Parratt, R (on the application of) v Parole Board

The appellant, who was born on 8 September 1984, was involved in a vicious attack upon a stranger on 22 April 2006. He was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, having also pleaded guilty to other offences. His victim suffered a serious head injury which has resulted in permanent life-changing consequences. The judge concluded that the appellant was ‘dangerous’ for the purposes of sentencing, pursuant to the provisions of the Criminal Justice Act 2003. On 14 September 2007 the appellant was sentenced to imprisonment for public protection [“IPP”] pursuant to section 225 of that Act, with a minimum term of 3½ years, less time spend in custody on remand. His minimum term expired on 21 January 2010.

The appellant became eligible for release from that date. The question of the release of IPP prisoners is a matter for the Parole Board. It directs release only if satisfied that it is safe to do so. The Secretary of State for Justice must comply with a direction for release. If the Parole Board is not satisfied that the prisoner is ready for release, it may recommend to the Secretary of State that he be moved from closed to open conditions. The Secretary of State is not obliged to accept such a recommendation but in almost all cases does so. A move to open conditions is usually a pre-requisite to release for a prisoner serving an IPP because it is in open conditions, with progressive external visits and overnight stays out of prison, coupled with work, that the prisoner’s fitness for release can be judged.

By his claim, the appellant alleged that there were two periods of delay in arranging Parole Board hearings which gave rise to violations of article 5.4 of the European Convention of Human Rights. That provides:

“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.”

The first Parole Board hearing was held on 20 May 2010. There was a delay of four months between the date of eligibility for release and that hearing. The aim of the Parole Board is to conduct a hearing close to that date. Following that hearing the Parole Board recommended that the appellant should move to open conditions. The Secretary of State accepted the recommendation. At the same time he set the date for the next Parole Board hearing for August 2011, by which time all the steps necessary to support release could be completed. The appellant’s case was that the period between the two hearings should have been no more than 12 months.

The second hearing took place on 23 August 2011. In its written decision dated 30 August the Parole Board directed the release of the appellant from prison.

The claimant had issued Judicial Review proceedings on 5 August 2010. At that time he sought a declaration that the delay in arranging his first Parole Board hearing gave rise to a violation of Article 5.4. He sought to quash the decision of the Secretary of State setting his next Parole Board review for August 2011, together with a mandatory order for its advance. He claimed damages pursuant to Section 8 of the Human Rights Act 1998 [“the 1998 Act”] for the alleged violation of Article 5.4 which had already occurred. There was a separate challenge to another decision of the Secretary of State which has fallen away.

Permission was refused on paper. It was not until 30 June 2011 that permission to apply for Judicial Review was granted. On 12 August 2011 solicitors acting on behalf of the Parole Board conceded a breach of article 5.4 in these terms:

“Due to a lack of member resources, the claimant’s Parole Board hearing could not be listed until 20 May 2010. In these circumstances, the Parole Board accepts that the delay experienced by the claimant between the date of his tariff expiry on 21 January 2010 and this listed hearing on 20 May 2010 gave rise to a breach of the Claimant’s rights under Art. 5(4) of the European Convention on Human Rights.”

The letter went on to indicate that the Parole Board took the view that declaratory relief to reflect that concession was sufficient just satisfaction for the purposes of the 1998 Act. It did not accept that damages should be awarded. That position was maintained albeit that the Parole Board throughout recognised that if the claimant was entitled to damages in respect of that delay it would pay them.

The declaration eventually made was:

“It is declared that the Claimant’s rights under Article 5(4) of the European Convention on Human Rights were infringed by the delay of the Parole Board in holding his post-tariff review from 21 January 2010 to 20 May 2010.”

It was the appellant’s contention that the Parole Board and the Secretary of State were jointly responsible for that first period of delay. Even though the problem identified in the evidence was a lack of “member resources” (rather than financial resources) the appellant’s case was that because the Secretary of State is the Minister from whose departmental budget the Parole Board is funded, he bore responsibility for the problems which the Parole Board had encountered in keeping up with its case load.

In a judgment handed down on 16 January 2013, [2013] EWHC 17 (Admin) Males J concluded:-

The claimant challenges all of these conclusions in this appeal. It became apparent in the course of argument that the Parole Board wished to challenge the judge’s conclusion that damages would, as a matter of principle, be payable if the appellant were able to demonstrate that there had been a knock-on delay in his release from prison as a consequence of the admitted breach of article 5.4. A respondent’s notice and skeleton argument were lodged by Mr Hooper after the hearing of this appeal in support of that argument to which Mr Rule, for the appellant, was able to respond.

At the time of the hearing before the judge, argument had concluded in the Supreme Court in R (Faulkner) v Secretary of State for Justice & Another; R v (Sturnham) v Parole Board & Another (Nos. 1 and 2) [2014] 2 A.C. 254; [2013] UKSC 23 and 47, but judgment was awaited. Amongst the issues before the Supreme Court was the question whether a breach of article 5.4 should ordinarily give rise to an award of damages as an element of just satisfaction. Lord Reed JSC helpfully summarised his conclusions in paragraph [13] of his judgment. Included within them were:

“6.

Where it is established on a balance of probabilities that a violation of article 5.4 has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention.

10.

Damages should not be awarded merely for the loss of a chance of earlier release.

11.

Nor should damages be adjusted according to the degree of probability of release if the violation of article 5.4 had not occurred.

12.

Where it is not established that an earlier hearing would have resulted in earlier release, there is nevertheless a strong, but not a rebuttable, presumption that delay in violation of Article 5.4 has caused the prisoner to suffer feelings of frustration and anxiety.

13.

Where such feelings can be assumed or shown to have been suffered, the finding of a violation will not ordinarily constitute sufficient just satisfaction. An award of damages should also be made.

14.

Such damages should be on a modest scale.

15.

No award should however be made where the delay is such that any resultant frustration and anxiety were insufficiently severe to warrant such an award. That is unlikely to be the position where the delay was of the order of 3 months or more.”

The Parole Board has accepted that as a result of the conclusions reached by the Supreme Court the appellant is entitled to a modest award of damages for the period of delay in 2010. The parties have agreed that damages of £250 are appropriate on that account if recovery does not include an element for loss of liberty.

The live issues in this appeal are:-

The Judge concluded that there was no useful purpose in making a declaration “against” the Secretary of State given the stance taken by the Parole Board with respect to delay between January and May 2010. He noted that the appellant suggested that the lack of member resources at the Parole Board was the responsibility of the Secretary of State. There was an additional argument relating to the late provision of documents to the Parole Board by 17 days which is no longer pursued. It is no longer pursued because the evidence does not establish that the late provision had any bearing at all on the date of the first Parole Board hearing. The judge noted that there was no decided case in which the courts had considered this question and recorded that Mr Rule was unable to identify any practical benefit the appellant could reap if the declaration were differently worded by expressly suggesting that the lack of member resources was in some way the fault of the Secretary of State. He concluded that:

“The purpose of such a declaration would be to provide “just satisfaction” to the claimant for the infringement of his Article 5(4) rights, but he will receive that satisfaction as a result of the declaration which will be made against the Parole Board and payment by the Parole Board of any damages to which he can prove that he is entitled. There is no reason to suppose, and certainly nothing in the claimant’s own evidence to suggest, that a remedy against the Parole Board alone will fail to provide that satisfaction or that any purpose would be served by the grant of a further declaration against the Secretary of State.”

Mr Rule submits that an exploration of which arm of the state was responsible for a breach of article 5.4 would be valuable. Identifying failings (even historic ones as here) would discourage future non-compliance. He submits that the judge’s approach enables the Secretary of State “to evade his responsibility for a violation” of article 5.4, especially in circumstances in which the Secretary of State has “responsibility” for the body willing to make an admission. In using the word “responsibility” Mr Rule does not seek to undermine the constitutional independence of the Parole Board but reflect the reality that the Secretary of State is obliged to make financial provision out of the monies he secures from the Treasury for his department. He recognises that it is for the Parole Board, and not the Secretary of State, to appoint its members.

The judge was correct to view this question by reference to whether further exploration of the reasons for the delay, and in particular responsibility for the lack of “member resources”, was necessary to provide just satisfaction for the violation of article 5.4. Section 8 of the 1998 Act is concerned with remedies:

“(1)

In relation to any act (or proposed act) of a public authority which a court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2)

…

(3)

No award of damages is to be made unless, taking account of all the circumstances of the case, including –

(a)

any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b)

the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that an award is necessary to afford just satisfaction to the person in whose favour it is made.”

The question is whether the judge was entitled to conclude that it would not be just and appropriate to make the orders sought by the appellant and further that it would not be necessary to make an award of damages to afford just satisfaction, even if the Secretary of State were responsible in some way for the first period of alleged delay.

The answer to that question is illuminated by considering two alternative hypotheses. First, if the Parole Board had accepted responsibility for the first period of delay in pre-action correspondence, could the claimant realistically have carried on against the Secretary of State for that period and would he have obtained permission to do so? Secondly, would it be possible to petition the Strasbourg Court and suggest that the declaration made, and willingness to pay appropriate damages, did not provide just satisfaction?

In my judgment in both sets of circumstances the answers would be no. The finding of a violation together with an award of any damages to which the claimant is entitled provides just satisfaction. The Strasbourg Court would not in these circumstances concern itself with whether one department of state was responsible for a violation rather than another. If faced with the first hypothesis, when considering an application for permission to apply for judicial review against the Secretary of State, the single judge would inevitably refuse permission. That would be on the basis that the claimant had achieved all that was necessary to vindicate his rights. Were the claimant to make an application to the Strasbourg Court on the basis that the approach of the judge denied him a remedy under article 13 ECHR it would inevitably be rejected.

I recognise that the judge was not obliged to take the course he did with regard to the potential responsibility of the Secretary of State for the first period of delay. In his discretion he could have permitted the appellant to pursue the arguments. There are circumstances in public law cases where a point is of such importance that the lack of continuing practical benefit for a claimant would not prevent its being pursued. But this is not one of those cases. Indeed, Mr Rule’s submission includes reference to cases involving delay, of similar antiquity, where a lack of “member resources” was described as the cause. The problems faced by the Parole Board have been explored in many cases. The underlying reality is that the number of IPPs imposed by the criminal courts following the introduction of that sentence with effect from April 2005 led to serious practical problems, both in the prison service being able to provide sufficient courses for prisoners to prepare for potential release, and in the Parole Board being able to conduct review hearings at or about the earliest release date: see R(James) v. Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553 for the first of those factors; and paragraphs [1] to [4] of the judgment of Lord Reed in Sturnham for the second.

In paragraph 49 of his judgment Males J concluded:

“In principle the claimant is entitled to recover damages if he can prove that the delay in holding the post tariff hearing caused a delay in his eventual release – the “knock-on” effect. In other words, if the first review had been held in about January 2010 would the claimant have been released any earlier than September 2011?”

The judge followed the decision of this court in Sturnham [2012] 3WLR 476 where Laws LJ had held that in an article 5.4 delay case damages would be likely to be necessary for the purposes of section 8 of the 1998 Act “where the claimant’s detention is extended by reason of the delay”: see paragraph [22(3)]. Faulkner [2011] EWCA Civ 349 decided that the burden lay upon the claimant to establish on balance of probabilities that his detention was so extended. These conclusions were upheld by the Supreme Court.

On behalf of the Parole Board, Mr Hooper submits that the circumstances in this case are different from those in Faulkner. In Faulkner the prisoner’s case was due to be considered by the Parole Board in January 2008 but was delayed for about 10 months. At the delayed hearing the Parole Board directed his release. There was a direct chain of causation between the delay in the hearing and the prolongation of detention. Damages for the extended detention were awarded. In Sturnham there was a delay of about six months in the Parole Board hearing but it did not then direct his release. It recommended his transfer to open conditions. He received damages of £300 for the inconvenience and distress the delay entailed and not for extended detention, which he could not establish. Mr Hooper submits that there is no case in the domestic courts or in Strasbourg of a prisoner receiving damages for the “knock-on” effect on detention of a delayed hearing. Because article 5.4 is concerned with speedy hearings to consider the lawfulness of detention, rather than detention itself, he submits that a principled distinction can be drawn between cases where the delayed hearing itself results in release, and those in which it does not. In the latter case no damages for extended detention should be payable, even if on balance of probabilities the prisoner suffers extended detention.

I do not consider that this submission is consistent with the approach either of this court or the Supreme Court in Sturnham and Faulkner. At first instance in Sturnham Mitting J had considered the question whether the six month delay in the hearing which resulted in a recommendation for a move to open conditions had resulted in extended detention. He found that it did not: [2011] EWHC 938 (Admin) at paragraph [44]. It is implicit in the conclusion of Laws LJ in paragraph 22(3) of his judgment that had the position been different damages would have been payable. In the Supreme Court there is nothing in the judgment of Lord Reed which casts doubt upon that approach. In discussing Sturnham’s case at paragraph [90] Lord Reed set out Mitting J’s findings. They included that it was more likely than not that a hearing six months earlier would have resulted in his earlier transfer to open conditions but not in his earlier release. There is no suggestion that in a case where the delayed hearing did not in fact direct release, the question of earlier release becomes immaterial. Similarly, in summarising the conclusions of this court on that issue, by reference to the matters brought together in paragraph [22] of the judgment of Laws LJ, Lord Reed did not demur from the proposition that ordinarily damages would be payable if detention had been extended as a result of the violation of article 5.4.

Lord Reed’s conclusion on this point in paragraph 13.6 of his judgment (see paragraph [12] above) is unqualified. In paragraphs [42] to [49] of his judgment Lord Reed collects together a series of Strasbourg cases in which pecuniary awards were made for frustration and anxiety. In a number of them (e.g. Hirst v. United Kingdom App. No. 40787/98, Reid v. United Kingdom (2003) 37 EHRR 9, Blackstock v. United Kingdom (2006) 42 EHRR 2, STS v. Netherlands (2011) 54 EHRR 35) the Strasbourg Court approached the question of an award of compensation for frustration etc on the basis that it was payable even if the prisoner could not demonstrate that his detention had been extended by the article 5.4 delay. It is implicit that compensation would have been appropriate on that account had such a link been demonstrated. It follows that in a case where a claimant can establish on balance of probabilities that his detention has been extended by reason of a violation of article 5.4 he should ordinarily receive an award of damages as compensation for the resultant detention. It is no answer for the public authority responsible to point to a necessary intermediate step between the delayed hearing and eventual release to avoid making a payment of damages as part of just satisfaction. The nature of such a step or steps may well have an impact on the evaluation of the evidence with a view to deciding whether a claimant has proved the necessary link on balance of probabilities.

Mr Hooper advances a subsidiary submission to the same end. He points to the undoubted fact that only the Secretary of State can transfer a prisoner from closed to open conditions. The limit of the involvement of the Parole Board is to make a recommendation. The appellant had asked for a transfer before the first Parole Board hearing (in fact during the period of unlawful delay) which the Secretary of State refused. Following the hearing and recommendation for a move it took two months to make the transfer, a period which is not criticised by the appellant. He submits that the delay in the move was as much the result of the Secretary of State’s earlier lawful refusal to move the appellant to open conditions. Thus the delay in breach of article 5.4 was not the sole cause of the eventual delay in release.

In my judgment, this argument goes to the question whether the appellant did or did not prove on balance of probabilities that the delay in the Parole Board process between January and May 2010 resulted in a prolongation of his detention. The formulation of the test reflected in Lord Reed’s summary (see paragraph [12] above) requires the prisoner to demonstrate that the violation of article 5.4 has resulted in his detention beyond the date when he would otherwise have been released. It is not concerned with refined concepts of causation, rather it is a straightforward ‘but for’ test.

The factual argument does not assist the respondent in defeating the claim for extended detention for two additional reasons. First, the application to the Secretary of State for transfer to open conditions was made precisely because there was a delay in the Parole Board process. Secondly, the circumstances in which the Secretary of State will transfer a prisoner serving an IPP to open conditions in the absence of a recommendation from the Parole Board are very limited indeed. He does not approach the question in the same way as does the Parole Board when considering a recommendation as part of the process leading to eventual release.

Mr Rule submits that a period of 12 months between the two hearings would have been appropriate but that 15 months was too long for the purposes of article 5.4.

In rejecting that submission, Males J directed himself to a series of domestic cases which draw on the approach of the Strasbourg Court on this issue. He mentioned R (Noorkoiv) v. Secretary of State for the Home Department[2002] EWCA Civ 770, [2002] 1 WLR 3284, R (Day) v. Secretary of State for the Home Department[2004] EWHC 1742, R (Loch) v. Secretary of State for Justice[2008] EWHC 2278 (Admin), R (James) v. Secretary of State for Justice[2009] UKHL 22, [2010] 1 AC 553, R (NW) v. Secretary of State for Justice [2010] EWHC 2485 (Admin), and R (Guntrip) v. Secretary of State for Justice[2010] EWHC 3188 (Admin). This is indeed well-trodden ground. Amongst the conclusions found in paragraph [32] of his judgment were:

“c)

It is for the Secretary of State to fix the period before the next review, but his decision can be challenged by judicial review. In the event of such a challenge, it is for the court to reach its own decision as to the appropriate review period and not merely to determine whether the decision of the Secretary of State was reasonable. However, in arriving at its own decision, the court will have due regard to the view of the Secretary of State and, where applicable, the Parole Board, bearing in mind that the Secretary of State has particular expertise in these matters and is in a good position to assess all the relevant circumstances.

d)

What review period is appropriate in order to comply with Article 5(4) depends on all the circumstances of the individual case, with no maximum review period prescribed by the European Court of Human Rights.

e)

There is no formal legal presumption that a Parole Board review must be heard within 12 months of the last review and this cannot be regarded as a "default setting" or "benchmark". In practice, however, at least in circumstances in which the prisoner is making progress, 12 months will often represent a convenient starting point. Thus a review period of 12 months or less will generally be regarded as compliant with Article 5(4) unless there is some particular reason to the contrary, while the Secretary of State will generally have the burden of justifying by reference to the particular facts of the case a review period of more than 12 months. How heavy a burden that will be will depend on the facts of the case. The greater the period between reviews beyond 12 months, the more cogent the Secretary of State’s justification for the review period will need to be. Nevertheless there are cases where review periods substantially in excess of 12 months have been held to be justified.

f)

In order to justify a review period, the Secretary of State must normally identify the progress which the prisoner needs to make before the next review and the time within which it can reasonably be expected that such progress can be properly monitored and reported on so that the Parole Board can sensibly be expected to order (or recommend, as the case may be) a change in the prisoner's status. It must be borne in mind here that in order for the Parole Board to make such an order or recommendation it will need to be satisfied that doing so will not involve unacceptable risk to the public.”

In reaching these conclusions the judge was not expressing any controversial view but restating established principles. Mr Rule did not dispute them save to suggest that the views of the Secretary of State as to the nature and duration of courses which a prisoner is still to undertake would weigh more heavily than in cases where (as here) such preparatory work has been completed and the issue has become whether the prisoner can demonstrate through his behaviour that any residual risk should not prevent release. I would not accept the dichotomy suggested by Mr Rule. The Secretary of State (in reality the officials who administer the process) have deep experience of managing the release of prisoners subject to IPPs and life sentences. They are well placed, having regard to the risk factors and individual circumstances of any given prisoner, to make an assessment of the time needed successfully to take the next meaningful step in the process.

The Secretary of State set out his reasons for deciding upon a 15 month review period in the letter of 4 June 2010 which also accepted the recommendation for a move to open conditions:

“It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in August 2011 for the following reasons:

Your risk factors included: temper control, misuse of alcohol and drugs, employment and training, impulsive thinking skills, lifestyle and associates and lack of consequential thinking skills. With regards to offending behaviour work, you are reported to have shown a high level of motivation to complete your sentence plan. You completed ETS in 2008 and the ART, COVAID and Victim Awareness Courses in 2009. All post-programme reports have been positive. You undertook 1:1 counselling at the start of your sentence. Your Offender Supervisor observes that your partner and family have been supportive throughout your imprisonment and have indicated that they will continue to support you upon eventual release. You have informed your Offender Supervisor that you have made the decision to terminate the relationship with your partner due to her alcohol abuse. You felt this was a risky situation that you did not want to expose yourself to.

The panel noted you had completed all your offending behaviour to a high standard. All report writers supported a move to open conditions. The panel considered the index offences and your earlier offending which appears to have been underpinned by alcohol and drug misuse and by your unproductive and anti-social lifestyle. The panel were impressed by your good behaviour in custody and your application to your sentence plan and by the obvious thought you had given to your resettlement on eventual release. In drawing their conclusion, the panel stated that in light of the work you have undertaken, the evidence that this has reduced your risks and the support of report writers, the panel was able to conclude that you had progressed to the point where risk had been reduced to a level consistent with protecting the public from harm in circumstances where, in open conditions, you would be in the community, unsupervised under licensed temporary release. The period in open conditions will allow for your gradual re-integration into society and for you to demonstrate your ability to put into practice all the skills you have learnt whilst in closed conditions that are more on a par with life in the community.

This review period will allow you:

•

To undertake [Release on Temporary Licence] and home leave;

•

To enable you a period of testing, to put into practice and consolidate the offending behaviour work and strategies that you have developed whilst in closed conditions;

•

To put into practice and apply good thinking skills;

•

To enable you to work on a risk management plan with the aid of your Offender Manager to begin to work towards a new drug and alcohol free lifestyle, put into practice and continue relapse prevention strategies and include the completion of any programmes or booster work to assist with this, as deemed appropriate by treatment managers;

•

To remain adjudication free;

•

To allow you to prepare a robust and fully tested release, settlement and risk management plan to include accommodation and employment, to allow a steady reintegration back into the community and build a strong network of support both professionally and personally in the community.

Your next parole review process will be undertaken in accordance with the Generic Parole Process, a new centrally monitored process. Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and co-ordination of various parties, including the Public Protection Casework Section, the Prison Service, National Probation Service and the Parole Board. Your review will commence in March 2011, and the month for your oral hearing by the Parole Board is August 2011.

The review period is made up of the following:

•

2 months to enable you to transfer to an open prison establishment.

•

6 months Generic Parole Process.

•

7 months to allow for testing and consolidation. This will enable you to fully test your release plan and allow for a gradual re-integration into community.

You will be notified by the Parole Board nearer the time about the exact date of that hearing.”

Mr Rule makes no complaint about the two months needed to move the appellant to open conditions; nor does he suggest that the six months allowed for the Parole Process to take its course was inappropriate. In short, he submits that the time allowed for testing and consolidation should, in this case, have been allowed to overlap with the Generic Parole Process to enable the suggested timetable to be truncated to 12 months. He submits that was particularly necessary because the earlier review had been delayed. The judge was rightly not impressed with that last argument. In setting the timetable for the next review on receipt of the Parole Board’s recommendation in June 2010 the Secretary of State was obliged to set a timetable compliant with article 5.4 in the context of a hope, perhaps even an expectation, that all being well the next review would result in release. To condense it might well have been counterproductive if the result were that a hearing occurred before the appellant was ready for release.

The judge accepted that because the review period exceeded 12 months, for practical purposes the Secretary of State would need to justify the additional three months. He concluded that the letter did so. He noted that

Mr Rule was critical of the last of these observations and submits that three months for the purposes of article 5.4 is significant, not least because it is the period following which the Supreme Court has said that presumed frustration and anxiety will give rise to a small award of damages. I do not read the judge as suggested that three months was insignificant. In using the term “relatively insignificant” he was doing no more than reflecting the reality of many of the cases, both in this jurisdiction and Strasbourg, that much longer delays beyond 12 months have frequently been encountered.

In my judgment there is no error in the judge’s approach or his conclusion. He approached the question whether the review was speedy for the purposes of article 5.4 according to the principles he had articulated (see paragraph [31] above), determined the issue himself having regard to the views of the Secretary of State and concluded that in the light of the appellant’s particular position the Secretary of State had demonstrated that a period longer than 12 months was reasonable. In the circumstances of the appellant’s case a review after 15 months complied with the requirements of article 5.4.

Mr Rule submits that the judge was in error in failing to conclude that the appellant had demonstrated on balance of probabilities that the delay in early 2010 had resulted in his detention being extended by between three and four months. At each stage the appellant surmounted every hurdle required of him. There is no reason to suppose that had the whole process been advanced by between three or four months he would not have moved to open conditions earlier and then been released earlier as well.

The judge was persuaded that

“…there are too many imponderables to enable such a conclusion to be reached in this case even on the balance of probabilities. A review in January 2010 might well have recommended the claimant’s transfer to open conditions, but the Secretary of State was not obliged to accept that recommendation and even if he did, it is not clear when the transfer would actually have taken place. There is also considerable doubt as to what review period would have been fixed for the next review. If it had been held too early, the Parole Board might well have concluded that the claimant was not yet ready for release, thus delaying his eventual release, perhaps for another year. As it was, it was apparent that even in August 2011 when the panel did order the claimant’s release, some reservations remained.”

In using the word ‘imponderables’ the judge was summarising the approach to this question found in a number of previous decisions of the Administrative Court: see R (Downing) v. Parole Board [2008] EWHC 3198 (Admin) at [27], R (Biggin) v. Secretary of State for Justice [2009] EWHC 1704 (Admin) at [34], and R (Degainis) v. Secretary of State for Justice[2010] EWHC 137 (Admin) at [11]). Each, as he recognised, was a case in which the claimant was still in custody at the time that the question whether the material delay had the effect of extending detention was considered.

There are likely to be rather more “imponderables” at that stage than when the evidential evaluation is being conducted after a prisoner’s release. Looking back in the knowledge of what has in fact happened may make it easier to determine what would have happened had a different timetable been followed. Mr Rule was concerned that the judge had substituted a legal test focussing on “imponderables” for the balance of probabilities test. There is nothing in the judgment which supports such a contention, not least because the judge stated in terms that he was considering “whether the claimant has proved on the balance of probabilities that he would have been released earlier if the post tariff review had been held in January 2010.”

This case is unusual in that it took two and half years after the issue of proceedings directed towards advancing the second review hearing, as well as seeking recompense for the past delay, to come to trial. Given the ordinary time limit of up to three months for bringing judicial review proceedings and 12 months for a claim under the 1998 Act there should be few cases which take that long. In Faulkner the Supreme Court concluded that the award of damages for the proven 10 month delay in release should be £6,500. Given the relatively low levels of damages available for violations of article 5.4 most claims under the 1998 Act, in the absence of a claim for relief that only the Administrative Court can grant, should proceed speedily in the County Court.

The evidence before the court was in writing and consisted principally of the details surrounding the progress made by the claimant both before and after the first Parole Board hearing. Having considered that evidence I respectfully disagree with the judge and conclude that it demonstrates that on the balance of probabilities the appellant would have been released between three and four months earlier had the delay in 2010 not occurred. The question is whether following a hearing in May 2011 the probability is that the appellant would have been released. That involves a consideration of the progress he made following his transfer to open conditions in July 2010 and whether an earlier first hearing would have resulted in his transfer to those conditions.

The evidence before the Parole Board in May 2010 had, for the most part, been prepared in the Autumn of 2009 with a view to a hearing at or close to the end of the appellant’s tariff period. It was universally supportive of his transfer to open conditions. The appellant had completed all the relevant courses with success. There were no disciplinary concerns. The appellant was an enhanced prisoner with no adjudications against him. He had completed the work identified in his sentence plan. In a report of 27 August 2009 the Offender Manager “strongly” supported a move to open conditions. The Offender Supervisor also recommended such a move in her report of 4 September. All reports were positive. By the time of the hearing before the Parole Board in May 2010 the Offender Manager indicated that she “could easily be persuaded” that the appellant was even then ready for release on licence.

The overwhelming likelihood, for practical purposes a certainty, is that an earlier first review at the end of January or beginning of February 2010 would have resulted in a recommendation for transfer to open conditions. There could have been no proper basis upon which the Secretary of State would have rejected the recommendation. One cannot be certain that the transfer would have been arranged within two months although there is no reason to suppose it would have taken longer. Mr Hooper suggested that it might have taken one month or it might have taken three. There was no evidence that the two months period was other than normal, so such speculation does not change the overall picture. The focus therefore moves to what would have happened had the appellant found himself in open conditions between three and four months earlier. The first point is that there is nothing to suggest that there would have been any reason for setting the next review period at longer than 15 months. The factors which led the Secretary of State to fix the period at 15 months would have been likely to be the same. What then would have happened?

In looking at the material which was in fact before the Parole Board in August 2011 and the steps taken after the appellant arrived in open conditions in July 2010 it is important to recognise that all concerned were working towards that August date. The arrangements for the appellant to have partial liberty from the open prison, including working in the community and in time staying away overnight, were all conditioned by that. Thus in a report dated 14 January 2011 the Offender Supervisor was not yet able to recommend release because the appellant had not completed his release on temporary licence programme. That was completed by the end of April without problem. The reality is that such temporary release arrangements were arranged with the August date in mind. By February 2011 the Lifer Manager was supporting release and the risk assessment eventually relied upon by the Parole Board was prepared in March. A cognitive skills booster course was successfully completed in February. In her report of 18 March 2011 the Offender Manager expressed the view that the appellant was ready for release.

In its decision the Parole Board reviewed the evidence of change in the appellant during his sentence. It noted that after transfer to Ford Open Prison his “impressive record of behaviour” was maintained. Progress was good and reports positive. Town visits and overnight visits were successfully completed. The appellant had begun work for five days a week in voluntary work. At first he had been unsuccessful in finding paid employment but later obtained a job linked to the prison. The appellant had a supportive relationship with a new partner. There was some concern about how he would cope if this broke down. The Parole Board concluded that the risk of reoffending was “best understood as low”. It noted that if the appellant returned to drink or drugs the position would be different. The appellant was questioned closely about his attitude to alcohol. The Parole Board was concerned to impose conditions which kept the appellant out of Farnham town centre, where the offending had occurred and where the possibility of running into his victim was real. It also wished to avert risk associated with the appellant and his brother (his co-defendant) meeting face to face. In its conclusions the Parole Board expressed concern about the appellant reverting to his previous egocentric view of life. However, it was impressed by his excellent custodial progress, self-discipline and focus in completing the sentence plan. It referred to his positive “pro-social” approach. The appellant had many protective relationships, not least with his Offender Manager. It concluded:

“The panel took note of the most recent risk assessments and agrees that you have reduced your risk significantly. It also gave weight to the shared recommendation for release from both your probation report writers. The panel concluded that you pose no more than a minimal risk to life and limb and it directs your release with additional licence considerations (sic) which after very careful consideration and following detailed evidence from your [Offender Manager] it judges to be necessary and proportionate for the management of your risks. The panel did not consider that this currently applied to any requirement for drug testing.”

The additional licence conditions related to Farnham and the appellant’s brother.

As I read the Parole Board’s decision the reservations did not bear upon whether the appellant should be released. Instead it examined very carefully risk factors associated with where he would be living and which might arise from association with his brother. It was for that reason that it augmented the licence conditions which had been suggested by those who produced the reports.

Whilst one can never be certain that a hearing three months or so earlier would have resulted in the appellant’s release, my conclusion is that on balance of probabilities it would have done. This prisoner was making sustained progress and met all expectations at each stage of the process after he was transferred to open conditions. There is nothing in the material before us which suggests that an earlier consideration would have led to a different outcome had the whole process been advanced.

In the course of argument counsel indicated that in the event that the appeal were allowed on this basis the parties would be able to agree an appropriate award of damages in the light of the approach of the Supreme Court in Sturnham and Faulkner.

I would allow the appeal to the extent of making an award of damages to the appellant pursuant to section 8 of the 1998 Act in respect of the admitted violation of article 5.4, including delay in his eventual release from custody. Otherwise the appeal is dismissed. In the unlikely event that damages cannot be agreed the issue will be resolved on written submissions in accordance with the court’s directions on an application made on the handing down of these judgments.

I agree.

I would add that I have been kindly afforded the benefit of seeing in draft the proposed judgment of Arden LJ and merely add a few observations upon the points there made.

As already indicated, with regard to the first point, I agree with what Burnett LJ has said in paragraphs 15 to 21 of his judgment, although my views on the point fluctuated during the course of preparation for the case and during the hearing of the parties’ helpful submissions.

In the end, it seemed to me that all these cases are intensely fact specific and there may well be (as Burnett LJ says in paragraph 21) cases in which it may become important for a case against a second defendant to continue where at first sight there may not be apparent practical benefit in the claim against that defendant continuing. I agree with him, however, that this case was not clearly that type of case and I did not think it right to interfere with the exercise of the judge’s discretion.

I would prefer to leave entirely open the question of what this court’s approach to the exercise of the discretion on such matters may be in future cases where a similar point arises.

On Arden LJ’s second point, if I may most respectfully do so, I can say that I found Lord Reed’s judgment in Sturnham (supra) a most helpful exposition of the principles to be applied to certain aspects of our present case.

I agree with the judgment of Burnett LJ that this appeal should be allowed in part only for the reasons which he gives.

I draw attention to two particular points of law which this appeal clarifies, which may be important in subsequent cases in this field.

First, this court has not interfered with the refusal by the trial judge to give permission for a separate claim in judicial review proceedings where no useful purpose would be served. The material circumstances were that one of two defendants (“the conceding defendant”) had already made a concession which would lead to the claimant receiving from that defendant all the relief to which he was entitled in respect of that claim. There is simply, as Burnett LJ holds, no useful purpose in that case in the claimant bringing an additional claim for effectively the same relief against the second defendant. However, even where the claimant can recover all the relief to which he is entitled from the conceding defendant, the judge may decide that permission should be given for the additional claim where there is a public interest in the court giving a ruling on the issue against the other defendant. Lord Justice McCombe reminds us in his judgment that the judge will need to look closely at the specific facts. That said, his decision may be a matter of case management in which the appellate court would not lightly interfere.

In this discussion, we leave on one side the theoretical possibility that there is some reason to believe that the judgment against the conceding defendant will not be satisfied, but that may be relevant in other areas of law.

Second, where a prisoner has to complete a period in open conditions before release, he may claim damages even if the unjustified delay in reviewing his case occurred before his move to open conditions, rather than at the stage when his ultimate release should have been considered. The earlier delay can have a “knock-on” effect on the date of his final release. There may be intervening matters which negate the effect of any delay, but, if the prisoner can satisfy the court, on a balance of probabilities, that the unjustified delay at the earlier stage served to postpone the date for his ultimate release, he will in general be entitled to claim damages for that delay.

In R (Sturnham) v Parole Board and Another (Nos. 1 and 2) [2013] 2 AC 254, Lord Reed JSC, giving the judgment of the majority of the Supreme Court, gave a valuable summary of his conclusions in fifteen concise, numbered sub-paragraphs near the start of his judgment. His judgment went on to analyse a considerable amount of Strasbourg (and some domestic) jurisprudence which formed the basis for these conclusions. A court has to read those conclusions in the context of the relevant passages in the remainder of the judgment. Nonetheless, if I may be permitted respectfully to say so, the conclusions provide an excellent starting point. They provide a convenient summary of the points decided, as is demonstrated by the extensive citation which Burnett LJ has made from them in paragraph 12 of his judgment. They avoid the need for further citation. So such a summary can be very useful to this court.

In addition, the audience for appellate judgments usually extends far beyond the parties and such a summary can be very useful to the persons in that audience. There will be many people who will not be concerned with the detailed reasoning supporting the summarised conclusions. Those persons are, therefore, also likely to be assisted by a list of conclusions in a judgment.

Moreover, as I have argued elsewhere ([2012] 128 LQR 515), making judgments more accessible can assist people bringing claims whether they are self-represented or represented by lawyers. More accessible judgments may reduce the time spent by lawyers in perusing case law. That may in some small way help to reduce legal costs.

Further, making judgments more accessible is likely to help increase the influence and impact of English and Welsh law in cases in which those judgments are, or might be, cited in other jurisdictions, including, importantly, cases before the European supranational courts in Luxembourg and Strasbourg.

With these additional reasons, I agree to the order which Burnett LJ proposes.