Knights v The Parole Board of England and Wales

This judicial review claim arises from the Claimant’s request to the Parole Board for an oral hearing to consider his parole review. He challenges first, the refusal of that request, second, the Defendant’s policy of not agreeing to defer parole reviews for a period of longer than four months, and third, the exercise of that policy by a refusal to defer the review in his case. I granted permission for the claim at a hearing on 9 November 2017.

The Claimant is a serving prisoner who on 26 June 2008 was sentenced to imprisonment for public protection (IPP) for offences of making, possessing and distributing indecent images of children.

The law relating to IPP sentences was summarised in the judgment of Sir Brian Leveson P (with whom Thirlwall LJ and Gilbart J agreed) in another case brought by this Claimant, Knights v Secretary of State for Justice [2017] EWCA 1053 (Civ), [2017] 4 WLR 134:

“1.

The sentence of imprisonment for public protection (“IPP”) was introduced into the law by section 225 of the Criminal Justice Act 2003 (“the 2003 Act”). It provided for the mandatory imposition of an indeterminate sentence upon offenders who presented a significant risk to the public of causing serious harm from further serious offending and could follow conviction for a number of specified offences which carried a maximum punishment of imprisonment for ten years or more. The judge was required to specify the minimum period before which there was no eligibility for parole: this was calculated by reference to one-half of the conventional (but hypothetical) determinate sentence that would otherwise have been imposed. Parole, however, fell to be considered by the Parole Board which had to be satisfied that it was no longer necessary for the protection of the public that the offender be detained.

2.

A statutory presumption of dangerousness and restrictive exceptions to the imposition of an IPP meant that offenders qualified for the sentence having committed crimes which would have justified a conventional determinate sentence measured in weeks or months as well as years. As a result, some offenders became eligible for parole very quickly whereupon their cases required consideration by the Parole Board. The result was well-documented problems for the National Offender Management Service and the Parole Board which were both overwhelmed by the large number of prisoners requiring assessments, sentence plans and access to courses to enable them to demonstrate their safety for release.

3.

In an attempt to address concerns that offenders were being detained for months and years following parole eligibility either because they could not access courses or because of delays at the Parole Board, the criteria for the imposition of the sentence were amended by section 13 of the Criminal Justice and Immigration Act 2008 (“the 2008 Act”). The effect of the amendments were, first, to remove the mandatory requirement to impose IPP and to give judges the power to impose it when certain criteria were met; secondly, to remove the presumption of dangerousness in section 229; and, thirdly, to restrict the imposition of IPP to those offenders who had relevant previous convictions or where the offending warranted a determinate sentence of at least four years. On 8 May 2008, the Act was granted Royal Assent and the relevant provisions were brought into force on 14 July 2008: see article 2(1) and Schedule 1, paragraph 4 of Criminal Justice and Immigration Act 2008 (Commencement No 2 and Transitional and Savings Provisions) Order 2008 (SI 2008/1586), which was published on 17 June 2008.

4.

Problems remained with the operation of the sentence and, by section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), the sentence of IPP was abolished being replaced by a new life sentence the imposition of which was obligatory (unless unjust) following conviction for a second time of one of a defined group of violent or sexual offences where both previous and current offences have been met by or would call for, determinate sentences of ten years or more: see Schedule 15B to the 2003 Act, as inserted by Schedule 18 to LASPO. There is also a new form of extended sentence: see section 226A of the 2003 Act, as inserted by section 124 of LASPO . These provisions came into force on 3 December 2012 but were not made retrospective so that existing IPP sentences remained to be served by those upon whom they had been imposed notwithstanding that the sentence had been abolished.”

The Claimant was sentenced on 26 June 2008. If he had been sentenced after 14 July 2008, less than three weeks later, he would not have been eligible for an IPP. Nevertheless, that sentence was lawfully passed and he remains subject to it. An appeal against it was dismissed by the Court of Appeal (Criminal Division) on 25 July 2017. An application for judicial review, claiming that his continued detention infringed the Human Rights Act 1998, was dismissed by Elisabeth Laing J on 11 February 2015 and an appeal was dismissed on 25 July 2017 by the Court of Appeal whose judgment is quoted above and below.

That judgment of the Court of Appeal then summarises the onward progress of the Claimant’s sentence:

“13.

What happened following the imposition of the sentence is set out in detail by Laing J in her judgment at paras 6-24 which I gratefully adopt. In short summary, on 30 July 2008 a sentence objective was set for the Claimant which required him to complete a core sex offenders treatment programme (“SOTP”), followed by further SOTPs in the community after his release. In August/September 2008 initial paperwork was sent to the public protection casework section (“PPCS”), for which the Secretary of State is responsible.

14.

On 26 February 2009 the Claimant's tariff expired but he had not then completed the SOTP. A first review by the Parole Board was originally scheduled for this date and was delayed (by agreement) to allow him to do so. In October 2009, the course having been completed in July 2009, his case was put forward for intensive case management consideration. This review noted that neither the structured assessment of risk and need (“SARN”), nor the post-programme review report from the SOTP were available. The next hearing was deferred until February 2010.

15.

The SARN was completed on 10 December 2009. It concluded that the Claimant presented a “very high risk of sexual re-offending”, and recommended an extended SOTP (which could not be completed in the community). At the time, the Claimant was detained in HMP Wayland, which had closed its sex offender wing and associated programmes. As a result, that month, he was transferred to HMP Bure although its programmes department was not set up until March 2010 and it was not fully staffed until April.

16.

On 4 January 2010, the SARN was received by Psychiatric and Psychological Consultancy Services from HMP Wayland; it was provided to the Parole Board on 2 March 2010 when the hearing was deferred until 12 July 2010: given the conclusion that had been reached, this was not, perhaps, surprising. In any event, the hearing was further deferred when it transpired that the analysis of the psychologist instructed by the Claimant and the prison psychologist were significantly different. Further delay arose from the difficulty of finding a date on which both psychologists could attend. The Claimant began the extended SOTP in June 2011.

17.

On 1 August 2011, some 30 months after the expiry of his tariff, the Claimant's case was reviewed for the first time. The board concluded that he represented “a high risk of serious harm to children and a medium risk to a known adult”. It was asserted that he “continued to pose an unacceptably high risk of committing an offence which could cause serious harm and … the level of this risk is such that it could not be managed in the community”. He was therefore unsuitable for either release or a move to open conditions. The following month, the Claimant received notice that the review period set by the Secretary of State was 18 months (to allow for the extended SOTP a post-programme SARN and an assessment period thereafter).

18.

Meanwhile, on 28 July 2011, the Claimant was granted leave to appeal his sentence out of time but, on 5 October 2011 the Court of Appeal (Criminal Division) dismissed the appeal: see [2011] EWCA Crim 2533. In concluding that the judge was entitled to decide that the presumption of dangerousness should not be disapplied, the court (at para 30) made plain that its “central concern” was his moving to more serious contact offences that gave rise to a significant risk of serious harm, with the offences of downloading and distributing images offences looked at in the context of his other activities.

19.

Thus, the Claimant continued to serve his sentence. The extended SOTP was completed in November 2011 and, six months later, a claim for judicial review was intimated, being issued in August 2012. In that month, the Claimant started a course (“Better Lives Booster”) which he completed in November 2012 during which month an oral hearing before the Parole Board was directed. The SARN was completed in January 2013 and, by letter dated 2 May, the Board directed his release to approved premises. This was effected on 1 July 2013.

20.

On 19 September 2013, for breach of his licence by failing to disclose the true nature of further offending to his offender manager, the Claimant was recalled to prison. On 28 January 2014, a further Parole Board directed his release, again to approved premises. That release was effected on 12 March 2014 with the result that the hearing before Laing J was held after the Claimant had been released and while he was on licence.

21.

To bring the story up to date, on 28 November 2014, the Claimant admitted further breaches of his licence (not involving the commission of offences, but including having unsupervised contact with children) as a result of which, on December 2014, he was again recalled. Directions were issued by the Parole Board but a further hearing arranged for May 2015 was deferred because of late provision of reports. On 26 November 2015, the Board declined to direct release and accepted the recommendation of the prison psychologist that he should undertake a further programme. As a result, the Claimant remains in custody.”

The Defendant’s decision of 26 November 2015 was taken after an oral hearing. On 6 January 2016 the Secretary of State wrote to the Claimant, stating that he agreed with the Defendant’s view for the reasons given and considered that a number of risk factors remained outstanding, including sexual interest in girls aged about 14, sexual preoccupation, child abuse supporting beliefs and inappropriate sexual fantasy. The Secretary of State set the next review period at 18 months, to contain a number of elements including “engagement in assessments for the Healthy Sex Programme”. The target month for consideration by the Defendant was set as May 2017.

The Claimant’s assessment for the Healthy Sex Programme (“HSP”) was delayed. It was not until 23 November 2016 that a psychological sentence planning and review report by a Dr Harry Wood found him to be suitable for the HSP. The Claimant completed the Thinking Skills Programme (“TSP”) on 5 December 2016 and a post-programme report expressed positive views about his engagement with that course.

Meanwhile, in November 2016 the Secretary of State referred the Claimant’s case to the Defendant to consider, again, whether to direct release or to advise the Secretary of State on the Claimant’s suitability for open conditions and on the degree of risk involved, and to advise on any continuing areas of risk to be addressed. The referral stated that the Defendant was not being asked to comment on or make recommendations about the Claimant’s security classification in any closed prison, his specific treatment needs or offending behaviour work required, or the date of the next review.

In 2014 the Defendant had adopted a process known as Member Case Assessment (“MCA”). This is a form of triage for all cases referred to the Parole Board whereby a member of the Board chooses from a number of options. In the case of a post-tariff IPP prisoner the options are to direct release, recommend a move to open conditions, conclude the review by deciding against release or a move to open conditions, send the case for an oral hearing or to adjourn or defer for further information. Until 2014, indeterminate sentence referrals (such as this case) were subject to case management by Parole Board members before being listed for an oral hearing, while determinate sentence and recall cases were referred to oral hearings by panels considering the papers. The MCA process was intended to enable all cases to be dealt with in a similar way.

The MCA process now follows rules 5, 14 and 15 of the Parole Board Rules (SI 2016/1041) whose material parts provide:

“5.—(1) For all cases which have been referred to the Board, the Board chair must appoint one member of the Board to constitute a panel to consider the release of a prisoner or advise the Secretary of State in accordance with Part 3 (proceedings on the papers).

[…]

14.— […]

(4)

In … a case of a prisoner serving an IPP sentence, where the Board is considering the release of a prisoner, within 14 weeks of a case being referred to the Board, the single member appointed under rule 5(1) must decide that—

(a)

the prisoner is suitable for release;

(b)

the prisoner is unsuitable for release, or

(c)

the case should be directed to an oral panel.

(5)

When a single member appointed under rule 5(1) makes a decision that the case should be directed to an oral panel under this rule, that member may at the same time make any directions relating to the hearing that is to take place before an oral panel.

(6)

Where the Board has a duty to advise the Secretary of State with respect to any matter referred to it by the Secretary of State, the Board may advise the Secretary of State without an oral hearing.

(7)

The decision or advice of the single member must be recorded in writing with reasons for that decision, and the written record provided to the parties within a week of the date of the decision.

15.—(1) Where a single member appointed under rule 5(1) has made a decision (referred to in this rule as a “provisional decision”) that a prisoner is unsuitable for release under rule 14(1)(a), 14(3) or 14(4)(b), the prisoner may apply in writing for an oral panel to determine the case.

(2)

A prisoner who makes an application under paragraph (1) must serve the application, together with reasons for making the application, on the Board and the Secretary of State, within 28 days of the provision of the written record under rule 14(7).

(3)

If no reasons have been served in accordance with paragraph (2) after the expiry of the period specified by that paragraph, a provisional decision made under rule 14(1)(a), 14(3) or 14(4)(b)—

(a)

becomes final, and

(b)

must be provided to the parties by the Board within 35 days of provision of the written record under rule 14(7).

(4)

If reasons are served in accordance with paragraph (2), the decision whether the case should be determined by an oral panel must be taken by a member of the Board who—

(a)

is a duty member, and

(b)

is not the single member appointed under rule 5(1) who made the provisional decision.

(5)

If the decision taken under paragraph (4) is that the case should not be determined by an oral panel, a provisional decision made under rule 14 becomes final.”

Under the MCA process and pursuant to the referral of November 2016, a member considered the Claimant’s case on the papers and, on 21 March 2017, decided that he should not be released and that he should remain in closed conditions. Detailed written reasons were given. These noted that whilst the Claimant was frustrated by the time taken to take the steps required in his review period, he had made good progress in all respects. The views of Dr Wood were noted, as were the facts that the Claimant was now on the waiting list for the HSP, had been prescribed anti-libidinal medication, had worked effectively with his offender supervisor, was showing signs of being more open and honest with professionals and had recently completed the TSP and was awaiting his post-programme review. In particular it was noted that Dr Wood had assessed the Claimant as posing a “high risk of further sexual offending”, a “medium to high risk of sexual offending against teenage girls in the community” and a high risk of causing serious harm to children in the community. This assessment was said to be “unlikely to change until you are tested in less secure conditions”. It was also noted that the Claimant’s offender manager, offender supervisor and a psychologist all recommended that he complete the HSP before consideration could be given to progression, and that “reports indicate that you are accepting of these recommendations and are prepared to engage in HSP”.

The member’s report therefore stated:

“Once this programme, and any post programme reports are completed, the panel recommend that a further review of your release on licence may be appropriate. A detailed risk management plan is provided which, subject to your outstanding treatment needs having been met, appears to be an effective plan to manage you safely in the community. This plan will require a willingness on your part to engage with the licence conditions on a meaningful basis.”

On this basis the member concluded that the Claimant remained unsuitable for either release or transfer to open conditions. Finally the report stated:

“The panel has considered your case against the principles set out in the cases of Osborn, Booth and Reilly [2013] UKSC 61 concerning oral hearings. The panel does not find that there are any reasons for an oral hearing at this stage. Therefore, your case is being decided today on the papers. However, if you believe that your case should proceed to an oral hearing, you are invited to submit representations to the Parole Board within 28 days of receipt of this decision.”

On 6 April 2017 the Claimant made a written request for an oral hearing. The request was argued in clear and articulate terms in 2 ½ handwritten pages. In particular it stated:

“I would like to make the panel aware that I have accepted a place on the HSP and will start this intervention shortly. It is predicted this will be completed by late July/early August. Had the panel granted an oral hearing in my case the likelihood is that it would’ve been around July/August and I would’ve requested a deferral until September/October to enable completion of HSP and updated addendum reports. It is my belief that following completion of HSP the professionals in my case, and therefore the panel, are likely to be reassured that I am able to manage my risk factors, and that a period of 8 weeks or so beyond the programme completion target will allow sufficient time for brief updated reports. The provision of an oral hearing in the autumn will allow the panel to question either my HSP therapist or another suitably qualified person as to my progress with managing risk and level of insight.”

The request goes on to emphasise the progress which the Claimant had made and the reasons why a panel could in due course conclude that he could be released. The Claimant then concluded:

“Thank you for your careful consideration of these representations and I hope that you are able to see that there is some merit to deferring the conclusion of this review until an oral hearing in the autumn. Such a deferred decision with directions for updated reports beforehand has many benefits, including reduced administrative burden for the Secretary of State and the Parole Board, shorter update reports required from Offender Supervisor/Manager rather than full reports. Obviously from my perspective the benefit is the opportunity for release some 6 months earlier than the likely next review date of March 2018, and bearing in mind all the delays I have suffered gaining Parole hearings or access to courses I would hope that you would see this as compassionate and humane, particularly as I have always tried my best to learn how to manage my risk and behave in a socially responsible and conscientious way – I’ve made mistakes on licence, but I accept responsibility for these and ask for the opportunity to try again and do better at the earliest time.”

On 25 April 2017 the Defendant rejected this request, stating (inter alia):

“We confirm that you have submitted personal representations … requesting an oral hearing. The basis for your request includes: you will have completed HSP by early August 2017, updated reports could be submitted within a few weeks of completion, your TSP post-programme report was not considered and you are now taking anti-libidinal medication.

The MCA Duty Member … has carefully considered the dossier of 242 pages which included your TSP report, the negative paper decision and your personal representations. On this occasion, they do not agree that your case meets the criteria for an oral hearing.

They also considered whether it was appropriate to defer your review but current Parole Board policy is not to defer a review for more than four months. This simply does not allow sufficient time for completion of the HSP and post-programme reports to be provided.

The paper decision is therefore final and your current review is now concluded in accordance with the Parole Board Rules.

** On successful completion of the Healthy Sex Programme, it may be appropriate to ask the Secretary of State to consider brining your next review forward. This review would be assisted by provision of:

Healthy Sex Post-Programme Review report

Updated SPR-L and PAROM 1 that take account of the HRP recommendations.”

That decision, together with the paper decision of 21 March 2017, is the subject of the first ground of challenge in so far as it refuses the Claimant an oral hearing. In so far as it refuses to defer the Claimant’s review, it is the subject of the alternative third ground of challenge.

The reference in that decision to policy is to a document containing guidance entitled Deferrals and Adjournments, Guidance for Parole Board Members, dated June 2015, to which I shall return below. That policy document is the subject of the second ground of challenge.

Article 5.4 of the European Convention on Human Rights provides:

“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.”

Indeterminate sentence prisoners whose tariff period has expired are therefore entitled to a review, in accordance with a procedure which has a judicial character, of whether their continued detention is necessary for the protection of the public. It has repeatedly been accepted that the Parole Board possesses the essential features of a court for this purpose.

In Osborn and others v Parole Board [2014] AC 1115, the appellants were a prisoner who had been released on licence after serving half of a determinate sentence but had then been recalled to prison for a breach of licence conditions, and two life sentence prisoners whose cases were referred to the Defendant after expiry of their tariff periods. Each case was considered on the papers by a single member who declined to recommend or direct release, and in each case an oral hearing was refused. The Supreme Court allowed the prisoners’ appeals and gave guidance on when an oral hearing should be provided. It ruled that in order to act compatibly with article 5.4 of the European Convention on Human Rights and to comply with common law standards of procedural fairness, the Defendant was required to hold an oral hearing before determining an application for release or for transfer to open conditions whenever fairness to the prisoner required it. Although the circumstances in which this necessity would arise could not be exhaustively defined, guidance was given in the judgment of Lord Reed JSC. The Court’s conclusions were summarised at paragraph 2 of the judgment:

“i)

In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.

ii)

It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:

a)

Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.

b)

Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.

c)

Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.

d)

Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a “paper” decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner’s future management in prison or on future reviews.

iii)

In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.

iv)

The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.

v)

The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.

vi)

When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.

vii)

The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.

viii)

The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.

ix)

The board’s decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner’s release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.

x)

“Paper” decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.

xi)

In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.

xii)

The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness.

xiii)

A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty.”

Lord Reed added (at paragraph 112) that the conditions where Strasbourg case law mandates an oral hearing to satisfy article 5.4:

“[…] are likely to apply to most indeterminate sentence prisoners who have served their minimum terms. That is not to say that they will necessarily apply on every occasion when such a prisoner’s case is considered by the board: a prisoner’s case may be considered in different circumstances and at different intervals of time. Bearing in mind however that the continued detention of a post-tariff prisoner must be justified by his continuing dangerousness as independently assessed by the board, and taking account of the importance of what is at stake, it will in most cases be necessary as a matter of fairness that he should have an opportunity to appear in person before the board. That is consistent with the common law, as explained earlier.”

The Supreme Court in Osborn also decided (at paragraph 65) that it was for the court to determine for itself whether the Defendant’s procedure had been fair, and not merely to review the reasonableness of the Defendant’s decision.

It is also necessary to refer to R (Noorkoiv) v Secretary of State for the Home Department and another [2002] EWCA Civ 770, [2002] 1 WLR 3284. Here a life sentence prisoner challenged the policy whereby the Parole Board met at quarterly intervals to consider the cases of life sentence prisoners whose tariffs had expired during the previous quarter, and of the Board’s decision to list his case at the end of the quarter following expiry of his tariff, on the ground that the delay involved a breach of his right under article 5.4 to have the lawfulness of his continued detention speedily decided. The Court of Appeal held that a delay of up to three months after tariff expiry in considering a prisoner’s eligibility for parole was excessive, particularly because it was imposed for reasons unrelated to the nature or difficulty of the particular case,and that the Secretary of State and the Parole Board could not rely on administrative necessity or lack of resources to excuse it, and therefore that article 5.4 had been infringed.

Mr Rule, representing the Claimant, submitted that fairness required an oral hearing in this case. As a post-tariff IPP prisoner the Claimant has the protection of article 5.4. He was unlucky to be sentenced at a time when the judge was obliged to pass an IPP sentence and only three weeks before he would instead have received a determinate sentence. His tariff period of 12 months expired nine years ago. He has experienced delays in programmes being made available to him, including HSP, and such delays may be unlawful and cannot be excused by lack of resources: see R (Fletcher and others) v Governor of HMP Whatton and another [2014] EWHC 3586 (Admin). There have also been delays in his parole review process. He has plainly been making progress, as recorded above. His case is comparable with that of Mr Booth, one of the appellants in Osborn, who had raised significant issues on which the input of his psychiatrist might have been helpful, and who had been in custody for a very long time post-tariff, and in whose case the Board had been asked to advise on continuing areas of risk.

In particular Mr Rule submitted that, at an oral hearing, the Defendant would be able to explore the option of the Claimant completing further rehabilitative work in the community, either on day release from an open prison, or as a licence provision. He also submitted that at an oral hearing the Claimant could instruct an expert psychologist, such as a Dr Van Leeson who has previously supported the Claimant being transferred to open conditions and has said that the HSP is not necessary for him, so as to challenge the Defendant’s provisional view of his case.

In response, Ms Rowlands for the Defendant reminded me that decisions about fairness are entirely sensitive to context. She pointed out that the Claimant’s perception of unfairness in relation to his case as a whole is not necessarily justified, referring for example to the decision of Elisabeth Laing J, upheld by the Court of Appeal, dismissing his application for judicial review of his sentence and finding that, notwithstanding periods of delay, he had been offered a reasonable opportunity for rehabilitation. Ms Rowlands also referred to evidence indicating that the Claimant had been difficult to deal with, having twice been recalled for breaches of his licence conditions, and having in the past argued that the HSP was not necessary to manage his future risk although he was willing to comply with it (see the report by his Offender Manager dated 23 December 2016). Turning to the Claimant’s request for a deferred oral hearing, she described his prediction of the likely timetable as aspirational but not realistic.

In support of that contention Ms Rowlands referred to a letter dated 24 July 2017 from the National Offender Management Service, responding to a Pre-Action Protocol Letter of 12 July 2017 from the Claimant, which explained that after completing HSP:

“His progress would then be reported in a Structured Assessment Risk Need (SARN) report, which is completed approximately six months after completion of HSP. This is to allow a consolidation period after the programme in order for prisoners to demonstrate the outlined objectives within the SARN.”

I bear in mind that this evidence post-dates the decision under challenge and I cannot be sure that its contents were in the mind of the decision maker. However, I have been given no reason to doubt the accuracy of this description of how the HSP works in practice, and it seems probable that the Defendant will have been aware of the likely timescales.

Ms Rowlands also noted that provision of the HSP to the Claimant was delayed by his Court proceedings challenging his sentence. As those proceedings could have led to his immediate release, the authorities did not think it proper for him to start the HSP course in the meantime, because the outcome might have meant that one of the valuable places on the course was wasted. In fact the Claimant started the HSP in January 2018 and will finish it in March 2018.

In my judgment, the Claimant’s request for an oral hearing cannot be logically separated from his request for deferral of his review. The terms of his request unequivocally accepted that he would not be considered for release or for a move to open conditions until his successful completion of the HSP.

It follows that at the date of the decision(s) under challenge, there could not have been any debate at an oral hearing about any of the matters which the Supreme Court in Osborn said might necessitate an oral hearing. The point is not simply that the outcome of the hearing was certain, i.e. that there would be no release or transfer. The point is that, at that time, there was no disagreement either about that outcome or about the forward management of the Claimant’s case. In particular there was no reason for the Defendant to anticipate the Claimant wishing to call evidence from a psychologist about his need, or lack of it, to undertake the HSP. The report by his Offender Manager shows that this subject had been debated in the past, but by the time of the decision it had been agreed that the Claimant should undertake the HSP. And if a decision was taken to defer, at the deferred hearing any question of whether he needed the HSP would be academic because he would by then have undertaken it.

It is true that the Claimant is in the category of post-tariff indeterminate sentence prisoners for whom Lord Reed at paragraph 112 of Osborn said that an oral hearing would be needed “in most cases”. “Most cases”, however, does not mean “all cases”. The same paragraph of Lord Reed’s judgment, quoted at paragraph 21 above, makes the important point that the conditions requiring an oral hearing in such cases will not necessarily apply whenever a case comes before the Board. In my judgment the present case is a good example of what Lord Reed meant. The real question facing the Defendant at the time of the decision(s) was not whether an oral hearing was needed, but was whether the review should be deferred to enable the Claimant to complete the HSP. Indeed, if the review was so deferred, one possible outcome would be that the single member might recommend release or transfer on the papers and the question of an oral hearing might never arise at all.

Therefore, substituting the Court’s judgment for that of the decision maker (and not merely reviewing the reasonableness of the decision), there was no reason to direct an oral hearing and no unfairness in the refusal of an oral hearing. Ground 1 of the claim therefore fails.

This is the challenge to the Defendant’s policy on deferrals. The Claimant contends that the policy places an unlawful fetter on the Defendant’s discretion. This would also support ground 3 by leading to a conclusion that the application of the policy to the Claimant was unlawful.

To explain the background to the policy, I have been shown a witness statement dated 12 October 2015 by Sir David Calvert-Smith, the Defendant’s Chairman (as he then was), which was adduced in another application for judicial review also concerning a parole review.

The statement explains that the Supreme Court’s decision in Osborn significantly broadened the circumstances in which the Board would be required to hold oral hearings. As at September 2014, it appeared that the demand for oral hearings had nearly doubled by comparison with the period before Osborn, and the backlog of cases more than doubled from December 2013 to December 2014. Following the Supreme Court’s decision, in November 2013 the Board set up a project known as Fair for the Future – Delivering on Osborn to assess the impact of the judgment and the changes which would be needed. In the next months there were various initiatives aimed at making the best use of resources and improving case management.

One of these was the introduction of the MCA system referred to at paragraph 9 above. Sir David describes this as being based on the concept that cases are to be assessed according to their individual needs, ensuring that proportionate resources are dedicated to each case. The aim was also to improve the quality of information about prisoners and to reduce the number of deferrals, both before and on the day of the hearing.

Sir David states that although the key challenge for the Board was to increase the number of oral hearings completed, a further significant problem was the high proportion of cases which were deferred or adjourned, thereby wasting resources. Various studies were carried out. In late 2014 the Board commissioned a report from Allen Lane Consulting which highlighted, among other things, “the extent to which members appeared to agree to defer cases in order to give prisoners an opportunity to enhance their chances of a successful outcome at their review” (although the leading causes of deferrals were inadequate or missing reports, non-attendance by witnesses and additional information sought or directions given by the panel).

Among other initiatives was the introduction of the policy which is now under challenge. As to this, Sir David says:

“The new guidance advises Parole Board member [sic] that the maximum period for deferral should not normally exceed 4 months. This guidance has been updated to enable cases to conclude more swiftly, with fewer delays to their original target dates. The largest proportion of deferrals relate to prisoners who are seeking to enhance the outcome of their review by seeking more time to complete lengthy offending behaviour programmes or periods of release on temporary license (ROTLs). The Management Committee felt that there was a need for clearer direction as to the Board’s overall approach to granting deferrals in these circumstances. By applying the updated guidance, more cases will conclude on time, rather than suffering lengthy deferrals, but will also remain fair to the prisoner by concluding in these timeframes.”

The policy itself is contained in a document entitled Deferrals and Adjournments, Guidance for Parole Board Members, dated June 2015. Its introduction states:

“1.1

It is recognised that decisions to defer must be based on the individual circumstances of the case before the panel and that the Parole Board has a duty to provide a fair hearing. This guidance aims to assist members by indicating where the threshold is likely to lie between deferring a case to ensure a fair hearing and deciding to proceed and conclude the case against a prisoner’s wishes, on the basis that the panel considers that a fair hearing can be provided by concluding without a deferral for more information.”

The guidance explains that where a deferral is granted, this should happen as soon as possible to avoid waste of resources, delay and expense. Deferral requests may arise at the MCA stage or after a case has been allocated to an oral hearing panel, either before or on the hearing date. The guidance continues:

“3.3

At either stage, panels should consider: i) Whether additional information is required in order to make the assessment of risk and provide a fair hearing and it will be available within a short specific timescale; and ii) Whether the information is materially likely to affect the decision as to whether either an oral hearing is required (at MCA stage), or the eventual outcome (at pre-listing or listed stage).

3.4

If the circumstances don’t meet these criteria, then a decision to defer should not generally be made.

3.5

Members should also consider whether a case has been deferred previously; there are some cases where one deferral after another is granted and the danger is becoming drawn in to sentence progression and failing to provide the speedy review of detention that is required. Members should guard against deferrals which seek to assist the offender, but run the risk of actually delaying his progress.”

The guidance then provides:

“3.6

Examples of deferral requests that should not normally be granted

a.

Where the prisoner is about to commence a course or wishes to complete a course, and a report is unlikely to be available within 4 months. The panel should take into account that a successfully completed course may not be of use without a subsequent period of monitoring to see if lessons learned are being put into practice. The panel should also take into account where the outcome of the course is unlikely to be a material factor (see b. below).

b.

Where a prisoner is approaching the end of a course but where the outcome is unlikely to be a material factor, for example, where multiple risk factors are present and it is clear to the panel that the course report will have little effect on the overall assessment of risk or the potential outcome.

c.

To enable a transfer to another establishment to take place for courses or therapy to begin. Timescales here are very uncertain and are likely to delay the case for many months, or even years.

d.

Where a prisoner recently arrived in open conditions wishes to be assessed for, and complete home leaves and/or undertake booster work. Prisoners in open conditions will not be permitted to take unescorted leave until they have been assessed by the Prison Service. Unless evidence is available to say that reports will be written within a short period of time, the process is likely to take at least 6 months e. Where a prisoner wants to await the outcome of criminal proceedings. The member should consider the available reports and decide whether sufficient material is there about the alleged incident(s) to enable the panel to reach a decision, potentially with the benefit of oral evidence, as to whether the risk of further 3 offences is acceptable, regardless of whether a crime has actually been committed. Remember, the Parole Board is not required to adopt the criminal standard of proof. However, where the prisoner is pleading not guilty to an offence and court case is soon to be concluded it would be advantageous to defer for the outcome as this is likely to affect the proposed risk management plan and recommendation of the Probation Officer and may avoid the need to seek to enquire into the circumstances of the offence prior to the conclusion of the criminal proceedings.

3.7

Examples of deferral requests more likely to be appropriate to grant

a.

The prisoner is about to complete offence related work and the report will be available soon and the information is likely to affect the outcome of the review and/or the ability to fairly assess the risk.

b.

A material witness is unable to attend on the date of the panel. This type of request will require the panel to consider the reason given by the witness and decide whether it is reasonable or not. Members should consider alternative stand-ins, or whether attendance by telephone or video link may assist in securing attendance. Members are also reminded that they may direct one of the parties to apply for a Witness Summons, where appropriate.

c.

The prisoner needs more time to obtain legal representation. Indications are that the courts will afford the prisoner a lot of leeway in this area, but this should be balanced against fairness generally. A determinate prisoner whose SED or NPD is within a few months is unlikely to achieve a meaningful oral hearing or an oral hearing at all if the case is deferred. It may actually be fairer to provide an oral hearing without representation, than none at all. Members will need to consider the stage the case is at and relevant time periods in these circumstances.

d.

A prisoner in open conditions has completed most of what is required but is nearing the end of a crucial course or needs to complete a limited number of home leaves which have commenced or will do so imminently, or where the release plan is not yet in place but is likely to be soon. An alternative to deferral for such cases might be where this information is ascertained very shortly before an oral hearing date. In such cases, members can consider whether it is better to go ahead with the oral hearing and seek to adjourn on the papers for updated reports/detailed risk management plan and subsequent written submissions. There is a danger here that a panel will need to reconvene, but it is put forward as a possible alternative to consider rather than a deferral on the day or a few days before a listed hearing.”

Ground 2 of this claim is aimed at paragraph 3.6a of the guidance quoted above. I have quoted the guidance at length so that each provision can be interpreted in its context. This reveals that the policy does not simply draw a line at four months as a period beyond which a case will not be deferred. Instead it contrasts, on the one hand, cases in which the successful outcome of a course is both relatively distant and uncertain (e.g. because that outcome depends on a period of monitoring as well as on completion of the course) and, on the other, cases in which the outcome of such work is relatively imminent and is likely to be significant.

The guidance advises against deferral in the former type of case but does not rule it out. Instead it provides that such deferrals will not “generally” or “normally” be granted, making clear that there remains a discretion to defer in all cases.

Despite this, Mr Rule also contends that the cut-off at four months is an unlawful fetter on the Defendant’s discretion to accede to requests for deferral. He relies on R (Guittard) v Secretary of State for Justice [2009] EWHC (Admin). There a policy stated that the Secretary of State would “normally” consider transferring prisoners from closed to open conditions only when a positive recommendation from the Parole Board had been accepted. It was held that this unlawfully fettered the Secretary of State’s power to transfer without such a recommendation.

However, in my judgment Guittard does not assist, for two reasons. First, in that case the sentence containing the key word “normally” was found to be ambiguous, so that it did not necessarily acknowledge the Secretary of State’s admitted power to transfer. Second, there was positive evidence that, despite the use of the word “normally”, it was the Secretary of State’s “invariable practice” to seek the Board’s advice on all proposed transfers.

In the present case, by contrast, the wording makes it clear that although requests to defer where a report is unlikely to be available within four months “should not normally be granted”, decisions must be based on individual circumstances: see paragraph 1.1 of the guidance. I am therefore satisfied that the guidance leaves the Defendant’s discretion intact.

Mr Rule further argues that the policy contained in this guidance is incompatible with article 5.4 and/or the common law rules of fairness, because the typical period needed for a prisoner to complete a course and obtain the necessary reports is six months, and so a cut-off at four months means that deferral cannot be used for this purpose. This in turn means that a prisoner faced with the need to complete a course is inevitably forced to wait for his next parole review. The date for a future review is set by the Secretary of State and is typically in the range from 18 months (as it was in this case) to 24 months. Therefore the policy introduces an avoidable delay of 12 to 18 months before a prisoner can be considered for release. Mr Rule compares this with the policy of listing cases in quarterly batches which was held to be unlawful in Noorkoiv.

Mr Rule relies on the evidence of his instructing solicitor Mr Kenyon, who is experienced in parole reviews, for the proposition that six months is “a good rule of thumb” for the time taken to complete an offending behaviour programme and for progress thereafter to be assessed in a report. He may be right about the rule of thumb, though in this case it appears that the likely timescale was rather longer than six months as will appear below.

In my judgment, Mr Rule’s argument depends on a false assumption that a deferral request will always occur at the start of the period in which a prisoner is to undertake a course and then await a report. Instead, the guidance acknowledges the fact that, because the duration of each review cycle is set a long time in advance, the actual review date may arrive at any point during a period in which a course either has been or is to be undertaken. There will therefore be cases in which, when a review date arrives, a significant report cannot yet be provided. Sometimes provision of the report will be reasonably imminent, in which case deferral may be appropriate. But where the report is still a long way off and, even when received, may or may not be of assistance, the guidance indicates that it will then be more appropriate for that report to be considered in the next review cycle and therefore for deferral to be refused.

It is therefore not correct to suggest that the four month cut-off is calculated to prevent prisoners from relying on courses and reports. It will have that effect only where insufficient progress has been made to warrant delaying the review. Whilst the choice of four months, or any other period, as the cut-off risks being arbitrary, there is no legal objection to guidance providing a rule of thumb, so long as it does accommodate flexibility in individual cases. As I have said, this guidance contains that flexibility.

Nor does it seem to me that this guidance creates systemic delays in pursuance of administrative convenience or because of lack of resources, so as to fall foul of Noorkoiv. In my judgment it is legitimate for the Defendant to maintain a policy which is designed to avoid delays arising from deferrals and which is broadly for the benefit of all prisoners who are subject to parole reviews. It is not comparable with the practice of listing reviews in batches in Noorkoiv whose invariable effect was to delay reviews until after the tariff expiry date, from which time continued detention was unlawful unless justified. If upon the arrival of a review date a prisoner has not completed the steps which are necessary for him to progress, it is not unfair for him to have to complete those steps and then await his next review. Excessive delay in enabling him to complete those steps or in arranging the next review could of course be unlawful, but that is not the subject of this claim.

For these reasons, in my judgment, the Defendant’s policy is not unlawful and Ground 2 must be dismissed.

Had there been merit in the challenge to the policy, I would not have upheld the Defendant’s submission that the claim was out of time. In my judgment the Claimant could not have been expected to bring a potentially academic challenge to the lawfulness of the guidance before it was of practical significance in his case. Also, it seems to me that it would always have been open to him to bring a timely challenge to the Defendant’s application of the guidance in his case on the ground that it introduced an unlawful fettering of discretion. In any such challenge the Court would have had to rule on the effect of the guidance, whether or not the claim challenged the underlying guidance as well as the individual decision.

The Claimant submits that, even if it was lawful to refuse an oral hearing at the time of the decision(s) and even if the guidance was lawful, fairness nevertheless required the Defendant to accede to the Claimant’s request for his review to be deferred.

There was a debate as to whether this ground, like ground 1, requires the Court to assess the proportionality of the decision for itself or whether it only requires a review of the legality and rationality of the decision. In practice both approaches lead to the same result in the present case and therefore I have considered both without choosing between them.

Mr Rule argues that the refusal to defer introduced significant avoidable delay for the Claimant. What happened in fact was that, following the refusal on 25 April 2017, the Secretary of State on 9 May 2017 set a period of 18 months until the next review. The Claimant’s then solicitors sent a letter challenging this period as being excessive. By a reply dated 24 July 2017 the Secretary of State explained that there had been consideration of whether the Claimant should be placed on HSP while his Court of Appeal decision was still pending. It had been decided that this risked wasting a place on the course and therefore the outcome in the Court of Appeal would be awaited before a placement would be offered. The Claimant was said to be “at the top of the list for HSP” and it was hoped that he would be offered a place in September 2017. The letter then (in the passage quoted at paragraph 27 above) explained the onward timescale, referring to the need to complete a “SARN” approximately 6 months after completion of the course. The letter continued:

“This is to allow a consolidation period after the programme in order for prisoners to demonstrate the outlined objectives within the SARN. This timetable has been agreed with professionals managing Mr Knights, and it is not possible for Mr Knights to complete this work and have a completed SARN report within 12 months. Notwithstanding, as set out above, that Mr Knights would also need to demonstrate that he has consolidated his learning before his next review.

The Secretary of State in his letter of 9 May 2017, has stated, ‘Should the necessary work be completed in advance of the set period, the Secretary of State may consider bringing the review date forward’. Therefore until such time, Mr Knight’s next review period will remain at 18 months.”

That letter is important for three reasons. First, it sheds light on the length of the period of deferral which would have been needed and tends to confirm that the view which the Claimant had expressed in his deferral request was optimistic. Second, it shows that if the necessary work is completed before the end of the 18 months, there may be a possibility of bringing the next review forward. Third, it shows that a delay in finally accessing the HSP was caused by the Claimant’s Court of Appeal case, rather than by the decision not to defer his review.

In those circumstances I conclude that the defendant’s application of the guidance by refusing to defer was rational. It was also proportionate, in the sense of being reasonably necessary as part of an overall fair review system requiring a reasonable balance between the needs of all prisoners awaiting reviews. The Noorkoiv decision shows that lack of resources will not excuse avoidable and significant delays in providing reviews. Nevertheless, bearing in mind the complexity of a parole review and the need to align the various types of evidence that are needed in a typical review (matters which are discussed in some detail in the first witness statement of Declan McHenry, an operations manager for the Defendant), I do not consider it to be a requirement of article 5.4 (or of the common law) for all reviews to occur immediately after a prisoner completes a relevant course and assessment. This is a question of practicability, not lack of resources.

As I said when granting permission, it is somewhat troubling that the Defendant’s decision letter of 25 April 2017 does not refer to the discretion to defer a review for longer than four months, stating simply that “policy is not to defer a review for more than four months” and that this “simply does not allow sufficient time”. On balance I conclude that the author of the letter will have been aware of the discretion, given the very clear terms in which it is expressed in paragraph 1.1 of the guidance, and therefore that there was no failure to consider exercising that discretion. However, it would be prudent for the Defendant’s members to be reminded of it.

In the present case, as I have said, the Claimant has in fact begun the HSP in January 2018 and will complete it in March 2018. The evidence suggests that a completed SARN report may be available in around September 2018 and it seems that his next review is likely to take place shortly after that. This reinforces my conclusion that the refusal to defer did not cause an unreasonable and avoidable delay. It is also a reason why a quashing order would not have been appropriate, even if I had concluded that the Defendant had unlawfully fettered its discretion when refusing to defer. On these facts any deferral would have had to be for far longer than the recommended maximum of four months, and would have been contrary even to the most flexible reading of the guidance.

Ground 3 therefore fails.

This claim must therefore be dismissed.