Day, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE GIBBS: Mr Day, the claimant, applies with the permission of Mitting J for judicial review of the decision of the defendant, the Secretary of State for the Home Department, in relation to the date of the claimant's next reference for review by the Parole Board for his release under a mandatory life sentence licence.

The claim for judicial review as originally framed was extremely wide-ranging and challenged the management of the claimant's case under his life sentence provisions on a number of bases. However this challenge is now confined to two alternative grounds.

(1) That it is unlawful for the Secretary of State to exercise the power to fix the date of the next review, because the exercise of that power by the Secretary of State infringes the claimant's right under Article 5 of the European Convention on Human Rights ("the Convention") to have the lawfulness of his detention decided speedily by a court, and that the appropriate body to fix the review date would be the Parole Board.

(2) In the alternative, if it was lawful for the Secretary of State to exercise the power to fix the review date, then the exercise of that power in the claimant's case was unlawful because in the particular circumstances the way in which that power was exercised deprived him of a speedy decision by a court of the lawfulness of his detention, ie the particular decision had the effect of infringing the claimant's Article 5 rights.

The facts of the case in brief are as follows. The claimant's date of birth is 8th January 1973. On 1st August 1992 the claimant, as the jury later found, committed the offence of murder. He was 19 at the time. The offence was committed with others in the course of a late-night brawl near a burger bar. At that time the claimant had no previous convictions for criminal offences, but may have had one caution.

The date of the conviction was 26th March 1993. The claimant was sentenced to custody for life. He was then 20 years of age. A tariff period of 11 years was set. It appears that the claimant has since found it difficult to accept his guilt of the offence for a number of reasons and there have been two unsuccessful appeals.

On 1st August 2003 the claimant's tariff expired. He had by then done the 11-year period. It is to be noted by way of background that no review had taken place before the expiry of the tariff period.

On 3rd November 2003 the Parole Board conducted a review of his case at HMP Kingston. The review was two months later than it should have been. The decision in relation to that review is set out in a letter dated 10th November 2003. The relevant parts of that letter read as follows:

Under the statutory framework governing referrals by the Secretary of State to the Parole Board the claimant was entitled to have a further review of his release no later than two years after the review just described, that is by the beginning of November 2005. Within that framework there were arrangements which entitled him to request an earlier review, but if he did so the Secretary of State had a discretion whether or not to grant the request. I shall refer to the statutory framework in more detail later. The Secretary of State's decision about the time of the next review was as follows:

This decision is evidenced by paragraph 7 of the statement dated 6th May 2004 of Mr Simon Alderman, Senior Executive Officer in the relevant department of the Home Office. The effect of the decision would be that there would be an interval of some 21 or 22 months between the last review and the next one. It is, however, right to quote more fully from Mr Alderman's statement.

I now depart from the statement to interpolate the up-to-date situation provided helpfully on behalf of the defendant by Mr Kovats at the hearing with the agreement of Mr Fitzgerald who appears for the claimant. The up-to-date facts are that the claimant started his ETS course on Monday 21st June 2004. He is due to finish it on 6th August 2004. It will take four weeks thereafter for a written assessment of his performance to be made and a review of the success of that course will take three weeks after that. This timetable implies a completion of the course and full assessment and review by the end of September 2004.

I now return to Mr Alderman's statement.

I now come to the applicable law. In summarising the statutory framework I propose to refer to the provisions which by agreement between the parties were and are in fact applicable to the claimant's case. In the light of their agreement about the statutory framework, I do not intend to trace the legislative history which leads to the agreed result.

The statutory power to release at the time of the challenged decision (but since repealed) is set out in the Crime (Sentences) Act 1997 section 29:

Section 28 of the Crime (Sentences) Act 1997 (still in force) reads so far as is relevant as follows:

The claimant fulfils the conditions for that subsection.

It is to be noted that the criteria under this subsection are confined to prisoners at risk to the public and the public's need for protection:

Article 5 of the Convention provides, in so far as is relevant, as follows:

And then at Article 5(4) it is provided:

Mr Fitzgerald's first ground for challenging the Secretary of State's decision was put in the course of powerful submissions in a number of different ways, but the essential point is a simple one. It can be summarised thus: the decision of the timing of a review by the Parole Board of the release of a prisoner materially effects the issue as to whether or not he should properly be released. If the interval is too long then the delay involved may result in the unlawful detention of the prisoner in the sense that he will be detained beyond any period justified by considerations of public protection. For this reason it is submitted that the fixing of the review date is in itself a judicial function. To leave it in the hands of the Secretary of State would therefore be to deprive the claimant of his Article 5 right to an effective decision by a court. The correct answer to this infringement of the claimant's Article 5 right, submits Mr Fitzgerald, is that the Parole Board which is acknowledged by the European Court of Human Rights jurisprudence to be for this purpose a "court" should be the body charged with determining the review date.

More broadly Mr Fitzgerald relies on the way in which the law relating to parole decisions for lifers has developed. He relies on the effects of what he describes as the sea-change brought about by the decision in Stafford V United Kingdom [2002] Prison Law Reports 181. He refers to the fact that this decision was instrumental in bringing about a change in legislation which placed decision-making powers about the release of prisoners with the Parole Board. He describes the changes brought about as the "judicialisation" of the release process. He submits that the principle of judicialisation must lead to the conclusion that the body charged with the lawfulness of detention has the power to direct when the next review should be, ie the Parole Board should decide.

Reliance is placed on dicta of the Court of Appeal in R(Murray) V Parole Board and Secretary of State for the Home Department [2003] EWCA Civ 1561, 6th November 2003. He invites me to prefer the approach suggested by those dicta to the reasoning of the ECHR in a recent decision, namely Blackstock V United Kingdom dated 27th May 2004, a report of which has helpfully been provided to the court. I shall refer to the apparently conflicting approaches represented by those two decisions in due course.

Mr Fitzgerald submits that the Blackstock decision is out of step with the clear and consistent jurisprudence of the ECHR and further that since that is a decision on admission only of the claim in that case it is not binding on this court. He says, therefore, that the way is open to declare the law to be as he contends, and that the timing of the review should be for the Parole Board to decide.

On this first issue Mr Kovats submits that the case of Blackstock is entirely in point. It is a very recent decision of the ECHR, it therefore reflects up-to-date European jurisprudence. Put at its lowest, he says, Strasbourg jurisprudence is entirely consistent with the decision in Blackstock. More realistically, so he submits, the Blackstock decision is in fact supported by that jurisprudence. He further contends that English jurisprudence, with the single exception of the case of Murray, supports Blackstock.

Finally, case law aside, he argues that the wording of Article 5 itself tells against the claimant's submissions. The expression used is "shall be decided speedily by a court".

Mr Kovats submits that this requirement is satisfied provided the Secretary of State refers a prisoner's case speedily to the Parole Board. He submits that that reference is an administrative function with which under the 1997 Act (as amended) the Secretary of State is specifically charged. He submits that there is nothing in Article 5 which requires that the Parole Board itself should, contrary to that statutory scheme, be responsible for this function.

Mr Fitzgerald's second and alternative submission made on the basis that here the Secretary of State, contrary to his first submission, could lawfully fix the timing of the review, is that the effect of the particular decision in the present case is to deprive the claimant of his right to a speedy review. He submits that in the context of the facts as assessed at the November 2003 review, the interval of more than 21 months is simply too long. He says that an analysis of European jurisprudence leads to the conclusion that there is a presumption that an interval of more than 12 months is excessive. Alternatively, at the very least, the European cases suggest that a review interval of over 12 months is in practice regarded as excessive unless circumstances exist to provide some justification for it.

Mr Kovats makes several submissions in response. He argues that the application is premature for several alternative reasons. First, there has been in reality no decision at all about the review. The indication has been given that it will be concluded by the end of August 2005. But he says this does not constitute a decision. There remains the possibility, if not the likelihood, that an earlier date may be arranged.

Second, even if the August 2005 date can be regarded as decided, there remain internal procedures which enable the claimant himself and indeed the prison authorities to apply for an earlier date. In the event of such an application the Secretary of State would consider it and make a decision upon it.

Third, there is no presumption, submits Mr Kovats, that Article 5 requires a review within 12 months. The cases indicate that what constitutes a speedy review is a matter to be assessed on the facts of each individual case.

Fourth, he submits that a proper consideration of facts justifies the Secretary of State's decision, if decision it was, about the date of the review. Mr Alderman's statement sets out the relevant factors and there is no evidence from the claimant to contradict what he says.

Before making my findings on these submissions it is necessary to refer in somewhat more detail to the authorities cited. I restrict these references as far as possible to those directly relevant to the issues identified. I refer first to the case of Murray. Here a revised period of 15 months between reviews was challenged as being in breach of Article 5. The judge at first instance, Pitchford J, refused judicial review on the basis of the practicalities of affording the claimant an earlier date than the revised date set. Sedley LJ in the Court of Appeal observed at paragraph 10 of his judgment that Pitchford J's reasoning did not involve, as arguably it should have done, the prisoner's interests and the requirements of the law. However, by the time the Court of Appeal was considering the case, Mr Murray had had his review and been released. Judicial review was therefore refused on the basis that the case had become entirely academic.

However, at paragraph 20 the court said as follows:

I refer next to the ECHR decision in Blackstock. Here the applicant was serving a discretionary life sentence. It is conceded by Mr Fitzgerald that there is no material distinction for the purposes of the present case between a discretionary and a mandatory life sentence. The Discretionary Lifer Panel of the Parole Board did not recommend release, but recommended transfer from category B to category D. It further recommended that if this first recommendation was not accepted then there should be an early review in 12 months' time. In the event the Secretary of State did not accept the DLP's recommendation, and fixed a review in 22 months' time. One argument advanced on the applicant's behalf is as follows, and in the course of the court's judgment is immediately followed by the court's assessment of that argument:

It follows that the court comprehensively rejected the submission of the applicant on this point and found it to be not even arguable. The court, however, did find admissible the submission that the review was not carried out "speedily".

In the case of Spence the Secretary of State accepted the recommendation by the Parole Board for transfer to open prison conditions, but substituted a period of 18 months for the 9-month period recommended by the Parole Board for timing of the next review. In his judgment at first instance on 17th December 2002, Newman J at paragraph 17 said:

In the Court of Appeal (case number C3/2003/0046, judgment date 24th May 2003) submissions were made inter alia by Mr Lennon as follows:

There were grounds for challenging the judge's decision. The court went on to consider those two submissions of Mr Lennon as follows:

The Court of Appeal accordingly dismissed the appeal in that case. I note here that Mr Fitzgerald criticises the logic of paragraph 35 of Brooke LJ's judgment in that he says that its conclusion does not follow from the reasoning in paragraph 34.

I now refer again to Sedley J's judgment in Murray, for its assistance on the significance to be attached to a period of one year in the context of a speedy review.

The observations in that passage are borne out at the ECHR cases and decisions referred to, and others. They include Oldham 26th September 2000 36273/97 para 32 and Hirst 24th October 2001, 40787/98, paragraphs 38 and 39.

Finally, on the question of the test which the court should apply to the lawfulness of the review interval provided by the Secretary of State counsel are helpfully in agreement, both counsel agree that it is not appropriate for me to apply the "Wednesbury" Test (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223) ie it is not right to say that the claim can only succeed by establishing that the Secretary of State's decision is outside the range of reasonable decision making.

The proper test by common consent is whether the court decides that the Secretary of State's decision succeeds or fails in providing a speedy review as required by Article 5(4) having regard to all the circumstances of the case giving due weight to the views of the Secretary of State, the Secretary of State being the person who through his servants or agents is in a good position to assess all the relevant circumstances.

Having carefully considered all the arguments and the authorities cited, my conclusions are as follows: As to Mr Fitzgerald's first submission, I can see the merit in the argument that, because the Parole Board is the body with the statutory duty of determining release, it should also be able, if it recommends against release, to determine when the next review should take place. The period of two years laid down by statute is a maximum period and the Parole Board may well be in a good position to say whether a review before that date would meet the justice of the case.

But the issue here is not whether there would be arguable merit in such a scheme: the fact is that the existing statutory scheme does not provide for the Parole Board to make such a determination. A precondition under the statute for the Parole Board's review powers is the reference of the case to it by the Secretary of State. The question therefore is whether the existing scheme falls foul of Article 5, not whether some other scheme might arguably have more merit. It seems to me that Mr Fitzgerald's broad argument, that "judicialisation" of the decision-making on release must logically render it legally necessary to confer on the Parole Board the decision-making power on the timing of reviews, cannot be sustained. The case law indicates that there are aspects of the release procedures which remain and properly remain administrative procedures under the control of the Secretary of State, for example the category of prison conditions under which a prisoner is held (see Ashingdane V United Kingdom at 14/1983/70/106). The statutory scheme itself provides a flexible context in which the Secretary of State's administrative powers may be exercised. There is also, as previously stated, a maximum time limit set at two years. The exercise of the Secretary of State's powers in connection with referral of a case to the Parole Board is susceptible to judicial review. In the event of an application for judicial review of the Secretary of State's decision, it is open to this court to form its own judgment about whether the review period infringes Article 5. Under those circumstances I consider that any restrictions on access to the review process which may result from the statutory scheme do not restrict or reduce access to such an extent that the very essence of the right of review is impaired. In making that finding I adopt the wording of Grigson J in Clarke v Secretary of State for the Home Department 27th March 2003, CO/4596/2002.

Further, I consider that the findings of the Court of Appeal in Spence at paragraph 29, as elaborated in paragraph 35, form an essential part of the decision in that case, despite Mr Fitzgerald's submissions to the contrary. The court is therefore bound by the findings, although I would reach the same conclusion even if it were not.

I take due account of the dicta in Murray and also of the persuasive force of Blackstock, although strictly the court, as has been pointed out, is not bound by either the dicta in the former case or the decision in the latter. I am, however, persuaded that Blackstock is consistent with the clear and consistent jurisprudence of the ECHR and also with the exception of the observations in Murray consistent with English jurisprudence.

I turn therefore to the second limb of Mr Fitzgerald's argument. I do not accept that there is a presumption that an interval of more than a year between reviews infringes Article 5. I think that the question of whether the Secretary of State's decision provides for a speedy review depends on the circumstances of each individual case. However, I do think that the decisions of the ECHR provide a useful guide to what the law should or should not regard as speedy. It is plainly on the basis of case law easier to establish that a decision which sets an interval of more than a year falls foul of Article 5, than a decision setting one of less than a year. It is, however, a matter of fact and degree in my judgment in every case.

I do not accept Mr Kovats' submission that the challenge to the Secretary of State's decision is premature. Mr Kovats' submission that in reality no decision has yet been made on the timing of the review is an ingenious one; I cannot however accept it. It is, to say the least, arguably inconsistent with his summary grounds at paragraph 41 and with Mr Alderman's statement, both of which proceed on the basis that a decision has been made.

I accept Mr Fitzgerald's submission that the reality here is that the decision has been made to conclude the review by August 2005, and that, in reality, a timetable has been set with that in mind. I also accept that the timetable is not immutable and that the Secretary of State is open to representations, including representations from the claimant to bring the review forward if circumstances justify it. In that regard the situation is directly comparable to that described in Hirst at paragraph 34.

Further, I do not accept that the claimant is prevented from bringing this claim because he has the opportunity to make further representations to bring his review date forward. It is acknowledged that this ability brings some flexibility to the procedure, but if the basic decision does not provide for a speedy determination of the issue as required by Article 5 that flexibility does not in my judgment cure the defect; I am supported in that view by the case law of the ECHR.

What then is the correct conclusion about the Secretary of State's decision in this case? I take into consideration my previous finding that there is no presumption that an interval of more than a year is too long. I take into account that European jurisprudence is not prescriptive about the determination of intervals between reviews, which must depend on individual circumstances. I take into account several decisions which on their particular facts held that intervals of over a year and up to two years were or may be legally unobjectionable, for example Spence, Clough and R on the application of MacNeil v Parole Board [2001] EWCA Civ 448.

I also bear in mind that it would be undesirable to encourage a proliferation of judicial review applications based on arguments about the precise timing of reviews. Such a proliferation would no doubt involve a great waste of time and expense, as well as causing administrative problems. On the other hand it must also be borne in mind that the decision challenged is a decision about a claimant's right to a speedy review. It is not about his right to release, but about his right to prompt consideration by the Parole Board of his case where circumstances require it. There is no doubt that such promptness may require a review in significantly less than two years' after the previous decision.

Here the Parole Board in its last decision whilst refusing release considered that the necessary work in the claimant's case could be undertaken in what it hoped would be a relatively short time. The rehabilitation course to be completed in prison conditions on the evidence lasts only six weeks or, if the subsequent assessment and review are included, three months. Although the review took place in November 2003 and the Secretary of State agreed to transfer the claimant to category D in December 2003 the course, due to no fault of the claimant, was not commenced until early June 2004. Its result will be known by the end of September. Notwithstanding the delay in the course, that still leaves some 11 months before the next review date. There is other work to be done by way of monitoring and assessment, for example work outside the prison in the daytime, release and so on. The Secretary of State was reasonable to take those matters into consideration.

If I were to apply the Wednesbury test to the Secretary of State's decision-making process it is doubtful whether it could be characterised as irrational, although I do not make any decision on that point. That, however, is not the test. Applying the test of whether the decision provides for the lawfulness of the claimant's detention to be decided speedily by the Parole Board, the answer in the context of this case must, in my judgment, be that it does not do so, even giving due weight to the Secretary of State's views. The context in which the Secretary of State made his decision was that the original November 2003 review was itself two months late. Thus the period determined by the Secretary of State was effectively two years from the date on which the earlier review should have happened. The Parole Board, whilst refusing release, looked forward to a relatively short period in open conditions. The recommendation for transfer was quite quickly accepted by the Secretary of State.

I make two further observations about the context in this case. First, there may be many, perhaps the majority of cases, where a review in less than two years is quite unnecessary for the purposes of complying with Article 5; for example, a person who has by past history and by present evidence shown himself to be a continuing danger to the public, and where the situation is highly unlikely to change in the short term. Such cases may include that of a violent psychopath or serial sex offender.

This case, whilst of course the claimant was found guilty of murder, falls at the other end of the spectrum where a process of change is, on the evidence, well under way and further improvement is anticipated in the short term. It is therefore the sort of case in my judgment for which the ECHR decisions on their own facts provide useful guidance.

Second, the question of the measures planned for the prisoner in anticipation of the next review and the speed at which they are implemented are bound up with the question of the timing of the next reference to the Parole Board. If objectively on the facts of the case the setting of a speedy review date requires a reference in 12 months, it is no answer, in my judgment, or insufficient answer, to respond by setting an unacceptably leisurely timetable for implementation of those measures and then to rely upon the delay as a reason for not making a speedy reference. Thus, whilst I give some weight to the general points in paragraph 8, in particular, of Mr Alderman's statement, they are, in my judgment, inadequate to warrant the fixing of the review as far in the future as August 2005. The Secretary of State's contentions in the present case in this regard are similar to the submissions he made to the ECHR in comparable cases which have been cited to me by Mr Fitzgerald. Those submissions broadly failed to persuade that court that delays of in excess of a year were compatible with Article 5. I am not persuaded that the period in the present case satisfies the requirements of that Article. I am therefore prepared to grant a declaration to that effect. I do not think it appropriate to go further than that.

In practical terms it would now seem futile to set up a review to take place before the result of the ETS course can be assessed. A sensible timetable would suggest that a period of some two months at least should be allowed to elapse after that assessment has been fully reviewed before any reference to the Parole Board takes effect. But beyond making those comments, which are based on the practicalities of the situation, there is I think no more that I can usefully add. I will hear submissions on the precise form of any declaration.

MR KOVATS: My Lord, if I could just mention a few points on the judgment? Your Lordship set out both section 28 and section 29 of the Crime (Sentences) Act 1997. Your Lordship may think it appropriate to point out that section 29 has now been repealed, so section 28 is the only one in place and it applies to all lifers. Yes, sorry, their appeals came into effect in December of 2003, so at the time of the Board's decision it was in force, but it has since been repealed.

MR JUSTICE GIBBS: By way of explanation and/or mitigation for setting that out, Mr Kovats, I have it clearly noted that this extract was handed up to me as being the statutory power in question in this case, which is why I cited it.

MR KOVATS: My Lord.

MR FITZGERALD QC: My Lord, as I understand is it, the position is that certainly your Lordship was entirely correct to cite them both, but section 29 governed the position at the time. Section 28 governs the continuing declaration sought in limb 1, but perhaps is the only thing is to make clear that section 29 governed the position at the time. Section 28 now applies and is relevant for the purposes of the declaration sought as to Part 1. Well, and it is also, actually it is quite relevant to the speedy issue too.

MR JUSTICE GIBBS: I will amend the judgment; I will revise the judgment to make that clear, but that is the reason why I quoted as I did.

MR KOVATS: Secondly, just a slip of the tongue, your Lordship said that Mr Fitzgerald criticised the logic in paragraph 5 of Brooke LJ's judgment, it is paragraph 35 it should be.

MR JUSTICE GIBBS: 35, thank you.

MR KOVATS: And, similarly, your Lordship later in the judgment indicated that you agreed with my submissions that the Blackstock decision was consistent with the English jurisprudence with the sole exception of, your Lordship meant to say Murray but in fact said Spence.

MR JUSTICE GIBBS: Yes, I am sorry, that is absolutely right. Yes, thank you.

MR KOVATS: My Lord, as regards the wording of the declaration we would be content with the declaration that 'were the next review of the lawfulness of Mr Day's detention to conclude in August 2005 that would not be a speedy decision within the meaning of Article 5(4)'.

MR JUSTICE GIBBS: That seems an appropriate declaration.

MR FITZGERALD QC: My Lord, I think I have got an identical formula, which is a declaration to 'postpone the conclusion of the claimant's review to August 2005 would violate the claimant's right to a speedy review of the lawfulness of the detention'.

MR JUSTICE GIBBS: That is a distinction without a difference I think.

MR FITZGERALD QC: No, my Lord, I think we both agree on that.

MR JUSTICE GIBBS: So whichever version is stylistically preferred could it please be handed in to the associate?

MR KOVATS: I am quite happy with Mr Fitzgerald's version.

MR JUSTICE GIBBS: Yes.

MR KOVATS: And, my Lord, with regard to costs, in the circumstances I do not apply for costs and I would respectfully submit that the order is no order for costs save for a detailed assessment of the publicly funded costs.

MR FITZGERALD QC: My Lord, I would certainly accept that we have only succeeded in part. My recollection is that it is necessary in those circumstances to ask that they pay 50 per cent of the costs because it is a question of whether the Legal Aid Fund should pay them.

MR JUSTICE GIBBS: Well, Mr Fitzgerald, without going into analysing it in any great detail I am inclined to accept Mr Kovats' submission. If it had simply been these two issues from the start and you won on one and not on the other 50 per cent would have been appropriate, but I did take the trouble to compare the original statement of facts and grounds and frankly we might have been dealing with a different case and therefore I think no order is probably the correct one.

MR FITZGERALD QC: well, my Lord, I understand. I think we need Legal Aid taxation then, my Lord. We used to anyway.

MR JUSTICE GIBBS: Assessment for the Legal Services Fund -- whatever the appropriate order, you may have it provided you have filed your certificate.

MR FITZGERALD QC: My Lord, I think that has been done, yes. Shall I just draft out that declaration then?

MR JUSTICE GIBBS: If you please and hand it in to the associate.

MR FITZGERALD QC: Thank you very much, my Lord.