Case No: C1/2015/3588
Neutral Citation Number: [2017] EWCA Civ 961
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge Stephen Davies
[2015] EWHC 2712 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/07/2017
Before:

LADY JUSTICE RAFFERTY
THE SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE HENDERSON

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Between:

	THE QUEEN 
(on the application of FRANCIS DIXON)	Claimant/
Appellant	
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	THE SECRETARY OF STATE FOR JUSTICE	Defendant/ Respondent	

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Mr Adam Wagner (instructed by Duncan Lewis Solicitors) for the Claimant
Mr Colin Thomann (instructed by The Government Legal Department) for the Defendant

Hearing date: 3 May 2017

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Judgment
Lord Justice Henderson: 
Introduction 
1.	This is an appeal by Francis Dixon, a former prisoner serving a life sentence at HMP Manchester who was eventually released from custody on licence on 30 March 2015.  He had previously been released on licence in February 2011, but was recalled to prison in October 2012 following his arrest on charges of involvement in offences of murder, attempted murder and causing an explosion. After a five month trial he was acquitted of those charges, but remained in custody pending further consideration of his case by the parole board. 
2.	At an oral hearing on 16 September 2013, a panel of the parole board considered whether it was appropriate to direct the release of the appellant from custody or, if not, whether a recommendation should be made for his transfer to open conditions.  The panel determined both these questions adversely to the appellant, having concluded that his level of risk of re-offending and of serious harm to the public was high.  The panel did, however, recommend that the appellant:
“… 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 re-offending and serious harm before you can be considered for release or progressive transfer to open conditions.”
3.	The appellant’s case is that there was then an unacceptable delay by the prison service in the provision of this recommended psychological assessment, as a result of which his ultimate release from prison on licence took place about five and a half months (or alternatively four months) later than it should have done.  By an application for judicial review filed on 11 July 2014, he sought a declaration that the Secretary of State for Justice (as the minister responsible for the prison service) had acted in breach of duty under public law and/or under Article 5 of the European Convention on Human Rights (“the ECHR”) in failing to provide a timely psychological report, together with damages for the alleged breach of Article 5. 
4.	Permission to apply for judicial review was initially refused on the papers by His Honour Judge Pelling QC, but at a renewal hearing on 13 November 2014 permission was granted, on the basis which I have indicated, by His Honour Judge Raynor QC. The substantive hearing of the application took place in Manchester on 3 September 2015 before His Honour Judge Stephen Davies, sitting as a judge of the High Court. In his reserved judgment handed down on 30 September 2015, the neutral citation number of which is [2015] EWHC 2712 (Admin), the judge dismissed the claim, although he accepted that there had been a period of culpable delay of three to three and a half months in obtaining the relevant psychological report, and that a direct causative correlation had been established between that delay and the delay in the appellant’s eventual release on licence. 
5.	The appellant now appeals to this court, on two grounds. The first ground, for which permission was granted by Vos LJ on 10 March 2016, is that on the basis of the findings of fact which the judge made he erred in law in not concluding that the appellant’s rights under Article 5(4) were breached.  The second ground is that the judge further erred by imposing a requirement that the respondent’s failure had to be “long term, systemic, endemic and egregious” in order to amount to a breach of Article 5(4). Permission to appeal on this ground was refused (on paper) by Vos LJ, who observed that it had no real prospect of success because the judge had imposed no such requirement in his judgment. Vos LJ directed, however, that the appellant might argue for permission on ground 2 at the substantive hearing, with the appeal to follow if permission were granted. That is what happened, although by the time he came to make his oral submissions to us Mr Wagner (appearing, as he did below, for the appellant) was content for the court to consider ground 2 as part of his argument on ground 1.
6.	The Secretary of State was represented before us, again as below, by Mr Thomann. In the event, having heard Mr Wagner’s arguments in support of the appeal, we did not find it necessary to call on Mr Thomann.  In this judgment, I explain why it was in my opinion clear that the appeal had to be dismissed.
Facts
7.	A full account of the relevant facts may be found in the judge’s judgment at [7] to [26]. The summary which follows is largely based on those paragraphs.
8.	In 2000 the appellant, then aged 25, 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.  Because he was not centrally involved in the relevant criminal conduct, the minimum tariff period which he was required to serve under the sentence of life imprisonment was reduced on appeal to five years. 
9.	While 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.  He was unable to keep that promise, however, and in October 2012 he was recalled to prison following his arrest on the serious charges which I have already mentioned. These arose from his involvement with a notorious Manchester criminal.  At the subsequent parole board hearing on 16 September 2013, after the appellant’s acquittal on the charges for which he had been arrested, the panel assessed the level of risk which he currently posed as follows:
“The panel’s view is that there are clear parallels to be drawn between the behaviour which led to your recall and your behaviour at the time of the index offences. Instead of sticking to your professed Risk Management Plan at the time of your release, you reverted to your old habitat in Manchester, your old job as a driver of fast cars and your old habit of mixing with pro-criminal associates.  The panel therefore agrees with the Offender Manager that your level of risk of re-offending and of serious harm to the public is high.”
10.	I have already quoted the panel’s recommendation that the appellant should now undergo the psychological assessment which had been proposed before his prior release on life licence.  As the judge observed, it is not clear what proposals for assessment had in fact been made before his previous release. The judge thought it clear, however, that the panel was proposing “a sequential process” involving:
(a)	the appellant undergoing a psychological assessment, resulting in the production of a report which would identify what further intervention work was needed in closed conditions to reduce his risk;
(b)	consideration of that report by the Secretary of State, with a view to deciding what (if any) further intervention work the appellant should undertake; 
(c)	the appellant then undertaking the appropriate further intervention work, to be followed by a report on its completion in order to demonstrate that it had been positive;
(d)	the production of an addendum psychological report, perhaps after a period of consolidation if recommended, to confirm that his risk levels had reduced to a level which would justify the psychologist recommending his release or transfer to open conditions; and
(e)	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 report and the usual updated reports from the probation and prison services. 
11.	Although the panel did not state in terms that further intervention work would be required before a psychological assessment report could recommend the appellant’s release or transfer to open conditions, the judge was satisfied on the material before him “that there was no realistic prospect either of that being recommended or of any further parole board panel accepting such recommendation, if made”: see the judgment at [12].
12.	At the oral hearing on 16 September 2013, the panel was informed by a probation officer that it normally took “6 to 8 weeks plus 3 to 4 weeks” for a psychological assessment and report to be obtained.  The judge found that, at this stage, the expectation was that in normal circumstances this would mean “a likely timescale of between 9 to 12 weeks” to schedule and undertake the assessment and then produce the necessary report.  
13.	On 1 October 2013, the probation officer duly requested the Manchester prison service to arrange for a psychological assessment to be made, but was told that the psychology department would be unable to complete the report for approximately 12 months and had therefore requested that the appellant’s next parole review should take place in 18 months’ time. The judge found that in October 2013 there were expected to be “significant delays in producing such reports over the next few months”. The main problem was that two of the four full-time 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 then, while the fourth, Louise Jackson, was due to be absent on planned leave for the whole of January 2014. The problem was compounded by the fact 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” (paragraph [15]).
14.	The judge accepted Mr Wagner’s submissions that steps should have been taken to address the problem, for example by investigating the possibility of transferring psychologists from other prisons or recruiting maternity cover.  On the available evidence, no such efforts were made by the Secretary of State. On the other hand, the judge was satisfied that there was no evidence that the problem was either long standing or endemic: it was “a short to medium term problem”, which it was reasonable to expect “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”.
15.	On 21 October 2013, the National Offender Management Service (“NOMS”) formally notified the appellant that it accepted the recommendations of the parole board. He was informed that responsibility for addressing his risk reduction rested with him, but the Secretary of State had identified certain “further interventions in closed conditions” to help him address the problem, including undertaking a psychological assessment.  He was told that his review period was therefore set at 18 months from the date of the last review, to allow time for completion of the intervention work, and for consolidation and follow-up reports to be prepared.  Accordingly, his parole review would begin in September 2014 “and will aim to be concluded by May 2015” (paragraph [17] of the judgment). 
16.	As the judge found at [18], this letter from NOMS failed to disclose that the true reason why it would need 12 months before the review process could begin was the expected delay in producing the psychological assessment report. The proper approach, in his view, would have been to set the timetable on the basis of a realistic estimate of the time needed to produce the psychological report, undertake the recommended interventions, and obtain an addendum report.  
17.	The appellant was informed of the proposed timetable on 23 October 2013. He was dissatisfied, and made an official complaint which produced the response that he was on the waiting list, but it was expected that his assessment would begin early in 2014. 
18.	The judge then found that, to his credit, the appellant decided to take matters into his own hands, in so far as he was able to do so. First, 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. He was assessed as suitable for inclusion on the TSP, and the post-course report dated 19 December 2013 recorded that his attendance on it had been positive.
19.	Secondly, the appellant raised the delay in obtaining the psychological assessment informally with the deputy prison governor, who advised him to “seek resolution by obtaining an independent psychological assessment”, although without giving any assurance that such a report would be accepted by the Secretary of State in lieu of an assessment produced by the prison psychology department.  In accordance with this advice, the appellant, through his solicitors, commissioned a psychological assessment and report from Professor David Crighton, whom the judge described as “an eminently qualified and impeccably independent consultant forensic psychologist”. Professor Crighton saw the appellant on 16 December 2013, and produced his report on 20 January 2014.  The report concluded that the appellant had benefited from completion of the TSP, that the risks which he posed were generally either low or moderate, and that subject to a “suitably rigorous risk management plan” he could appropriately be released to undertake further identified rehabilitation work in the community.  
20.	Professor Crighton’s report was then submitted by the appellant’s solicitors to the prison authorities, who sent it on to NOMS.  Their response was that it was not usual practice to accept an external report of this nature as meeting the needs of the parole board’s recommendation.  To do so would enable prisoners to choose their own psychologists.  The report might, however, be reviewed by the psychology department at Manchester.  
21.	Around this time, the matter was allocated to Louise Jackson on her return from leave in early February 2014. Having reviewed and prioritised the work which needed her attention, she interviewed the appellant and was able to produce her report by the end of May 2014.  She reached substantially the same conclusions as Professor Crighton, whose report the judge thought it plain she had before her.  She too recommended the appellant’s release, subject to “robust risk management plans” and “relapse prevention work” (paragraph [25] of the judgment). 
22.	Following a request from the appellant’s solicitors, NOMS agreed in late June 2014 to advance the appellant’s review date by two months. The judge accepted that this was the maximum acceleration which the appellant could realistically have expected by this stage.  In the event, the parole board hearing which recommended his release did not take place until 3 February 2015, and he was not released from custody on licence until 30 March 2015.  The appellant did not seek to criticise the delay in convening the further parole board hearing, but he submitted to the judge that if the psychological assessment report had been made available earlier, a similar request for the parole board hearing to be accelerated could have been made correspondingly earlier, and there would have been no rational reason for the respondent not to agree to it.  
23.	On the basis of these findings of fact, the judge accepted Mr Thomann’s submission for the Secretary of State that the period of relevant delay, by reference to what actually happened, was around three to three and a half months.  The judge explained this as follows, in the final section of his judgment dealing with the arguments and his conclusions:
“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 2014, any relevant period of delay on this analysis is of the order of 3-3½ months.”
24.	It is also convenient to set out at this stage the judge’s assessment of the problems caused by the staffing shortage in the psychology department, and of the approach adopted by the department to Professor Crighton’s report. The judge made this assessment in paragraph [52], when explaining why in the end he preferred the submissions advanced by Mr Thomann:
“(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 3-3½ month delay can be excused by reference to what I am satisfied were short to medium [term] 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.”
25.	The judge went on to hold, in [54], that if the claim had succeeded, he would then have been satisfied that the claimant “had established a direct causative correlation between the delay and the delay in his obtaining his eventual release on licence”. In those circumstances, the judge would have awarded damages of £650 per month, making a total (based on three and a quarter months) of £2,112.50. 
The law
26.	So far as material, Article 5 ECHR provides 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.
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.”
27.	In R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] AC 1344, the Supreme Court gave authoritative guidance on the question whether the Secretary of State was under a duty under Article 5.1 or Article 5.4 ECHR to provide prisoners sentenced to life or other indeterminate prison sentences with reasonable opportunities to facilitate their progress towards release on licence after the expiry of their minimum or “tariff” term.  This guidance included detailed consideration of the reasoning of the European Court of Human Rights in James v United Kingdom (2012) 56 EHRR 399 and of the House of Lords in R (Walker) v Secretary of State for Justice (Parole Board Intervening) [2009] UKHL 22, [2010] 1 AC 553. The leading judgment was delivered by Lord Mance and Lord Hughes JJSC, with whom the other members of the court agreed.  
28.	As the court explained in Kaiyam at [2]:
“Since the abolition of capital punishment in 1965, the most severe form of sentence imposed under English law has been a sentence of life imprisonment.  A life sentence does not mean imprisonment for the rest of the defendant’s natural life; it means a sentence composed of two parts. The first part is a minimum term, fixed by the court according to the gravity of the offence and the circumstances of the offender.  The second is an indefinite term beyond that minimum, in which period the prisoner may be released, not unconditionally but on licence, if he is judged no longer to present an unacceptable risk to the public.  In modern times the decision on release is committed to the Parole Board, an independent body correctly treated as a court by the European court.  Release on licence is required by statute when the Parole Board has directed it, but it may so direct only when satisfied that it is no longer necessary for the protection of the public that the prisoner be confined: section 28(5)(6) of the Crime (Sentences) Act 1997.”
29.	After referring to earlier authority establishing that a life prisoner is entitled to the protection of Article 5.4, by means of regular reviews of the risk which he presents once the punitive period of his sentence has expired, and discussing some of the issues raised by the decision of the Strasbourg court in James, the court turned at [30] to the question of “alleged failures in the provision of appropriate opportunities to prisoners to progress towards release from sentences about the imposition of which, as such, no complaint is or can be made”. The court explained why it was unable to accept the logic of the decision in James that any prisoner who was not afforded such appropriate opportunities should be released, but agreed that a link should be recognised between preventive detention and rehabilitation, and that a prisoner should have a remedy in damages under the Convention for failure by the prison authorities to provide a proper means of progression towards release.  The court said at [36]:
“We consider that the Supreme Court should now accept the Fourth Section’s conclusion [in James], that the purpose of the sentence includes rehabilitation, in relation to prisoners subject to life and IPP [indeterminate imprisonment for public protection] in respect of whom shorter tariff periods have been set. We also consider that the Supreme Court can and should accept as implicit in the scheme of Article 5 that the state is under a 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.”
30.	The court then stated that this duty could not be found in the express language of Article 5.1, and continued:
“37. Article 5.4 would be a more satisfactory home for any duty of the nature identified in the previous paragraph, if its language covered it (which it does not).  Article 5.4 gives rise to an ancillary duty on the state, breach of which does not directly impact on the lawfulness of detention.  The duty is to make available access to judicial review by a court or here the Parole Board, which will consider whether the information put before it justifies continued detention or release. Speedy access to the Parole Board like reasonable access to proper courses and facilities represents an important aspect of a prisoner’s progression towards release. But the language of article 5.4 is in terms confined to access to judicial review by the Parole Board on the basis of the information available from time to time.  It does not cover the prior stage of provision of courses and facilities in prison, which gives rise to the information necessary on any Parole Board review.  
38. The duty to facilitate the progress of such prisoners towards release by appropriate courses and facilities cannot therefore be brought, in our opinion, within the express language of either article 5.1(a) or article 5.4. But it is on any view closely analogous at an earlier stage, to the duty involved under article 5.4, and it is far more satisfactory to treat it as an analogous duty arising by implication at an earlier stage than that covered by article 5.4, rather than to treat article 5.1(a) as incorporating it. We consider that a duty to facilitate release can and should therefore be implied as an ancillary duty – a duty not affecting the lawfulness of the detention, but sounding in damages if breached. Such a duty can readily be implied as part of the overall scheme of article 5, read as a whole, as suggested in In re Corey [2014] AC 516.
39. The appropriate remedy for breach of such duty is, for the reasons explained, not release of the prisoner, for his detention remains the direct causal consequence of his indefinite sentence until his risk is judged by the independent Parole Board to be such as to permit his release on licence. The appropriate remedy is an award of damages for legitimate frustration and anxiety, where such can properly be inferred to have been occasioned. Except in the rarest cases it will not be possible to say what might have been the outcome of an opportunity by way of a prison programme which was not provided or was provided late.  It will thus not, except in the rarest cases, be possible to establish any prolongation of detention … ”
31.	The court went on, at [41] to [42], to examine the content of the ancillary duty which it had recognised as implicit in Article 5.4:
“41. On that basis the question arises in what precise terms and in particular at what precise level the duty should be put. As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provisions for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness … or any failure to apply established policy.  The question is whether liability for breach of article 5 is similarly limited.  In our opinion it is not. The express rights conferred by article 5 are individual rights.  The ancillary right which we identify as existing under article 5 is also a right in favour of each individual prisoner and its satisfaction or otherwise depends on the particular circumstances of the individual case. Although the European court was concerned in James v United Kingdom 56 EHRR 399 with circumstances in which there had been systemic failures in the United Kingdom, the European court’s decision was based on a careful individual analysis of each applicant’s prison history: see e.g. paras 218-222.
42. The European court does not however insist at the international level 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.  Nor should domestic courts do so.”  
32.	The court proceeded to give three examples from the Strasbourg jurisprudence of cases where the European court had been prepared “to look at the matter overall” or “as a whole” when refusing a remedy for delay in enabling a prisoner to participate in a rehabilitation programme, or (in the third case) for a delay of some four months in implementing a parole board recommendation for the transfer of a prisoner to open conditions from 1 March 2012 until July 2012.  
33.	In dealing with the individual case of Kaiyam, the court said at [60]:
“Article 5 does not create an obligation to maximise the coursework or other provision made to the prisoner, nor does it entitle the court to substitute, with hindsight, its own view of the quality of the management of a single prisoner and to characterise as arbitrary detention (in the particular sense of James v United Kingdom 56 EHRR 399) any case which it concludes might have been better managed.  It requires that an opportunity must be afforded to the prisoner which is 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 rehabilitative opportunity as there has been.  It is plain that Kaiyam was not denied a fair or reasonable opportunity to rehabilitate himself or to demonstrate that his risk is acceptable …”
34.	It can be seen from the above citations from Kaiyam that availability of resources is one of the matters which may have to be taken into account in deciding whether there has been a breach of the ancillary duty.  The judge in the present case discussed the question of resources at [33] to [34] by reference to two unreported first instance decisions of High Court judges sitting in the Administrative Court, concluding at [34]:
“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.”
I respectfully agree with that approach. As I have already explained, it led the judge to conclude, after a careful review of the evidence, that there had been a culpable delay of around three to three and a half months in the production of a psychological report for the appellant, but that this delay was not sufficiently serious to amount to a breach of the implied ancillary duty.
35.	The judge also said at [35] that in the present case, as in many (if not all) post- 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.”
Again, I agree.
Discussion
36.	The Supreme Court delivered its judgment in Kaiyam on 10 December 2014, about five months after the appellant in the present case had filed his application for judicial review, and about one month after he had been granted permission to apply for judicial review at the renewal hearing on 13 November 2014. Because the ancillary duty under Article 5.4 was recognised for the first time in the Supreme Court’s judgment, it follows that there was no reference to it in the appellant’s original grounds for seeking judicial review, or in the Secretary of State’s grounds of defence.  By the time of the substantive hearing, however, breach of the ancillary duty had unsurprisingly been placed at the forefront of the appellant’s case.  In the section of his judgment dealing with the law, the judge reviewed Kaiyam at some length; and in his discussion of the arguments, beginning at [37], he said:
“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.”
Having decided that there was no breach of the ancillary duty, the judge then dealt very briefly with the public law duty at [53]. The judge had already explained, at [35], why reliance on the public law duty was unlikely to add anything to the ancillary duty under Article 5.4.  Consistently with this, he contented himself with saying at [53]:
“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.”
37.	There is no indication anywhere in the judgment that the judge was asked to consider the case on the basis of an alleged breach of the express terms of Article 5.4 itself, that is to say a breach of the obligation to afford speedy access to the parole board for judicial review of the lawfulness of the appellant’s continued detention.  The reason why the appellant’s case was not presented in this way lies, no doubt, in the principles stated by the Supreme Court in Kaiyam at [37] and [38], quoted above. The appellant’s real complaint was about the delay in providing the psychological assessment, which was one of the essential steps which had to be completed in advance of any further hearing before the parole board.  The alleged breach related to the information which it would be necessary to place before the board on any subsequent review, and not to the conduct of the review itself.  The alleged breach was therefore appropriately characterised as one arising at the prior stage, when the only duty in play was the ancillary duty.
38.	Despite this background, however, Mr Wagner’s primary argument for the appellant on the appeal to this court was based on the express language of Article 5.4 itself, and not on the implied ancillary duty identified in Kaiyam. He argued that the parole board hearing which recommended the appellant’s release on licence had been unjustifiably delayed by three to three and a half months, and that this failure was alone sufficient to entitle the appellant to an award of damages. He supported this argument by reference to a number of authorities, both before and after Kaiyam. Thus, for example, he took us to the decision of this court in R (Faulkner) v Secretary of State for Justice [2010] EWCA Civ 1434, [2011] HRLR 7, where there had been unjustifiable delay in arranging a parole board hearing which resulted in the appellant’s release. It was held that there had been a breach of Article 5(4) for a period of about ten months, and an award of damages was made to reflect the fact that the appellant had spent some ten months in prison when he ought not to have done.  In contrast with the present case, however, it was conceded by counsel for the Secretary of State that there had been a year’s delay in arranging the hearing: see the judgment of Hooper LJ (with whom Wilson and Sedley LJJ agreed) at [34].  Nor was any consideration given to the ancillary duty, because the case pre-dated Kaiyam. I therefore find it of little assistance in the present context.  
39.	Another pre-Kaiyam case was R (Sturnham) v Parole Board and Secretary of State for Justice [2011] EWHC 938 (Admin), where an administrative error in supplying a dossier when it should have been led to an unjustified delay of between six and seven and a half months in arranging a parole board hearing.  Mitting J held that there had been a breach of the claimant’s right to a speedy hearing under Article 5.4, and awarded the claimant damages of £300. Mitting J observed, however, at [39] that “[t]his was not a case in which the Secretary of State or the Parole Board lacked the resources to fulfil the normal timetable”: it was a simple case of administrative error.  By contrast, under the ancillary duty (which had not yet been recognised) the question of resources forms part of the overall assessment which the court is required to make.  On any view, Sturnham is far removed on its facts from the present case, where the cause of the delay was the personnel problems experienced by the prison psychology department between November 2013 and February 2014. (I should also mention, for completeness, that the award of damages made by Mitting J was overturned by the Court of Appeal, but restored by the Supreme Court: see R (Sturnham) v Parole Board [2013] UKSC 23, [2013] 2 AC 254, at [96] to [97] per Lord Reed JSC).
40.	More recently, in R (Parratt) v Secretary of State for Justice and Parole Board [2014] EWCA Civ 1478, unreported, the court was concerned with an admitted violation of Article 5.4: see the judgment of Burnett LJ at [6], where he recorded that in August 2011 solicitors acting on behalf of the parole board had conceded that a delay of about four months in listing the claimant’s parole board hearing after the date of his tariff expiry breached his rights under Article 5.4.  In the light of that concession, which of course pre-dated Kaiyam, the case is again of no real assistance in the present context. 
41.	In my opinion, there are two fundamental objections to Mr Wagner’s attempt to re-fashion the present case as one involving a direct breach of the express terms of Article 5.4.  The first objection is that this is not how the case was argued before the judge, and Mr Wagner is in effect inviting us to accept an entirely new way of putting his client’s case.  The second objection is that, on analysis, the circumstances of the present case seem to me to fall clearly within the scope of the ancillary duty as explained by the Supreme Court in Kaiyam. The causative delay was not in the scheduling of the parole board hearing, which could not usefully take place until the procedure which the board had recommended on 16 September 2013 had been completed, but lay rather in obtaining the psychological assessment which was a necessary prelude to any further consideration of the case by the board. This engaged the respondent’s ancillary duty to facilitate release, but the content of that duty needs to be assessed on a realistic basis, having regard to all the circumstances of the case, including the resources available to the prison psychology department.  That is how the judge viewed the matter, and in my judgment he was entirely right to do so. 
42.	If this conclusion is correct, the judge’s assessment cannot in my view be faulted. He was entitled to find that there had been a culpable delay in the provision of the assessment by Louise Jackson (although she was not herself personally responsible for any unreasonable delay).  The judge was also entitled to give the appellant credit for his initiative in obtaining a place on the TSP in late 2013, and in commissioning his own psychological assessment and report from Professor Crighton. Equally, however, the judge was entitled not to criticise the respondent for declining to accept Professor Crighton’s report without more, and for deciding to proceed (given the appellant’s background and the unfortunate history of his previous release on licence) with extreme caution.  These matters all formed part of the overall consideration of the position mandated by Kaiyam, and it was then for the judge to form a conclusion on which side of the boundary the case lay.  His conclusion that no breach of the ancillary duty was made out betrays no error of approach, and is in my view unassailable.
43.	As to the second ground of appeal, I have already said that Mr Wagner addressed no separate argument to us on it: see [5] above.  I am satisfied that there is nothing in the ground, for the reason which Vos LJ gave when refusing permission on paper. The judge nowhere said, or implied, that the respondent’s alleged failures had to be “long term, systemic, endemic and egregious” in order to amount to a breach of Article 5.4.  His references to systemic failure etc as a legal requirement were all confined to the public law duty, which as he rightly said recedes into the background once the ancillary duty has been considered.  The judge was of course also entitled to have regard to these considerations in assessing the culpability of the delay in the context of the ancillary duty, but he nowhere erected them into a hurdle which had to be overcome if a breach of the ancillary duty was to be established.  They formed part of his evaluation, but did not in any way supplant the true legal test.
44.	For these reasons, I was satisfied that we should dismiss the appeal on the first ground, and refuse the appellant permission to appeal on the second ground.

The Senior President of Tribunals:
45.	I agree.
Lady Justice Rafferty:
46.	I also agree.