Case No: C0/5068/2009

Neutral Citation Number: [2009] EWHC 2049 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX

Date: Tuesday, 28th July 2009

Before:

MR JUSTICE SIMON

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Between:

	BOSWELL	
Claimant	
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(1)	 THE PAROLE BOARD
(2)	SECRETARY OF STATE FOR JUSTICE	

Defendants	

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Mr V Jagadesham appeared on behalf of the Claimant.

Mr S Karim appeared on behalf of the First Defendant.

Mr I Ponter appeared on behalf of the Second Defendant.
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Judgment

Mr Justice Simon:

1.	Brian Boswell, the claimant in these proceedings, is a serving prisoner.  On 15 March 2007 he was sentenced to imprisonment for public protection for one count of issuing threats to kill.  The tariff was set at a period of one year and 51 days.  This period expired on 5 May 2008.  He was also sentenced to a concurrent term of twelve months’ imprisonment with an extended license for an offence of Section 47 assault.  That latter sentence has no bearing on the issues I have to decide.

2.	The pre-sentence report assessed him as posing a very high risk, in particular to women with whom he was in a relationship.  There was also an assessment of a high risk of re-offending.

3.	The basis of the claim is that the two defendants have failed in their respective obligations to arrange for the listing of the claimant’s case for an oral hearing, and that in doing so they are acting in breach of Article 5(4) of the European Convention on Human Rights.  The claimant appeals with permission from HHJ Waxman QC, sitting as a deputy High Court judge.  

The facts as outlined 
4.	The claimant’s case was first considered by the Parole Board, the first defendant, on 11 February 2008 before the expiry of the tariff, when no recommendation was made, although it was noted that the claimant was keen to undertake courses which would address the main risk areas relating to offending, domestic violence and substance misuse.  In a letter of 22 April 2008 the Secretary of State for Justice, the second defendant, through the National Offender Management Service, agreed with the first defendant’s recommendation and set a twelve-month period for the next review date: in February 2009.  

5.	The second defendant also recommended the completion of two programmes relating to the main risk areas.  The Healthy Relationship Programme (“HRP”) and the Prison’s Addressing Substance Related Offending programme (“PASRO”).  Since April 2008 the claimant has successfully completed a number of programmes, and the prison reports on his conduct and his attitude have been favourable.  It was for this reason, no doubt, that the claimant’s Offender Manager’s report of 19 December 2008 supported his release from custody.  The report also noted the courses he had completed; and that it was not the claimant’s fault that he had not completed the HRP and was missing out on a Community Domestic Violence Programme.

6.	In March 2009 the second defendant referred the claimant’s case to the first defendant to consider whether it would be appropriate to direct his release.  This was a reference under section 28(6)(a) of the Crime (Sentences) Act 1997, which is a pre-condition to the Parole Board considering a prisoner’s case, with a view to directing his release if satisfied that it is no longer necessary for the protection of the public that he should be so confined (see section 28(6)(b).  It is common ground that the completed parole dossier should have been prepared by the second defendant for the purposes of a review hearing in February 2009 by November 2008, and it is also common ground that the parole dossier was not in fact seen by the first defendant until March 2009.  The dossier contained a number of reports, including that of the claimant’s Offender Manager, to which I have already referred.

7.	The matter came before the Intensive Case Management (“ICM”) member of the panel on 22 March 2009; and directions were issued on 8 April 2009.  The ICM system is explained in a witness statement of Ms Sally James, an Executive Officer Post Panel case-worker, at the first defendant at paragraphs 23 and 24: 

“23. Intensive case management (ICM) is a process which was developed and introduced by the Parole Board in January 2008 to improve the quality of information about prisoners that come before the Board.  It is aimed at minimising the risk of referrals both pre-hearing and on the day of hearing.

24. The ICM process ensures that, as far as possible, all of the relevant information on which the decision whether or not to release the prisoner into the community, should be made available at an early stage and that it is accurate and up to date.”

8.	A target month for hearing was set at June 2009.  The four-month period between April and June was needed as a lead time before the hearing in order to allow proper preparation of the hearing, including time for the prisoner to make representations and to commission reports he may want to rely on.  In the event, no hearing was listed for that month.  Nor indeed has a hearing been listed up to this time.  The problem has been explained by Ms James.  She says that it is due in large part to the number of IPP sentences which have had to be reviewed since 2006/2007; and the limited judicial resources available to the first defendant to chair the panels for these hearings.  

9.	On 7 April the claimant, by his solicitors, wrote to complain that no date had been set for the second hearing.  On 9 April the first defendant stated that its hearing dates were completely full (up to and including the end of June), that further reports were required to bring the dossier up to date, but noted that the case had been “cleared for listing”.  At the time the claim was issued no date had been offered for a hearing, and the same is true as at the date of this judgment.

The relief sought
10.	In the detailed grounds submitted on 14 May the claimant sought (1) a mandatory order requiring the first defendant to list an oral hearing to take place forthwith; (2) declarations that the first and second defendant are in breach of article 5(4) of the ECHR; and (3) damages for such breach under section 8 of the HRA and/or article 5(5) of the ECHR.  In his skeleton argument and in his submission Mr Jagadesham has elaborated on these claims.

The legal principles to be applied  
11.	Article 5(1) of the ECHR provides: 

“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;”

12.	Article 5(4) provides: 

“Everyone who is deprived of his liberty by his 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.”

13.	In paragraph 30 of Oldham v The United Kingdom [2000] ECHR 36273/97 the ECtHR explained that article 5(4) requires: 

"not only that the competent courts must reach their decisions speedily but also, where an automatic review of the lawfulness of detention has been instituted, then decisions must follow at 'reasonable intervals'.”

The claimant’s case 
14.	For the claimant, Mr Jagadesham submits that the underlying object of an indeterminate sentence is that, once the penal tariff has been served, the prisoner should remain in custody only for so long as it is necessary for public protection.  In these circumstances there is an obligation to hold a periodic review in order to comply with article 5(4).  The object of the review being to decide whether the detention remains justified, see SSJ v James [2009] UKHL 22 at [12].  The first defendant is required under the provisions of Section 28 of the 1997 Act to consider whether the prisoner’s continued detention is necessary for public protection following reference by the second defendant.  Inadequate resources or insufficient manpower cannot excuse delays which are otherwise breaches of article 5(4), see the Court of Appeal decision in R (Noorkoir) v SSHD [2002] EWCA Civ 770.  Speedy periodic reviews eliminate the possibility of a prisoner remaining in detention when the legal justification for it, by reason of his continuing dangerousness, no longer exists, see Loch v SSJ [2008] EWHC 2278 (Admin), Stadlen J at [89].  

15.	There is a subsidiary obligation on both the first defendant and the second defendant actively to case manage parole referrals so as to ensure that systems are in place which enable referrals to be arranged “speedily” in accordance with article 5.4, and the first defendant must actively case manage cases and proceed with reasonable dispatch, see Smith v SSJ and the Parole Board [2008] EWHC (Admin) 2998, Slade J, at [7].

16.	The history of the claimant’s case, the failure of the second defendant to send a dossier promptly and the failure of the first defendant to ensure hearings, demonstrates the clear breach of their obligations and entitles the claimant to the relief claimed.  So far as this relief is concerned, Mr Jagadesham submits, first, in these circumstances the court should make declaration that the first and second defendant have acted in breach of Article 5(4).  Secondly, although he does not press for a mandatory order directing a prompt panel hearing, the Court should order that there is a latest date by which the case should be heard: what he called a “back-stop”.  He draws my attention to a similar order made by Irwin J in a decision made in a case called Sullivan decided on 6 July 2009.  Thirdly, in any event, he submits that the court should make an award of damages to reflect either the loss of a chance of a favourable recommendation in February 2009 or, on an alternative basis, based on decisions of the ECtHR, that the claimant must have suffered feelings of frustration, uncertainty and anxiety flowing from the delay in review which cannot be compensated by a finding of violation of rights, see for example the Oldham case at paragraph 42.

The first defendant’s case
17.	For the first defendant, Mr Karim submits, on the claim for a declaration that the first and second defendants were in breach of article 5(4), firstly, there is no right to a parole hearing at any specific time.  Although there is an obligation to review “speedily”, whether a hearing takes place speedily depends on the circumstances of the particular case.  Secondly, a prisoner is entitled to a review at the time his tariff expires and at reasonable periods thereafter: see James, Lord Hope at [19].  What constitutes a reasonable period will depend on the facts.  Thirdly, it is accepted that lack of resources is not, as such, a justification for delay in holding reviews.  However, it will only be where the system breaks down entirely and continued detention becomes arbitrary that article 5(4) will be violated and the prisoner will be entitled to damages (see Lord Hope again in James at [81] and Blair J in R (Faulkner) v SSJ and the Parole Board [2009] EWHC (Admin) 1507 at [27].  Fourthly, the question for consideration then is whether the delays in fixing a hearing are so unreasonable as to amount to a breach of article 5(4).  For the reasons set out in Ms James’s witness statement, the delays have been caused by an increased workload and limited judicial resources to chair the panels.  Fifthly, whatever the position in the past, the problem has now been addressed and steps taken to reduce delays.  In these circumstances the consequence of the claimant’s argument is, in effect, that further resources should be devoted to the problem.  However, this is pre-eminently a matter for the Government rather than the courts, see Lord Phillips in R (Walker) v Secretary of State for Justice [2008] 1 WLR 1977 at [40].  

18.	On the claim for a mandatory order if a breach were made out: first, if there is a breach of article 5 the grant of a mandatory order to vindicate the infringement of rights is a matter of discretion.  Secondly, an important, if not decisive, factor bearing on the discretion is the fact that to make an order would impact on other cases and the first defendant’s case management.  Its effect might be to cause deferral in a number of other cases and possible breaches of the rights of other prisoners.  On the issue of damages, he submitted first, that the issue only arises if, as a result of any review, it were apparent that the claimant would have been released at an earlier date.   This is unlikely in lieu of adverse opinions expressed in the dossier, in particular by a psychologist.  Thirdly, the claimant’s parole hearing is not, as some hearings may be, a foregone conclusion or a clear case, where a release is likely to be recommended.  In any event, he would only be entitled to damages reflecting the loss of chance; and on this basis the damages must be very moderate, see Lord Brown in James at [63].  

The second defendant’s case
19.	For the second defendant Mr Ponter submits, in addition to the points made on behalf of the first defendant, on the issue of whether there has been a breach, (1) the continued detention of a prisoner imprisoned for public protection after the expiry of the tariff period is not unlawful, see Lord Judge in James at [102], [103], [108], [126] and [133].  (2) As submitted on behalf of the first defendant, there would only be a breach of article 5(4) where the statutory scheme has broken down to such an extent that continued detention becomes “arbitrary”, to use the words of Lord Hope in James at [31], or the situation is such that the Parole Board is “unable to form any view of dangerousness for a period of years rather than months”, to use the phrase of Lord Brown at [51] in the same case.  (3) The only breach of obligation charged against the second defendant is the delay in relation to the presentation of the dossier.  Although this delay was regrettable, it was not so “unreasonable” so as to give rise to a breach of article 5(4).  The claimant was not deprived of the right to a review for so long that it could be said that the statutory scheme had broken down or that the claimant’s sentence had become arbitrary.  In any event, the dossier was not completed until December of 2008, so it could not been sent when the first defendant said it should have been sent: in November 2008.

20.	On the issue of remedy, if a breach is made out, first he submitted, no remedy should be granted.  Again, as submitted on behalf of the first defendant, the claimant cannot demonstrate that he would been released or had a real chance of being released, see the observations of Lord Brown in James at [63].  There is simply no evidence on the point, and it is undesirable to speculate when the ultimately determinative decision will be made by the first defendant.  Secondly, if necessary, the second defendant would rely on the adverse views expressed in the dossier by the psychologist at paragraph 6.4: 

“In my opinion, if [C] were released at this moment in time, the risk of him committing a further violent offence is relatively high.”

And at paragraph 7.1:

“…[C’s] current level of risk remains too high in open conditions… he is not suitable for release.  I recommend that he remains in closed conditions until his level of risk has reduced through attending and successfully completing the relevant treatment.”

21.	Both defendants referred to the recent decision of Collins J in Betteridge v The Parole Board [2009] EWHC Admin 1638 (23 June 2009) on the issue of relief.  I will come to that judgment shortly since it contains a helpful analysis of the law as well as being the most recent decision in this area.

Conclusions
22.	In my judgment the starting point is the common ground that there must be a speedy hearing after the expiry of the tariff so as to determine whether the detention is lawful.  Once the tariff period expires (in this case in May 2008) there is an obligation to hold a speedy hearing.  I reject the argument that the first defendant is only in breach of Article 5(4) if a claimant can show that the hearing system has broken down to such an extent that the detention is “arbitrary”.  It seems to me that this is wrong both as a matter of principle and in the light of the analysis by Collins J in Betteridge at [24] and [25] of the speeches in James of Lord Hope and Lord Brown.  Arbitrary detention is a form of unlawful detention, but it is plainly not the only way in which unlawful detention can occur.  Detention after the end of the tariff term may be unlawful if it is not reviewed speedily.

23.	Although the degree of permissible delay will depend on the individual circumstances, where the tariff period is itself approximately 14 months and the delay at present is 14 months, where even now it is said that there cannot be a hearing in September, in other words a period of 16 months, although I accept there are explicable reasons for this delay, it seems to me that it cannot be said that the lawfulness of the detention has been reviewed speedily.  This point is perhaps highlighted by the delay in sending the dossier which contributed to the overall period.  On the other hand the existence of a breach of Article 5(4) does not necessarily entitle the claimant to what is discretionary relief.  In my view the claim for a mandatory order is wholly unsustainable, for the reasons relied on by both defendants.  The court is not to be used as a means to jump queues to the prejudice of other prisoners who may have a better claim to be heard: see the observations of Collins J at [27] in Betteridge: 

“…it would be inappropriate for an individual, by making a claim for judicial review, to jump the queue at the expense of those who do not seek judicial review.”

The point is well made in paragraph 21 of the first defendant’s detailed grounds.

“The consequence to the Board, and the knock-on consequences to (possibly more than one) other prisoners, would be potentially very great.  The all but inevitable consequence would be that another hearing would have to be cancelled, and this would require moving a Panel to another prison.  That in turn means that the likelihood would be the deferral of not one, but two or three, other hearings. That may potentially lead to a breach of Article 5(4) in respect of a number of other persons.  The Board is best placed to administer the resources available to it, and the Court, it is respectfully submitted, could not be in a position to oversee that function on its behalf and cannot predict the consequences that the making of a mandatory order would have: eg R (Pennington) v Parole Board and the Secretary of State for Justice [2009] EWHC 297, [8-10]” 

This submission is supported by the evidence of Ms James in her witness statement at paragraph 36.  

24.	I was initially attracted by the suggestion that there should be an order that the claimant’s hearing take place by a particular date; but it seems to me that for the court to make even that order would create difficulties of the type referred to by the second defendant and give rise to the objection mentioned by Collins J in Betteridge.

25.	I turn then to the question of damages on which I have reached the following conclusion.   At paragraph 63 of his opinion in James, Lord Brown stated:

“Article 5(5) provides that: ‘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.’ Unless the claimants can establish that, had they been given the opportunity to demonstrate their safety for release, they would have been (or at least would have had a real chance of being) released, it is difficult to see how they could be entitled to any substantial award of damages. That, however, must be a matter for the judge below, not your Lordships.”

26.	Mr Jagadesham focussed on the words “a real chance of being released”.  I doubt whether Lord Brown could have had in mind an award of damages at the present stage and before any hearing; but in any event this is not a case in which it could be said that the claimant would have been recommended for release following a speedy hearing or indeed at the hearing which will eventually take place.  The claimant cannot demonstrate that he would have been or would be released or had or has a real chance of being released at a timely hearing.  Such evidence as there is is equivocal.  In these circumstances it is pointless to speculate on the ultimately determinative decision which will be made by the first defendant.  

27.	The claimant can point to cases (the Oldham case to which I have already referred and R (Hirst) v SSHD and the Parole Board [2005] EWHC 1480 Admin) in which awards of the order of £1,000 to £1,500 have been awarded on the basis of what might be characterised as compensation for feelings of uncertainty and anxiety arising out of breaches of Article 5(4).  However, I do not accept that such an order should be made in this case.  The claimant can and should bring such proceedings on a very much more certain factual basis in civil proceedings if so advised.  

28.	In Betteridge Collins J said this at [31]:

“In the light of what is being done, it is not now appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5(4) unless there are very special circumstances, something has gone badly wrong despite the new arrangements in that prisoner's particular case. It will not be helpful, either to the prisoner or to the court, if claims are brought which in reality, because of the existing situation, are not likely to achieve any sensible redress and merely add to costs.”

I agree entirely with those observations.  These are claims which should not now be brought in the Administrative Court unless there are special circumstances.  This is not such a case, and it is very unlikely that the single judge would have granted leave if he had been aware of the Betteridge case.  It also seems to me that it would undermine the reasoning in this passage of Collins J’s judgment if I were to grant relief in this particular case which will not be available to others in future judicial review proceedings.

29.	Further and in any event, as a matter of discretion, I would not have been minded to make an award of damages in this case.  In my view the content of this judgment is a sufficient and proper vindication of the claimant’s rights on the facts of the present case and in the light of the information I have about the claimant.  

30.	Nor am I persuaded that it would be right to make a declaratory order.  It is clear that the defendants are now addressing what has been a problem in arranging for timely hearings to review the legality of detention in IPP cases with a degree of flexibility which allows priority cases to be dealt with first.  This is clear from the witness statement of Ms James.  Again I note that in Betteridge Collins J adopted a similar approach to a claim for declaratory relief at [29].

31.	In future I would expect applications for permission in cases like the present to be refused rather than for time to be taken in investigating particular factual situations without obvious benefit to anyone and at considerable public expense.  It follows that this claim for judicial review fails.