Salte, R (on the application of) v Secretary of State for Justice & Anor

For the Claimant, Mr Rule submitted that it was in breach of Article 5(4) for the Parole Board not to hear and determine the Claimant’s case in relation to his detention after the expiry of his tariff until mid-August 2008, three months after the expiry of that tariff. There were two limbs to this submission. First, he submitted that Article 5(4) required the hearing (including, as I understand the submission, the Board’s determination after any oral hearing) to be before the expiry of the tariff. Second, he submitted that the time taken to hear and determine the Claimant’s case was so long as to be in breach of Article 5(4) in any event.

I do not find this submission compelling for the following reasons.

With regard to the first limb of the submission, I do not accept that Article 5(4) requires the Parole Board to hold an oral hearing and/or determine whether it is any longer necessary for the protection of the public that an offender should remain in detention after the expiry of the tariff period before that expiry.

In Noorkoiv v The Secretary of State for the Home Department [2002] EWCA Civ 770, Lord Woolf LCJ indicated (at [69]) that “references to the Parole Board should be made before the expiry of the tariff period”. That is an obligation to refer imposed upon the Secretary of State; and it is one which he acknowledges. However, on any view, in this case, he did refer the Claimant’s case to the Parole Board for review well before the expiry of the tariff.

After that reference has been made, the focus turns to the Parole Board. Does the Board have an obligation to hear the case - at an oral hearing, if the offender requires - and determine the matter before the end of the tariff period? The answer given to that question in James is, “No”. As a matter of principle, timetabling for conducting a review is a matter for the Board (see, for example, the opinions of Lord Judge and Lord Hope cited above at paragraphs 26-27). More particularly, Lord Hope expressly indicated that the system was required to give offenders an opportunity “by the time of the expiry of their tariff periods, or reasonably soon thereafter” (at [3], emphasis added) to demonstrate that it was no longer necessary for the protection of the public that they should remain in detention. Whilst perhaps obiter, these comments are of extreme persuasive authority, made by the House of Lords in the context of setting out the proper role of the Parole Board.

What amounts to “reasonably soon thereafter” will depend upon the facts of any particular case, because the Article 5(4) requirement that questions of lawful detention are “decided speedily” is a fact-specific matter in respect of which recourse to other fact-specific cases will be of limited assistance (R (Cawley) v The Parole Board and The Secretary of State for Justice [2007] EWHC 2649 (Admin) at [22]-[23], per Sullivan J: see also Oldham v United Kingdom (2001) 31 EHRR 34 at [31], a judgment of the European Court of Human rights to the same effect). As James makes clear, the Parole Board itself is in by far the best position to consider and determine what might be an appropriate timetable, within its wide discretion in relation to procedural matters. However, this is moving into the ground covered by the second limb of Mr Rule’s submission, to which I shall come shortly.

In relation to the first limb (i.e. that Article 5(4) required hearing and determination of a case such as that of the Claimant prior to the expiry of his tariff period), Mr Rule relied upon authority in the form of two passages from Noorkoiv itself. First, he relied upon Buxton LJ at [43], where he suggested that a full (i.e. oral) hearing should be held “at a stage reasonably close to the operative date”. However, that does not suggest it needs to be before the tariff expiry, but merely within a reasonable time after it, in line with the requirement under Article 5(4) for a speedy decision. Second, he relies upon Simon Brown LJ (as he then was) at [57], where he said that:

“The real question on this appeal, therefore, is whether the requirement under Article 5(4) for a speedy decision by the Parole Board of the prisoner’s continuing dangerousness requires that all practicable steps are taken to ensure that, whenever possible, those no longer dangerous can be released actually on or very shortly after their tariff expiry dates. If so, then the oral hearing of their cases must, as the appellant now submits, pre-date rather than post-date the expiry of the tariff period.”

That is a question that Simon Brown LJ did not expressly answer, although I accept that his reference to the Parole Board having to devise a “new system for pre-tariff expiry date hearings” (in [58]) suggests that, in the context of the case before him, he appears to have considered that Article 5(4) did or at least may require all practicable steps to be taken to ensure those no longer dangerous could be released at (or, possibly, very shortly after) their tariff expiry dates. However, Noorkoiv was very different from the case before me in a number of respects. In Noorkoiv, the delay was not only systemic, but the Secretary of State referred the offender’s case to the Parole Board with a direction that it should not be listed until after the expiry of the tariff because of a lack of resources within the Parole Board. In the case before me, timetabling of the listing remained within the hands of the Parole Board, and there is no evidence that delay has been caused by any lack of resources in the Board. Simon Brown LJ did not expressly hold that hearing and determination must be completed before the expiry of the tariff period; and, insofar as his judgment appears to suggest that, it has now to be read in the light of later cases, most notably James (in which, of course, Lord Brown made no such similar suggestion).

The other cases relied upon by Mr Rule appear to me to go to the second limb of his submission, to which I can now turn. However, it is noteworthy that, insofar as it goes, R (Smith) v The Secretary of State and the Parole Board [2008] EWHC 2998 (Admin) particularly does not help him on the first limb: because in that case the tariff expiry date was 7 September 2007, and no complaint about delay was made in respect of the period up to 22 November 2007 (two and a half months after the expiry date), after which date the judge (Slade J) found that the delay was unlawful because of various factors to which I shall return.

Moving to the second limb of the submission, did the Parole Board breach Article 5(4) by dint of lapse of time, by not hearing and/or determining the case until mid-August, i.e. three months after the expiry of the Claimant’s tariff period? I do not consider it did.

As I have stressed, as a matter of principle, timetabling of the hearing was essentially a matter for the Board. There is no evidence in this case that any of the delay was caused by lack of resources. Mr Slater for the Parole Board said that, for oral hearings to operate effectively, some time is necessary to enable the complicated logistics of listing nationally across 139 establishments with a mixture of professional/expert and independent members on the panels. That must be the case. Further, there is no evidence that any delay was caused by (e.g.) any systemic failure on the part of the Board, or any operational ineptitude of their part.

Given that each case depends on its own facts, I found the authorities to which I was referred on this point of very limited value. Mr Rule relied upon both Cawley and Smith. I have already dealt with Cawley sufficiently: in relation to Article 5(4) and delay, Sullivan J especially stressed that each case turned upon its own facts. There is nothing in Cawley that offers Mr Rule significant support. Nor did I find Smith instructive. It was common ground in that case that a hearing two and a half months after the expiry of the tariff was (on the facts of that case) unobjectionable on Article 5(4) or any other grounds. However, once that time had expired, the Parole Board gave directions which the Board itself and the Secretary of State failed to comply with and, in these circumstances, the court held that the further delay to January 2008 was objectionable and unlawful as being in breach of Article 5(4). Those facts are very different from those before me: in the Claimant’s case there is no evidence of any such failures. In my view, Smith does not significantly assist the Claimant: and is in some ways supportive of the Defendants’ case. Nor did I find helpful the cases concerning the intervals between reviews (such as R (MacNeil) v The Parole Board [2001] EWCA Civ 448 (two years between reviews held not to be in breach of Article 5(4), relied upon by Mr Slater), as they too very much turn on their own facts. The most that can perhaps be taken from these cases in my view, is that, where a review takes place three months after the expiry of an offender’s tariff, then that is certainly not necessarily manifestly excessive or necessarily in breach of Article 5(4). Whether it is in breach will be dependent upon the circumstances of the particular case, which, given an appropriately timed reference from the Secretary of State, the Parole Board is in the best position to consider and appoint an appropriate timetable. Indeed, under section 28(6), that is its very statutory function.

In the case before me, by holding and determining the Claimant’s review three months after the expiry of his tariff, it cannot be said that the system broke down completely, such that the detention of the Claimant until mid-August 2008 was arbitrary. As Lord Brown said in James (at [61]), the Parole Board scheme satisfies the Board’s Article 5(4) obligation, which is one of procedural fairness. There is no evidence of any failure of that system, at either policy or operational level. In my judgment, on the evidence, it cannot be said that the fact that the Claimant’s case was not the subject of an oral hearing until about 3 months after his tariff was unreasonable. On the facts of this case, that timetable was within the legitimate ambit of the Parole Board’s case management discretion - and, in my view, clearly so.

For those reasons, there was in my judgment no breach of Article 5(4) (or any domestic obligation of fairness or procedural propriety) in relation to the timing of the review - and this ground fails.

Mr Rule submitted that the 14 August 2008 Parole Board hearing did not meet the minimum requirements of Article 5(4), in two respects. First, he said that the Board adopted the wrong test for release on parole. Second, he submitted that the information available at that hearing was inadequate to the extent that meaningful consideration of the case was not possible and hence the decision reached was unlawful.

I can deal with the first sub-ground shortly. Mr Rule submitted that, adopting a purposive approach to construction, section 28(6) of the 1997 Act (which prescribes the test for release on parole in terms of the Board being “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”) should be construed in a way which mirrors section 226 of the 2003 Act relating to the imposition of detention for the protection of the public. Given that the purpose of the non-tariff element of such sentences is the protection of the public from the risk of serious harm from the commission of specified offences by the offender, when that risk no longer applies, then the purpose of the sentence is exhausted. That consequently informs the proper construction of section 28(6).

That is a submission which other judges of this court have found attractive (see, e.g., R (O’Connell v The Parole Board and the Secretary of State for Justice [2007] EWHC 2591 (Admin) at [27] (Latham LJ) and R (Bayliss) v The Parole Board and the Secretary of State for Justice [2008] EWHC 3127 (Admin) at [15] (Cranston J)). However, it was not necessary for either court to decide the point, nor is it necessary for me to do so - because, in paragraph 7 of their letter of 19 August 2008, the Parole Board panel expressly said that, on the basis of the test of “significant risk of causing serious harm through the commission of further specified offences”, they would neither release the Claimant nor recommend his transfer to open conditions. In that alternative, the Board therefore used the very test that Mr Rule submitted they ought to have adopted. The point does not therefore arise for determination in this case.

Turning to the second sub-ground, Mr Rule submitted that the material available to the Parole Board for the 14 August 2008 hearing did not meet the minimum requirements required by Article 5(4) to enable there to be a proper, “meaningful” and, therefore, lawful consideration of the Claimant’s case. In particular, the deficiencies were that (i) the OASys assessment was out of date, having been completed in November 2007 (nine months before the hearing): (ii) all of the other reports relied upon were out of date (none being less than eight months old at the time of the hearing), and in particular they all pre-dated the Claimant undertaking the Sycamore course: (iii) there had been no consideration of multi-agency public protection arrangements (MAPPA), there was no proposed release plan before the Parole Board and no probation officer attended the hearing to give evidence of potential release plans: and (iv) there was no psychological assessment.

The Defendants rely upon an overarching submission with regard to each of those suggested deficiencies, to which I shall turn shortly. However, let me first comment upon the individual alleged deficiencies in turn.

OASys Assessment: The OASys assessment in the dossier was completed on 30 November 2007, and was referred to the Parole Board in February 2008. That was within the three month window envisaged in paragraph 6.7 of PSO 2205. Before me, it was submitted on behalf of both Defendants that paragraph 6.6 (“Final reviews in custody must be completed at least one month and not more than three months before release”) is applicable only to determinate sentence prisoners, because for those on indeterminate sentences the release date (as opposed to the tariff expiry date) is, by definition, not known. It was submitted that paragraph 6.5 (“For public protection sentences (when implemented) and lifers, reviews must be completed as part of the parole process”) applies to indeterminate sentences. As a matter of construction, those submissions appear to me to be correct. In any event, it is important to stress that the OASys report is only part of the information available to the Board, and other information and evidence is able to cure any deficiencies in the OASys assessment whether those deficiencies are caused by outdatedness or otherwise (see paragraphs 53-55 below: and also see Bayliss at [26], where Cranston J rejected an almost identical ground of challenge in that case).

Other reports: In relation to the OASys and other reports, Mr Rule relied upon schedule 1 to the Parole Board Rules (see paragraph 13 above), and in particular the references to “current reports on risk factors” (paragraph 3) and “up-to-date home circumstances report” (paragraph 4). The Secretary of State’s response was that all of the reports were adequately up-to-date at the time they were submitted to the Parole Board: and thereafter, it was for the Board to ensure that they had appropriate and sufficiently up-to-date material. With regard to the Board’s position, see paragraphs 53-55 below.

MAPPA: There is no legal requirement for the responsible authorities (namely the police, probation and prison services acting jointly) to propose arrangements for a prisoner’s release in advance to facilitate release.

Psychological Report: Mr Rule submitted that it was incumbent upon the Secretary of State and/or the Parole Board to ensure that a psychological assessment of the Claimant was available to the 14 August 2008 panel. He relied upon the progress report by the external probation officer (Ms Powell) dated 16 November 2007, in which she says (at paragraph 4.4):

“He denied any current thoughts of self harm although again a psychological assessment could provide useful further exploration of such self harming behaviour.”

He also particularly relied upon the Parole Board decision of 4 April 2008 (the decision made on the papers), in which the member said:

“Future Parole Board panels will be aided by the completion of a psychological risk-assessment and formulation of his offending behaviour.”

There was some debate before me as to whether this last extract was a reference including any panel hearing the oral hearing of this review, or whether it referred only to future reviews. It seems to me that it probably meant the latter. However, in any event, the panel on the reconsideration in August 2008 (which had a psychiatrist as a member) were firmly of the view that such assessment was not at that stage required. In paragraph 6 of their letter of 19 August, they said as much: “[T]he psychiatrist on the panel did not see this as essential at the current time”.

That covers the points relating to the individual items raised by Mr Rule. However, the Defendants relied upon an overarching submission in response to all, namely that, as made clear in James, the Parole Board is master of its own procedure and, in particular, it is the Board that must decide what information it requires to carry out its statutory obligation under section 28(6). That submission is compelling and, in relation to this ground, in my judgment overwhelming. The whole thrust of James is supportive of this submission, but perhaps the most pointedly relevant passages are as follows:

“How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs…” (Lord Hope at [21], emphasis added).

“I accept that Article 5(4) requires the basic Rule 6 dossier to be made available: without this the Board simply cannot function. But I cannot accept that Article 5(4) requires more than in the way of enabling the Board to form its own judgment.” (Lord Brown at [60]).

“Your Lordships were told that the Board is frequently threatened with Article 5 (4) challenges unless it requires the Secretary of State to provide additional material. Yet it can only be in an extreme case that the Administrative Court would be justified in interfering with the decisions of what, for present purposes, is the “court” vested with the decision whether to direct release, and therefore exclusively responsible for the procedures by which it will arrive at its decision.” (Lord Judge at [134]).

Of course, any report provided to the Parole Board will, to an extent, be out of date by the time of the oral hearing, however quickly the procedure moves. However, any actual or perceived deficiencies as a result of outdatedness (or other cause) can be cured at the hearing, by evidence from the offender himself and/or others. As Lord Hope said in James (at [20]):

“It is open to [the detainee] to argue his case for release, and to have his position noted, although the contents of the dossier for the time being fall short of what is desirable.”

In this case, in addition to the Rule 6 dossier, in August 2008 the Parole Board panel had the Claimant’s evidence and “the benefit of Mr Paine’s up to date views” (the Board’s own language: see paragraph 6 of the Board’s 19August 2008 letter). Contrary to the submission of Mr Rule, the Board expressly took account of the Claimant’s evidenced progress since the Sycamore, ETS and other courses (see paragraph 5 of their letter of 19 August 2008).

As stressed in James, it was for the Board to consider whether the information and reports available to them, taken as a whole, was sufficient to enable them to perform the assessment required of them by section 28(6): and to consider whether any potential deficiencies in the Rule 6 dossier were remedied by that additional evidence. In this case, the panel considered that they did have adequate information to undertake their task. That was a matter for them: and, in my judgment, on the facts of this case, there is no arguable claim for this court interfering with that judgment. Of course, the weight it gave to the various parts of evidence was entirely a matter for the panel itself.

For those reasons, ground 2 fails.

Mr Rule submitted that the failure of the Parole Board to transfer the Claimant to open conditions was disproportionate and irrational.

I cannot accept that submission. As I have indicated, the Secretary of State expressly requested advice from the Parole Board on transfer, if they did not direct release. The panel expressly consider the matter, to which reference is made in paragraph 6 of their letter of 19 August 2008:

“It is noted that the written reports are all of some age. Nonetheless, none of them support a move to open conditions yet. They all speak of the need to do further work to address your offending behaviour. Having listened to your own evidence and the more up-to-date views of Senior Officer Paine, the Panel is also of the view that you need to do more work in closed conditions to address your offending behaviour before there can be any confidence that your risk has reduced….”.

The judgment that the Claimant needed to undertake further offending work to reduce the level of risk and that that should be undertaken in closed conditions before a recommendation for transfer to open condition could be made was a judgment that the panel were entitled to make on the evidence. This submission was made in similar form to Cranston J in Bayliss and if I might, respectfully and with appreciation, adopt his response to it:

“In my view, even applying the enhanced rationality test because liberty is at stake, the Parole Board’s decision in this regard cannot be treated as flawed…. [I]t seems to me that the Parole Board was coming to its conclusion regarding open conditions in a perfectly open and straightforward way and properly applying the test mandated by statute.”

That applies equally to the facts of this case.

Mr Rule submitted that there was a procedural irregularity in the 2 September 2008 letter, because the date for the next review was set by one of the parties to the parole determination, namely the Secretary of State, rather than the Parole Board.

However, as a matter of law, it is clear that Article 5(4) does not require a judicial body to fix the review date, and that the Secretary of State is entitled to do that (R v (Day) v The Home Secretary [2004] EWHC 1742 (Admin)).

The letter of 2 September 2008 is in line with the statutory scheme, under which the Parole Board cannot consider cases unless and until referred to them by the Secretary of State: see paragraphs 11-12 above. The letter merely indicates that the Secretary of State proposes to refer the case to the Board at such a time to enable the Claimant’s next review hearing before the Board to take place in February 2010. The letter is entirely within the terms of the scheme, and is procedurally unobjectionable.

The final ground relied upon by Mr Rule was that the period between the first review (August 2008) and the next proposed review date as set by the 2 September 2008 letter (February 2010) is so long that it is in breach of Article 5(4).

Whilst section 28(7)(b) effectively requires a review period of no more than two years (see paragraph 11 above), Article 5(4) requires reviews of the lawfulness of post-tariff detention of an offender serving an indeterminate sentence to take place at “reasonable intervals” (Oldham v United Kingdom (2001) EHRR 813, at [30]). However, as indicated above in relation to the timing of the first review, what is a reasonable interval depends on the facts of a particular case (Oldham, at [31]). Clearly, although there may be cases in which a two year period is appropriate (e.g., R (MacNeil v The Parole Board [2001] EWHC Civ 448), there will be other cases in which a review after a shorter (perhaps, much shorter) period than two years will be required. Because cases are fact-specific, reference to authorities is again of limited assistance. However, although it has been held that there is no presumption that the interval should be no more than one year (R (Day) v The Home Secretary [2004] EWHC 1742 (Admin) at [48], and R (Loch) v Secretary of State for Justice [2008] EWHC 2278 (Admin) at [45]-[47]), it has been said that it is easier to establish that there is a breach of Article 5(4) where the period between reviews is more than a year than when it is less (R (Murray) v The Parole Board [2003] EWCA Civ 1561, and Loch at [46]).

In this case, I had evidence before me as to how the PRS approach review intervals, in the form of a statement from Mr Samuel Asiedu (the Team Leader for the South West Region of the PRS, the relevant region in the Claimant’s case). At paragraph 12, he said:

“… All decisions on the timing of future reviews are based on the individual circumstances of each case. Consideration of the review date must take into account such factors as:-

•

The extent and nature of the outstanding risk reduction work needed in each case.

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The period of testing needed to demonstrate the impact and efficacy of such work on the prisoner.

•

The need to recognise that the review and report writing process begin 26 weeks before the provisional hearing date.

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Whether or not the period of time between reviews needs to be reliant on a transfer to another prison, to complete offending behaviour course, for example….”

In relation to the specific circumstances of the Claimant, the PRS identified in its letter of 2 September why the next review would be in February 2010, 18 months after the August 2008 review, namely

“The panel is concerned about your impulsivity and lack of consequential thinking as well as your apparent inability to cope with setbacks. It may benefit you to have contact with a Psychologists (sic)”

There is nothing to suggest that the PRS did not have well in mind both the age of the claimant (of course, obvious from the fact that he is in a young offender institution with whom the PRS liaised in relation to the review exercise), and that he was subject to a short tariff.

The timing of reviews is properly a matter for the PRS, on behalf of the Secretary of State. The evidence indicates both a responsible policy and approach towards that task, and, in relation to the Claimant, proper consideration and determination that the review period should be 18 months. This challenge amounts to no more than an attack on the merits of the decision which, I well understand, may be disappointing for the Claimant. However, there is nothing before me which suggests that the decision in relation to that period is disproportionate or unreasonable, or unlawful. This final ground, too, fails.

For those reasons, this application fails. I shall dismiss it: and, unless these matters can be agreed before I formally hand down this judgment, I shall hear submissions in relation to costs and any consequential matters.