Pennington, R (on the application of) v The Parole Board

This is the hearing of a substantive application for Judicial Review against the Parole Board as Defendant, permission having been given to bring these proceedings by Saunders J on 14^th January 2009. Originally, the Secretary of State for Justice was the Second Defendant to these proceedings. However, by a consent order dated on or about the 5^th August 2009, the claim made against the Secretary of State was withdrawn.

The Claimant was sentenced to an IPP sentence for an offence of arson, the tariff element of which was 1 year and 92 days. The tariff element of the Claimant’s sentence expired on 11^th August 2008. Thereafter, the Claimant was to be detained only for so long as was necessary for the protection of the public. The body charged with deciding whether a tariff expired IPP prisoner’s continued detention is necessary is the Parole Board. On 19^th March 2009, the Parole Board heard the Claimant’s case and by a decision in writing sent to the Claimant’s solicitors on 21^st April 2009, it decided that the Claimant should be released on licence. The Claimant alleges that the Parole Board acted in breach of its duty under Article 5(4) of the European Convention on Human Rights (“ECHR”) by failing to reach and communicate that decision earlier than it did, that the alleged breach caused the Claimant to be detained beyond the date when he would have been released had the Parole Board acted in accordance with the duty imposed upon it by Article 5(4) and in consequence the court ought to award him damages pursuant to Article 5(5) of the ECHR to be assessed by close analogy with the principles to be derived from the cases decided under English law in relation to unlawful detention.

The Defendant maintains that it did not breach Article 5(4) in relation to its treatment of the Claimant; that any breach found established did not cause him to be detained for longer than would otherwise have been the case; that damages are discretionary and ought not to be awarded in the circumstances of this case and in any event damages fall to be assessed in accordance with the jurisprudence of the European Court of Human Rights (“ECtHR”).

The Administrative Court is not the natural forum for a claim for damages. Section 8(2) of the Human Rights Act 1998 confers jurisdiction on any court with a power to award damages in civil proceedings. However, at this stage at least no useful purpose will be served in directing a transfer of these proceedings to another court, not least because the Claimant is publicly funded in relation to this litigation.

The need for the continued detention of persons in the position of the Claimant has to be reviewed periodically in order that it can be ascertained whether there is a continuing need to detain the person concerned for the protection of the public and in order to comply with Article 5(4) of the ECHR. That review is carried out by the Parole Board but the capacity of the Parole Board to carry out the review process is triggered only once the case of the person concerned is referred to it by the Secretary of State. For persons whose tariff is less than 3 years, the Secretary of State’s policy is that such persons are entitled to a first review shortly before the tariff expires in order to consider suitability for release on the tariff expiry date and for that purpose such persons cases are to be referred to the Parole Board at least 8 months prior to the tariff expiry date.

Notwithstanding that it is common ground that the policy of the Secretary of State is as I have set out above, the Claimant’s case was referred to the Parole Board on 6^th June 2008 – 9 weeks before the expiry of the tariff element of his sentence. Where there is as here a late referral by the Secretary of State, a prisoner’s case was at the time material to these proceedings supposed to be managed by the Parole Board in accordance with the guidance published by and contained in Intensive Case Management Oral hearings General guidance” dated July 2008 (“the ICM Policy”). The Parole Board’s target date for a hearing is 26 weeks after referral. The ICM Policy assumes that the referral is received at least 16 weeks prior to the hearing taking place. The ICM Policy assumes that the dossier for the prisoner will be sent to a Panel member for directions, will be returned by the member and any directions issued within a maximum period of at most 2 weeks not later than 10 weeks before the hearing. The ICM Policy requires a hearing date to be fixed not less than 8 weeks before the hearing date allocated. However this element of the ICM Policy takes no account of a direction that requires the filing of further reports. It is no doubt for this reason that the ICM Directions Form (Bundle, P285) makes clear that the addendum reports have to be provided before a case can be scheduled with an exact hearing date.

On 8^th August 2008, a senior psychologist at HMP Durham (where the Claimant was imprisoned) provided an addendum report which concluded that the Claimant was now suitable for release. There were no further recommendations for offending behaviour work. However, between March and May 2008, a number of other reports had been filed which had been prepared before the addendum report of the psychologist and were not supportive of release. The first report to recommend release was the psychologist’s addendum report. Whilst it was suggested on behalf of the Claimant that it was this report that would lead almost inevitably to the release of the Claimant, I do not accept that to be so. Whilst the report no doubt provided a platform from which a realistic application could be made, the reality is that further addendum reports would have to be obtained from at least some of those who had previously filed negative reports before such an application could proceed. It is no doubt precisely for that reason that the ICM directions made on 6^th September 2008 included a direction that updated reports be obtained from the seconded probation officer (“SBO”) and the external probation officer (“EPO”). If such a direction had not been made at that stage I regard it as almost inevitable that any hearing would have been stood over in order to permit such reports to be prepared.

There was undoubtedly a delay in dealing with the ICM directions. Once the dossier had been received, the Parole Board wrote to the Claimant on 12^th June 2008 stating that a hearing was to take place in November 2008 on a date that would be communicated 8 weeks prior to the hearing date. The Claimant’s dossier was placed before a member on 29^th August 2008. Directions were made on 6^th September 2008 (broadly within the 1 week period contemplated by the ICM Policy referred to above) but, for reasons that have not been explained, they were not processed by the Parole Board and sent out until 2^nd October 2008. The directions required additional reports to be provided by the SPO and the EPO by 2nd November 2008.

The ICM Directions Form clearly contemplated a hearing in November 2008 when it was sent out at the end of August 2008. However, by the time the directions were in fact sent out to the parties (2^nd October 2008), it is clear from the covering e mail that a hearing in either January or February 2009 was contemplated because the dates to avoid that were sought were for those months. The Parole Board accepts that “… it caused some delay in being unable to assess the dossier under its Intensive case management system until 29^th August 2008 and further delay in failing to distribute those directions until 2 October 2008”- see Paragraph 11 of the witness statement of Ms O’Prey dated 4^th February 2009. No attempt has been made to quantify the resulting delay. On the face of it however, the e mail of 2^nd October 2008 contains an implicit recognition that the delay resulting from the failure to send out the directions timeously was even then likely to be between six weeks and three months – that is from a hearing date that was contemplated as being in November when the Directions form was sent to the ICM Member in late August 2008 to a contemplated hearing date in either January or February 2009 by the time the e mail of 2^nd October 2008 came to be sent out.

The two additional reports were prepared. That of the SPO is dated 28^th October 2008 and that of the EPO is dated 25^th November 2008. Both supported release. The ICM directions required that they be filed by no later than 3^rd November 2008. It is wholly unclear when the reports were received by the Parole Board. Paragraph 14 of Ms O’Prey’s witness statement says only that they had been received “by” 18^th December 2008. When before the 18^th December they had been received is not explained. There then followed a further period of delay between 18^th December 2008 and 19^th March 2009 when the Parole Board heard the Claimant’s case. The explanation given for this period of delay by Ms O’Prey is that listing for hearings in March 2009 took place between 22^nd December 2008 and 9^th January 2009 and that this was the first opportunity for the Claimant’s case to be listed because of “…. Late referral of the case and receipt of addendum reports in December …”. Late referral was not of itself the explanation for any part of the delay that occurred after November 2008, because that was the window for the Claimant’s hearing that was in contemplation by the Parole Board on 12^th June 2008, six days after referral had taken place, as its letter of 12^th June to the Claimant makes clear. The reality is that the delay that occurred thereafter was attributable to the receipt of the outstanding addendum reports “by” 18^th December 2008 which in turn was attributable to the failure of the Parole Board to send out the ICM directions as and when they should have been sent out if the Parole Board’s own ICM Policy had been complied with.

Rule 20 of the Parole Board Rules 2004 required that the decision be communicated to the Claimant in writing no more than seven days after the hearing. In fact the decision (which was to release on licence) was communicated to the Claimant on 21^st April 2009. Paragraph 15 of Ms O’Prey’s second witness statement implies that this period of delay is attributable to a need for the panel to agree its decision and reasons. However the wording used is very carefully chosen. It is not in terms suggested that this is the explanation for the delay in this case. It is regrettable that a full and frank explanation has not been provided. Delay of in excess of a month between the date of a hearing and the date when a decision to release is communicated will always require a full and frank explanation given that the consequence of the delay is the continued detention of a prisoner who is entitled to be released. It is possible that the delay could be justified by the need to reach a consensus in a very difficult case – but that is not actually suggested to be the position here and the material available to me does not suggest that this case was in any sense a difficult one. As it is, no proper explanation is offered of the delay that occurred between seven days following the hearing and the date when the decision to release was communicated.

ECHR, Article 5(4) requires that everyone who is deprived of their liberty by 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 his detention is not lawful. By ECHR, Article 5(5) anyone who has been the victim of detention in contravention of ECHR Article 5 has an enforceable right to compensation. ECHR Article 5(4) is given effect to in relation to IPP prisoners by Section 28(5) and (6) of the Crime (Sentences) Act 1997. The result of these provisions is that the Parole Board is not able to commence its work unless and until the Secretary of State has referred the case to the Board. I have referred already to the policies of the Secretary of State in relation to the referral of short tariff IPP prisoners and also to the policy of the Parole Board in managing such cases when they are referred to the Board later than the Secretary of State’s policy contained Paragraph 6.3 of Prison Service Order 4700.

Prior to the decision of the House of Lords in Secretary of State for Justice v. James [2009] UKHL 22 [2009] 2 WLR 1149 (“James”) the Court of Appeal had decided that the failure by the Parole Board to provide a speedy hearing could not be excused by a lack of resources – see R(Noorkoiv) v. SSHD [2002] 1 WLR 3284 per Buxton LJ at Paragraphs 15, 30 and 45. It was common ground before me that aside from cases concerning what counsel before me called “pure delay” – that is where a Parole Board hearing has been delayed because of a lack of resources available to or errors or omissions on the part of the Parole Board – all previous decisions concerning the impact of ECHR Article 5(4) on the activities of the Parole Board have to be read subject to the decision in James. There was however disagreement as to the effect of that case on claims for damages under ECHR Article 5(5) for breaches of ECHR Article 5(4) caused by pure delay. The Claimant’s case was that such cases were in essence unaffected by the decision whereas the Board maintained that such claims were not any longer sustainable save in extreme and exceptional circumstances that do not arise in this case.

The decision in James was concerned with a factual issue that was different from that which arises in this case. It was concerned with the failure of the Secretary of State to provide to prisoners the means by which they could demonstrate to the Parole Board that they were no longer dangerous to the public. It was alleged that in those circumstances, the right to apply to the Parole Board became an empty exercise because the Board will not have the means to judge the very thing it was required to assess and thus that ECHR Article 5(4) was breached. That proposition was rejected in terms which emphasised the limited impact that ECHR Article 5(4) has on the activities of the Parole Board. As Lord Brown put it at paragraph 60:

“I have concluded that article 5(4) requires no more than that “a court” (the Parole Board) shall speedily decide whether the prisoner continues to be lawfully detained and this will indeed be the case until the Board is satisfied of his safety for release. … I accept that article 5(4) requires a basic rule 6 dossier to be made available; without this the Board simply cannot function. But I cannot accept that article 5(4) requires anything more in the way of enabling the Board to form its judgment. … [61] … As Mr Saini submits, [article 5(4)] is concerned with procedure not substance … Clearly the Board is able to examine the substantive question of the prisoner’s dangerousness. The fact that on the material before the Board the prisoner may be unable to demonstrate his safety for release no more involves a breach of article 5(4) than that those detained in Northern Ireland may have been unable on a habeas corpus challenge to refute the reasonableness of the suspicion grounding their arrest.”.

The submission rejected by Lord Brown was obviously different from a submission that there has not been a speedy determination because the taking of the decision was delayed by a lack of resources available to the Parole Board and/or because of errors or omissions on the part of the Parole Board. Lord Brown’s point was that Article 5(4) required a speedy decision. The fact that the decision is adverse to the prisoner because the relevant material is not available is not a breach of Article 5(4) because that provision is procedural in nature requiring that a speedy decision be taken and a decision has been taken speedily. The point that arises in the “pure” delay cases is not that there has been a speedy but ineffective decision but rather that there has been a decision that has not been arrived at speedily, which is an entirely different issue.

Reliance was placed by the Parole Board on Paragraph 21 of Lord Hope’s opinion. At paragraph 13-15 of his Opinion, Lord Hope had concluded that for Article 5(1)(a) purposes, continued detention resulting from any decision of the Parole Board before it determines that detention is no longer necessary is not arbitrary or unlawful unless the system breaks down entirely to the extent that the Parole Board is unable to perform its function at all. He turned to Article 5(4) at paragraph 16 and following. At paragraph 21 he concluded that:

“Article 5(4) requires that a system must be in place for making that assessment at reasonable intervals which meets the requirements of procedural fairness. 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, to conclude that for whatever reason the information that is available for the time being is inadequate and to set its own timetable for the information that it needs to be made available. It is entitled to expect cooperation from those responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not of itself mean that there will be a breach of article 5(4). As in the case of Article 5(1)(a), it will only be if the system which the statutes have laid down breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary that the guarantee that article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages”

The Parole Board relies on the final sentence of Paragraph 21 of Lord Hope’s Opinion as supportive of its case as to the effect of James on claims for damages for pure delay brought pursuant to Article 5(4). A similar submission was advanced on behalf of the Secretary of State for Justice, and rejected by Collins J, in R (Betteridge) v. The Parole Board [2009] EWHC 1638 (Admin). The case was concerned with a review of an IPP prisoner’s continued detention by the Parole Board. The matter was ready for a hearing by a panel in February and was expected to be listed for a hearing in May but due to a shortage of panels, the case could not be heard until September. The Parole Board accepted in that case that the failure to list the case for hearing between May and September amounted to a breach of Article 5(4). The Secretary of State contended otherwise relying in particular what Lord Hope said in James as set out above.

Collins J concluded that the Parole Board was correct to make the concession it did (see paragraph 28 of his judgment) “… because and only because, in the circumstances of this case, the reason why it was not heard at an earlier date was because of the lack of necessary man power having regard to the pressures on the Board.”. In reaching that conclusion, Collins J clearly considered that the pure delay type of claim referred to at the outset of this section of the Judgment survived the analysis in James. I respectfully agree. First, James was not concerned with the sort of pure delay claim that was the subject of the claim in Betteridge or which had been referred to by Buxton LJ in Noorkoiv. That this is so is apparent from Paragraph 60 of the Opinion of Lord Brown. Noorkoiv was not disapproved in any of the opinions given in James. In my judgment, what Lord Hope was considering in the last sentence of paragraph 21 of his Opinion in James was the situation being considered in that case – a failure by the Secretary of State to provide reports or the means of obtaining reports that would enable the Parole Board to perform its functions effectively. He was simply not considering the pure delay type of case that is before me and that was before Collins J in Betteridge. As Collins J observed in Paragraph 22 of his Judgment in Betteridge “[t]he reality is that Article 5(4) requires a speedy hearing to determine the lawfulness of the detention.” Delay to a determination caused by a lack of resources and/or errors or omissions by the Board its members or staff prevents that determination from being speedy unless the delay to the determination caused thereby when looked at globally can be said to be de minimus. If claims for breach of Article 5(4) by reason of pure delay were limited to those that satisfied the requirements set out by Lord Hope in Paragraph 21 of his Opinion in James then Article 5(4) would be deprived of much of its practical utility.

Taking a step back from the detail for a moment, in my judgment post James the current state of the learning in relation to claims under Article 5(4) against the Parole Board is as follows:

Some reliance was placed by the Parole Board on the decision of Blair J in (R) Faulkner v. SSJ and The Parole Board [2009] EWHC 1507 (Admin) because of the conclusion reached in Paragraph 27. That case – as this one and Betteridge – was concerned in part at least with a period of three months “pure” delay from the date when the case was ready to be heard to the date when it could be heard. The claim failed on a number of different grounds including that such a claim could not pass the test identified by Lord Hope at Paragraph 21 of his Opinion in James. In my judgment the approach of Collins J is to be preferred for the reasons already identified and also because it does not appear that Noorkoiv was cited to Blair J.

As is apparent from the facts as set out above, there was a period between 3^rd November and 18^th December 2008, when progress was delayed because reports were not provided as required from the SPO and EPO. The Claimant seeks to rely on this period of delay as entitling him to damages. The question of principle that arises is whether the Parole Board should be held liable for delay caused by the failure of others to provide reports as directed. In support of his case on this point, the Claimant relied on R(Smith) v. SSJ and Parole Board [2008] EWHC 2998 (Admin) [2008] All ER (D) 70 per Slade J at Paragraph 55 – 57. These paragraphs are said to be authority for the proposition that the Parole Board is required to demonstrate that it has taken steps to chase up compliance by the Secretary of State and to put in place a system whereby it can inform itself as to whether its directions have been complied with in sufficient time for a hearing to take place as planned.

In my judgment the point now under consideration does not arise on the facts of this case and it is thus unnecessary for me to decide whether the decision in R(Smith) has survived James or whether a breach of the public law duty identified by Slade J in R(Smith) is capable of founding a claim for damages for breach of Article 5(4). I say this because even if the Board has a public law duty to chase for reports it has directed should be produced, in my judgment the failure to do so was not causative of the delay with which this case is concerned. Once the delay in sending out the ICM directions had occurred, there was no point in chasing for the delivery of the reports in conformity with the deadline identified in the directions because that deadline assumed that there was to be a hearing in November whereas it is clear for reasons that I have already explained that by the time the directions came to be sent out in October the hearing was going to be in either January or February. There is no evidence that if the reports had been received by 3^rd November, a hearing could have taken place before January 2009.

The final point of law made on behalf of the Claimant was that once it became apparent that he was bound or highly likely to be released, the Board came under a duty to accelerate the resolution of his case. I reject that submission essentially for the reason set out by Mr Buley in Paragraph 27 of his written submissions.

The Claimant’s case should have been submitted to a member for ICM directions between mid July and the end of August 2008 given that the dossier was received on 6^th June, that on 12^th June 2008 the Board had indicated that it was planning for a hearing in November 2008 and the Board’s own ICM Policy required the dossier to be sent to the ICM member for directions no later than 10 weeks before the proposed hearing. In my judgment, asdiee from the delay that occurred between the hearing in mid March 2009 and the Decision in mid April 2009, the critical delay that occurred in this case occurred between that date and the date when in fact directions were sent out by the Board to the interested parties. The directions should have been prepared and sent out to the parties within a period of 1 week from the date they were sent to the ICM member if the Board was to comply with its ICM Policy. This would have meant that the directions ought to have been sent out during the 2^nd week of September at the latest. In fact they were not sent out until the 2^nd October 2008.

There is no evidence that suggests the actual period needed for the production of the addendum reports directed would have varied depending on when the directions were sent out. In fact, the last probation officer’s report was completed by 25^th November 2008 – a period of about 7 weeks from 2^nd October 2008. The updated OASyS report is dated three days later. Thus, had the directions been sent out by no later than the end of 2^nd week in September 2008, as they should have been, all the addendum reports would probably have been received by the end of October 2008 at the latest and certainly by the deadline notified in the ICM directions. It follows that no question of considering the effect of delivery of reports outside that deadline arises. No excuse or explanation is offered for the delay in sending the dossier to the ICM member or in processing the directions that were given. It is to be inferred in those circumstances that the delay was the result either of a lack of resources or error or omission on the part of the Board or its members or employees. It certainly cannot be characterised as a reasonable action within the meaning of the principle referred to at paragraph 16(iii) above.

I accept that it was reasonable for the Parole Board to delay fixing a hearing until the addendum reports were received. To adopt any other course would have been to run the risk that the hearing would have to be vacated because the case was not ready to proceed. In this context above all others, such a risk could not reasonably be contemplated. However, that could justify a delay of no more than 8 weeks from 3^rd November 2008 at the latest – which would have led to a hearing at the latest in the first working week in January 2009 and a written decision no more than 7 days thereafter – that is no later than mid January 2009. In fact the hearing took place in mid March 2009 and the decision was not sent to the Claimant’s advisors until 21^st April 2009. Thus on the time line analysis most favourable to the Defendant there was pure delay of slightly more than three months between the date when the Board should have communicated its decision to the Claimant (mid January 2009) and the date when it fact it did so (mid April 2009) – a period of about three months. As I have said, there is no proper full or frank explanation for the delay that occurred between the date of the hearing and the date when the decision was communicated. Thus I cannot conclude that this period of delay was caused by reasonable conduct on the part of the Board of the sort referred to in Paragraph 16(iii) above. By taking as the period of delay the gap between the date when the result should have been communicated and the date when in fact it was communicated, I have taken account of the week that the Board was reasonably entitled to and was entitled to under its own rules in which to formulate the decision.

It is not possible to be precise on these matters and it is clearly right that a margin of latitude ought to be accorded to a body such as the Parole Board before concluding that the point has been reached at which it can be said that it has failed to provide a speedy hearing in breach of Article 5(4). However given that liberty is in issue that margin cannot be very great. In my judgment the conclusion that a speedy determination was one that on the facts of this case ought to have resulted in a determination by no later than mid January 2009 means that the period from then until 21^st April 2009 was on any view a delay that breached Article 5(4). Certainly such a period of delay could not be described as de minimus.

Although I heard some argument in relation to damages, I am not satisfied that either party has considered the issue sufficiently to make it fair to make a final decision. Whilst the Claimant sought to rely on the principles set out in Chapter 42 of 17^th Edition of McGregor On Damages, a post hearing perusal by me of the fourth supplement to that work shows that the analysis set out in the main work has been virtually re-written in the light of the House of Lords decision in R(Greenfield) v. SSHD [2005] UKHL 14 [2005] 1 WLR 673. Whilst I think it is likely that this case represents the current authoritative guidance as to how a claim for damages for breach of Article 5(4) ought to be approached, Greenfield is a case that concerned ECHR Article 6 and as Lord Bingham made clear at Paragraph 7 of his opinion in that case (a) there is a clear distinction to be drawn between a breach of that article and a breach of Article 5, not least because an express and specific right to claim damages is created by Article 5(5) and (b) there is a risk of error if Strasbourg decisions made in relation to one article are read across as applicable to another. It seems to me therefore that it will be for the parties to identify any Strasbourg cases concerning an award of damages for breach of Article 5 generally and Article 5(4) specifically and to make submissions by reference to them.

I propose to consider with counsel at the hand down of this judgment how this task should be handled. However, provisionally I am minded to direct a stay for 14 days in order to see whether agreement can be reached as to the appropriate damages figure. What steps need to be taken in the event that agreement cannot be reached can be the