditions. It explained:

“The panel is satisfied that until you have undertaken the offending behaviour work that will be identified by the forthcoming assessments and ... a full assessment has been completed of your response to treatment it will be difficult to conclude that you have addressed the core factors that caused you to offend.”

24. On 31 August 2011 the TNA was completed.

25. By letter dated 28 September 2011 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. She considered that risk factors, namely sexual offending, thinking skills and behaviour and alcohol misuse, were outstanding. The letter clarified that the Secretary of State could not guarantee to place the applicant on the courses identified as there were limits on the availability of resources.

26. The applicant’s next review was set to commence in August 2012 and be completed by April 2013. The review period was made up of, inter alia, appropriate assessments, completion of sexual offender behaviour work, participation in the post-course review and the preparation of the SARN report.

27. At some point he was transferred to HMP Northumberland.

28. On 9 November 2011 he was told by prison staff that he was on a list of prisoners being considered for the next SOTP.

29. On 24 November 2011 the TNA and Treatment Pathway reports were completed. The applicant was deemed suitable for the SOTP. The reports were disclosed to him on 2 December 2011.

30. On 22 December 2011 his solicitors wrote to the governor of HMP Northumberland requesting that immediate steps be taken to place the applicant on the next SOTP. They expressed the view that there had been no progress since the April 2011 assessment.

31. On 3 May 2012 the applicant commenced the SOTP. He completed the course in November 2012.

32. A new target date of June 2013 was set to assess whether an oral Parole Board hearing ought to be held in his case. The outcome of the review is not known

33. A SARN report was produced on 3 April 2013.

34. On 4 October 2013 the Secretary of State accepted the applicant’s request for an exceptional transfer to open conditions. He was transferred on 5 November 2013.

II. RELEVANT DOMESTIC LAW AND PRACTICE

35. The relevant domestic law and practice is set out in the Court’s judgment in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

36. The applicant complained of a breach of Article 5 § 1 of the Convention because of an alleged failure of the authorities to put in place the necessary resources to enable him to demonstrate to the Parole Board that his risk had reduced and a breach of Article 5 § 4 on the ground that his Parole Board review in 2011 was, in these circumstances, a meaningless exercise. Article 5 §§ 1 and 4 read as follows:

“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.”

37. The Court considers that the applicant’s complaint essentially concerns adequate access to courses and that it is appropriate to examine it from the angle of Article 5 § 1 of the Convention only (see James, Wells and Lee, cited above).

38. The Government contested the argument that there had been a violation of Article 5 § 1 in the case.

A. Admissibility

39. The Government argued that the applicant had failed to exhaust domestic remedies since he had not commenced judicial review proceedings alleging a breach of Article 5 § 1 of the Convention. In the alternative, they invited the Court to declare the applicant’s complaint inadmissible as manifestly ill-founded. Citing Hall v. the United Kingdom (dec.), no. 24712/12, § 32, 12 November 2013, they argued that the applicant had been given access to numerous courses and assessments both pre- and post-tariff and that his post-tariff detention could therefore not be considered “arbitrary”.

40. The applicant maintained that he had satisfied Article 35 § 1, since any judicial review claim would have failed on account of the House of Lords’ refusal to find a violation of Article 5 § 1 in James, Wells and Lee. He also refuted the suggestion that his case was similar to the Hall case, emphasising that he had been given no access whatsoever to courses between September 2010 and May 2012.

41. The Court is satisfied that at the point at which the applicant lodged his application, the possibility of judicial review proceedings offered no prospect of success as regards systemic delay in access to rehabilitative courses (see Black v. the United Kingdom (dec.), no. 23543/11, § 52, 1 July 2014). The Government’s objection is accordingly dismissed.

42. The Court further considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

43. The applicant relied on this Court’s judgment in James, Wells and Lee, cited above. He considered it clear from the decision of the Parole Board in August 2011 that the only way that he could address his risk was by completing the SOTP (see paragraph 23 above). He argued that it was not proportionate that he had waited two and a half years for a course which took only six months to complete. He was of the view that had appropriate resources been in place, his assessment for the course would have been completed in two months.

44. The applicant further emphasised that his tariff period was only one year and nineteen days, and he had not been convicted of a sexual offence. The need to complete the SOTP was solely to address potential future risk.

45. The Government argued that the Court should not apply James, Wells and Lee in the present case since, in their submission, the case had been wrongly decided.

46. In the alternative, they contended that even if the principles in James, Wells and Lee were applied here, there had been no violation of Article 5 § 1 in this case. They emphasised that prior to tariff expiry, there had been no reason to believe that there was any risk of sexual offending. Once this had been revealed by the applicant in September 2010, he had been swiftly reassessed. By January 2011, discussions had taken place between the prison staff and the psychology department regarding the applicant’s treatment needs and by June 2011 he had been informed of his referral for TNA and RM2000 assessments. The assessments had been concluded and the applicant provided with copies of the reports by December 2011. The applicant had clearly been progressed through the prison system and kept informed of developments. There had been no two and a half year delay, as alleged by the applicant. Nineteen months had elapsed between the applicant’s first admission that his offending had a sexual element and his commencement of the SOTP. During this time, steps were being taken by prison staff to address the applicant’s needs. At no time did his post-tariff detention become arbitrary.

2. The Court’s assessment

47. The Court sees no reason not to apply the principles set out in James, Wells and Lee, cited above, to the facts of the present case.

48. In James, Wells and Lee, cited above, § 209, the Court explained that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection. This required reasonable opportunities to undertake courses aimed at helping prisoners to address their offending behaviour and the risks they posed. While Article 5 § 1 did not impose any absolute requirement for prisoners to have immediate access to all courses they might require, any restrictions or delays encountered as a result of resource considerations had to be reasonable in all the circumstances of the case, bearing in mind that whether a particular course was made available to a particular prisoner depended entirely on the actions of the authorities (see § 218 of the judgment).

49. In examining whether an applicant’s detention post-tariff has been unjustified for the purposes of Article 5 § 1 (a) of the Convention the Court “must have regard to the detention as a whole” (see James, Wells and Lee, cited above, § 201). Thus, where, as in the present case, the applicant claims that delay in his access to prison courses constituted a violation of Article 5 § 1 (a), the applicant’s general progression through the prison system must be assessed in light of the particular circumstances of the case (see Hall, cited above, § 32; and Black, cited above, § 54).

50. It is clear from the papers before the Court that the applicant’s progress through the prison system began at an early stage. Prior to the expiry of his short tariff in late January 2009, the CALM programme was identified as an appropriate course on the basis of the information available and a prison transfer took place in order to enable the course to be undertaken (see paragraphs 7-9 above). The applicant commenced the course less than two months after his tariff had expired and completed it in May 2009 (see paragraph 10 above). He also completed an Alcohol Awareness course as well as a course in assertiveness and decision-making (see paragraph 11 above). He was therefore in a position at his review in February 2010 to present the Parole Board with evidence of his risk reduction work. The Parole Board concluded, as it was entitled to do, that further risk reduction work was required (see paragraph 12 above). The Secretary of State confirmed in June 2010 that she agreed with this conclusion (see paragraph 13 above). The applicant does not complain about inadequate access to courses during this period of his detention.

51. In the context of a September 2010 sentence plan review aimed at identifying further work required, the applicant disclosed for the first time that his offending had a sexual element. The potential need for him to participate in a course aimed at addressing sexual offending risk, namely the SOTP, was swiftly identified. Having regard to the new disclosure, further risk assessment was deemed necessary (see paragraph 14 above). The applicant does not dispute that his disclosure had implications on the nature and extent of the risk posed by him that required further investigation.

52. The crux of the applicant’s complaint concerns the time taken for the further assessment. The Court notes that three months after his disclosure, in December 2010, he was transferred to another prison establishment for assessment (see paragraph 16 above). The following month, discussions took place between the applicant’s offender supervisor and the psychology department to identify the nature of assessment required (see paragraph 18 above). Less than three months later an initial SOTP assessment was completed (see paragraph 20 above). Immediate clinical guidance was sought by the psychologist in the case and the outcome was that further assessments were sought to evaluate the level of dynamic risk that the applicant posed (see paragraph 21 above). The applicant was informed of his referral for further assessment and given a timetable for progression of his case (see paragraph 22 above). The TNA was completed by August 2011 and a further prison transfer subsequently took place (see paragraph 24 and 27 above). TNA and Treatment Pathway reports, which concluded that the applicant was suitable for the SOTP, were completed in November 2011 and disclosed to him in December (see paragraph 29 above). The applicant commenced the SOTP some five months later, in May 2012 and a SARN report was produced within five months of completion of the course (see paragraphs 31 and 33 above).

53. In the meantime, a Parole Board review took place. The Panel noted that assessments which were underway in light of the disclosure which had taken place since its last review, and made reference to the need to undertake offending work identified in the forthcoming assessments (see paragraph 23 above). There was no criticism of any perceived delay on the part of the authorities as regards these assessments or the availability of appropriate courses.

54. In the present case, it can be seen that unlike in the case of James, Wells and Lee, prompt steps were taken to begin the applicant’s progression through the prison system. It is true that the applicant did not commence the SOTP until some twenty months after he had disclosed that his offending had a sexual element. However, the evidence demonstrates that throughout this period his case was under active examination by the relevant professionals and relevant assessments were being identified and carried out. In this respect it is clear that the applicant’s representatives were mistaken in expressing the view in December 2011 that no progress had been made since April (see paragraph 30 above). Finally, once it was established in late November 2011 that the applicant was suitable for participation in the SOTP, it was not unreasonable that he had to wait until May 2012 to commence the course having regard both to resource considerations and to the progress that he had already made. A prompt modification was made to the applicant’s parole timetable presumably to enable completion of the course and preparation of post-course assessments in time to be taken into account at his next review (see paragraph 32 above).

55. In these circumstances the Court is satisfied that a real opportunity for rehabilitation was provided to the applicant and that there was no unreasonable delay in providing him access to assessments and courses. There has accordingly been no violation of Article 5 § 1 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 5 § 1 of the Convention.

Done in English, and notified in writing on 4 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Ineta Ziemele
Registrar President

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