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

On 20 November 2005, Mr Guntrip, the Claimant, aged 23, was sentenced for robbery to an indeterminate term of imprisonment for public protection under s225 of the Criminal Justice Act 2003. The minimum term was set at 2 years which, after allowing for time served on remand, resulted in a tariff expiry date of 21 May 2007, when he was just 25. The Secretary of State for Justice referred his case to the Parole Board on 22 January 2008. His first Parole Board hearing did not take place until 8 July 2009, when he was 27. The Parole Board refused on 13 July 2009 to direct his release or to recommend transfer to an open prison. It required him to do further work and further assessments to be undertaken. The Secretary of State for Justice set the next review date for December 2010, though none has been listed and there is real doubt as to when it will take place.

Innumerable criticisms, whether relevant to the limited grounds of challenge or not, were made by Mr Rule on behalf of the Claimant about the conduct of the Secretary of State for Justice and the Parole Board in setting the timetable for the case. Put simply though, the review hearing ought to have been held on the tariff expiry date or as soon after it as was reasonably practicable. This would put it roughly at no later than the end of July 2007, two years before it was actually held. This delay was the result of a chapter of failings, mostly particular to this case rather than institutional or systemic.

The Claimant contends that the delay in his first hearing was a breach of Article 5(4) ECHR, and that there should be a declaration to that effect and damages. He challenges the lawfulness of the Secretary of State for Justice’s decision to set December 2010 as the next review date, in view of the delays and other circumstances in the case. The Parole Board accepts responsibility for much of the delay in the holding of the first review, and that much but not all of the lapse of time between referral by the Secretary of State for Justice and hearing by the Parole Board involved a breach of Article 5(4). The Parole Board does not really resist a declaration that it had breached Article 5(4) but it does resist the claim for damages. The Secretary of State for Justice does not accept that he breached Article 5(4), but if so, argues that no relief should be granted against him. He disputes any unlawfulness in his direction as to the next review date.

Before turning to the facts, I set out the process whereby a prisoner subject to a sentence of Imprisonment for Public Protection is released, after expiry of the tariff period. Section 28 (5) and (6) of the Crime (Sentences) Act 1997 prevents release until the Parole Board gives a direction, and the Secretary of State cannot release such a prisoner in the absence of such a direction. The Secretary of State refers the case to the Parole Board and before the Parole Board gives any direction for the release of an IPP prisoner, it must be satisfied that “it is no longer necessary for the protection of the public that the prisoner should be confined”.

There is no statutory timetable for the process of referral and decision either in the period leading up to tariff expiry or thereafter. Prison Service Order 4700, formerly the Lifer Manual, now Indeterminate Sentence Prisoner Manual however, also applies to prisoners serving an IPP sentence. According to this manual, the Secretary of State for Justice should refer cases to the Parole Board at least 8 months before the date of tariff expiry.

The Parole Board Rules made under the Criminal Justice Act 1991 provide in Rule 17.1 that the hearing should be within 6 months of referral. An abbreviated target date can also be set. The Parole Board introduced a system of Intensive Case Management (ICM) in 2008, which provides a timetable reflecting the Rules, and governing such matters as the provision of documents by the Secretary of State for Justice, case management directions, and the setting of the precise hearing date.

The Parole Board, on receipt of the referral, should send to the parties the notification of the provisional target date, and request the documents which it will need. The precise date will only be fixed once the member in charge of ICM for that case considers that it is fit to be heard. 18 weeks before the hearing, according to ICM, the prison and Ministry of Justice should have completed the dossier ready for it to be sent to the prisoner, and by 13 weeks before the hearing, the complete dossier should be sent to the Board. In its absence, the Parole Board should issue what it calls standard directions specifying what is missing and requiring its production. (The Parole Board Rules only required this 12 weeks before the hearing.)

Article 5(4) provides that:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

This creates a right to a speedy review of the lawfulness of detention, and where its lawfulness depends on the view formed by the Parole Board of the continuing danger, if any, posed by the prisoner, that means a speedy review by the Parole Board of that issue. Of course the fact that a review may be delayed does not of itself mean that the detention then becomes unlawful.

In para 65 of Noorkoiv v SSHD [2002] 1 WLR 3284, a lifer case, Lord Woolf CJ said:

“As it cannot be assumed that a prisoner does constitute a danger because he was so regarded at the time of sentence, it is the duty of the State to arrange that an independent tribunal considers the question of whether a prisoner remains a danger either by the date of the expiry of the tariff, or as soon as practical thereafter. This is so that the prisoner, if he is no longer a danger can be released. If the State fails to do this, it is in breach of Article 5(4) and also in breach of its duty under domestic law. In this jurisdiction the tribunal which has the responsibility for determining whether a prisoner remains a danger in the case of discretionary or automatic life sentences or offenders detained during Her Majesty’s Pleasure is the Parole Board.”

The sequence of events, so far as material, is fairly straightforward even if somewhat dispiriting. Taking a tariff expiry date of 21 May 2007, the Secretary of State for Justice’s policy means that the case should have been referred 8 months before it, that is by 21 September 2006. Failure to comply with that policy does not of itself mean that Article 5(4) was breached. But what was required at least in order for the requirement of Article 5(4) as laid down in Noorkoiv to be met, was a referral in time for a hearing at around 21 May 2007. That would require a referral towards the end of November 2006, of the order of 6 months before 21 May 2007, as the Secretary of State for Justice must have known, on the standard timetable to which the Parole Board worked. The referral was not made until 22 January 2008, that is 8 months after tariff expiry and some 14-16 months later than it should have been. In a case in which the tariff was only 2 years, the effect of the delayed referral, allied to a standard Parole Board timetable of 6 months from referral to hearing, was to add well over 50 percent to the tariff in addition to what the court had ordered. No sound reason for that delay has been provided. I have no doubt but that Article 5(4) was breached by the Secretary of State for Justice by his delay, at least for the whole of the period from tariff expiry until referral. But that is not the end of his responsibility.

Mr Rule argued that Article 5(4) is breached from the date when the steps necessary for a speedy review are not taken as they should be, rather from the date when the review, if properly conducted, would have been concluded. Mr Hare for the Secretary of State for Justice contended Article 5(4) could not be breached before the expiry of the tariff period, however inevitable it was that inaction before that date meant that Article 5(4) would be breached after tariff expiry.

I accept Mr Hare’s and, for the Parole Board, Mr Kovats QC’s submission that breach of Article 5(4) does not of itself make the detention unlawful, and that Article 5(4) is a free standing right. In my judgment, it therefore follows, applying Noorkoiv, that detention can still be lawful, before or after tariff expiry, yet Article 5(4) can be breached. Where mere and unjustifiable inaction means that the necessary Article 5(4) compliant review cannot take place on or as soon as practicable after the tariff expiry date, Article 5(4) is breached by the time it is inevitable that the hearing will take place later than that.

As I shall come to, the Parole Board did not act as it should have done when the referral placed responsibility for the review in its hands. However, even if the Parole Board had dealt with the review properly according to its standard procedures, the Secretary of State for Justice knew that it would take of the order of 6 months for it to hold the hearing. That further period of inevitable delay is the responsibility of the Secretary of State for Justice, caused by the late referral. He cannot rely upon the possible availability of an accelerated procedure by the Parole Board to shorten the period of delay for which he is responsible through his late referral.

The Secretary of State for Justice is therefore responsible for one year of delay in holding a hearing: from about the end of July 2007 by which time a hearing ought to have been held following a timely referral, and lasting until the end of July 2008, the end of the 6 month period after referral in January 2008 which it should have taken the Parole Board to process the referral and hold the hearing. That one year delay was caused by his inexcusable delay in referring the case to the Parole Board. That inexcusable delay involved a breach of Article 5(4), continuing from about the end of November 2006 until July 2008.

After referral on 22 January 2008, the Parole Board sent its initial notification of a hearing date to the parties on 13 March 2008. No specific criticism appears to have been made of that period but the ICM Guide envisages that the initial notification will be given in the same week as the referral is received. A more general criticism is made of the fact that the initial notification set a target or provisional date for July 2008, because an earlier date could and so should have been set, following the abbreviated procedure, in view of the delays thus far experienced by the Claimant. I have some sympathy with that, but I do not need to go further into it in the light of Mr Kovats’ acceptance that, after notification of the July 2008 date in March 2008, the Parole Board took no steps to advance the case until 10 December 2008, when ICM directions were given. He accepted that it failed in its responsibility to process the referral to a hearing. There ought to have been a hearing no later than July 2008, following the late referral. The Secretary of State is responsible for the want of speedy review up to that point.

I do not think that the acceptance by Parole Board that it was responsible for the delay between January and December 2008, and that there was no good reason for the delay, can be taken, and was not meant by Mr Kovats to be taken, as accepting that Article 5(4) was breached by Parole Board throughout the whole of that period, from the moment it received the referral, and however speedily it dealt with the referral. Rather he was accepting that during that period for which it was responsible, there came a point at which Article 5(4) was breached.

In my judgment the lapse of time from July 2008 involved a further breach of Article 5(4), this time by the Parole Board. I do not say that any administrative failure in this area leads to a breach of Article 5(4). Still less should it be the case that any falling below the standards which the Parole Board set itself in order to improve its efficiency, gives rise to a breach of Article 5(4). However, even allowing for some inefficiency of itself not to lead to a breach of Article 5(4), the lapse of time from referral until the actual hearing was far too long to constitute the reasonable time necessary to process the referral. Article 5(4) was breached from July 2008, the month in which the hearing should have been held, 6 months after referral, particularly as the earlier delays made it more important to keep at least to the standard timetable. The breach continued at least until December 2008, when ICM directions were given. But that is not the end of it either for the Parole Board.

Once the case came to light again in December 2008, the Parole Board issued ICM directions, and listed the case for 20 April 2009. However, on 17 April 2009, the Parole Board deferred the case until 8 July 2009. It did so against the objections of the Claimant, having notified him on 7 April 2009 that it proposed to do so. The Chairman of the Panel considered that it needed a full report on the Claimant’s performance on the Rehabilitation of Addicted Prisoners trust, RAPt, recently completed for the second time, and it concluded that the Panel would need a psychiatrist member, because of the long held diagnosis of mental illness, bipolar affective disorder, and OCD-obsessive compulsive disorder. It had not proved possible to have a psychiatrist member for the 20 April hearing. There was no issue but that the Panel needed such a member.

The Parole Board in correspondence accepted that this second reason for deferral was caused by a lack of resources, and that it could not use that argument to defend an alleged breach of Article 5(4). Mr Kovats for the Parole Board did not accept that the deferral was unlawful for that reason. I have seen nothing to suggest that psychiatrists were available at short notice, unused for want of resources which came to hand two months later. Given the agreed need for such a Panel member in view of the nature of the issue as to dangerousness and public safety, the real issue however is not a resource issue but whether the need for a psychiatrist Panel member ought to have been picked up earlier. Whatever may be the way in which the Parole Board normally deals with cases, and whether or not a deferral for a specially constituted Panel is a resource issue, this case cried out for some special attention because of the delay already quite unjustifiably suffered by the Claimant. It would not have been very difficult for the papers to have been put before a chairman earlier so that such further delays were avoided in a case already so far beyond tariff expiry. The need for such a Panel member would have been obvious if that had been done.

The Parole Board principally however relies on the first reason for deferral which was independent of the constitution of the Panel. Two target dates had yet to come. First, at 19 June 2009, there needed to be a 12 week review of the Claimant’s reaction to the RAPt process before which the process would have been incomplete, and with insufficient time to test it. Second, there was also to be a completed CARAT review.

Mr Rule contends that there was no good reason to defer the hearing for the courses to be completed and to obtain the reports: the Parole Board already had sufficient information on the Claimant’s drug use, and it was not lawful to defer the hearing to obtain further observations and testing. And in the event the Parole Board did not follow up the requirement so as to ensure that the reports were available at the hearing.

I reject that argument. On the face of it, the decision to defer for that reason was not unreasonable; there was a strong relationship between the Claimant’s substance misuse, his mental breakdowns and his offending behaviour, so substance abuse issues needed to be taken very seriously and the Claimant had relapsed twice in prison, as the psychiatrist noted. The Parole Board would also be considering a transfer to open conditions instead of release. The Parole Board, at the Case Management stage, was entitled to take the view that it ought to have that material in view of the Claimant’s background, and implicitly that if it were not to do so, it would risk an adjournment of the hearing while this work was finalised. That would have been worse. I do not think that the requirement for a speedy review means that a hearing should be started prematurely, and then adjourned for a fairly short while. The long delays already faced cannot mean that the Claimant should have his review, with that element of uncertainty over his dangerousness unresolved, when a comparatively short time would enable that element to be seen more clearly for better or worse. The fact that the reports were not before the Parole Board at the eventual hearing in July does not make the decision that they should be before the Parole Board unlawful.

Accordingly, I do not think that there was any further discrete breach of Article 5(4) after 10 December 2008, even though the process for the review could and perhaps should have been handled more swiftly even then.

However, that conclusion does not dispose of any continuing effect of the delay by the Parole Board in the period January-December 2008. The hearing should have been arranged for July 2008. It was held one year later. The effect of inaction throughout 2008 was to cause that one year delay. Allowing for the inability of the Parole Board sensibly to make up much time lost by the Secretary of State for Justice or indeed by itself, it still had the referral for 18 months but only required 6 months on the standard timetable to arrange a hearing. There is no excuse for that delay of a year. Accordingly, the Parole Board are responsible for the other year of that delay. It breached Article 5(4). I do not say that there is always a breach of Article 5(4) once the standard 6 month period has elapsed, but where there is a very much longer period of delay, itself following a long delay, I see no reason to give further leeway. This was not a short term slip, nor the consequence of the inevitable problems which accompany managing cases, obtaining documents, an appropriate Panel, representation, listing and adjournments for which allowance has to be made. This was a serious, long lived failing in an individual case.

I add that the Claimant was refused permission to challenge the reasoning of the Parole Board on the merits. This is important because Mr Rule also contends that the Secretary of State for Justice should have provided the Parole Board with a dossier which included a Risk Management Plan and a psychiatric assessment. These were not provided and so the failure of the Secretary of State for Justice to provide the dossier required by the Parole Board Rules, led to the decision of the Parole Board that it was not appropriate to transfer the Claimant to open prison or release until that work had been done. Mr Rule cannot assert that that was not a lawful decision on the material, but he says that this failure contributed to delay in release, which he says could have been achieved in July 2009 had they been provided. This he says involved a further breach of Article 5(4).

I reject that argument. First, the Parole Board for the purpose of ICM had examined what was missing and what was needed; and it did not identify those as missing. Mr Rule relied on what the Parole Board had said about the dossier at a much earlier stage, so one foundation for this argument is misconceived. Second, Mr Rule is also reading too much into the obligations of the Secretary of State for Justice in relation to the dossier set out in Part B of Schedule 1 to the Parole Board Rules: there was no requirement, as I read them, for the Secretary of State for Justice to provide the psychiatric assessment, and the Panel had the report of Dr Feeney, a consultant psychiatrist. Third, the significance for the Article 5(4) argument, of the absence of the Risk Management plan for release or progression to release, has to be seen against the reasoning of the Panel as to why it did not recommend progression to open conditions or direct release. It was not that there was no plan, therefore release could not occur, whereas with such a plan it could have ordered progression to release. Its reasoning was that the mental health issues had been “severely underestimated”, and that much more attention was required to the Claimant’s mental illness. That was also one of the factors behind the absence of a release plan which would have to make full provision for support in the community. But the probation service also did not support progression to release. There were further assessments necessary before any release or progression strategy could be formulated. The relapse prevention work also stood in the way of any favourable psychiatric assessment leading to release. This point is closely allied to the question of whether an earlier hearing would have led to release, which is relevant to the question of damages which I deal with later.

Of course it can be said that the significance of the mental illness ought to have been appreciated earlier. But this does not go to the question of whether something was missing from the dossier the fault for which can be laid at the door of the Secretary of State for Justice, or was some other failure which can be laid at the door of the Parole Board leading to a further breach of Article 5(4). The need for this assessment was realised at the hearing as a result of the Panel considering the March 2009 report of Dr Feeney, the risk assessment, the evidence of the Offender Manager, and hearing what the Claimant himself acknowledged about the importance of his mental illness.

What can be said is simply that had the Parole Board hearing taken place earlier, this point would, should or at least could have been appreciated earlier. It emphasises the importance of the speedy review process.

Mr Hare submitted that no declaration should be made because Lord Hope in paras 20-21 of his speech in R (James) v Secretary of State for Justice (Parole Board Intervening) 2009 UKHL 22, [2010] 1 AC 553, required an entire breakdown in the statutory system before there was a breach of Article 5(4); what was required was a breakdown of such length that detention had become arbitrary. That, said Mr Hare, had not occurred. I am not entirely clear to what Lord Hope was addressing those comments. I think that he was probably dealing with the effect of the sort of modest delays which often occur in reasonably well managed processes, whether through mistakes, carelessness or other factors, for which allowance should be made. But what I am sure he was not saying was that no individual Article 5(4) rights could be breached unless other prisoners’ Article 5(4) rights were also breached, as inevitably would be the case were there to be a systemic failure, and were systemic failure to be a pre-requisite of a breach of Article 5(4) for an individual. If there is a test that the delay must be of such a length that the detention is arbitrary, that conflates Article 5(1) and 5(4). Even so there was a marked degree of failure in this case, when a tariff of 2 years, less time on remand, lead to detention of 4 years before review.

I regard the failures as sufficiently serious, and sufficiently significant in relation to the tariff period, to warrant a declaration that the Secretary of State for Justice and the Parole Board were in breach of Article 5(4) for consecutive periods of one year each, and that their breaches delayed the hearing by two years.

The next question is whether damages should be awarded for those breaches. These are not tortious damages but damages for the breach of Article 5(4). Mr Hare and Mr Kovats submit that this is not a case for damages. Mr Hare submits that none should be awarded against the Secretary of State for Justice because his delay was now historic in the light of the delays caused by the Parole Board. Were I to award damages, I would have rejected that argument as bad on the facts.

Mr Hare and Mr Kovats agreed that an effective remedy for a breach could be provided by a declaration or judgment to that effect; and I accept that that much is plain from Article 13 and decisions of the ECtHR. The principal purpose of judicial review proceedings such as these and protection against ECHR breaches is to obtain the protection of the law, vindication of rights and its future enforcement. This is a case in which I have decided to grant declarations against both defendants with all those factors in mind. A declaration can be a sufficient remedy to provide protection, vindication and future enforcement.

Damages under ECHR are not awarded on a punitive or exemplary basis for breaches of the ECHR. Mr Rule submitted that an award should be made because of the unprecedented delay; if it is unprecedented in relation to so short a tariff, his submission smacks of an impermissible claim for exemplary damages.

An important or decisive question in deciding whether damages were also to be awarded was whether a hearing at a time which complied with Article 5(4) would have led to release. The Defendants relied on R (Betteridge) v The Parole Board [2009] EWHC 1638 (Admin), in which Collins J at paragraph 24, discouraged applications for damages in cases, to which they likened this one, and R (Degainis) v Secretary of State for Justice [2010] EWHC 137 (Admin) Saunders J, where the breach of Article 5(4) had not led to lengthier and unlawful detention. The impact of the delay on the claimant, in terms of distress, and frustration, properly evidenced, was material, but the mere length of detention was not a factor of itself, shorn of any effect on the claimant. To allow for that would be akin to awarding exemplary damages which were outside the scope of Article 5(5). Saunders J doubted that the seriousness of the offence was a relevant factor to damages for distress, and I agree that it is not, although it may go to the prospect of release at an earlier occasion.

I did not understand Mr Rule to take issue with those propositions as to the approach to be adopted to an award of damages. Rather his submissions emphasised the circumstances of the Claimant, and the prospects of release or transfer of which he was deprived and the distress suffered. His references to the decisions of HHJ Pelling QC, sitting as a Deputy High Court Judge in R (Pennington) v Parole Board [2009] EWHC 2296 (Admin) did not advance the issues since that case did not discuss the principles to be applied in deciding whether damages were an appropriate remedy at all, as opposed to the basis for their quantification. There is scope for debate about whether a delayed transfer to open conditions should lead to damages.

The first question is whether the delay in the hearing has deprived the Claimant of earlier release or of a transfer to open conditions.

The Parole Board reasoning in July 2009 is crucial. The robbery was committed while the Claimant was on licence after serving the custodial part of a 3 year sentence for a similar robbery, and committed while he was “coming down” from a 2-3 day crack binge and after smoking cannabis. He had a long history of offending and none of the custodial and non-custodial sentences had prevented re-offending. Misuse of drugs and his mental health were major risk factors; the frequency and severity of his symptoms had not changed during the period of years leading up to the index offence, though he was better able to cope with them.

The decision then set out the evidence of change during sentence. Although not a control problem, he had had a number of adjudications for misdemeanours such as assaulting a prison officer, drug use, disobedience and property damage. He had successfully completed various educational and training courses. He had participated in courses designed to address his offending behaviour with generally positive feedback. He had completed the RAPt course - at the second attempt because he had tested positive at the end of his first attempt and had received two warnings during the second, over cannabis. Some progress had been made in tackling his high impulsivity and drug use; he had become very clear that drug use and his mental health were closely related; his occasional use of cannabis was seen by the RAPt manager as a lapse of no real importance, when set against the rather chaotic wing he had been in, drug free in name only. The RAPt and the CARAT managers recommended a move to open conditions to test the Claimant’s ability to cope, but said the Claimant should also have the support needed to ensure that he continued to address his drug problem. This was supported by the Offender Supervisor, subject to completion of a further course.

The psychiatric evidence from Dr Feeney dated March 2009 was that the Claimant was liable to severe breakdowns, which on release would mean that he required ongoing care from community psychiatric services. The Board said:

“Based on your history of substance abuse he assesses you as presenting a high risk of continued acquisitive offending with some risk of further violent offending. Finally noting the close link between your substance misuse and your offending behaviour Dr Feeney states that in the future your substance misuse problems and issues need to be addressed very seriously.”

The Claimant’s Offender Manager did not support release but supported a move to open conditions: the Claimant presented a substantial risk of re-offending and a high risk of harm unless he stayed drug free, took his medication and was supported on release by the local mental health team, stayed away from criminals and obtained work. She agreed that his mental health had not been given adequate focus. She did not support release particularly because of his recent drug lapse and the absence of provision for community health care.

The Claimant said that the drug lapse was due to his feeling miserable and frustrated about the delay in his review. He was committed to staying drug free because he was aware of the effect of cannabis, his drug of choice, on his mental health.

The Panel noted the OASys assessment of July 2009 that the Claimant posed a high risk of violent offending, and a high-medium risk of re-offending in other ways. Other assessments were in the same vein. The care plan had not been reviewed, and on release he would need significant care. The release plan had yet to be finalised because the probation service did not support release.

The Panel’s conclusions acknowledged the progress made during sentence, including the courses undertaken, his co-operation in taking his mental health medication, and the assessed reduction in risk. However, it regarded the offence as serious, in the circumstance in which it was committed, and accepted the assessment of a medium risk of re-offending and the high or very high risk of causing serious harm to the public. It continued:

“Whilst it is accepted you have largely remained drug free for some 12 months, your use of cannabis in February 2009 suggests that there is still further work for you to do in relation to your relapse prevention strategies. Furthermore the panel is concerned that your mental illness seems to have been severely underestimated and no clear indication has been given that the necessary assessments have been made to provide you with the required mental health support either in open conditions or in preparation for your release. Taking all of these matters into account the panel takes the view that your risk levels have not been sufficiently reduced to allow you to progress to open conditions or to release.”

The Panel finished by saying that his mental health needs should be further assessed at the earliest opportunity, and that there should be a psychiatric assessment for the next hearing which addressed his long term mental health care. It should also have a comprehensive and robust risk management and release plan including proposed licence conditions to manage risk.

Mr Rule submitted that those requirements showed that, had the review been conducted when it should have been, and in the light of what he had achieved while serving his sentence, he would have been released or transferred to open conditions. The further work on drug relapse prevention strategies would have been completed earlier and the necessary psychiatric assessments would have been undertaken. So his further time in custody after this Parole Board decision would have been avoided. The Defendants submitted that the decision, together with the underlying material, showed that he would not have been released had the review been earlier, is still not ready, and that the delay has not affected his release date at all.

I am not persuaded that the Claimant has shown that he would have been released following an earlier review, or that he would have been released by now. The report makes clear that after tariff expiry, he had to retake the RAPt course because of relapse; it is important because cannabis use harms his mental health. The OASys assessment in November 2008 showed a high likelihood of reconviction and causing serious harm. His release was not recommended in the Offender Supervisor report of January 2009, and the lifer manager in February 2009, although recommending transfer to open conditions should the claimant complete the RAPt course successfully second time round, was concerned about his drug abuse and the effect on his mental health. Dr Feeney’s report is summarised in the Panel decision and showed that the claimant could not have been released earlier. The Panel decision is clear: more work and further assessment was required before transfer to open conditions or release. He was clearly not ready for earlier release or transfer, if not ready in July 2009.

Mr Rule’s argument that all the material now required was unnecessary cannot be pursued. His argument that an earlier review would have led to these reports and assessments required being provided earlier than December 2010, i.e. that what is envisaged for December 2010 would have been provided in July 2009, is speculative. The further work on drug relapse comes after all that he has done during his post tariff time in custody. The underestimated severity of the Claimant’s mental illness appears only to have become apparent over a long period of time in custody. Even if the severity had been appreciated earlier as a result of an earlier review, that does not show that the illness would have been treated effectively in a shorter period. The underestimated severity of his mental illness goes to the proper assessment of risk on release, drug misuse as well as to assessing and providing the necessary support on release. The absence of release plan is not what has held him up: it is required for the next hearing so that, if ready for release, he can be released. Indeed, the effectiveness of the management and release plan may then, but not yet, go to whether he can be released.

There is therefore no basis for damages to be awarded because the delayed review has kept the Claimant unjustifiably in custody. It has not.

The second question is whether damages should be awarded for mental distress. The Claimant gave evidence that the delay in holding his review had been intensely frustrating and distressing. These feelings had been worsened by problems with his medication. In spring 2008, he had a depressive episode, which included three acts of self-harm. Even when that depressive episode was brought under control, during the summer, he was still frustrated by the delay. He believed that this depressive episode was largely caused by the delay.

Dr Duffield, who prepared a psychiatric report in January 2010, regarded the delay as no more than a possible precipitating cause of the depressive episode in June/July 2008.

I accept that the Claimant experienced frustration, stress, annoyance and distress during the delay. His efforts on the courses he undertook, will have added to his sense of frustration. His mental condition would have made delay more difficult to cope with over a long period of uncertainty. Of course, intermingled with that is frustration not just at delay, but frustration at not moving to open conditions or release, not seeing progress rewarding his efforts, but which frustration he was going to experience anyway. I accept that this endured over two years or so, and would have been exacerbated by the expectation of a review after only 2 years. I do not accept, however, the Claimant’s contention that the delay was largely responsible for his depressive episode in 2008. That assessment by him is not supported, rather it is contradicted, by Dr Duffield’s January 2010 report. Dr Duffield was able to assess this episode in the context of his long-standing mental illness, drug misuse, and medication, and saw delay as having only limited significance for it.

There is a factual basis for an award of damage, but that does not mean that an award must follow. The question is whether a declaration is an effective remedy for the breaches of Article 5(4) in this case or whether just satisfaction requires damages to be awarded in respect of mental distress in this case.

I am conscious of the undesirability of stimulating judicial review claims with a view to gaining small sums by way of compensation for frustration, stress and annoyance. I am aware that in many cases, perhaps the large majority, a declaration will be a sufficiently effective and just remedy.

But I have concluded that damages of a modest scale should be awarded here. Two unusual features have particular force. First, the length of delay is two years, of itself a considerable length of time, and it led to an effective doubling of the tariff. This is not to impose a sanction for egregious and unjustified delay, but to reflect the duration of the Claimant’s stress, anxiety, and frustration, when he would have expected to be reviewed after two years. This delay was not accompanied by certainty as to the review date albeit one that might breach Article 5(4), nor by any statement as to what he or anyone else needed to do, however, unjustified. There was just an indefinite and prolonged wait.

Second, the Claimant did suffer from mental illness which I am satisfied made that delay and uncertainty more difficult to cope with. And his stress and frustration were further exacerbated here because, although I have concluded that an earlier review would not have led to release or transfer, the Claimant had made what appeared to be very considerable, largely successful and distinctly promising efforts on his courses, gaining support from responsible officers at least for progress to open conditions. He had a reasonable basis for genuinely believing he would be released or transferred to open conditions, and that delay in the review alone stood in his way.

I have concluded that a declaration is not a sufficient remedy and that a sum of £1200, split equally between the two Defendants should be awarded. The two are equally responsible for the total sequence of delay. I might well not have awarded damages for mental stress caused by a one year delay, but it would be wrong on that basis, to award damages only for the second year’s delay.

Mr Rule submits that the delay in holding the first review meant that the next one should have been no later than one year later; and there was nothing in the work required to be done and plans prepared which could justify an eighteen month delay. The review date should have been set for one year ahead.

The question is whether a hearing in December 2010 would involve a further breach of Article 5(4), or would be unlawful in some other way, such as irrationality. I accept for present purposes Mr Rule’s submission that s28 (7) Crime (Sentences) Act 1997 and the Secretary of State’s own policy in Chapter 6, paragraph 6.3, of Prison Service Order 4700 mean that a maximum of 2 years should elapse between reviews. I also accept that a review after a lesser period may nonetheless breach Article 5(4), because the gap is still too great to be a reasonable interval, and that a period of less than eighteen months can involve a breach of Article 5(4). A period of eighteen months however does not necessarily breach Article 5(4). Whether or not any particular interval does so, depends on the circumstances of the case and the reasons for the setting of the interval. I accept Mr Rule’s further point that the longer the interval, at any rate over a year, the clearer the basis for it must be. Whether a delay breaches Article 5(4) is for the Court to decide.

The Secretary of State’s decision on the next review date, taken on 14 July 2009, expressly drew on the Parole Board’s reasoning in relation to what yet needed to be done. It is not simply the maximum time required to write reports and produce plans. The Secretary of State correctly drew from the Board’s reasoning the need for the Claimant to undertake work in closed conditions and then for reports to address the complexities of his position. The risk factors to be addressed were mental health, violent lifestyle, poor sense of self-worth and substance misuse. The work required to address those issues including CARAT and RAPt courses to deal with substance misuse and to develop relapse prevention and coping strategies, anger management with CALM, and mental health assessment. The aim in drawing on the Parole Board’s view was to see how, over a worthwhile period of time, the Claimant had developed to a stage where transfer or release could properly be planned for in practical reality, bearing in mind where he wanted to live, his attitude or behaviour and the support practically available.

It is perfectly sensible for the Secretary of State to set a review timetable which enables the Parole Board’s requirements to be met. I cannot see that this involves a breach of Article 5(4).

If Mr Rule were able to show that, consistently with what I regard as those reasonable aims, the Claimant could properly have had a very much earlier review, I would have had considerable sympathy for his point that the delays hitherto should have been an important consideration for the Secretary of State, and that a failure so to direct might have involved a breach of Article 5(4). However, he has not been able to show that an earlier review was consistent with the lawful view of the Parole Board, correctly understood by the Secretary of State, as to what work was necessary and what timescale it would require. A premature review would not help the Claimant.

Mr Rule’s argument that the review period should have been set at one year has some force, given the work already done by July 2009 and the further work for which the Claimant was suitable might not require a full year. He may be right that the 6 months time for report writing could be shortened, but I am not satisfied that the Secretary of State’s view as to the time required for work, assessment, and report preparation for the hearing is either unreasonable or a period that I should regard as a breach of Article 5(4).

The fact that no hearing has in fact been listed, which may or may not be related to the fact that different solicitors are handling different aspects of his case, does not show that the 14 July 2009 decision was unlawful.

For those reasons I declare that the Secretary of State for Justice and the Parole Board breached Article 5(4) in respect of the Claimant’s review date, each for a period of one year. I award damages of £1200, split equally between the two Defendants. I dismiss the claim in relation to the next review date, though it should not be further delayed.