Robson, R (on the application of) v Parole Board & Anor

MR JUSTICE CRANSTON: This judicial review raises issues as to the treatment of the claimant who, although for some ten years was a mandatory life prisoner, subsequently became a discretionary life prisoner as a result of his successful appeal to the Court of Appeal, Criminal Division. In particular, the issues raised are whether the system for reviewing his detention operated in accordance with the requirements of Article 5 of the European Convention on Human Rights, and whether the decisions made or not made by those operating the review machinery have been compliant with public law principles.

The claimant was convicted of murder and wounding with intent following a trial at the Crown Court in Newcastle in 1996. The offences related to events in the previous year when he had killed his friend by stabbing him in the stomach with a knife, and then wounded his own sister by slashing her in the face with a knife. He was sentenced to life imprisonment for murder, with a concurrent sentence of five years for wounding with intent. The specified period for the purposes of the life sentence was originally set at 11 years by the trial judge, but that was increased to 14 years by the Lord Chief Justice. Accordingly, his tariff expiry date was the middle of 2009.

In custody the claimant spent his time at a number of different prisons. From the report of Mr Steven Doggett, a probation officer, which was before the Court of Appeal in 2006, we know that he undertook various programmes whilst in custody. At HMP Durham he completed two low intensity programmes focusing on anger management and drink and drug abuse. At HMP Gartree he completed the Reasoning and Rehabilitation Programme. At HMP Swaleside he failed to complete the intensive long-term Cognitive Self-Change Programme. He himself described this failure as due to difficulties in settling at that prison. He began to suffer from depression, and there was a self-harm attempt. Subsequently, he was transferred to HMP Acklington. There he attempted, albeit unsuccessfully, the Healthy Relationships Programme, a failure possibly connected, in Mr Doggett's view, with the breakdown of his marriage and his own deteriorating mental health. However, he did complete another course, Enhanced Thinking Skills.

In 2005 it seems that the claimant was first recommended for the PASRO and CALM courses. PASRO stands for Prisons Addressing Substance Related Offending, and CALM stands for Controlling Anger and Learning to Manage it. PASRO is currently available in 44 prison establishments, that number having increased in recent years. It is a cognitive behavioural programme and addresses how temperament and socioeconomic situations contribute to the development of problematic levels of substance use and crime in individuals over their lives. CALM aims to help offenders reduce the intensity, frequency and duration of negative emotions associated with their offending. CALM is available at 23 prison establishments. The programme lasts for 24 sessions of two to two and a half hours and includes up to three individual sessions.

Let me return to the chronology. The next significant event for our purposes was the claimant's Parole Board review on 18 August 2006. At this point, of course, he was still serving a mandatory life sentence for murder. For the sake of completeness, the statutory background of the Parole Board Review is set out in the Crime (Sentences) Act 1997. Section 28(7) of that Act and allows prisoners sentenced to life imprisonment to require the Secretary of State to refer their cases to the Parole Board once the minimum term has been served and every two years thereafter. Under section 28(6)(a) of that Act, the Parole Board can only order release of a person if the case has been referred by the Secretary of State.

In its report of August 2006, which was the prisoner's first review, the Parole Board said that the claimant's time in custody had been eventful. It noted that while he had done several courses to address identified risk factors of alcohol and drug abuse, violence, use of weapons and anger, he had also continued to use drugs, as evidenced by several adjudications for possessing drugs, and he had failed several drugs tests. Concern had also been expressed about his behaviour, which had been so bizarre on occasion as to raise doubts about his mental health. The board noted that there was no support amongst report writers for a move to open conditions. It noted that the issue of his mental health had been raised again, as was the need for further work to address identified risk factors, particularly anger and drug abuse:

Three months later in November 2006 the Court of Appeal gave judgment in a decision to which I have alluded: R v Robson (Michael) [2006] EWCA Crim 2749. The court allowed the claimant's renewed application for leave to appeal against his conviction for murder out of time. The appeal was brought on the basis that the trial judge had misdirected the jury on the defence of diminished responsibility where there was evidence of alcohol consumption. The Court of Appeal concluded that the verdict was unsafe and allowed the appeal to the extent that the conviction for murder was quashed and a verdict of manslaughter substituted. The Court of Appeal then turned to the issue of sentence. It received evidence from three forensic psychiatrists: one who had originally been instructed for the defence at the claimant's trial; one originally instructed for the prosecution at that trial; and the consultant psychiatrist who had been treating the claimant in custody since January 2006. It also had the evidence of Mr Doggett, as I have said, who had been the claimant's external home probation officer since September 2005.

Each of the consultant psychiatrists recalled the continuing ongoing mental health problems facing the claimant. Mr Doggett described the various programmes which he had been offered, as I noted earlier, and the court recorded his conclusion on these in paragraph 49 as follows:

The Court of Appeal concluded that a discretionary life sentence was necessary. At paragraph 54 it said:

The court then went on in paragraphs 55 on 58 to set the specified minimum period. It decided that that should be eight years, which would be reduced by one year and 107 days to take into account the period spent on remand. Accordingly, the claimant's early release would be considered after six years and 258 days, so that his tariff had therefore expired on 29 June 2003. The court then concluded at paragraph 59 as follows:

The Court of Appeal, in making that pronouncement, had not been informed of the decision of the Parole Board of August 2006. I return to that later.

In late November 2006, the relevant Life Review and Recall Section was notified of the changes to the claimant's tariff following the Court of Appeal's decision. Due, it is said, to the unusual circumstances of the claimant, in other words that he had had a lengthy tariff changed by the Court of Appeal's decision and also due to administrative problems at the Section, the necessary notification to the Parole Board did not arrive until the middle of February. Meanwhile, on 25 January, the section had asked the claimant whether he wanted to proceed with the review. It did that because the further Parole Board meeting would be soon after the decision on 18 August 2006, and there was concern on the part of those at the Section that the claimant would not have had the opportunity to address the issues raised in that August Parole Board finding.

A further Parole Board hearing took place in July 2007. Normally the Parole Board needs a good 26 weeks to prepare the necessary reports and to obtain submissions from those acting on behalf of the prisoner. However, in this case, the Parole Board was able to abridge the process and a hearing would have taken place on 25 June 2007, but it was adjourned for a month because of the claimant's mental condition.

In preparation for that Parole Board hearing, the pro-forma Secretary of State's views were prepared in which the Secretary of State expressed concern that the claimant had not fully addressed risk factors, and noted that the further hearing was to occur soon after the last review. In that pro-forma review, the Secretary of State said this:

The Parole Board considered the claimant's case on 27 July 2007. Its recommendations were handed down on 3 August 2007. It did not recommend that the claimant be transferred to open conditions or be released on licence. It noted that submissions had been received by the Secretary of State, that it had submissions on behalf of the claimant by Mr Field of counsel and also from Mr Doggett, the external probation officer, and Miss Armstrong, the seconded probation officer. In paragraph 4, it noted that there were identified risk factors in relation to the claimant, including alcohol and drug abuse, violence, use of weapons and anger management.

It then went on to note that neither the seconded probation officer nor the external probation officer supported either release or transfer to open conditions. At paragraph 6, the Panel having heard evidence from Mr Doggett, said this:

In paragraph 7 of the report, the Parole Board affirmed the concern that Mr Field had expressed that the claimant's progress had been delayed and that there was now an urgent need for rapid progress. It noted that the Sentence Planning Board could be convened without delay so that the claimant's progress could be expedited, "something with which the Panel concurred in the unusual circumstances of the case".

Then in paragraph 8 the Parole Board said that it agreed with the unanimous opinions of the report writers that the claimant's risk to life and limb was still too high to direct his release into the community. It was also satisfied that his risk was too high to recommend transfer to open conditions.

Events moved on in September. A Sentencing Board was convened in early September to consider the claimant's case, and it approved the Parole Board's recommendation for the CALM and PASRO programmes. The claimant also in September was transferred to HMP Kingston, which offered both the CALM and PASRO courses. Initially on his arrival the claimant twice refused to co-operate with the CARAT (that is, the Counselling, Assessment, Referral, Advice and Throughcare) team, but after a short interval agreed to co-operate. A CARAT assessment is an essential prerequisite in order for a prisoner to undertake a PASRO course. The CARAT assessment was due to be completed on 29 October 2007, but the claimant cancelled his appointment because he said he was ill. Indeed, following concerns about his mental health, he was transferred to HMP Winchester for a mental health assessment. There he had three sessions with a psychiatrist and two sessions with a mental health nurse and was not able to returned to HMP Kingston until 27 November. On his return, he was referred to the mental health unit at Kingston.

On 13 December 2007, the claimant's seconded probation officer prepared a report, where the claimant is reported as being keen to progress, was receiving medication and felt more stable and recognised his need to work with psychiatric services. She concluded by stating that the claimant was friendly and co-operative, felt better about himself since returning from Winchester, and was to be assessed for PASRO and CALM.

Then on 19 December 2007 a further Sentence Board met. The upshot is that the claimant is now scheduled to take part in the next PASRO course, subject to a positive assessment. That course begins in April 2008. There are two PASRO courses offered each year at Kingston with eight participants. The courses last six weeks, but there are significant post-course objectives which have to be completed and assessed, and that takes approximately three months. So that takes us to August. The claimant is then scheduled to take part in a CALM course in October.

The assessment locally by the Life and Public Protection Manager at Kingston is that the claimant should not take the courses together. He notes that the courses are extremely intensive and can be extremely challenging for prisoners. There is a risk that if the courses run together, the prisoner will not take the full benefit of them, and the chances of not completing them is raised. He also notes in particular in relation to the claimant that his history of failing to complete more challenging and intensive courses suggests that it is far more appropriate for them to be taken consecutively. The claimant's next scheduled Parole Board hearing has been set for January 2009.

Let me turn to these proceedings. The claim form was lodged almost 11 months ago in early March 2007. In the claim form, the decision challenged was said to be the ongoing failure of the defendants (i) to comply with the "direction/urging" of the Court of Appeal on 15 November 2006 (in other words the Court of Appeal statement in paragraph 59 of its judgment); (ii) to hold a parole review hearing in any event in accordance with law. Detailed grounds were prepared by Mr Field founded in the main on Article 5. The claimant was said to enjoy a right to an immediate review of the lawfulness of and/or the necessity for his continued detention.

Permission was refused by Dobbs J in late March 2007 mainly in the light of the forthcoming Parole Board hearing in what was then scheduled to be June of that year. There was a notice of renewal in April in the following terms:

On 20 June 2007, the claimant's application for permission was heard by Davis J, and in light of assurances about the hearing in July, there was a consent order. The claimant subsequently filed an amended claim form on 16 August. The decision said to be challenged was as in the original grounds, but with the insertion of the adjective "meaningful" in (ii), in other words the ongoing failure (ii) to hold a meaningful parole review hearing. The remedy sought was, in summary, that a Sentence Planning Board be convened forthwith, the claimant be assessed for CALM and PASRO and, if necessary, the claimant be moved immediately to an establishment which could undertake those courses, and if moved to such an establishment, the claimant to be given the opportunity to satisfy a future parole hearing of his suitability for release or for a move to open conditions. Of course, some of these requirements have fallen away in that a Sentencing Board has been held, as I have said, in December, and the claimant is now at an establishment in Kingston which offers the courses.

In his cogent submissions to this court, Mr Field, for the claimant, putting it at its highest, submits that the claimant's detention is no longer lawful, being in breach of Article 5(1). In any event, he submits, the claimant has not been afforded the opportunity of a meaningful Parole Board determination, and it is now incumbent upon the defendants to allow the claimant the opportunity to demonstrate that he no longer needs to be detained. His submission continues that the defendants ought to consider and provide the most expedited means, using all available resources, of providing the claimant with that opportunity in the exceptional circumstances of the case.

Mr Field submits, and I accept, that a failure to act - an omission - is as reviewable in this context as action itself. In this case, he says the failure to act is that the defendants have failed to deal with the claimant's case expeditiously to the extent that his continued detention is arbitrary and unlawful. Under Article 5(4), he says, the claimant is entitled to a speedy determination of the lawfulness of his detention, and such a detention must be meaningful, in other words capable of determination in the claimant's favour if he meets the safety criteria. In order to meet the safety criteria, the claimant must be provided with the appropriate courses to enable him to demonstrate that he is safe to be released. In his submission, there has been inordinate delay between October 2006 and July 2007. The July Parole Board hearing was, in his submission, meaningless in not moving things on. It is not anticipated that his case will be reviewed until 2009, almost six years after his tariff expiry and some two and a half years after his successful appeal. This is a date near to the review date which would have been the occasion of review if the Court of Appeal had never heard the claimant's appeal. Consequently, the period defied the claimant's right to a speedy determination, and the current plans for the claimant's reception of courses was wholly inadequate in that it had built in foreseeable periods of delay during which no progress was envisaged.

I turn to the law. At the base of the principles which determine this claim is Article 5 of the European Convention on Human Rights. That protects the right to liberty, except inter alia by lawful detention under a procedure prescribed by law. In my judgment, this is not a case where Article 5(1) itself is engaged. It is possible that a decision to detain which was lawful at the outset could be transformed into an arbitrary detention in breach of Article 5(1) if the link between it and the later decisions not to release is broken. That can occur if these later decisions are based on grounds which have no connection with the objectives of the legislature or the court, or on an assessment that is unreasonable in terms of these objectives: Van Droogenbroeck v Belgium [1982] 4 EHRR 443 at p447, cited by Arden LJ in R(on the application of Cawser) v the Secretary of State for the Home Department [2003] EWCA Civ 1522 para 47. Nothing has been suggested in this case, certainly in terms of the risk assessments, which transforms this into the type of very exceptional case referred to in those judgments, the June 2003 tariff expiry date notwithstanding.

Article 5(4) of the ECHR provides that anyone derived of liberty by detention "shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court and his release ordered if the detention is not lawful".

In the leading decision of Sanchez-Reisse [1986] ECHR 12 the European Court of Human Rights says at paragraph 55 that the concept "speedily" as used in Article 5(4) "cannot be defined in the abstract; the matter must be determined ... in the light of the circumstances of each case". The circumstances which need to be considered in deciding whether a detention has been dealt with speedily will vary, but include the diligence shown by the authorities, the complexity of the issue, other factors bearing on when it can properly be considered and the actual time period involved. The first of these relates to the system set up by the authorities. The second and third also relate to that but turn as well on the characteristics of the individual subject to detention. Failure to act, as with positive action, can obviously be caught.

In my judgment, the speedy determination of a person's detention demands a system with certain characteristics:

(1) The system must be responsive to the circumstances of each individual being considered. Thus, a parole system must operate "to release from prison any post-tariff prisoner who no longer remains a danger ... [A]ny system tending to delay such release ... requires the most compelling justification" (per Simon Brown LJ in R(Noorkoiv) v Secretary of State for the Home Department and the Parole Board [2002] 1 WLR 3284, para 58).

(2) The system must be capable of flexible application. Thus, the Parole Board has a duty to operate a system ensuring that cases are listed reflecting any need in individual cases for expedition (R(Cooper) v Parole Board [2007] EWHC 1292 Admin).

(3) The system must provide for regular review of those detained to consider whether detention is still justified, and the intervals between those reviews must be reasonable in the light of the circumstances of each case: see (R(Spence) v Secretary of State for the Home Department [2003] EWCA Civ 732 paras 33 to 35).

(4) The system must treat like cases alike but unlike cases justify different treatment. Equality between the law is a fundamental principle, and in the parole context, it means that different prisoners in the same position must not have their hearings dealt with at different times after their eligibility dates, for that would introduce an objectionable arbitrariness (R(Johnson) v Secretary of State for the Home Department [2007] EWCA Civ 427 at paragraph 29). Exceptional circumstances, however, as indicated in (1), must be addressed.

Under Article 5(4) it is a matter for the court to exercise its judgment as to whether the relevant system is reasonably capable of, and is, producing these various results. In doing so, it must give appropriate weight in each case to the views of the authorities (in the present context, the Ministry of Justice and the Parole Board). If the system appears to the court to be compliant with these principles, the issue then becomes whether the individual decisions or failures to act in operating the system comply with public law principles: in other words, when a decision was made, were all relevant considerations taken into account? Has the decision-maker acted so unreasonably that no reasonable decision-maker would have so acted? Has the decision-maker acted without any evidential base? The line between Article 5(4) review and review on public law grounds may be a matter of debate. In the view of the majority, in R(Cawser) v the Secretary of State for the Home Department [2003] EWCA Civ 1522, the duty to provide courses for prisoners was subject only to the public law duty to act rationally.

Up until the present, I cannot, in the circumstances of the claimant's case, find that there has been systemic failure, or decisions or failures to act that can be faulted on Article 5(4) or public law grounds. The first aspect to be examined is the system for formally reviewing the claimant's detention. At the outset, I reject a submission that the Court of Appeal hearing should be considered in this context. It constituted a review of the claimant's position, but that was fortuitous. It is not part of the ordinary review machinery.

So what of the Parole Board and its decisions? It held two hearings within a 12-month period: one in August 2006 before the Court of Appeal judgment, and one on 27 July 2007. The claimant says that there was delay in holding the 2007 hearing and that that hearing itself was not a meaningful hearing. In fact, the July hearing was held earlier than would have been the case and was triggered by the Court of Appeal judgment. The evidence is that it takes some six months to prepare for a hearing, commissioning and collecting in all the various reports. There was something of a delay after the Court of Appeal judgment up to February, partly because the machinery did not work as it should and partly because the view was taken that the claimant should be consulted as to whether he wanted a hearing so soon after the August hearing. Once the hearing was initiated, time was shaved off the six-month period and it was put in the calendar for June. In fact, as I have said, it was held a month later because of the claimant's condition.

In my judgment, it cannot be said that there was systemic failure in this regard justifying Article 5(4) review. Nor was there a failure in public law terms with the decisions leading up to or the decision of the Board itself. As I have described, the Parole Board had a number of reports before it including submissions by the claimant, his family and by his counsel. The plain fact is that there were serious reservations about the claimant. In particular, the Parole Board, as I have described, had the reports of both his home probation officer and his seconded probation officer, that he needed to undertake PASRO and CALM courses. It cannot be said in light of that that it was in any way wrong for the Parole Board to accept that that was the way forward.

The next Parole Board hearing is now set for January next year. Given that the claimant will not begin the PASRO course until April and the CALM course some time after that, this does not, in my view, exhibit systemic failure to fix an appropriate hearing given that the January hearing can be moved forward if necessary.

So what about the courses which Mr Field has said have not been provided expeditiously enough? Again, in my judgment, the circumstances do not give rise to unlawful action on the part of the defendants. The claimant was first identified in 2005 as someone who was appropriate for the CALM and PASRO courses, but these courses are only available for someone who has been assessed as suitable for them. Moreover, a place has to be found in an establishment where the courses are available if an offender is not already there. In the claimant's case, following the November 2006 Court of Appeal decision, the issue of the courses was before the July 2007 meeting of the Parole Board. The Sentencing Board accepted its recommendation and the claimant was eventually in an establishment, HMP Kingston, where both courses were provided. There was a short delay when the claimant refused to co-operate with the CARAT assessment, but after that, he agreed to do so. However, any chance of undertaking the December PASRO course had slipped because he needed to be sent to HMP Winchester for his mental health. Subject to a psychological assessment, he is now on the first of the two PASRO courses to be held at HMP Kingston this year, that beginning in April.

It is said that it is wrong that he cannot undertake the PASRO and CALM courses concurrently. The evidence of Dr Creighton, Head of General Offending Behaviour Programmes at the Ministry of Justice, is that the sequencing of courses is a matter for the establishment concerned, but that programmes do not normally run concurrently as the offender often needs to build on their learning from the first, and put what they have learned into practice. It may, in her evidence, be counterproductive to do the two close together, although that is a matter that needs to be assessed locally in the circumstances of the particular case. The local assessment referred to earlier is that with this claimant, given his history of failing to complete more challenging and intensive courses, it is far more appropriate that he undertakes them consecutively.

In summary, in my judgment, the timing, analysis and decisions of the Parole Board are not legally flawed. The claimant, as I have said, has had two parole hearings within a 12-month period. Both Parole Board hearings have been capable of determination in the claimant's favour, but both have identified serious ongoing concerns with regard to his risk of re-offending and risk of harm if he is released on licence. Indeed, both have declined a more limited move to open conditions. In all the circumstances I have identified, the date of the next Parole Board hearing in January is reasonable, especially since it can be brought forward if appropriate.

Nor are the availability and timeliness of the PASRO and CALM courses subject to legal challenge. Both courses are available where the claimant is presently in custody. He is booked on courses beginning in April, and their sequencing is also justified. Thus, there can be no realistic challenge that there has been a failure to provide adequate courses. Their outcome cannot be prejudged, but it is hoped that they will contribute to a significant lowering of risks which can be presented to the Parole Board early next year.

In my judgment, however, although there are neither systemic failures nor flaws in individual decision-making in relation to the claimant, there have been lapses in acknowledging his special status. From the moment of the Court of Appeal decision in November 2006, this claimant's file, metaphorically speaking, should have had a large red marker indicating that his case needed special handling. I accept the submission that if the Court of Appeal had had the Parole Board report of August 2006, it may have been more circumspect in urging expedition (at paragraph 59). Nevertheless, the Court of Appeal had made a specific recommendation about this claimant. Moreover, the fact is that, as a result of its judgment, he was someone whose tariff had expired in mid 2003.

In this sense, the claimant is certainly not just another prisoner; he has a special status. The Secretary of State recognised this in his pro-forma view before the Parole Board in July 2007, where the comment was that, through no fault of his own, the claimant had not been able to address the work previously identified. So too did the Parole Board in its decision in July where it agreed that a Sentence Planning Board should be convened without delay given the unusual circumstances. In as far as the first defendant is concerned, however, the exceptional circumstances of the claimant have not always been to the forefront. It seems that sometimes he has not been treated in the way he ought to have been treated given the Court of Appeal decision. Thus, in a letter to the claimant's solicitors in October 2007 which discusses the PASRO and CALM courses, the Prison Service say that any exceptional circumstances would have to be considered by the CALM treatment manager once full assessments had been completed. That in my opinion puts the matter the wrong way around. The claimant has exceptional circumstances, and any consideration by the Prison Service should proceed on that premise.

Most recently, the claimant's next review date by the Parole Board was set at mid 2009. That resulted through an administrative error by his caseworker which placed his tariff expiry date as in 2009 rather than the date set by the Court of Appeal, 2003. When it came to light, the date for the next Parole Board was changed to January 2009 and a revised notification was sent to the claimant. To put it bluntly, this is just not good enough given the claimant's special status, even if at this point there is no remedy for such administrative failings.

For the future, the claimant's special status needs to be at the forefront for all decision-makers handling his case. Most importantly, they will need to consider whether, after completion of the PASRO course, he can undertake the CALM course earlier, or whether the January hearing of the Parole Board can be brought forward given his progress on the PASRO and CALM courses or because there are other positive factors in his favour. Failure to do this may well be legally reviewable.

MR WATSON: My Lord, thank you. I shall ensure that in particular the last part of the judgment will be passed to the relevant authorities. There is one matter. I am sure it will be reflected in the final judgment, there was simply a reference to Article 8 in the claimant's claim form, which should of course be Article 5. I am sure that will be reflected in the final judgment.

MR FIELD: It was only on one occasion, my Lord. It was just before my Lord went on to the phrase "permission was refused in the first instance". It was at 10am, about halfway through my Lord's judgment.

MR JUSTICE CRANSTON: Yes, what did I say wrong?

MR FIELD: My Lord inadvertently said the claim is based on Article 8, but it is quite clear from the rest of the judgment that Article 8 played no part in the argument.

MR JUSTICE CRANSTON: Yes, of course. I am sorry about that. Right anything more?

MR WATSON: No, my Lord.

MR JUSTICE CRANSTON: Thank you very much.