Sturnham, R (On the Application Of) v Secretary of State for Justice

MR JUSTICE MITTING: Section 28 of the Crime (Sentences) Act 1997 (1997 Act) provides:

"Life prisoner" now has an extended meaning provided in Section 34 of the 1997 Act, as amended, and includes "a person serving one or more life sentences" which includes "a sentence of imprisonment for public protection under Section 225 of the Criminal Justice Act 2003" (Section 34 (2) (d)).

This judicial review, permission for which was granted by the single judge, raises an important question of principle and subsidiary questions. The important question of principle is whether the duty to release life prisoners under Section 28 (6) is subject to a gloss in the case of prisoners who have been sentenced to a sentence of imprisonment for public protection under Section 225 of the 2003 Act. A related subsidiary question is whether or not, in applying the statutory test to this case, the Parole Board applied an impermissible gloss of its own. There are other issues raised by the proceedings with which I will deal later on in this judgment.

The principal question has already arisen but not been decided. In Bayliss v Parole Board [2008] EWHC 3127 Admin - and on appeal [2009] EWCA Civ 1016 - a concession was made on behalf of the Secretary of State. The concession was that the test for release in Section 48 (6) was satisfied if -

Section 225 of the Criminal Justice Act 2003 provides:

Before the question of principle can be decided, it is necessary to set out the background facts. On 19 May 2006 the claimant was party to an altercation in a public house. That led to a further altercation in the car park outside which resulted in one of the parties - not the victim - head-butting him. Someone who had been at the public house, but who had not up to that time participated violently or, as far as I can tell, at all in the altercation, tried to calm things down. All he got for his pains was two heavy punches from the claimant which concussed him and led on the following day to his death. This was not quite a classic single-punch manslaughter case. There were two punches. It seems that the injury caused to the victim resulted from the punches rather than the contact between his head and a hard surface. Nonetheless it fell, broadly speaking, in the same category.

The claimant had no previous criminal convictions for offences of violence. He contested the charge but was convicted by a jury. Reports available to the sentencing judge did not suggest that he posed a danger to the public. Despite that, the sentencing judge, in carefully considered sentencing remarks, concluded that it was necessary to impose upon him a sentence of imprisonment for public protection. He said:

The judge concluded that he would have imposed a sentence of six years' imprisonment but for the decision to impose an indeterminate sentence. Allowing for the two-hundred-and-fifty-seven days spent on remand, the judge set the minimum term at two years and one-hundred-and-eight days. The date on which the minimum term was to expire is agreed as being 19 May 2009.

The claimant has had a chequered history in detention. In January 2007 - no doubt at a time of high stress for him because it was during his trial - he was found guilty of an assault on an inmate. There were subsequent adjudications for disobeying orders. Strikingly, in connection with the judge's sentencing remarks about the effects of drink, he had been found to have been involved in the brewing of hooch while in prison on a number of occasions.

Unsurprisingly, when reports came to be prepared for the purpose of his Parole Board hearing, they were not unequivocally favourable to him. A report of 6 April 2009 noted that he had demonstrated some understanding that his alcohol use was problematic and had developed some motivation to address this problem, but apparently his attitude was that it was up to someone else to ensure that he did so. The author thought that he displayed some lack of responsibility for his own decision making in that context. It was noted that he was considered to pose a threat to those who might assault him or challenge his reputation for masculinity.

A report of 26 March 2009 noted that he had attended and completed an aggression replacement training programme at which he attracted mixed reviews, and had completed an alcohol dependency programme. Despite that, the author considered that there were a number of areas that required further work. It was noted that he stated that his intention was to remain abstinent of alcohol on release. The author thought that that statement was unrealistic given the dependency that he had had upon alcohol for so long before his imprisonment. The author also considered that he continued to hold very rigid views, in particular, about his use of violence and right to protect himself if threatened or challenged by others.

The conclusion was that unless he was prepared to address these problems in detail he would continue to use alcohol as a means of dealing with or blocking out difficulties.

It would be wrong to give the impression that the picture was uniformly gloomy. It was not. An officer at HMP Bullingdon, where he was incarcerated in May 2009, reported that he was an enhanced prisoner. He had always found him polite and willing to help. He was able to deal with difficult situations in a methodical and calm manner. His conclusion was that he had made much progress while serving his sentence and would be suitable at that time for parole and re-integration into society. Only four months after that glowing report he was unfortunately down-graded from enhanced to standard status for reasons set out in the document of 28 August 2009 - his relationship with and attitude to staff and manipulating of prisoners.

By 8 September 2009 the author of a lengthy report, prepared for the purposes of the Board, noted that he had demonstrated some understanding that alcohol use was problematic and some motivation to address the problem. But the author also repeated that which was stated in the earlier report that he regarded it as someone else's responsibility to see that he did those things. Further work was assessed as still to be required to address appropriate responses to situations and the use of violence and aggression.

Again it would be wrong to leave the impression made upon those responsible for assessing him with that downbeat assessment because another principal officer, on 22 February 2010, at another prison - HMP High Down - gave him a much more favourable report. He noted that the claimant was now a peer adviser which was a very trusted position, that he was responsible for persuading other prisoners to do what is required of them by using "his calm and sensible approach towards prison life". Neither the officer nor other staff had seen or reported any behaviour similar to that at HMP Bullingdon. In August 2009, in the view of the officer, he was ready to move "to the next stage in his life sentence, whether this be open conditions or release into the community, whichever is deemed appropriate by the Parole Board."

Another factor in his favour was the willingness of his elder brother and his wife - both entirely respectable and well integrated people - to provide a home for him in their home city of Bristol.

That brief description of the views of responsible officials about the claimant demonstrates that this was a far from straightforward case for the Parole Board when it came to consider its decision.

I will deal with the timetable of decision making later. All I need say for the moment is that there were two hearings in April and May 2010, the upshot of which was a five-page decision letter in which the Board determined that the claimant should be transferred from closed to open conditions but not released on licence. In paragraph 1 of its decision letter the Parole Board gave itself a simple direction on the test that it had to apply:

The only subsequent reference to the test which it was applying was in its conclusion:

This is not a reasons challenge. Mr Rule, for the claimant, does not assert that the Board did not adequately express the nature of the risk which it was considering or the standard of risk. His primary submission, to which now I turn, is that it should have applied the test, accepted by way of concession in Bayliss, and only determined that it was not right to release the claimant upon licence if satisfied "that it is no longer necessary for the protection of the public against a significant risk of serious harm from the commission of further specified offences that the prisoner should be confined."

There are a number of difficulties with Mr Rule's submission. The first is that Parliament has legislated for the application of the test in Section 28 (6) to those sentenced to imprisonment for public protection. It applies to them the same test as was and is applied to those sentenced to conventional life sentences. Parliament must be taken to have known what it decided upon. As a matter of construction, if Mr Rule is right, I would be required to read words into Section 28 for one purpose (sentences of imprisonment for public protection) but not for another (life sentences). It is unlikely that Parliament could have had such a distinction in mind because, if it had, it could easily have provided for a gloss on the words of Section 28 itself in the case of a person sentenced to imprisonment for public protection. That is not what it did. It provided that in certain circumstances those convicted of specified offences could be subjected to what was, in effect, the same regime as those subject to life sentences. The differences for present purposes are immaterial.

The second difficulty with Mr Rule's submission is that there is no necessary equivalence between the standard required to impose a sentence of a kind which requires it to be reviewed by a body such as the Parole Board during its life and the test which must be applied by the Parole Board when reviewing. That was established in the case of life sentences by the Court of Appeal in R v Parole Board ex p Bradley [1990] 3 AER 828, 838 D to F, per Lord Justice Stuart Smith:

That reasoning seems to me to apply with equal force here. What the sentencing judge decided was that there was a significant risk to members of the public of serious harm occasioned by the commission by the claimant of further specified offences. Accordingly he determined that it was necessary to subject him to a regime in which he would not be released until and unless the Parole Board was satisfied that it was no longer necessary for the protection of the public that he should be confined. The scheme works perfectly well on that basis and, in my judgment, satisfies the intention of Parliament. It is not only unnecessary to read into Section 38 the words proposed by Mr Rule, it would, in my view, frustrate the clear intention of Parliament to do so.

Mr Rule relies on the Strasbourg decision of Stafford v United Kingdom, Application No 46295/99, 28 May 2002, a decision on unusual facts in relation to a prisoner sentenced to life imprisonment. The applicant had committed murder. He had been released on licence from his life sentence and had either then engaged in offences of fraud or was thought to be likely to do so again. Consequently his licence was revoked. The Strasbourg Court concluded that the revocation was unlawful and did so for the simple reason that there was no causal connection between the possible commission of non-violent offences and the original sentence for murder (see paragraph 81). In a general statement, it observed at paragraph 80:

The Parole Board is addressing "considerations of risk and dangerousness". All that it is doing is doing so by reference to a different standard of risk than that applied by the sentencing judge.

Mr Rule's submission comes down to this. In assessing risk, it must be satisfied that the risk is "significant" and is a risk of serious harm to members of the public occasioned by further specified offences. There is no issue about the second part of his proposition although to read in those words would amount to a gloss on Section 28. The gloss is implicit and, in any event, does not give rise to any issue in this case and I cannot conceive that it would in others. The focus of his submission is on the significance of the risk, in other words, its magnitude.

Once it is accepted - as I believe it has to be - that the Parole Board is not applying the same test as the trial judge, then it is open to the Parole Board to apply the unvarnished test in Section 28. That test for the prisoner is a high one. The Board must be satisfied that it is no longer necessary for the protection of the public that he should be confined. There is no burden of proof. It is up to the Board to inquire into these matters and not for the prisoner independently to prove it. But it must, as a result of its inquiries, reach that level of satisfaction.

Mr Rule submits that the Parole Board has illegitimately added a gloss of its own by applying a test contained in paragraph 4 of the Secretary of State's directions given to the Board in relation to prisoners sentenced to life imprisonment. That paragraph has been the subject of previous litigation. It is not necessary to set out all of the debates which have occurred about it. The test is -

In Girling v Secretary of State for the Home Department [2006] EWCA Civ 1779, the Court of Appeal stated unequivocally that the Secretary of State's directions treated as guidance were unobjectionable save in respect of paragraph 4 which purported to direct the Parole Board upon a test which it was for it - the Board - itself to determine and apply. I take from the speech of the Master of the Rolls:

Nonetheless, as is perhaps notorious, Secretaries of State for the Home Department, when they had responsibility for prisons, did express strong views about the need to avoid release into the community of those properly sentenced to life imprisonment or imprisonment for public protection who posed a serious risk to members of the public at the time of release. Perhaps for that reason paragraph 4 of the Directions to the Parole Board issued in August 2004 has not been amended or withdrawn. Indeed, in Directions to Prison Staff in PSO 6010, the Secretary of State for Justice has reiterated the test.

The Parole Board has issued internal guidance of its own to members, who are not legally qualified, to assist them in performing their duty. Broadly speaking, the guidance is consistent with that contained in paragraph 4 of the Secretary of State's directions. I take by way of example the clearest statement made in relation to prisoners sentenced to imprisonment for public protection in paragraph 8.1 of the document issued in July 2010:

There is no direct challenge to that guidance in this claim, unsurprisingly, given the date on which it was issued. So any observation I may make about it would necessarily therefore be obiter. If - and it is not clear from the letter that this is so - the Board did apply that test in May 2010 or something similar to it, I would not be prepared to say that it was an unlawful test. Beyond that it would not be wise for me to go, given that the issue has not been fully ventilated.

The issue raised in these proceedings is much narrower. It is that the Board in its decision letter, by its reference to the Secretary of State's directions, demonstrated that, contrary to the clearest statement of principle in Girling, it was paying heed to something that it should not. The answer to that is factually simple. The Secretary of State's directions contain a good deal of general and perfectly sensible guidance about the approach which should be adopted when assessing the suitability of a prisoner for release on licence (paragraphs 5 and 6). Those were held by the Court of Appeal in Girling to be unobjectionable. I need not set them out. They are clearly unobjectionable. In my judgment, and as a matter of fact, the Board was simply referring to that unobjectionable part of the guidance when it made the comment that it had regard to the Secretary of State's directions when reaching the decision.

Accordingly, I reject both of the challenges made by the claimant to the test which the Board applied to its decision.

The claimant was refused permission to apply for judicial review on the ground that the decision was irrational. I do not intend to dwell on this renewed application at any length. I agree with the single judge's decision. The reasoning of the Board in the letter, which I do not propose to set out, seems to me to be level-headed and sensible, to address all the issues in this far from straightforward case and to do so in a manner which, when read fairly, provides the best route for the claimant to be released on licence in circumstances in which the release is likely to succeed. As I have already indicated in my brief review of the background, the assessments here were far from unequivocal. All the Board decided was that he should spend a period in open conditions before being considered for the final step of release on licence. That was a decision which it was perfectly entitled to come to. There is simply no basis for a rationality challenge.

I turn finally to the third ground of claim, a ground for which permission has been given, delay. The Secretary of State referred the claimant's case to the Parole Board on 10 July 2008. A dossier was prepared. It was due to be supplied to the Parole Board either on 26 December 2008 as the Parole Board states, or on 17 January 2009 as the Secretary of State contends. The latter date, for which there is convincing evidence in the form of a witness statement from Joanna Hutton of the Public Protection Case Work section of the National Offender Management Service, is, in my view, the most likely date. As regards the question of principle to which the challenge gives rise, it does not matter.

On 30 January 2009 the Parole Board issued a reminder to the prison to produce a dossier which it said was already due. Miss Hutton then explained what happened. The unit understood that the dossier was required by 1 May 2009 - as it happens two-and-a-half weeks before the expiry of the minimum term - not that the review was to take place by then as the Parole Board had intended. Accordingly, the Parole Board's request for a dossier elicited no immediate response. The dossier was not provided until 30 July 2009.

Matters then took a fairly normal but not especially speedy course. There was a short delay due to the need for written representations. Directions were given. Representations were submitted. The claimant's solicitors pressed for a hearing date. On 8 February 2010 the Board set the hearing date for 14 April. On that day the claimant became ill so the Board adjourned the hearing until 10 May 2010 and issued its decision four days afterwards. On any view, there was a period of delay of a little over six months, and perhaps as much as seven-and-a-half months, for which no adequate explanation has been offered.

This was not a case in which the Secretary of State or the Parole Board lacked the resources to fulfill the normal timetable. It was a case in which, because of an administrative error, the dossier was not supplied when it should have been. In consequence, the Board did not consider the claimant's case until at least six months after it could and should have done. Mr Rule contends for an even longer period but, in my judgment, the facts do not bear out his contention.

Given that the claimant's case was not considered when it should have been, and therefore was not considered speedily, I am satisfied that the claimant's right to a speedy hearing under Article 5.4 was not fulfilled.

Mr Murray, for the Secretary of State who must bear prime responsibility today, submits that I should not grant any relief arising out of that finding. Two categories of relief are claimed. First, a declaration that there has been a breach of Article 5.4 and, secondly, an award of compensation or damages for the breach.

As regards the declaration, I am satisfied that I should make a declaration. This is not one of the many cases that have arisen - in particular at the permission stage - where, despite doing its best, the Parole Board, due to lack of resources and pressure of number of cases, has been unable to fulfill its statutory functions. In such cases the court will intervene to declare that there has been a wholesale failure of the statutory scheme, but generally will not interfere in the workings of a parole board in individual claims. But where, as here, there has simply been an administrative error, I see no reason why that fact should not be reflected in a declaration. At the least, the making of a declaration by me may serve to ensure that no similar slippage occurs in this case in the future.

Consequently, I am prepared to declare that the claimant's rights under Article 5.4 were breached in that his Parole Board review did not take place until approximately six months had elapsed from the date on which the review should have occurred.

Damages present a more difficult question. Mr Rule accepts that I could not award damages in respect of the chance that the claimant's release on licence has been delayed by six months or by any period. He is right to make that concession, and for a number of reasons. First, in my judgment, there was no prospect that had the hearing taken place six months earlier the claimant's release on licence would have been ordered for reasons I have already explained. Secondly, although I am satisfied that it is more likely than not that the Board would have directed his transfer to open conditions six months earlier than occurred, that would not necessarily have resulted in his earlier release. Nor would it have done so to a lower standard of probability. That is illustrated by what in fact occurred to the claimant since his transfer to Ford Open Prison on 12 August 2010.

As is well known, there was a disturbance at the prison and damage was caused to it. As a result of that, a stricter regime was applied to, amongst other things, movement around the prison than had hitherto applied. The claimant, it is said, was in breach of that regime on a number of occasions and failed to have the necessary written permit to move around the prison.

Of greater significance, it is also alleged that he had on one occasion been aggressive towards a member of staff. Against the background that I have recited, that allegation, if true, might be worrying. Accordingly, as a result of the adjudication against him and perhaps of the allegation against him as well, he was transferred back to closed conditions on 27 January 2011. His next Parole Board review is scheduled for July 2011. It would be nothing but speculation for me to guess what the outcome of that review might now be, still less to compare that guess with a guess as to what might have happened had the claimant been transferred to open conditions earlier.

Mr Rule submits however that the claimant should be awarded monetary compensation for the anxiety and stress caused him as a result of the delay in his Parole Board hearing. He has produced a short witness statement in which he speaks - in terms which I accept to be substantially true - of the anxiety caused to him by the delay.

The approach which a domestic court must take to the award of damages for breach of a Convention right is determined by two authorities. The first, Section 8 of the Human Rights Act, provides:

The second is R v Secretary of State for the Home Department ex p Greenfield [2005] UKHL 14, in which Lord Bingham laid down the rule that it was to the practice of the Strasbourg Court that the domestic courts must look in determining whether or not to award compensation for damages for breaches of Convention rights. Amongst other observations, he said:

Damages in this class of case have been awarded for anxiety and distress caused by delays of this kind on a very modest scale. Most recently, in a domestic case - Guntrip v Secretary of State for Justice [2010] EWHC 3168 Admin - Mr Justice Ouseley awarded £1,200 to a prisoner whose review had been delayed for two years, as to one year by acts and omissions of the Secretary of State and as to one by the Parole Board. As in all cases, there were factors in that case peculiar to it such as, for example, the fact that the claimant suffered from mental illness which exacerbated his anxiety.

On the simple facts of this case - a delay of about six months caused by a simple administrative error - I am satisfied that the Strasbourg Court would make a modest award of damages on the principle found by Lord Bingham. There is a need to encourage compliance by individual officials or classes of official with time limits and practices laid down to ensure that the very important right - liberty - protected by Article 5 is upheld. It is not a sufficient or satisfactory answer that the delay resulted from an understandable administrative mistake; nor does Mr Murray suggest that it is.

I have considered whether by making an award of modest damages in this case I would be opening what used to be referred to as "floodgates". If I were to do so, as will be apparent from the award that I propose to make, only small trickles would flow through. But it does seem to me to be right in a case in which an individual prisoner has genuinely suffered anxiety and distress as a result of unjustified delay by the State that he should recover a modest award. Mr Justice Ouseley's award equates to about £50 a month for someone with the features applicable to the claimant in that case. I see no reason to depart from an award of approximately that amount. I therefore award this claimant £300 for anxiety and distress caused to him as a result of the six-month delay in this case. To that extent only this judicial review claim succeeds.

I make it clear that the declaration is made generally and that the damages are awarded against the Secretary of State and not the Parole Board.

Are there any consequential orders?

MR MURRAY: One small point of correction. The concession made by counsel for the Secretary of State in Bayliss was, I think, just made by him and not by the Parole Board.

MR JUSTICE MITTING: Appearing for the Parole Board.

MR RULE: Can I assist to this extent? Mr Kovats represented the Secretary of State, not the Parole Board. The concession was made on behalf of the Secretary of State. The Parole Board took, effectively, a neutral stance.

MR JUSTICE MITTING: You are absolutely right. I had forgotten that when I said the words I did. I will correct that in the transcript.

MR RULE: I also, on the same issue, on Bayliss, note - it might be my error - that my Lord referred to Lord Justice Latham. It was Lord Justice Dyson in Bayliss. The reason for the confusion is that it was Lord Justice Latham in O'Connell which I also relied on.

MR JUSTICE MITTING: Thank you for correcting that error.

MR RULE: In relation to consequential matters, can I ask for things in relation to costs? One is that a proportion of the claimant's publicly funded costs be borne by the Secretary of State and the Parole Board, both of whom contested the declaration and breach of Article 5.4 to the death, as it were. There has been at least substantial success. On the other issue it was one where there was not authority on the point and, being one of perhaps public significance and wider interest and application, it is a point that was properly taken on behalf of the claimant and resolved by the court today. That is the application for costs. I would also ask for detailed assessment of the claimant's publicly funded costs.

MR JUSTICE MITTING: You can certainly have detailed assessment of the publicly funded costs of the claimant. I will hear what is said by your opponents about your other matter.

MR MANKNELL: So far as the Parole Board is considered, the Board considers that it has succeeded substantially on the main points in this case. The Board would ask that the claimant, as a recipient of public funding, pay the Board's costs subject to the protection of Section 11 of the Access to Justice Act.

MR MURRAY: Clearly, the claimant is entitled to recover some costs against us in relation - - - - -

MR JUSTICE MITTING: You really had only a walk-on part.

MR MURRAY: - - - - - to the delay claim. Yes. It is a question of apportionment. Perhaps if we pay half of the claimant's costs.

MR RULE: I would certainly resist an application for costs against the claimant even with Section 11 protection on the basis that the Board has lost on ground 3, and in relation to the other issue, one of a wider public importance, it would be perhaps unusual for the Board to - - - - -

MR JUSTICE MITTING: The Board has not lost on ground 3, the Secretary of State has.

MR RULE: Very well. The declarations of wider application - - - - -

MR JUSTICE MITTING: It is the United Kingdom State which is responsible for breaches of Article 5, not necessarily individual elements within it.

MR RULE: In that case I rely on the Board's inactivity between January - - - - -

MR JUSTICE MITTING: I have exculpated the Board from responsibility on your damages claim. I did not, in doing so, intend to leave open the possibility that it was in some way to blame for delay, entitling you to a declaration. The delay, as I held it to succeed, is that of the Secretary of State full stop.

MR RULE: Very well. I now understand.

MR JUSTICE MITTING: I am sorry if I did not indicate.

MR RULE: It was my misunderstanding. I would nonetheless resist any application for costs against the claimant in prison on the basis of the confusion that has arisen. The Board in the previous case of Bayliss allowed the concession to be made. This time it did not allow the concession to be made. It has been resisted. The way in which the Board's materials are formulated so as to make less than clear what test is being applied by the law or what it is thought to be, in my submission, was rightly aired before the court today and is not a matter this claimant should bear responsibility for.

MR JUSTICE MITTING: As between the parties the claimant will pay the costs of the Parole Board subject to the Access to Justice Act qualification. The Secretary of State will pay half the claimant's costs of the judicial review against the Secretary of State only. If it is not clear, my intention is that the Secretary of State should not be called upon to pay any part of the costs of litigation between the claimant and the Parole Board.