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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Massey, R (on the application of) v Parole Board of England and Wales & Anor [2008] EWHC 997 (Admin) (21 April 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/997.html Cite as: [2008] EWHC 997 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		21st April 2008

1. MR JUSTICE COLLINS: The claimant in this case was convicted of murder in May 1976 and sentenced, inevitably, to life imprisonment with a recommendation that he serve a minimum of 20 years. This was a very bad case of murder and there appears to have been some sort of gangland involvement. He did not quite serve that minimum because in 1994 he escaped from custody and fled to Spain. While there, he was involved in an incident which resulted in his arrest on a charge of attempted murder. That resulted from a fight in a bar in which he was alleged to have used a knife. He was convicted by a court in Spain and sentenced to 3 years' imprisonment. He was then extradited to this country in 1999.
2. In February 2004 the Parole Board recommended that he should be transferred to open conditions, but the Secretary of State rejected that. Again, in June 2005, the Parole Board made the same recommendation, which this time was accepted by the Secretary of State, and in September 2005 he was transferred to open conditions. There were four adjudications against him whilst he was there, two of which involved drugs, but on 30th May 2007 the Parole Board directed his release. He was released on licence on 12th June 2007. There were curfew conditions, but on four occasions shortly after his release he broke the curfew terms.
3. It is fair to say, as appears from a report from the probation officer, that the arrangements made for his release at a hostel in South London were not entirely satisfactory because he needed to visit his aging father, who I think was dying, in North London, and it was this that led, it seems, to the problems of meeting the curfew. In addition to the breaches of curfew, he was also tested for drugs and he proved positive for cocaine. He asserts that it was because of the pressure resulting from the arrangements that had been made that he resorted to the use of cocaine, but only on one occasion. In any event, as a result of all this, on 19th July 2007 a decision was made to revoke the licence and he was returned to prison on 21st November 2007.
4. He was informed of his right to apply to the Parole Board, and on 12th December 2007 his solicitors wrote to the Board indicating that he wished to have an oral hearing of his application. The Parole Board received a dossier from the relevant authority on 28th December 2007, just over a month after the recall. Unfortunately, as a result of a build-up of cases, which had not been able to be considered over the Christmas period, there was a delay before his case was put to the judicial member whose responsibility it is, under the system which the Parole Board has set up, to consider the dates of hearings.
5. The system is explained in a statement from Mr McCarthy, who is the head of casework and responsible for overseeing the conduct of litigation brought against the Parole Board. He explains that what happens now is that there is a system of what is called "intensive case management" in which a judicial member considers, within the target of setting a month for each hearing, the individual claims, and issues directions, which are designed to ensure that the hearing is effective. Those directions will include directions as to the reports which are considered necessary.
6. Those, of course, will vary from case to case, but there are some which one would have thought were common to all recall cases, such as, for example, prison reports on conduct there and reports from the probation officer dealing with conduct whilst on licence and prognosis as to the future and opinions as to whether there is still a danger, because that is the test: whether the individual in question still remains dangerous to the public, were he to be released from prison.
7. The context within which the Parole Board has to operate is, in the circumstances of a case such as this, covered by Article 5(4) of the European Convention and in the Schedule to the Human Rights Act 1998. That requires there to be a speedy decision in relation to any taking into custody, any detention of an individual. What is "speedy" will depend upon the circumstances of an individual case. A complicated case will inevitably take longer to prepare than a straightforward, simple one. In addition, one has to recognise that anybody -- any court, any tribunal, and the Parole Board itself -- will have a caseload and will have to fit all the matters that come before it within that load, and there is inevitably some time, which must be kept to a reasonable minimum, which will have to elapse before any case can properly be heard.

In an earlier case, which I decided, R (Cooper) v Parole Board [2007] EWHC 1292 (Admin), I was concerned with the then system which, on the evidence before me in that case, was unsatisfactory. It set a target of 55 days, but that target was frequently unable to be met because reports were not ready or because, for whatever reason (sometimes lack of judicial members) the claims could not be heard when they were supposed to be heard. The result was that in many cases there were unacceptable delays. The new system is said to be much better and to have avoided such delays.

8. If there is a special reason in any case for extra speed, that can be put to what is called a "duty judge" and the question of speeding the case up can be considered. I do not know how well known that new system is. Mr Field indicated that his solicitor was not aware of it, but it may be that one good result of this claim is that it is now, I hope, to be well known, and it seems to me that it is something that the Parole Board ought to indicate, in whatever literature it hands out, to those who wish to apply to it. I appreciate that it may be thought to encourage everyone to say they have a special case, but that is not a good reason for not telling individuals of the system, and making it clear that it is dependent upon there being special circumstances shown to take the case out of the ordinary. Certainly, as it seems to me, some sort of publicity about this ought to be provided, that is, if the Board has not already done so.
9. The complaint here is that the hearing was fixed for 13th May 2008, which is some 6 months or so after the recall to prison. That is, it is submitted, altogether too long a period because to keep someone in custody for 6 months before their claim can be heard is not to hear it speedily. The fact that it is 13th May 2008 has meant, as Mr Field realistically accepts, that no order from this court can be of any use to him because it would be quite unreasonable to try to advance it by what is now only 3 weeks. If the court were to direct advancement:

(a) the Parole Board might find it almost impossible to do that;

(b) it might not be in the least convenient for some of the witnesses who have been, no doubt, warned for 13th May 2008; and

(c) it would mean, in all probability, taking another case out of the list which was fixed for that day, and hence producing, for that other case and the claimant in that other case, a further delay.

So, having regard to the date that we have now reached, it is not realistic for me, even if I were minded to do so, to make any direct order for an earlier hearing.

10. But Mr Field submits that the matter is not academic because there has been, he submits, an unlawful delay and the claimant is, if I find there has been, entitled, at least, to a declaration that that is so because, if the Parole Board were to decide that he ought to be released, and it was clear that, had the matter come before the Parole Board earlier, they would have reached the same conclusion, then there might be the possibility of a claim for damages for the period during which he was detained when he should not have been. The question, therefore, is whether there is indeed, in this case, material which persuades me that there has been a falling short by the Board of their obligations to ensure a speedy hearing.
11. The delay between 28th December 2007 and 12th February 2008, when the matter was put before the legal member, the intensive case manager, is unfortunate. The reason for it was a build-up of cases resulting from the Christmas vacation. It seems to me that, regrettable though it is, it is not possible to regard that period as being one that can be said to be unreasonable to such an extent as renders it unlawful within the terms of Article 5(4). But Mr Field submits that that in itself ought to have been regarded by the judicial member as a special circumstance which obliged him to fix a hearing date as early as was reasonably possible. His view was that it needed until the end of March for the necessary reports to be obtained. Mr Field accepts that he is not able to challenge that decision because the only basis for so doing would be that it was irrational for the judicial member to regard the period of some 6 weeks or so as necessary for the obtaining of all reports; and, of course, one must always bear in mind that it is necessary to give enough time to get the relevant reports because to give too little time will run the risk of meaning that the necessary reports are not available on the hearing date, and hence there will be yet further delay.
12. So it is an important balance that has to be struck by the judicial member in deciding what is the right period for requiring the necessary reports to be produced. As I say, he decided on the end of March. The submission is that that should have meant that a hearing would be possible within April rather than May. It is obvious that some time after the date for the reports must be allowed because they have to be assimilated, and it may be that those representing the claimant will want to get some report for themselves to rebut whatever is said in the reports obtained, or get some evidence to rebut something which is raised.
13. Furthermore, there is always the possibility that reports may be, for good reason, unable to be produced within the timescale. So there has to be some degree of built-in flexibility. The decision made by the judicial member was that it was reasonable to go for mid-May and leave some 6 weeks. Again, as it seems to me, I am not in a position to say that that was a decision which was irrational. Mr Field submits that the pre-existing delay, which amounted to some 3 months, was such that he ought to have made sure that the case was listed as soon as possible. Mr Auburn makes the fair point that that particular complaint was first elaborated this morning, and it may well be that if it had been put in writing in advance, some statement from the judicial member, some evidence from the judicial member, might have been required and might have been put forward, which explained why he felt that it was not possible to go for an earlier date.
14. It is, I repeat, unfortunate that it has taken all of 6 months for the claimant's application to the Parole Board to be heard. That is undoubtedly longer than is desirable but, as it seems to me, in the circumstances of this case, and in the light of the system which the Parole Board has put into operation, it is not possible for me to say that this is a case which has not been brought speedily and, so, that there has been a breach of Article 5(4). In those circumstances, I would not allow this claim.
15. This was put before the court as a rolled-up hearing. It seems to me that the sensible course for me to adopt, because, on the material raised, it cannot be said that the point was unarguable, is to grant permission but, having dispensed with all procedural steps thereafter, to reject the claim for judicial review.
16. MR AUBURN: My Lord, all that I would ask is for an order for costs not to be enforced without the leave of the court.
17. MR JUSTICE COLLINS: I suppose you are technically entitled to an order for costs, Mr Field, but it is clearly one which should not be enforced without the leave of the court, in the circumstances.
18. MR AUBURN: My Lord, I am grateful.
19. MR JUSTICE COLLINS: Are you legally aided?
20. MR FIELD: My Lord, yes.
21. MR JUSTICE COLLINS: So you want the usual order?
22. MR FIELD: The usual order, please.
23. MR JUSTICE COLLINS: Detailed assessment?
24. MR FIELD: Yes.
25. MR JUSTICE COLLINS: Thank you for your help. Right, do not bother to wait.
26. MISS RHEE: My Lord, I am instructed to suggest a possible correction to your Lordship's judgment. I believe your Lordship made reference to the Home Secretary rather than to the Ministry of Justice.
27. MR JUSTICE COLLINS: Did I? If I did, then I am sorry. I do not think I mentioned that word, but I will have a look. When I get the transcript, I will make sure I have the right ministry.
28. MISS RHEE: Grateful, my Lord.