Case No: 5391/2014
Neutral Citation Number: [2014] EWHC 4180 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 17th December 2014

Before :

PRESIDENT OF THE QUEENS BENCH DIVISION

THE HONOURABLE MR JUSTICE BLAKE
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Between :

	KEITH GUNTRIP	Claimant	
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	PAROLE BOARD OF ENGLAND AND WALES
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     SECRETARY OF STATE FOR JUSTICE	Defendant	

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(Transcript of the Handed Down Judgment of
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Philip Rule (instructed by Own Solicitors) for the Claimant
Colin Thomann (instructed by Treasury Solicitors) for the First Defendant
Andrew Deakin (instructed by Treasury Solicitors) for the Second Defendant

Hearing dates: 25 and 26 November 2014
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Judgment
The Honourable Mr Justice Blake: 
1.	This is the judgment of the court. On 20 November 2005 the claimant was sentenced at Snaresbrook Crown Court for an offence of street robbery to Imprisonment for Public Protection (IPP) with a minimum term of 2 years pursuant to s.225 Criminal Justice Act 2003. He was then aged 23 years.  Time spent on remand was to count towards the minimum term with the consequence that the term to be served for punitive purposes expired in July 2007. 
2.	On 13 July 2009, two years after the expiry of the minimum term, the Parole Board concluded, following an oral hearing that the claimant continued to pose a significant risk of serious harm to members of the public and declined either to direct his release on licence or to recommend a transfer to open conditions. 
3.	On 9 December 2010, in a challenge by way of judicial review brought by the claimant against the same defendants as in the present case, [2010] EWHC 3188 (Admin), Ouseley J granted a declaration that there had been a breach of the claimant’s human right to proceedings of appropriate expedition in which the lawfulness of his detention could be determined as required by Article 5(4) European Convention on Human Rights (ECHR). He further awarded damages of £1,200 split equally between the defendants for their respective responsibilities for a period of delay of a year. He also concluded that the Secretary of State’s decision that the next review of the legality of the continued detention should take place 18 months after the July 2009 review was lawful. The period was set to enable mental health assessments to be made and for the claimant to meet the objectives set in his progress to release.
4.	In April 2010, the claimant’s solicitors obtained a psychiatric report from Dr Duffield. A dossier was provided to the Parole Board in August 2010 and Intensive Case Management (ICM) Directions were made on 18 November 2010 with a view to setting a target date for February 2011.  In considering the future scrutiny of the claimant’s case, Ouseley J had expressed the hope that a hearing should not be further delayed. 
5.	In January 2011, the Parole Board fixed a date for a hearing of the claimant’s case in March 2011, giving due priority in the light of the history. At that stage the Board envisaged an oral hearing. However at about this time the claimant’s behaviour in prison and his mental health underwent a significant deterioration.  Between 15 October 2010 and 31 May 2011, 21 disciplinary offences were found proved for conduct that included threatening or abusive words or behaviour, criminal damage, and assaults on prison officers.
6.	On 17 February 2011, the claimant was the subject of a medical transfer to HMP Peterborough and on 25 March 2011 his solicitors asked for a six month adjournment of his hearing because he was unwell.  The hearing set for 31 March was adjourned and, on 16 May 2011, the Board identified a target date for the next hearing as July 2011, two months short of the six months the solicitors had requested.
7.	 On 24 May, the claimant was moved to HMP Chelmsford where his status was re-categorised from C to category B. On 13 July 2011, he was transferred to the Three Bridges Regional Secure Unit for a psychiatric assessment pursuant to direction made by the Secretary of State under s.47 Mental Health Act 1983 on 6 July 2011.  When this came to the Board’s attention, there was an exchange of emails between the Board and the Secretary of State on 21 July  that concluded with a statement from the Case Manager for Lifers and IPPs  made on behalf of the second defendant:
“Mr Guntrip was transferred to the MH estate on 8 July, so his current Parole Review (and accordingly the hearing on 2 August) is cancelled.”

8.	The Board took the view that as its jurisdiction depended on the Secretary of State making a referral to it, the power to make a referral carried with it the power to revoke it and if a referral was cancelled, the Board had to wait for a further one to be made before it could further examine the case.
9.	The claimant remained at Three Bridges until 12 August 2011.  A report from a psychiatrist Dr Kamal dated 15 August 2011 stated:
“Since coming to the medium secure unit Mr Guntrip has spent time in seclusion on several occasions for making explicit threats of violence towards several members of the staff and patients.  He has damaged property and broke a window by throwing a chair at it.  He has said things like “I am going to stab… (a named individual) in the neck with a pen when I get the chance…” and while in seclusion he has said, “I can pretend to be calm but once I am out I would get you”.
The fact that he has made similar threats to a considerable number of staff makes it impossible for us to manage him outside the seclusion.  He has said that he can control his anger and has shown that he can actually do this.  He presents as very calm and rational while in seclusion but in view of his changeable behaviour over the last 4 weeks his ability to stay calm for long periods of time and then change quickly makes him unpredictable and difficult to trust.
When Mr Guntrip was in seclusion for the first time he was given an injection …as he refused to take oral medication.  This led to him developing a tremor.  He asked not to be given the injection again.  He agreed to take regular Aripiprazole which he said had helped in the past.
However, with passage of time it became clear that he does not have any major mental illness such as Bipolar Disorder or Schizophrenia.  He has not presented with any symptoms that are necessary for diagnosing these conditions according to the ICD 10 criteria.
What he does present with are traits of a severe personality disorder.  He has a very low tolerance to frustration, explosive anger, a tendency to take offence when none is intended by others, confusion about his own identity (as a man and regarding his sexuality), affective instability, sensitivity to rejection, impulsivity, a history of polysubstance abuse, history of self harming behaviour and a possible history of sexual abuse in childhood.”

10.	On 22 November 2011, the Secretary of State made a further referral of the claimant’s detention to the Board. There is no information as to why the referral was not made until three months after he had been returned to prison.
11.	The dossier was sent to the Board in February 2012. It included a sentence planning report by the Offender Supervisor indicating that the claimant’s conduct in prison since his return there in August 2011 continued to be poor. It recorded that he refused to engage with therapy and medication at Three Bridges as he wanted to complete it in prison rather than in a mental health facility after transfer to HMP Norwich on 16 August 2011 and continued:
“Mr Guntrip was asked if he wanted to engage with the Mental Health in Reach team at Norwich he declined their assistance and has not been taking any medication for his mental health.  Since his reception to HMP Norwich Mr Guntrip has verbally abused staff; threatened prisoners and has been found with self made weapons in his cell.  When I asked him about his behaviour Mr Guntrip informed me that he suffers from Manic Depression/Bi Polar condition, when he feels his sensation of being high he does not want to come back down”
The report also noted that since his last adjudication on 10 October 2011 the claimant had made a concerted effort to improve his behaviour. He had been informed this would help him to transfer to another establishment that would be better suited to his needs.
12.	On 7 March 2012 a Board member issued ICM directions with a view to a target hearing date of April 2012. The relevance of Dr Kamal’s July 2011 assessment to the Board’s task was identified.  Between April and June, the timetable to move to a hearing was delayed at the request of the claimant’s solicitors to enable them first to obtain a copy of Dr Kamal’s assessment and then take instructions. In fact no written representations were made to the Board by 6 August 2012 when a single member conducted a paper review of the detention.
13.	 By rule 16 (1) of the Parole Board Rules 2011, the single member must decide either to refer the case to an oral panel or make a provisional decision that the prisoner is unsuitable for release. The single member declined to refer the case to an oral hearing and concluded:
“In reaching its decision the panel has sought to balance your interest in sentence progression against the need for public protection from you committing offences likely to cause serious harm. The panel notes that there is currently no support for your release, reports indicating that there is little or no evidence of any reduction in your assessed high risk of causing serious harm to the public and medium to high risk of re-offending.  Noting that you have been assessed as having an Emotionally Unstable Personality Disorder with traits of Dissocial and Paranoid personalities, the panel considers that you need to be further assessed by the Psychology Department as to the implications of this in relation to you effectively addressing your risk.  Consequently, for the present, taking all of the above matters into account, the panel concludes that you pose too high a risk for it recommends your release or your transfer to open conditions.”

14.	Under rule 17 of the Rules the prisoner may request that a panel hear his case orally and under rule 17(2) must include full reasons for such a request. On 14 September 2012 the claimant’s solicitors forwarded by way of representations a statement from him that reads as follows:-
“I do not accept the Parole Board’s decision and confirm my request for an Oral Hearing.  My application to the Parole Board is to direct my release as it is in my view no longer necessary for the protection of the public that I be confined.
I have already suffered considerable delay in relation to my case which was highlighted in previous Judicial Review proceedings and resulted on 4 October 2010 directions being made that my hearing was to be given priority.  
Despite this my case has not progressed to an oral hearing.  A hearing was scheduled for 30 March 2011 but was deferred with my consent.  The Hearing was then re-scheduled to 20 June 2011.  This Hearing was also ineffective and was rescheduled to 2 August 2011.  This hearing was also cancelled without any prior notice to myself or my solicitors.  The most recent hearing was listed for 20 July 2012.  Again this hearing was cancelled with no notice to either myself or my solicitors.  No proper reason was offered for this deferral although my solicitors were informed it was due to the fact I had not submitted written representations prior to the hearing.  This in fact is not a valid reason to defer a hearing and in any event the Parole Board had been informed that my representations and application would be made orally.
In light of this I now ask that there be priority confirmed as per the directions previously and a hearing listed imminently.
I have considered carefully the written summary of my paper review contained within the decision letter.  The content of which contains much inaccurate information about my recent prison history and current situation. I do not accept the recommendations made regarding my future and believe the reasoning behind these recommendations is flawed.
It is essential that an Oral Hearing is now fixed without any further delay.  This is necessary for the following reasons.  I do not agree with the proposals put forward by Dr Khamal or my Offender Manager.  It is right and appropriate that these witnesses attend an oral hearing in order to give evidence.  It is necessary (sic) the Parole Board to hear evidence directly from me and I should now be afforded the opportunity to give evidence myself.
There are issues of fact in dispute and the assessments and reports prepared by my offender manager and Dr Khamal need further probing.  There is in my view doubt that my case can be dealt with on paper, fairness requires an Oral Hearing”.

15.	On 17 September 2012 the Board refused the application for an oral hearing. It had regard to its then policy and practice that where there are no realistic prospects of release or progression to open conditions at that review or other persuasive reason, it is the usual procedure for cases to be concluded on the papers. In terms of the specific representations made by the claimant it noted that no assessment could be made of the inaccuracies alleged as they were not specified. 
16.	In October 2012 the Secretary of State set the next period of review as one of two years to enable the claimant to achieve progress in the issues identified by the Board.
17.	On 3 December 2012, section 123 of the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) came into force amending the Criminal Justice Act 2003 by abolishing the sentence of IPP for those sentenced after that date and replacing it by an a new sentence of an Extended Determinate Sentence in the case of offenders found to be dangerous. In the absence of a relevant previous conviction such sentences are restricted to cases where a determinate term is set for more than four years.  Parliament chose to leave unchanged the sentences of those still serving an IPP imposed before that date.  Other legislative changes also enabled the Secretary of State to remove from the jurisdiction without reference to the Parole Board a foreign national prisoner liable to deportation who had served the determinate term.
18.	Following pre-action protocol correspondence, this claim was lodged in May 2013. The Claimant added to his grounds on a number of occasions whilst permission was adjourned for various reasons. The last such addition was on 11 October 2013.
19.	On 9 October 2013, the Supreme Court gave its judgment in R (Osborn)  v Parole Board [2013] UKSC 16; [2013] 3 WLR 1020  (hereafter Osborn)  where it considered that the past practice of the Parole Board in deciding whether to grant an oral hearing was erroneous and unduly restrictive of when fairness required that such a hearing be afforded. 
20.	On 5 August 2014 Singh J granted leave to bring these proceedings. During the time that they have been pending, the Board fixed 2 December 2014 as the date for an oral hearing of the claimant’s case. 
The grounds for challenge
21.	The claimant advanced six grounds of challenge against the defendants in this application:-
i)	Ground One (against the Parole Board): the decision in August and September 2012 to refuse an oral hearing was unlawful in the light of the statement of the law in Osborn.  
ii)	Ground Two (against both defendants): there had been a failure to provide the clamant with a hearing that could effectively and speedily review the legality of his continued detention as required by Article 5(4) ECHR. In particular:
a)	There was no oral hearing between July 2009 and the one scheduled to take place in December 2014;
b)	Even if the August 2012 decision is considered to be an effective review, it was an unduly delayed one and outside the period of 18 months set by Secretary of State in July 2009 that Ouseley J had considered should not be further delayed;
c)	The unilateral cancellation of the review of detention in July 2011 was unfair and unlawful and the source of unjustified delay in achieving an effective review;
d)	There was delay by the Secretary of State in referring the case back to the Board in November 2011 when the claimant was back in prison by August 2011.
iii)	Ground Three (against both defendants): the cumulative effect of 
a)	the length of the post tariff  detention and the delays in holding an effective review of the legality of his detention;
b)	the absence of resources to enable the claimant to access relevant course and training to address the causes of his dangerousness; and
c)	the failure of the Board to reflect the radical changes in the sentencing regime for dangerous offenders when assessing proportionality of the claimant’s detention;
amounted to a breakdown in the system of adjudication on the legality of  the claimant’s continued detention. This meant that his continued detention had now become arbitrary and insufficiently connected with the sentence of IPP passed in May 2005. Accordingly the court should declare that he was now unlawfully detained within the meaning of Article 5(1) ECHR and provide an appropriate remedy.
iv)	 Ground Four (against the second defendant): Since 3 December 2012 the Claimant had been unlawfully discriminated against in his continued detention  as compared with an offender with identical characteristics sentenced for the same offence and a determinate term after the coming into force of the amendments to the sentencing regime.
v)	Ground Five (second defendant): The claimant was discriminated against with respect to the possibility of release at the end of the determinate term by a foreign prisoner who could be removed by direction of the Secretary of State. The discrimination in (iv) and (v) was contrary to Article 14 ECHR taken in combination with Article 5.
vi)	Ground Six (both defendants):  there was further delay in obtaining an oral hearing between August 2012 and December 2014:
a)	The review period of two years fixed by the Secretary of State in October 2012 was excessive in the light of the history and the issues to be explored.
b)	There were administrative errors in 2014 that resulted in the Board not fixing a hearing of the 2012 review within the two year period identified.

Grounds 4 and 5: Discrimination
22.	We can dispose of grounds 4 and 5 shortly. The identical arguments were made by Mr Rule, who appears for the claimant,  in the case of  R (Massey)  v Secretary of State for Justice [2013]  EWHC  1950 (Admin) 10 July 2013. In that case a divisional court presided over by Moses LJ decided that there could be no comparison for the purposes of Article 14 between those sentenced on different dates under different sentencing regime. Equally, a British national dangerous offender was not in an analogous provision with a foreign national prisoner (FNP) with respect to early release for the purposes of removal from the jurisdiction. For this second proposition, Moses LJ noted the similar conclusions of another divisional court with respect to FNPs in the case of  Brooke v Secretary of State for Justice [2009] EWHC 1396 (Admin) itself approved by the Court of Appeal in  Francis v Secretary of State for Justice [2012] EWCA  Civ 1200 .
23.	Moses LJ considered and rejected Mr Rule’s reliance on the decision of the House of Lords in R (Clift)  v Home Secretary [2007] I AC  484  where FNPs could not have their cases  for early release decided by the Parole Board.  The question is always for what purpose and in what context the comparison is being made.  Here the British national was not in an analogous position with the FNP as a British national could not be removed from the jurisdiction whilst an FNP could.
24.	The authority of  R v Greater Manchester Coroner ex p Tal [1984] 3 WLR  643  identifies when the Administrative Court is entitled to depart from a previous decision of co-ordinate jurisdiction; it concluded (at p 653 D) that as a matter of judicial comity it should follow the decision unless convinced that it is wrong.
25.	We are entirely unconvinced that the decision in Massey is wrong; indeed we are quite satisfied that it is right for the reasons it gave. We note that the same  reliance on Clift was advanced by Mr Rule when he unsuccessfully renewed an application for permission to appeal  to the Court of Appeal before Laws LJ  [2014]  EWCA Civ 758 (27 March 2014)  who observed that the argument lacked reality despite the prolix skeleton and the sophisticated oral submissions. 
26.	We consider it unfortunate that when updating his grounds for review in the light of the Osborn judgment, Mr Rule did not address the decision in Massey some three months earlier.
Ground 2:  Delay 
27.	We propose to consider this ground next as the period under consideration extends over the whole period from July 2009 and thus starts before and extends beyond the Board’s decisions in August and September 2012 about the form of the hearing.
28.	In July 2009 the Secretary of State had determined that the claimant’s next review by the Board should be completed within 18 months: i.e. January 2011. Under current policy the maximum period between reviews of the detention of post-tariff prisoner serving an indeterminate term is two years. The NOMS Generic Parole Process PSI 36/2012 says so in unambiguous terms at paragraph 3.50.  This time period is inspired, if not directly required, by the terms of s.28 (6) Crime Sentences Act 1997.  It is equally clear from the Parole Process policies applicable to this claimant in order for the review to be completed by the Board at the end of the period set by the Secretary of State, this generally requires a referral to be made six months before the determination date to enable all the processes of disclosure and case management to be completed.
29.	Article 5(4) ECHR requires that 
“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”. 
Both defendants as public authorities were required to act compatibly with the claimant’s human rights (see s.6 Human Right Act 1998).
30.	Decisions of the Strasbourg Court applied by the courts of this jurisdiction have determined that not merely must executive decisions as to release on licence be decided promptly, but references should be made to the Parole Board at regular intervals after expiry of the tariff period and once referred should be decided with appropriate expedition.  
31.	The learning of both the domestic and the Strasbourg courts was reviewed by Stadlen J in R (Loch) v SSJ [2008] EWHC 2278 Admin at [26] to [44]. We abstract the following conclusions from that review:-
i)	Deprivation of liberty post tariff must be reviewed at regular intervals by an independent body having the functions of a court in order to ensure that detention continues to be justified for the purposes of the original sentence (dangerousness or continuing risk to the public).
ii)	What is meant by regular intervals is a fact specific question depending on a number of factors including any sentencing targets set, whether courses identified by the Board have been completed, the behaviour of the prisoner in question, the proximity of release including security status and the extent of time spent in open conditions.
iii)	As a guiding principle review periods of up to 12 months are likely to be sufficiently regular unless the prisoner demonstrates why special factors to the contrary demonstrate otherwise, and review intervals of between 12 to 24 months will have to be explained and justified by the respondent to avoid the inference that the period is excessive.
iv)	Review periods of up to two years have been held to be justified by the Strasbourg Court in certain circumstances, although by 2008, no cases were cited suggesting that a period in excess of  two years was found to have  been justified.
32.	The Secretary of State had set the review period of 18 months, but only provided the dossier to the Board on 31 August 2010, leaving less than six months for the case to proceed to hearing. On 18 November 2010 the Board was ready to list the case but the target date was revised to February 2011. On 7 December the Board estimated that, even giving priority, a hearing was not likely until March 2011, two months outside the original review period.  On 9 December 2010 Ouseley J decided that a review period of 18 months was reasonable in all the circumstances, and indicated that there should be no further delay in the hearing of the claimant’s case.  
33.	In fact no review took place until August 2012, well outside the target period that was itself the maximum period under the policy and well beyond any period that the case law on Article 5(4) had considered reasonable. We have considered with some anxiety the information before us explaining why this was the case. 
34.	The deterioration in the claimant’s behaviour and concern about his mental health summarised at [5] to [11] above was a significant change of circumstances from those considered by Ouseley J. In July 2009, the claimant’s lack of progress in his sentence was considered to be attributable to his voluntary drug taking and the consequent effects on his health and behaviour.  Drug testing in prison had proved consistently negative since July 2009, suggesting that this factor could now be eliminated from consideration. In July 2009, the Board had directed that greater attention be given to the claimant’s mental health. The claimant’s solicitors had commissioned a mental health report from Dr Duffield, a consultant psychiatrist, in January 2010. This reviewed the history of psychiatric admissions or assessment in 1998, 1999, 2001, 2002, 2003, all of which revealed a link with substance abuse, which continued in prison. Dr Duffield’s conclusion was:
‘In terms of a current diagnosis I found no evidence of mental illness, particularly psychosis or depression, when I assessed Mr Guntrip on 13 October 2009.  His obsessive-compulsive disorder appears to be in remission, no doubt assisted by ongoing treatment with antidepressant medication and the techniques he has learned from cognitive behavioural therapy and self-help literature.  I am not persuaded that he suffers from bipolar affective disorder.  The early age of onset of his behavioural problems is most untypical of this illness.  Further more, his early contact with psychiatric services was in the context of heavy illicit drugs used and the episodes resolved quite quickly in the absence of this abuse.  There appears to have been no recurrences of such manic episodes since 2001 despite erratic compliance with mood stabilising medication. Again this is not characteristic of the course of a bipolar affective illness.’

35.	By 25 March 2011, the claimant was recognised to be unwell and his solicitors requested deferral of his Board hearing listed for 30 March. It is understandable from his perspective why he would not wish his claim for release or progress to open conditions to be heard by the Board then as his deteriorating behaviour would have effectively precluded any progress. With the benefit of hindsight, it is perhaps unfortunate that the Board did adjourn this hearing, as a determination of how matters stood then might have enabled some further avenues of investigation to be explored to inform a treatment plan in time for the next review. 
36.	In May 2011, the claimant’s aggressive behaviour in Chelmsford resulted in the loss of his Category C status and in July he was transferred to a mental hospital for assessment pursuant to the provisions of s.47 Mental Health Act 1983. We have not seen the certificates of the psychiatrists required for such admission. Mr Rule submits that they must be considered as evidence of a treatable mental illness. However the expert assessments of both Dr Kamal cited at [9] and Dr. Duffield at [34] were to the effect that there was no evidence of bi-polar disorder or other psychotic illness, whatever was the evidential basis of the s.47 admission. 
37.	Between the 13 July and the 12 August 2011, there would be no purpose in the Board  holding a hearing as it  ceased to have any jurisdiction over the legality of the claimant’s detention and that function (if the subject of any challenge) would have transferred to a Mental Health Review Tribunal. The Board could have resumed jurisdiction if the hearing had been adjourned over the 28  day period of assessment to examine what the medical diagnosis was. This possibility was removed when the Secretary of State decided, on 21 July 2011, to cancel the hearing due for the 2 August. 
38.	We shall assume without deciding that an executive power to make a referral to the Board carries with it an implied ability to revoke such a hearing. Mr Rule has shown us no authority indicating the contrary. We confess to some concern, however, as to how in the cases of discretionary life prisoners to which s.28 Crime Sentence Act 1997 applies, a right in a prisoner to have a case referred could be undermined by a right to cancel a referral. Having said that, if the power exists, it must be exercised lawfully and fairly at common law and compatibly with the prisoner’s Article 5(4)  rights.
39.	Mr Rule has drawn to our attention Generic Parole Process Circular issued by HM Prison Service on 2 April 2009 as Issue No 310, that provide in paragraph 2.6.1 that prisoners may be transferred under the MHA 1983 either for assessment or as a long term transfer, and that in the event of such a transfer during the parole process the review will be suspended until the remission of the prisoner to the prison setting. Other instructions brought to our attention indicate that the matter should be re-referred to the Board on the completion of the suspension process.
40.	Although this point was somewhat lost in the avalanche of submissions and citation of generic authorities in Mr Rule’s skeleton argument and may, therefore, not have been the focus of attention in the second defendant’s skeleton argument, we consider it is of importance in the explanation of the passage of time between the reviews in this case.
41.	In our judgment, the exercise of the power to revoke the referral, with the consequences that the hearing set by the Board was cancelled, was flawed for four  reasons:-
i)	It was taken unilaterally without consultation with the Board or the claimant. The decision does not appear to have been communicated to the claimant or his solicitors at the time when they might have considered whether it should be challenged by judicial review. They appear to have been unaware of it when the September 2012 submissions were drafted.
ii)	It prevented the Board retaining jurisdiction to determine the legality of the claimant’s continued detention in the event that he were to be returned to the prison estate at the end of the period as in the event transpired. By depriving the Board of its ability to exercise its functions, it undermined its status as a court independent of the executive and frustrated the discharge of its Article 5(4) functions noted by the House of Lords in R (West) v Parole Board [2005] UKHL 1 [2005] 1 WLR 350 at [37] per Lord Bingham and [75] per Lord Hope.
iii)	The cancellation decision was made midway during the 28 period of assessment when the results of that assessment were not known and could not be predicted.  The claimant might have returned to prison at the end of the period, as in fact transpired.
iv)	The cancellation of the referral, as opposed to the adjournment or temporary suspension of the review pursuant to the referral, caused the Board’s review to be postponed not only over the three month period between August 2011 and November 2011 before the re-referral was made, but also the subsequent period when the case needed to be case managed afresh until a paper hearing was conducted in August 2012. 
42.	We acknowledge the cancellation was not the sole reason why the date of the eventual review was deferred until August, but exercising the power in a way that required the whole process to start over again was the predominant reason why a review of the legality of detention scheduled for March 2011 was not effected until 17 months later. Given the need for a speedy hearing, in the light of the history of the review of dangerousness since the expiry of the tariff period in July 2007, the Board appears to have been unduly generous in acceding to the claimant’s requests for an adjournment to make representations in April, May and June 2012.  
43.	We recognise that the Board has a duty to act fairly and if the claimant seeks an extension because he has not had a reasonable opportunity to comment on the dossier and make informed representations, it may be incumbent to grant it.  Once a reasonable opportunity has been afforded, however, we see no need for further adjournments. Here, the consequence was a yet further prolonging of a delayed hearing into what was not, in the circumstances, a complicated issue.  In that regard, we are surprised at the decision to vacate the hearing on 20 July 2012 when no response had been made to the last direction indicating that the hearing would proceed in the absence of representations if none were provided in the time specified. We conclude that such a robust direction could have been made several weeks earlier and adhered to; if this had been the only failure and cause of delay it is unlikely to have made much of a contribution to our conclusions, but in the light of the unfortunate history already described we find  that it did make a modest  addition to the overall delay 
44.	For these reasons we have no doubt that this part of the claim is made out and there has been a violation of the claimant’s right to a speedy review of the legality of his detention. We shall consider the further delay between August 2012 and December 2014, below having first considered ground 1 to which we now turn.
Ground 1: absence of oral hearing:
45.	When the Board did eventually review the legality of the Board’s detention in August, it did so on the papers only. We recognise that:-
i)	The review planned for 2011 that was cancelled was intended to be an oral hearing as was the case in 2009 and as will be the case for the hearing to take place on 2 December 2014.
ii)	The Board’s policy as to oral hearings that would have informed its decisions in both August 2012 and September 2012 was considered to be flawed by the Supreme Court. If another hearing were not already pending, the claimant would have a good case for relief requiring reconsideration of the matter.
iii)	If the Board had had the benefit of the guidance subsequently given by Lord Reed in Osborn  at [2] and [80] to [96], it may very well have reached a different decision.
46.	However, the issue for this court now is to decide, in accordance with Osborn principles, whether, on the information then available to the Board, its decision to determine the hearing on the papers was unfair.  In the circumstances, we have considered the evidence and arguments de novo, rather than by reference to a Wednesbury review of the exercise of the Board’s discretion.
47.	Following Osborn, although fairness will undoubtedly require oral hearings in a greater number of cases than hitherto, the assessment of the prospects of release or transfer to open conditions in the light of the material before the court remains a relevant, albeit not determinative, factor as to whether an oral hearing was required. Under the Parole Board Rules, there can be no order for release without an oral hearing.  There may be cases where the papers indicate reasonable prospects of progress or others where it is not possible to make such an assessment unless and until an oral hearing is held to investigate disputed issues of fact or opinion. In either such case this is a strong pointer to the requirements of fairness. If, however, the evidence as to continued risk is all one way, there is no apparent basis to undermine its reliability and no or no sufficient progress has been made since the last review, that analysis is relevant to the form that the next review should take.  Fairness remains a fact specific issue.
48.	We recognise that Osborn identifies as a relevant factor the prisoner’s perception of the fairness and the independence of the Board.  Further, an oral hearing may be of importance to maintain the prisoner’s confidence in the integrity and efficacy of the Board’s function in respect of his detention.  But fairness does not require an oral hearing merely because the prisoner asks for one.  If this had been its intention, the Supreme Court would have said so and required the Parole Board Rules to be amended.
49.	With these considerations in mind we note the following:-
i)	The Board was entitled to conclude that Dr Kamal’s July 2011 letter was important to the question of whether the claimant was still dangerous or had made progress in his sentence. Despite the s.47 MHA admission, the psychiatric evidence was consistent that he was not suffering a bi-polar disorder as he continued to claim.  If self-induced intoxication no longer provided an explanation for his violent and disruptive behaviour, some other reason had to be found. In the light of the ways in which his misbehaviour had manifested itself, this could not simply be his frustration with the parole system. On the other hand, it was by no means unreasonable to investigate a basis for it in a severe personality disorder.
ii)	Dr Kamal’s conclusions were not a diagnosis of a severe personality disorder of a violent type,  as opposed to identifying conduct consistent with such a disorder requiring further exploration;  but the claimant had refused to cooperate with further diagnostic investigation through a psychologist as reported by the Offender Supervisor in December 2011 (see [11] above). 
iii)	The claimant had made no representations of any sort between 27 April 2012, when ICM directions were issued, and 6 August 2012 when the single member proceeded to a preliminary decision without them. This was the case despite three requests from his solicitors for deferral of the hearing for representations to be made and an inaccurate indication as to when they were to be received.  On 2 July 2012 the Board informed the solicitors that, in the absence of a response by 7 July, they would proceed without them. In the event it further deferred the hearing due on 20 July 2012 to enable representations to be made,. That opportunity produced the email from the solicitors of 20 July that this was not a sufficient reason to adjourn the hearing. The consequence of all this was when  the preliminary decision was taken as to how to proceed, there was no written request for an oral hearing, no representations of what the claimant wanted to say at any hearing or what his case for release or progress was, whether he challenged any of the reports in the dossier all of which were consistently negative as to the risks he presented to the public and if he did why.
50.	In those circumstances, it is impossible to conclude that fairness required that the first decision applying rule 16 of the Parole Board Rules should have resulted in an oral hearing.
51.	On the 17 September 2012 the claimant, through his solicitors, submitted the statement we have set out at [14] above. Of its seven paragraphs, the first four recounted the previous procedural history known to the Board, and the repetition of the email of the 20 July that the Board should not have waited further for the promised representations. The remainder identifies disagreement with the conclusions of Dr Kamal and the Offender Manager but not which conclusions were disputed,  let alone why,  or any evidence to support such a challenge. 
52.	The Offender Manager report of  30 January 2012  noted  that Dr Kamal’s  report had stated that he had discussed it with the claimant:
‘At interview Mr Guntrip was not entirely surprised at such a conclusion stating that over the years in custody psychology staff has suggested he is personality disordered to him. However, Dr Kamal’s report represents something of a seismic shift for the treatment and sentence planning for Mr Guntrip.
I put it to Mr Guntrip that there are few and far between treatment resources in the prison system for severe personality disorders.  One of these being HMP Whitemoor’s five year programme inevitably did not please him in view of its length and Category ‘A’ security status.  It is clearly unfortunate that such a diagnosis presents at this stage in his sentence rather than from the start.  However, research and better understand of treatment of personality disordered offenders has moved on at pace during his current sentence.  It raises questions over the effectiveness and if many of the previous interventions that he has thus far completed as set for him were compatible to his needs.’

   	His assessment was as follows:
		‘Current risk assessments:
A Serious harm to others
I would currently assess Mr Guntrip to pose a high risk of harm to members of the public, staff and prisoners.  This would have risen to Very High when he was at his most unstable during the sectioning period but has now stabilized considerably.  He was secreting weapons that he made in his cell and threatening/requesting to share a cell in order to kill someone.
The index offence involved a robbery of a male victim who was walking along the street talking on his mobile phone late at night.  He was threatened and robbed of his possessions by Mr Guntrip and his co-defendant.  The victim was likely to have experienced a high level of fear and intimidation during this offence and may also continue to suffer emotional harm as a result.  Moreover, Mr Guntrip committed this offence on licence for another Robbery offence. 
Mr Guntrip will continue to be assessed at this level until he can demonstrate a reduction in risk.  He has committed two violent offences of Robbery on male victims who are unknown to him.  He states that they were financially motivated in order to fund his drug abuse.  Mr Guntrip has a pattern of committing offences of Theft which were also linked to his drug misuse.  He will need to abstain from using drugs as this is clearly a key risk factor contributing towards offending behaviour.  He will also need to demonstrate motivation to comply with his medication to address his emotional instability together wit the appropriately assessed interventions. 
	Re-Offending
In my assessment Mr Guntrip poses a high risk of re-offending. This is based on the high number of convictions he has received to date. Also on his inability to control his own emotions and behaviour in institutions does not bode well for the likelihood of his successful re integration into the community at this time.’

53.	This was powerful evidence before the Board that the claimant was failing to acknowledge the implications of Dr Kamal’s letter or address them, perhaps because he feared the consequences of doing so, even though ‘not entirely surprised by them’. No other avenues of exploration of his behaviour had been identified, and yet the behaviour he engaged in from October 2010 onwards throughout 2011 when he was aware that his Board review was pending amply demonstrate the serious risk that he continued to present to the public.
54.	Rule 17 (2) requires a prisoner requesting a hearing following a provisional decision to supply full reasons for their request. The prisoner has at this stage not merely the dossier passed to the Board (on which the claimant had made no prior comment) but the reasons of the single member in the provisional decision, setting out the material data including the most recent OASys assessment of high risk of causing serious harm. The overall conclusion of the single member has been set out above at [13]. Elsewhere he makes the obvious comment from all the consistent data in the dossier:
“In making its own assessment the panel considers that until you have completed further work on your key risk factors and been able to demonstrate over a length (sic) period you can manage your behaviour in closed conditions, you continue to present a high risk of causing serious harm and, talking account of the views expressed by the OM, a medium to high risk of re-offending’.

55.	In our judgment, given the failure to indicate anything that suggested that any of the conclusions or any of the primary data on which they were based were arguably flawed, there was simply no basis for the Board to provide an oral hearing other than the fact that the claimant wanted one and disagreed with the consistent case against his release or progression in sentence.  It is striking that the claimant offered no expert report of his own or alternative explanation for his conduct or identified an alternative management plan.  It is also notable that so little had been put forward despite the activity of his solicitors over the previous two years.
56.	We accept that any decision on whether an oral hearing is needed is in the first instance for the Board to make and in reaching a decision written representations are not always needed. The analysis of the material in the dossier might well reveal issues that required further exploration in such a hearing, whatever the claimant had to say. However, in this case, on this history and in the light of the material we have identified above, we conclude that fairness did not require the Board to grant an oral hearing in the autumn of 2012.
Ground 6: delay since August 2012
57.	We now address the claimant’s submissions on delay since the last review of his detention. In October 2012, the Secretary of State set the maximum two year period for the completion of the next review; under the policies described above the two years starts with the Board’s decision in 6 August 2012. Although this was originally a provisional decision it became a final decision on 17 September when the Board, lawfully as we find, rejected the application for an oral hearing.
58.	Mr Rule submitted that in the light of the delays identified earlier in this judgment, the Secretary of State has failed to justify the decision to set the next review at the end of the maximum two year period. In August 2012 the Board had identified the need for the claimant to demonstrate his good behaviour over a lengthy period; such was the nature of his violent conduct in 2011. The Secretary of State noted that six months was needed for an assessment of whether the claimant had a Dangerous and Severe Personality Disorder (DSPD) as Dr Kamal considered may be the case. If so, the only available course was at HMP Whitemoor where a five year treatment period was proscribed. Other proposals for progress were assessment for referral and treatment in a therapeutic community requiring six months and 18 months respectively. 
59.	 It would have been possible to have identified a shorter twelve month review period in order to assess what the results of the assessments were, before returning to a Board review to assess whether any consequent sentencing plan was reasonable and proportionate. In our judgment, there was no requirement to do so where there was some distance for the claimant to travel to engage with the proposed alterations of approach and address the matters of concern: a period of time was identified to enable him to do so.
60.	In the event the material now collected for the next Parole Board review is unpromising. The report of Ms Tostevin, a registered forensic psychologist, dated 30 March 2014 reveals that the claimant has refused to be interviewed for assessment as he did not trust what was going to be written and believed the Board wanted him assessed as DSPD.  No formulation of a diagnosis has been possible. The Offender Supervisor’s report of March 2014 reveals that the claimant has not completed any of the further work discussed by the Board or identified by the Secretary of State in 2012.  He has stated that he does not believe that he has a personality disorder and instead refers to his having been diagnosed with manic depression, obsessive compulsive disorder, bi-polar and childhood trauma.  He further told his supervisor that he is not going to jump through the hoops for anyone any more, strongly disagrees with even the suggestion that he has a personality disorder and has not completed further work with CARATS or RAPTS as he was disgusted with himself for his period of drug abuse and has vowed not to go back to them. His ongoing reluctance to complete any further offending work or willingness to engage with the DSPD or Therapeutic Community that was recommended meant that his supervisor cannot recommend any further progression until these issues are addressed. The most recent OASys assessment reveals that he works in the kitchen but is not currently engaged in education. 
61.	His unwillingness to engage in offending behaviour work of any sort was recently underlined following his transfer to HMP Lowtham Grange on the 14 August 2014, and reflected in a report by his new offender supervisor dated 12 November 2014. So, despite the period of time identified for the next review, there has been no progress with offending work, although his behaviour in prison appears to have stabilised. Overall we do not conclude that the two year period was unlawful
62.	Nevertheless, setting the maximum period for the next review to be completed in the context of the unhappy history of this matter, we would have expected that every possible effort would have been made for the next review to have been listed promptly and comfortably before the expiry of the target period. In the absence of priority or a truncated management period available in urgent cases, there is always the risk that the six month management period will not result in a hearing for disposal at the end of the period. So it has proved.
63.	Mr Thomann for the Board accepts that after the dossier was provided there were unexplained administrative errors in assigning the file for case management with the effect that the hearing date was set for 2 December 2014, four months outside the target date of August 2014. He submits that an administrative slip up of this nature is insufficient to cause a breach of the right to a speedy hearing under article 5 (4). If it had stood alone, we would be inclined to agree with that submission but, as it does not, we cannot.  We accordingly find that there has been a further period of delay of four months causing a breach of his Article 5(4) rights. 

Ground Three: Unlawfully detained
64.	 The claimant contends that by reason of the cumulative factors identified in his grounds, there has been a breakdown of the system of review of the necessity for his further detention making it arbitrary and therefore unlawful within the meaning of Article 5(1) ECHR. In particular, he contends that the root cause of his difficulties in obtaining a speedy and effective review has been a lack of sufficient resources to provide either relevant courses for him to address his offending or to enable the Board to list hearings speedily given  the increase in oral hearings resulting from Osborn .
65.	The relevant authority binding on us is the decision of the House of Lords in R (Walker) and (James) v Secretary of State for Justice (Parole Board intervening)  [2009] UKHL  22;  [2010] 1 AC  553.  This authority explains:
i)	 that a prisoner sentenced to an IPP remains lawfully detained pursuant to the sentence of the court unless and until  the Parole Board concluded that detention was  no longer necessary for the protection of the public  [5] , [14].
ii)	The detention remains lawful for the purpose of Article 5(1) unless and until it becomes arbitrary and there is no longer a causal link between the detention and the purpose of the sentence [11] to [12], [103].
iii)	It is just possible to conceive of circumstances where the system laid down by statute breaks down entirely and the Board is unable to perform its function at all. The failure of the Secretary of State to ensure that there were available courses to enable the prisoner to address his offending behaviour cannot be said to have created a breakdown of that extreme kind. Delayed consideration could not be equated with no consideration at all [15]. It is only where the Parole Board would have been unable to form any view on dangerousness for years rather than months that the causal link might be broken [51], [128]. 
iv)	There was nothing in the Strasbourg case law to suggest that if a prisoner was unable to make to make a meaningful challenge to the lawfulness of the sentence by reason of an inability to access courses or the Board’s inability to obtain the information it needed to assess continued risk that there would probably be a breach of Article  5(4) [17] .
66.	The case then proceeded to a Chamber of the Strasbourg Court as James v United Kingdom [2013] 56 EHRR 12 where the Court found a violation of Article 5(1) because the provision of effective courses to address rehabilitation and the allocation of funds to secure them were important factors to prevent the further post-tariff detention of prisoners serving indeterminate sentences from becoming arbitrary [209]. In these joined cases such courses had not been provided and that was a material factor in prolonging the detention of the applicants concerned [218], [220] and [221]. Propositions (iii) and (iv) abstracted  at [65]  above from the judgment of the House of Lords may need to be revisited in the light of James v United Kingdom when the Supreme Court next have an opportunity to do so. However, we are satisfied that any debate as to the ambit of the jurisprudence has no purchase on the issues debated under this head of the claim in this case. The Parole Board was able fully to assess whether the Claimant represented a risk to the public in July 2009 and August 2012, and had ample evidential material to support its conclusions. It is about to do so again in December 2014.
67.	This is not a case where claimant had been unable to access courses because they had not been provided. Rather, the claimant was unwilling to progress with the recommended plan for reasons of his own as the material now available summarised at [52], [60] and [61] above makes clear. 
68.	The Board had performed a balance as between the risks to the public and the gravity of the consequences to the defendant in continued detention, but in August 2012, the risks were so great and the prospects of compliance with supervision and an ability to live offence free so speculative,  that the decision  was  clearly justified, indeed inevitable.  We do not understand the claimant’s submissions on this head of claim against the Board. It need not have anticipated legislative change in August 2012, and was required thereafter to apply the sentencing regime retained by Parliament. 
69.	We accordingly reject the contention that this detention has become unlawful and arbitrary applying either the approach in the House of Lords or that of the European Court.  

Conclusions
70.	Nine years have passed since the claimant was sentenced for an offence of robbery. Seven years have passed since the expiry of his minimum term. He seems to have rid himself of his dependency on drugs causing mental effects that resulted in criminal conduct.  His behaviour in prison has improved since the events in 2011.  He disputes the suggestion of DSPD suggested by his behaviour in that period. Dr Kamal’s opinion in July 2011 was clearly not a full diagnosis after a period of testing and observation. The claimant now wants the opportunity to test his commitment to remain offence free by progressing to release on licence. There is a danger of circular reasoning extending into the indefinite future whereby the claimant is assessed as a continuing risk to the public because he fails to acknowledge and engage with some indicators as to his underlying behaviour.  The Board has had to address similar problems when considering the progress towards release of those who continue to deny their guilt of the index offence.  We have some sympathy with the claimant’s expressed concerns that participation in a psychological assessment may result in him being allocated to a very secure prison to undertake a course of five years duration before further progress can be made towards his release.
71.	However, unlike the claimant, we do not doubt the wisdom and experience of the Board in making these difficult assessments and it is the Board whom the claimant must satisfy before he can secure his release.  In our judgment that is why regular and effective hearings of his case need to take place at the shortest intervals compatible with sentencing aims and the practicalities of information gathering and assessment so that the claimant can feel his concerns are being given the appropriate consideration  by the Board. These are all matters for future decisions.
72.	 As for the past, we find the periods of delay occasioned by the flawed decision on cancellation of the pending review in July 2011 to be in the order of eight months with the Board’s over generous deferral of the case to obtain representations resulting in the last month of that period. The Board’s regrettable administrative inefficiencies in failing to provide a hearing date before the end of the maximum period, given the unfortunate previous history, have added a further period of four months.  It has not been suggested that despite the increased case work it faces that lack of resources prevented this case being given the prompt consideration is so clearly required.
73.	Like Ouseley J in December 2010, we consider that the failings of both defendants with respect to this 12 month overall period of avoidable delay are such that something more than declaratory relief is called for. We take account of the principles as to compensation for breach of Article 5 (4) rights in such cases identified in Sturnham and others v Parole Board No 1 and 2 [2013] UKSC 452 [2013] 3 AC 254 at [62] to [68]. Here, we have assessed the period of delay at 12 months, significantly more than the three month period where it is indicated that some modest award should be made. The delay was occasioned by an unfair and unlawful decision to cancel a review that had been outstanding for two years at the time of its cancellation, and that Ouseley J had expressed the hope should not be further delayed.  
74.	Adjourning it for a short period and then completing the review promptly in the light of present circumstances could have properly addressed the difficulties caused by the s.47 transfer to mental hospital. The claimant had already been the victim of delays in his previous hearing. There were further delays after October 2012. We have no doubt that the claimant’s feelings of frustration and anxiety are substantial. We propose, therefore to award the sum of £2,500 by way of further damages for a breach of his rights, apportioned 30% in respect of the first defendant and 70% to be borne by the second defendant.
75.	We add only this.  Some may express concern that hard pressed public funds are being awarded to a man serving imprisonment for public protection and thus, by implication, not deserving sympathy.  In that regard, the underlying facts are important.  We repeat that the punitive part of this claimant’s sentence was to serve a minimum term of two years imprisonment; this was completed in 2007.  In the time that has passed, for a second time, the court has found unwarranted delay in a consideration of his case by the Parole Board, the only body that can release him.  It is not in the least surprising that he has become frustrated and untrusting, even more so now that the type of sentence passed upon him is no longer available to the court.  Although that frustration cannot start to justify his serious misbehaviour (which has caused those reporting on him to be understandably concerned about the risk that he poses to the public), the system requires prompt consideration of the cases of those being detained, well beyond the punitive term, only because of that risk.  If that consideration is not afforded to these prisoners, there is an increasing danger that the risk they pose to the public will be enhanced by their continued incarceration rather than diminished.  The only acknowledgement of the failings in the system can be an award of damages.
76.	As to costs, in the absence of agreement, submissions should be exchanged and submitted for decision on paper.  We are minded to consider, however, that this would appear to be a case where the claimant should only recover a proportion of his costs, although successful in obtaining an award of damages.  Grounds Four and Five should never have been advanced or, alternatively, included only so as to be available should the case proceed to appeal at an appropriate level.  The submissions on Ground Three did not reflect the facts of the case.  
77.	In addition, the clear presentation of the claimant’s case has been frustrated by service of a very late skeleton argument some 24 hours before the case was due to be heard, severely limiting the time for the defendants to respond. When served, the skeleton was lengthy, prolix, and consisted more in a citation of authorities than an application of them to the important facts and issues in the case.  Further, it was not accompanied by a bundle of authorities to facilitate pre-reading and identify the relevant principles; when provided on the morning of the hearing, there were too many, some of very debatable value; there were material omissions consequent upon poor photocopying.  Finally, the pagination of the trial bundles was defective and little care had been taken to ensure that documents were complete and in the right order. We are not proposing to assign responsibility but note the consequence was that in a claim that contains significant issues the defects in presentation tended to frustrate effective preparation and disposal.