King v Secretary of State for the Home Department

By Article 5(4) of the European Convention of Human Rights “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 issue in this application for Judicial Review is whether the events which led to the review of the lawfulness of the Claimant’s detention being put back from 2002 to December 2003 constituted delay under Article 5(4). Although the claim form also seeks compensation under Article 5(5), this aspect was not pursued before me. The submissions centred on two issues. The first is the effect of the decision of the European Court of Human Rights in Stafford v United Kingdom [2002] 35 EHRR 32 which held that the regime for the review of those serving mandatory life sentences in Section 35(1) and (2) of the Criminal Justice Act 1991 was not compatible with Articles 5(1) and 5(4) of the Convention. The record concerns the transitional arrangements introduced as a result of the decision in Stafford v United Kingdom. These were announced in October 2002 and introduced in January 2003 pending legislative change, now proposed in the Criminal Justice Bill 2003.

The Claimant, Mr King, is serving a mandatory life sentence imposed in July 1981 with a 15 year tariff period which expired in January 1996. In December 1999, while he was in a closed prison, the Parole Board concluded a review of his position pursuant to its duty under Section 32(2) of the 1991 Act. The Board recommended that he be moved to an open prison and that his next review take place in 2 years time. The Minister accepted this recommendation in January 2000. Mr King was informed of the outcome and told that the process leading to the next review of his case by the Parole Board would begin in 18 months after his arrival at his new location in accordance with the revised review procedures for lifers announced by the Home Secretary in July 1998. There was no indication in the Parole Board Minute of Review that his release on life licence was considered. This was not surprising. Although the formal position is that the Parole Board can only recommend release without a period in open conditions where it considers that exceptional circumstances apply, there is no suggestion that such circumstances exist in Mr King’s case.

In February 2000 Mr King’s dossier was sent to HMP Ford, his preferred location, for the prison to consider his suitability. HMP Ford agreed to take him in March and arrangements were made for him to be transferred. At the beginning of June 2000 Mr King changed his mind and wanted to go to HMP Blantyre House instead. He was aware that there was a waiting list for that establishment and did not arrive until 16^th November 2000. Four days later the Lifer Unit was asked to transfer him because Blantyre House did not consider him suitable due to his Schedule 1 status. Mr King was then transferred to HMP Sudbury where he arrived on 14^th December 2000. It was, at that stage, anticipated that his next review would commence in June 2002.

In May 2001 Mr King failed a mandatory drugs test and was warned that any further breach of prison rules might result in his being returned to a closed prison. In September 2001 he was caught with a urine pouch while giving a mandatory drug test specimen and it was decided to return him to closed conditions on a temporary basis while his case was referred to the Parole Board. He was first transferred to HMP Birmingham and then, on 14^th March 2002, to HMP Dartmoor. The Parole Board had considered his case on 4^th January 2002 and recommended that he should be returned to open conditions with a review 18 months after transfer. This recommendation was approved on 25^th March 2002, after his transfer to Dartmoor. He was informed that his original review was cancelled and asked if he objected to deferring his review by some months because Ford was not prepared to accept him with fewer than 6 months to the date of his review. He had been notified that his Parole Board Review would be held in December 2002. On 20^th June 2002 Mr King transferred to HMP Ford and, on 26^th June 2002, after he had signed an agreement to that effect, his review was set to begin in June 2003. A memorandum to this effect was sent to the prison.

In September 2002 he requested that his original December 2002 date be restored, this request was refused. In October HMP Ford was informed by the Lifer Unit that the June 2003 date was an error and that the review would commence in December 2003, i.e. 18 months after his arrival at Ford. Mr King then instructed solicitors who corresponded with the Lifer Management Unit in February and March 2003. On 27^th March 2003 the Lifer Unit wrote explaining the situation, stating that Mr King’s removal from open conditions in September 2001 effectively cancelled the review scheduled to begin in June 2002. The subsequent recommendation that he be returned to open conditions stated that a period of 18 months was required before a review which was set for December 2003. It was also said that in view of the fact that he was a tariff expired mandatory prisoner and, as such, affected by the Stafford judgment, the review process would start with the disclosure of the dossier in July 2003. In a memorandum to Mr King dated 2^nd April 2003 the Lifer Unit stated that his status as a tariff expired mandatory prisoner meant that his review should be concluded by the review date of December 2003.

Mr King remained at Ford until 28^th October 2003. On that date he was moved to HMP Lewes as a result of positive results to 2 mandatory drug tests, possession of alcohol, and possession of heroin. The Parole Board Review Panel for Mr King will meet on 18^th December at HMP Ford.

Before considering the submissions made on behalf of the parties I set out a number of propositions on which there was agreement:-

I turn to the parties’ submissions. Ms Krause, on behalf of Mr King, submitted that the facts in his case establish a delay in the determination of whether he should remain in custody sufficient to breach Article 5(4). He has not yet had a Convention compliant review and his last review was completed almost 4 years ago in January 2000 notwithstanding the policy of reviewing the detention of mandatory lifers at regular intervals. He will not have had a Convention compliant review for over 3 years after the Human Rights Act came into force, and for 19 months after the decision in Stafford. At one stage she also submitted the delay ran from January 1996 the date on which Mr King’s tariff period expired, but she rightly abandoned this: see the decision of their Lordships in Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568 holding that, apart from the specific regime in section 22(4), the Human Rights Act 1998 does not apply to pre-2^nd October 2000 events.

On behalf of the Secretary of State, Mr Clarke’s primary submission was that the application of Article 5(4) to those serving mandatory life sentences was not clear until the decision in Stafford, that the Secretary of State was entitled to a reasonable period to make the system Convention compatible after that. He had done this by the transitional arrangements which came into effect in January 2003 and the legislative proposals in the Criminal Justice Bill 2003. Mr King’s review would be completed within a year from the introduction of the transitional arrangements and within 19 months of the decision in Stafford. In these circumstances, and since the reasons for the lapse of time in assessing Mr King’s continued detention primarily arise from his conduct since his last review and the Parole Board need a sustained and continuous period of assessment in open conditions to make a suitable determination of suitability for release, he submitted that there has not been delay sufficient to infringe Article 5(4). He relied on the decision of the Court of Appeal in R (Hooper) v Secretary of State for Work and Pensions [2003] EWCA Civ. 813; [2003] 1 WLR 2623 in which it was stated (paragraph 78) that the principle enunciated by the European Court of Human Rights in Walden v Liechtenstein, application 33916/96, 16^th March 2000 “reflects the fact that the State is entitled not merely to a wide margin of appreciation when considering whether and when a change is required to the law in order to ensure that it remains Convention compliant in changing circumstances, but that, having so decided, it is entitled to such time as is reasonable to make the necessary change”.

From when does one measure delay? Although Convention Rights became enforceable in English courts on 2^nd October 2000 when the Human Rights Act came into force, at that time it was not established that Article 5(4) applied to post tariff detention of persons serving mandatory life sentences. The decision in Wynne v United Kingdom [1995] 19 EHRR 333 held that there was still a substantial gap between mandatory life sentences and other life sentences despite recent developments. In R (Anderson) v Secretary of State for the Home Department [2001] EWCA Civ 1968; [2002] 2 WLR 1143, decided in November 2001 when the Stafford case was pending before the European Court of Human Rights, it was stated that, notwithstanding the Court’s doubts as to the sustainability of the decision in Wynne’s case, the different status of the mandatory life sentence was embedded in the jurisprudence of the Court of Human Rights and it was not for Courts in this country to go further than that Court (see especially paragraphs 20, 66 and 67, per Lord Woolf CJ and Simon Brown and Buxton LJJ).

Having eliminated the 2^nd October 2000, is the relevant date that of the decision in Stafford, 28^th May 2002 or 1^st January 2003 when the post Stafford transitional arrangements came into effect? In Murray’s case the period was measured from Murray’s last review in April 2002. The transitional arrangements are referred to but there is no suggestion that any later commencement date should be taken. Pitchford J had held the 15 month period between reviews did not breach Article 5(4) because of the administrative burden on the Parole Board in the light of Stafford, the finite resources available to the Board, and the needs of other prisoners serving life sentences. In reaching this conclusion he noted (at paragraph 27) that the Court of Human Rights in Walden v Liechtenstein “acknowledged that a Convention state may be justified in adopting a gradual but necessary approach to compliance”. He thus appeared to rely on the principle approved by the Court of Appeal in R (Hooper v Secretary of State for Work and Pensions (paragraph 9 above). The Court of Appeal held in Murray’s case that if there was excessive delay between reviews, logistical difficulties would not be an answer to it. In R (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ 770; [2002] 1 WLR 3284 the court had held that no reliance on administrative necessity could excuse delay under Article 5(4). The Court, however, stated (paragraph 25) that Pitchford J had made no finding but for the administrative difficulties the 15 month period would have been too long, and since by the time the Court of Appeal gave its decision, Mr Murray had had his review and been released, there was no value in the Court doing this. How does the Court of Appeal’s decision in Murray’s case fit with the Walden principle as explained in the earlier decision of that Court in R (Hooper) v Secretary of State for Work and Pensions that the government should be given a reasonable time to implement changes to ensure our law is Convention compliant? This is not an entirely straightforward matter because the need for a reasonable time to implement change stems in part from the logistical difficulties caused by the ruling that a statutory and administrative regime which had hitherto been held to fall outside Article 5(4) in fact fell within it.

In the present case transitional arrangements were put into place within 8 months of the decision in Stafford. Under these the Home Secretary states that he will normally accept a Parole Board recommendation and it appears that reviews of post tariff prisoners are being brought forward. In Mr King’s case the review was brought forward by 6 months (see the Lifer Unit’s letters of 27^th March 2003 to Mr King’s solicitors and 2^nd April 2003 to him). In Murray’s case it was brought forward by 9 months. Mr Murray, however, had had a review in April 2002. Mr King’s last review was completed in January 2000.

In the present case it has not been suggested that the delay was due to logistical difficulties of the sort which the decisions in Murray and Noorkoiv have held not to be an excuse. The main consideration determining the timing of Mr King’s review has been the Home Office view that a period of 18 months in open conditions is necessary before the commencement of a review. His return to closed custody resulted in the abandonment of the review scheduled to start in June 2002 and the present review was fixed to start in December 2003, 18 months after he arrived at Ford. At the time of their letters to his solicitors and to him in March and April this year, the Lifer Unit considered this still to be appropriate but brought the start of the review forward by 6 months because of Stafford.

Mr Clarke’s submission is that taking the date of 1^st January 2003 as the starting date, the delay in this case was not excessive and in breach of Article 5(4) because the review would be complete within 12 months. It fell within the first category of the summary in Murray’s case. However, even if it is correct to take the commencement of the transitional arrangements as the relevant point, that conclusion does not follow. In deciding what should be done in an individual case where a review is outstanding because of the decision in Stafford, account should be taken of when a prisoner’s last review was. To take account of the fact that in this case there has been no review since January 2000 in deciding whether, in the post Stafford era deciding a review to be completed in December 2003 constitutes an excessive delay does not involve giving Stafford an inappropriate retrospective effect. The position is a fortiori if the correct starting date is 28^th May 2002, the date of the decision in Stafford’s case.

On behalf of the Secretary of State it is submitted that it is reasonable and consistent with the Convention for a decision on a prisoner’s continued detention to be informed by assessment of a prisoner over a sustained period of time and for this reason prisoners are assessed in open conditions for the periods of 18 months to 2 years (see Defendant’s skeleton argument paragraph 10). While allowing such a period so as to furnish the Parole Board with more information has practical advantages for both the Lifer Unit and the Parole Board, it does not address or give weight to the right of a prisoner to have the lawfulness of his continued detention reviewed. On this argument a prisoner in closed conditions who has not progressed to open conditions would never be entitled to a review of the legality of his detention. That cannot be so. As Ms Krause submitted, the entitlement to a review under Article 5(4) is not dependent on the merits of the case, or whether a prisoner is in open or closed custody.

For these reasons I have concluded that, in view of the fact that the Claimant’s last review was completed in January 2000, the decision not to complete his next review until December 2003 constitutes a breach of Article 5(4). I shall make a declaration to that effect. Although in principle the Claimant is prima facie entitled to damages under Article 5(5), in the circumstances of this case, and in particular his recent conduct which has led to his return to closed custody, it is in my view very unlikely there has been loss, or that any annoyance or frustration suffered would suffice to justify an award of damages.