Dunn v Parole Board [2008] EWCA Civ 374

[2008] EWCA Civ 374Case No B2/2007/1564
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
HH JUDGE DARROCH
6NR00380
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/04/2008
Before
LADY JUSTICE SMITHLORD JUSTICE THOMASLORD JUSTICE LLOYD
Between
Peter David DunnAppellantThe Parole BoardRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Hugh Southey (instructed by Hatch Brenner) for AppellantSteven Kovats (instructed by The Treasury Solicitor) for RespondentHearing Hearing date: 29 January 2008
JudgmentLord Justice Thomas :
[1]The claimant appeals from the decision of the Norwich County Court striking out his claims under the Human Rights Act 1998 (HRA) and for false imprisonment arising out of his detention after recall to prison from that part of his sentence he was serving on licence in the community. The appeal raises issues on the scope of CPR Part 11, whether a claim lies for false imprisonment as a result of delay by the Parole Board and whether an extension of the period for bringing the HRA claim should be granted under s.7(5) of the HRA.

The factual background

[2]On 17 March 1994 the claimant was sentenced at the Crown Court at Canterbury to a total of 12 years imprisonment for wounding with intent contrary to s.18 of the Offences against the Person Act 1861, possession of a firearm with intent to endanger life and aggravated burglary.[3]On 1 December 2000 the claimant was released on licence from HM Prison Maidstone to serve the balance of his sentence in the community under the provisions of s. 33 (2) the Criminal Justice Act 1991 (CJA 1991) as he had served two thirds of his sentence in prison. On the preceding day he signed the terms of his licence conditions which specified he must reside at a named hostel.[4]He did not go to that hostel and on that same day, 1 December 2000, the Probation Service requested the revocation of his licence because he had failed to attend the named hostel. The provisions relating to the recall of the claimant as a long term prisoner were set out in s.39 of the CJA 1991 (as amended):
“s 39 Recall of long-term and life prisoners while on licence. (1) If recommended to do so by the Board in the case of a short-term or long-term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison. (2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable. (3) A person recalled to prison under subsection (1) or (2) above— (a) may make representations in writing with respect to his recall; and (b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations. (4) The Secretary of State shall refer to the Board— (a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and (b) the case of a person recalled under subsection (2) above. (5) Where on a reference under subsection (4) above the Board— ….. (b) recommends in the case of any person, his immediate release on licence under this section, the Secretary of State shall give effect to the recommendation. …. (6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.”
[5]The Secretary of State, acting under s 39(2), revoked his licence and recalled him to prison. The claimant was arrested and taken to HMP Elmley. The Secretary of State referred the recall to the Parole Board under s. 39 (4); the claimant was entitled to make representations to the Parole Board with respect to his recall under s.39(5) and did so; it was then for the Parole Board to decide whether to recommend his release and, when it did so, it was the Secretary of State’s duty to release him under s.39(5).[6]As the claim against the Parole Board was based on delay by the Parole Board in reviewing his recall, it is necessary briefly to identify the principal steps taken: i) On 12 December 2000 the claimant received his recall dossier; this gave as the reason for his recall his failure to report to the named hostel. ii) On 20 March 2001 the claimant’s then solicitors made written representations against his recall; in them it was claimed that at the time he signed the conditions of his licence he lacked reading glasses and did not appreciate he had to report to the hostel. iii) On 4 April 2001 the Parole Board declined to recommend his release on the basis of the written materials before it. iv) On 29 May 2001 the claimant’s then solicitors requested an oral hearing; they claimed that the decision had been made on the basis of documents not disclosed to the claimant. The claimant’s then solicitors argued that it was clear “that Article 5(4) [of the Convention] can apply to decisions to revoke a prisoner’s licence and recall him to prison”; a detailed argument was put forward in support of this contention. v) A detailed argument was put forward as to why the actions of the Parole Board violated the claimant’s rights under Article 5(4) of the Convention. This 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.” vi) On 4 July 2001 HM Prison Service disclosed additional probation reports. The Parole Board told the claimant that he might request an oral hearing. vii) On 6 July 2001 the claimant’s then solicitors made representations about the report and repeated the request for an oral hearing. The Parole Board decided at the end of July 2001 to hold an oral hearing and on 15 August 2001 notified the claimant’s then solicitors of the date for the hearing. viii) On 28 September 2001 the oral hearing took place.[7]The Parole Board recommended his release on 1 October 2001; it accepted the evidence of the claimant that he had not been aware that he should report to the named hostel by a given time. The Secretary of State ordered his release on 2 October 2001.[8]The claim under the HRA that the Parole Board acted unlawfully because of the delay in the review of the recall was not commenced until 21 January 2006. The events that explain that long delay were: i) The evidence of the claimant (as set out initially in a statement provided by his present solicitor in October 2006) was that on his release he asked his then solicitors if they could advise him on any claims he might have in respect of his recall; he was told some time thereafter that those solicitors did not any longer conduct civil litigation. He then contacted three or four solicitors in the Croydon area and was told in initial interviews by those solicitors that there was little chance of success. ii) Wholly separately from these events (and, on the evidence before the judge and this court, unknown to the claimant) another prisoner, West, had commenced judicial review proceedings in 2001 against the Parole Board in relation to its decision in October 2001 not to release him after his recall under s.39 of the CJA 1991 in August 2001. He contended that his Convention rights under Articles 5 and 6 had been breached. On 26 April 2002, Turner J decided in R (West) v Parole Board [2002] EWHC 769 (Admin) that the recall of a prisoner did not amount to the imposition of a fresh criminal sanction and there was no scope for importing into the recall provisions the formal requirements of Articles 5 and 6. Article 5 was not engaged. The Parole Board did not have to give him an oral hearing. iii) On 27 January 2005, the House of Lords decided on appeal [2005] UKHL 1 ([2005] 1 WLR 350) that the Parole Board had a public law duty at common law to act in a manner that fairly reflected the interests at stake. Although this did not require the Parole Board to hold an oral hearing in each case, such a hearing must be held where circumstances made it fair to hold such a hearing, such as where facts were in issue. The House also held that, although the provisions of Article 5(1) of the Convention were not relevant as the possibility of recall was an integral part of the sentence passed after conviction, the provisions of Article 5(4) were engaged in relation to a recall. The Parole Board’s review of that decision in accordance with the common law requirements of procedural fairness would satisfy Article 5(4). However the procedures followed by the Parole Board had not, in the circumstances of the recall of West and the other appellants, satisfied those requirements, as the Parole Board had failed to hold an oral hearing. iv) In the autumn of 2005 the claimant contacted the solicitors who subsequently agreed to act for him in this claim to seek advice as to whether he had a claim against the police in connection with his arrest prior to his recall. After advice was obtained from Counsel, the claimant issued proceedings on 24 January 2006 in the Norwich County Court against the Parole Board claiming a declaration that his human rights had been breached and damages under s.6 of the Human Rights Act 1998 on the basis that the Parole Board had not acted speedily as required under Article 5(4); its decision in October 2001 showed that the claimant was probably eligible for release shortly after his recall.

The procedural background

[9]Prior to the commencement of proceedings, the claimant’s counsel and solicitors had well in mind the provisions of s.7(5) of the Human Rights Act 1998 which requires that proceedings by a person who claims that a public authority has acted in a way which is made unlawful under s.6 of the Act must bring proceedings before:
“The end of – a) the period of one year beginning with the date on which the act complained of took place; or b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any ruling imposing a stricter time limit in relation to the proceedings in question.”
[10]Given the period of delay in bringing the claim under the HRA, the claimant in his particulars of claim sought an extension of time under s.7(5)(b) of the HRA on the basis that the claim was brought within one year of the decision of the House of Lords in West. The proceedings were issued without the grant of public funding; this was granted on 4 April 2006 and the proceedings served on 7 April 2006[11]As one of the issues which arose on this appeal concerns the effect under CPR Part 11 of actions of the solicitor to the Parole Board after the service of the claim on 7 April 2004, it is necessary to set out briefly what happened: i) Service was acknowledged on behalf of the Parole Board on 25 April 2006; the box on the form which stated: “I intend to defend the claim” was ticked. ii) On 9 May 2006 the solicitor to the Parole Board asked the claimant’s solicitors for a stay until 9 August 2006 so it could investigate the claim; chasing letters were sent by the Parole Board’s solicitor on 12 and 18 May 2006. On 18 May 2006 the Parole Board’s solicitor spoke to the claimant’s solicitors by telephone. They consented in principle to the Parole Board’s stay pending formal instructions from the claimant. iii) On 2 June 2006 the Parole Board applied to the court for stay in order to investigate the claim. On 5 July 2006 District Judge Rutland ordered the Parole Board to serve its defence by 9 August. iv) On 8 August 2006 the Parole Board applied to strike out the claim on the basis that the claimant had disclosed no reasonable ground for bringing the claim and in the alternative for summary judgment on the basis that he had no real prospect of success. The basis of the application was that proceedings had not been brought within one year and it would not be equitable to extend the period.[12]Prior to the hearing of the Parole Board’s application, the claimant applied on 15 February 2007 to amend the claim to include a claim against the Parole Board for false imprisonment; this was pleaded on the basis that the claimant was falsely imprisoned as a result of delay by the Parole Board in holding a review.[13]On 26 March 2007 His Honour Judge Darroch granted the claimant permission to make the amendment at the hearing of all the applications, but in a judgment given on 29 March 2007 struck out the whole of the claim, including that made by amendment. The Judge gave permission to appeal; it was subsequently directed that the appeal be heard in this court.

The issues

[14]Three issues arose on this appeal: i) Whether the court should have determined under CPR Part 11 that the filing of the acknowledgement of service by the Parole Board precluded it from arguing the issue of limitation under s.7(5) of the HRA. ii) Whether the claim for false imprisonment should be struck out. iii) Whether this was an appropriate case for the court to extend the period for bringing the claim under s.7(5) of the HRA. (1). CPR PART 11: THE JURISDICTION OF THE COURT[15]The claimant contended that the judge should have decided that, because the Parole Board had not made an application under CPR Part 11 to strike out the claim within 14 days of filing of acknowledgement of service, it had lost its right to rely on the limitation provisions in s.7 of the HRA 1998. The application was not made within 14 days. This contention failed before the judge.[16]Part 11 provides:
“(1) A defendant who wishes to – (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction, may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have … (3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction. (4) An application under this rule must: (a) be made within 14 days after filing the acknowledgement of service… (5) If the defendant – (a) files an acknowledgment of service; and (b) does not make such an application within the period for specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim.” (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction, may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have … (3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction. (4) An application under this rule must: (a) be made within 14 days after filing the acknowledgement of service… (5) If the defendant – (a) files an acknowledgment of service; and (b) does not make such an application within the period for specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim.”
[17]It was submitted that the Parole Board’s reliance upon the limitation defence in s.7 of the HRA went to the jurisdiction of the court within the meaning of that term as used in CPR Part 11. Although it could not be argued that this was a case where the Parole Board could dispute the court’s jurisdiction to try the claim under CPR 11(1)(a), this was a case where the Parole Board was arguing the court should not exercise its jurisdiction within CPR 11(1)(b). As it was common ground that the Parole Board had not made an application within the period of 14 days, the Parole Board was to be treated as having accepted that the court had jurisdiction and therefore lost the right to rely on s.7 of the HRA 1998.[18]This bold and novel argument was advanced in this court upon the basis of the decision of this court in Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203. In that case, the claimants had issued a claim form but had not served it within the four month period provided for in CPR 7.5(2). Shortly before the expiry of the four month period, the claimant applied to the court to extend time for service of the claim form; the District Judge extended the time for service on the basis of the evidence put forward by the claimant. Prior to the service of the claim form, the defendant applied to set aside the order extending the time for service. Before that application was heard the claim form was served on the defendant whose solicitors acknowledged service, ticking the box “I intend to defend all of the claim” but not ticking the box “I intend to contest jurisdiction”. It was contended by the claimant that in the circumstances CPR 11 was engaged and, as the conditions in CPR 11(5) were satisfied, the defendant was to be treated as having accepted that the court should exercise its jurisdiction to try the claim, notwithstanding the late service of the claim form. The court held that this contention was correct:
“22. In our judgment, CPR 11 is engaged in the present context. The definition of “jurisdiction” is not exhaustive. The word “jurisdiction” is used in two different senses in the CPR. One meaning is territorial jurisdiction. This is the sense in which the word is used in the definition in CPR 2.3 and in the provisions which govern service of the claim form out of the jurisdiction: see CPR 6.20 et seq. 23. But in CPR 11(1) the word does not denote territorial jurisdiction. Here it is a reference to the court’s power or authority to try a claim. There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR 11(1)(a)) or that the court should not exercise its jurisdiction to try a claim (CPR 11(1)(b)). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should not exercise its jurisdiction to do so in such circumstances. In our judgment, CPR 11(1)(b) is engaged in such a case. It is no answer to say that service of a claim form out of time does not of itself deprive the court of its jurisdiction, and that it is no more than a breach of a rule of procedure, namely CPR 7.5(2). It is the breach of this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim.” “24. We would, therefore, hold that CPR 11 is engaged in the present context. This accords with what was said by Tugendhat J in Mason v First Leisure Corporation Plc [2003] EWHC 1814 (QB) para 11, HH Judge Havelock-Allan QC in The Burns-Anderson Independent Network Plc v Wheeler, (Bristol District Registry Mercantile List, unreported 28 January 2005) para 45 and Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, [2005] 1 WLR 2070 para 34 (although in this last case, it was common ground that CPR 11 was engaged).”
[19]I do not consider that the decision in Hoddinott as to the scope of CPR 11(5) applies to the present application. Hoddinott was a case where the service of the claim form was necessary to give the court jurisdiction to try the case in the sense of having the authority and power to do it; the two first instance cases referred to at paragraph 24 of Hoddinott were similarly concerned with service as was the appeal in Uphill v BRB (Residuary) Ltd. The court in the present case had the power and authority to try the claim as the proceedings had been commenced and served; the Parole Board were not seeking to contest that power nor to contend that the court should not exercise its jurisdiction.[20]What the Parole Board was seeking to do was to rely on s.7(5) as providing a defence to the claim and to contend that the claimant had no reasonable grounds for bringing the claim and no real prospect of success. It is clear, in my view that limitation provisions provide a defence to the claim; they do not go to jurisdiction. Such provisions have generally been treated under the law of England and Wales as procedural. There is no basis for categorising the limitation provisions of the HRA in a different way: see also paragraph 112 of the opinion of Lord Roger of Earlsferry in Somerville v Scottish Ministers [2007] UKHL 44. Similarly the contention that there were no reasonable grounds for bringing the claim and that the claim had no real prospect of success did not go to the jurisdiction of the court; it went to an assessment of the claim that was before the court.[21]In my view therefore the argument put forward is misconceived; CPR 11 had no relevance to the Parole Board’s application to strike out the claim. The judge was right in his conclusion and this ground of appeal fails. (2). THE CLAIM FOR FALSE IMPRISONMENT[22]The claim for false imprisonment raised by the claimant’s amendment to his particulars of claim was briefly dealt with by the judge. He concluded that no such claim lay; the claimant might have a claim for failure to conduct a speedy review, but that did not make the imprisonment unlawful so as to give rise to a claim for false imprisonment.[23]The argument that the claimant had a claim for false imprisonment turned on the provisions of the CJA 1991 and a number of decisions of this court; it is convenient to summarise those provisions before setting out the claimant’s argument. i) Under s.35(1) of the CJA 1991 the Secretary of State had power to release the claimant (who was a long term prisoner) if recommended to do so by the Parole Board; no recommendation was made under that sub-section. The claimant was released on licence, as I have set out under s.33(2), the provision then in force for automatic release for long term prisoners so that they could serve the balance of their sentence in the community. Under s.37(1) of the CJA 1991, that period of release on licence continued until he had served three quarters of his sentence. ii) I have set out at paragraph 5 above the provisions of s.39 of the CJA 1991 under which the claimant was recalled and his recall reviewed. S.39(6) made it clear that his detention after recall was in pursuance of his original sentence. iii) The Parole Board’s functions were set out in s.32 of the CJA 1991. “(2) It shall be the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners. (3) The Board shall deal with cases as respects which it makes recommendations under this Part or Chapter II on consideration of—(a) any documents given to it by the Secretary of State; and(b) any other oral or written information obtained by it, and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and shall consider the report of the interview made by that member. (4)The Board shall deal with cases as respects which it gives directions under this Part or Chapter II on consideration of all such evidence as may be adduced before it.”[24]The argument advanced on behalf of the claimant on the claim for false imprisonment was in summary: i) Although s.39(6) of the CJA 1991 made clear that the detention of a person recalled to prison was in pursuance of his original sentence, it was to be implied that the Parole Board must act lawfully if the imprisonment after his recall was to remain lawful. In contrast to the position of a prisoner serving an indeterminate sentence (such as Imprisonment for Public Protection (IPP) under the Criminal Justice Act 2003 (CJA 2003)) where the court had authorised that indeterminate detention, a prisoner recalled under s.39 would not have his further detention authorised until a Parole Board review was conducted. It was to be presumed that indefinite detention after recall could not be permitted without a review by the Parole Board. ii) The Parole Board’s duty under the CJA 1991 was to hear matters without unreasonable delay: see West. The level of duty had been influenced by the obligations under the Convention and, upon the coming into force of the HRA, the Parole Board’s duty was to hear and determine matters speedily as expressly required by Article 5(4). iii) If the Parole Board failed to act in accordance with its duty, then circumstances could arise where that failure rendered the detention arbitrary and hence unlawful; reliance was placed on a passage in the judgment of Waller LJ in R (Johnson) v SSHD [2007] EWCA Civ 427. iv) At the oral hearing of the appeal, the decision of the Divisional Court in Walker v SSHD [2007] EWHC Admin 1835 was also relied on as supporting this part of the argument. It had been contended by the claimant in that case who had been sentenced to IPP under the CJA 2003 first that the Secretary of State had acted unlawfully by failing to provide resources to enable him to demonstrate to the Parole Board that at the expiry of his tariff period his continued detention was no longer necessary to protect the public; second that in consequence his continued detention after the expiry of the tariff period would be unlawful. Both contentions were accepted. Laws LJ said in respect of the second contention at paragraph 48:
“The Crown has obtained from Parliament legislation to allow – rather, require: the court has no discretion – the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment are satisfied. But this further detention is not arbitrary. It is imposed to protect the public. As soon as it is shown to be unnecessary for that purpose, the prisoner must be released (see ss.28(5)(b) and 28(6)(b) of the 1997 Act). Accordingly there must be material at hand to show whether the prisoner’s further detention is necessary or not. Without current and periodic means of assessing the prisoner’s risk the regime cannot work as Parliament intended, and the only possible justification for the prisoner’s further detention is altogether absent. In that case the detention is arbitrary and unreasonable on first principles, and therefore unlawful.”
After the conclusion of the oral argument, the decision on the second issue in Walker was reversed by this Court: see [2008]EWCA Civ 30. In written submissions it was contended that the decision made no difference to the argument in the light of paragraphs 61 and 69 of the judgment of the Court of Appeal in Walker and the observations in Johnson; this court in Walker had held that detention could become arbitrary and there be a violation of Article 5(1) by reason of delay by the Parole Board. It was submitted that detention in such circumstances would therefore be unlawful and a claim for false imprisonment lie. v) If the facts as set out in the amended particulars of claim were established at trial, as was likely, the failure of the Parole Board was such that the detention was in the circumstances of this case arbitrary and hence unlawful. The Parole Board would therefore be liable for false imprisonment.[25]It is, in my view, important when considering the effect of a breach of duty by the Parole Board to distinguish between: i) Action or inaction of the Parole Board which was unlawful in the sense that it is not acting in accordance with the law ii) Action that had the consequence of rendering detention of a prisoner unlawful.[26]It is in my view clear that if the Parole Board failed to determine a prisoner’s review of his recall in accordance with its duties at common law or in a manner consistent with Article 5 (4), that will not affect the lawfulness of the detention if the prisoner was detained pursuant to statutory authority, in this case s.39(6). There are two decisions of this court that support that conclusion: i) In R (Noorkoiv) v SSHD [2002] EWCA 3284, the prisoner had been sentenced to an indeterminate sentence with a relatively short tariff period. His case was referred to the Parole Board for hearing after the expiry of his tariff period, but not heard until two months later as the Parole Board met quarterly to consider cases of those whose tariffs had expired in the preceding quarter. The court held that the Parole Board’s practice was not compliant with Article 5(4), but that the detention of the prisoner was not unlawful. Both Simon Brown LJ (at paragraphs 52-54) and Lord Woolf LCJ (at paragraphs 61 and 62) drew a distinction between detention that was unlawful under Article 5(1) and a breach of duty under Article 5(4). Lord Woolf said:
“61. Insofar as the European Convention of Human Rights has a role to play in this appeal, it is Article 5(4) which is relevant and not Article 5(1). Article 5(1) is not relevant because the justification for the detention of a prisoner sentenced to life imprisonment (whether discretionary or automatic or mandatory) is that sentence and not the fixing of the tariff period. 62. The fixing of the tariff period determines when a prisoner has a right to have the question of his release considered by the Parole Board, but the expiry of the tariff period does not, by itself, make the detention unlawful. The detention is still lawful detention “after conviction by a competent court” and accordingly, detention which complies with Article 5(1)(a). It is, however, detention from which, both under domestic legislation and Article 5(4), on the expiry of the tariff period, the State is required to release the prisoner unless he constitutes a danger to the public (having given the prisoner an opportunity to establish that this is the position). Whether the prisoner does constitute a danger is a question which, again both under domestic legislation and Article 5(4), the Parole Board can determine. This has to be done “speedily”
. Otherwise the State will contravene Article 5(4) and be in breach of the duty it owes to a prisoner under domestic law.” ii) Although this court in Walker [2008] EWCA Civ 30 upheld the Divisional Court’s decision on the first issue (namely that the Secretary of State had acted unlawfully in failing to provide the necessary resources (see paragraphs 35-41)), the decision on the second issue as to the consequences was reversed. The decision on the second issue may not have been necessary to the decision of the Divisional Court in Walker, but it was followed in a further case (James v Secretary of State) which was also before this court on the same appeal. The court concluded at paragraphs 47-8 that, as the CJA 2003 (under which the sentence of IPP had been imposed) had express statutory provisions about the circumstances in which IPP prisoners might be released (namely the requirement that the Parole Board was satisfied that imprisonment was no longer necessary for the protection of the public), “it is not possible to describe a prisoner who remains detained in accordance with those provisions as ‘unlawfully detained’ under the common law. The common law must give way to those provisions.” However at paragraph 61, the Court after considering the paragraphs in the judgment in Noorkoiv to which I have referred said:
“We endorse these observations, subject to these additional comments. The legality of the post-tariff period of an indeterminate sentence imposed for the public protection is dependent upon the prisoner remaining a threat to the public. Article 5(4) requires this legality to be subject to periodic review by a body with the qualities of a court. If, in the period between two such reviews, a prisoner ceases to be dangerous, this will not mean that his detention in the remainder of that period infringes Article 5(1). That Article must be read in conjunction with Article 5(4) so as to produce a practical result. If, however, a review is unreasonably delayed and it is shown that, by reason of the delay, the prisoner has been detained after the time that he should have been released, that period of detention will constitute an infringement of Article 5(1). So long as the prisoner remains dangerous, his detention will be justified under Article 5(1)(a) whether or not it is subject to timely periodic review that satisfies the requirements of Article 5(4).

(a) ”

At paragraph 69, the Court concluded:

“The primary object of the IPP sentence is to protect the public, not to rehabilitate the offender. Detention of the respondents will cease to be justified under Article 5(1)(a) when the stage is reached that it is no longer necessary for the protection of the public that they should be confined or if so long elapses without a meaningful review of this question that their detention becomes disproportionate or arbitrary. That stage has not yet been reached. Failure to comply with the obligations of Article 5(4) will not, of itself, result in infringement of Article 5(1)(a). Nor will delay in the provision of rehabilitative treatment necessary to obviate the risk that they would pose to the public if released.”
At paragraph 69, the Court concluded: In my view the court was not, in these observations, departing from the distinction drawn in Noorkoiv nor dealing with the recall of a determinate sentence prisoner whose detention was expressly authorised by s.39(6) of the CJA 1991.[27]Nor do I consider that the two further cases relied on by the claimant assist: i) In Johnson, the prisoner had been sentenced to a determinate sentence of imprisonment. The issue under the provisions of the CJA 1991 as to whether he should be released after serving half his sentence was referred to the Parole Board. There was delay and he brought a claim under Article 5. It was contended that he was entitled to the same remedy as a prisoner serving an indeterminate sentence. At paragraph 29 Waller LJ set out his reasons for accepting that submission, after contrasting the position of a prisoner serving a determinate sentence (to whom he referred as prisoner A) with that of a prisoner serving an indeterminate sentence (prisoner B):
“One reason why prisoner B has a remedy for a breach of Article 5(4) is because there is a risk, unless the sentence is kept under review, of his sentence becoming arbitrary. That is a general obligation under the Convention. But if there is a delay in hearing the application to the Parole Board of prisoner B, or differences between the times when life sentence prisoners are having their applications to the Parole Board considered, there is a different form of arbitrariness which was recognised by the Court of Appeal in R (Noorkoiv) v Parole Board. So far as delay in an application coming before the Parole Board is concerned, or so far as there being delays from which it follows that different prisoners with determinate sentences are having their hearings before the Parole Board dealt with at different periods of time after their eligibility date, that same arbitrariness is present in the determinate sentence prisoner context. It is that arbitrariness which, in Convention terms, would, in my view, render the sentence unlawful, and falls within the ambit of Article 5(4). There was in this case an unjustified and indeed arbitrary period of delay of eight and a half months. If Mr Johnson can demonstrate that at an earlier consideration by the Parole Board he would have been released, it would seem to me to follow that his detention for some period was arbitrary, unjustified and therefore unlawful. It would furthermore seem to me that under Article 5(4) Mr Johnson was entitled to have his case considered by the Parole Board “speedily” so that his sentence did not become “arbitrary”.”
In this passage Waller LJ was dealing with the issue which had arisen under Article 5(4) and not with the distinction that had been drawn in Noorkoiv. ii) ID v Home Office [2005] EWCA Civ 38 concerned immigrants who had been unlawfully detained and who had brought claims, including claims for false imprisonment against the Immigration Officers who had initiated the detention (see paragraphs 56-7 and 121). The decision that a claim might lie for false imprisonment was based on the unlawfulness of the action initiating the detention that had been carried out by the Immigration Officers. In the present case, the claimant had been lawfully returned to custody under s. 39(5) of the CJA 1991 and was detained by the Secretary of State in pursuance of his sentence under s.39(6) of that Act.[28]In the present case therefore, although there might be a real prospect of showing that the failure of the Parole Board to consider the reference of his recall speedily and in accordance with fair procedures was unlawful, this would not have the consequence that there was unlawful detention. It is clear that the claimant was lawfully detained in prison by the Secretary of State under the provisions of s. 39 of the CJA 1991 which provided that that detention was pursuant to his original sentence; it did not require a review by the Parole Board for that detention to be authorised. Nor would any unlawful action by the Parole Board through its delay in dealing with the review of his recall render the detention itself unlawful; the detention remained lawful under s.39(6). It would only be if the delay were to become of a considerable magnitude that a stage might be reached where it might become possible to mount an argument that the detention had in consequence become unlawful under Article 5(1), despite the clear provisions of s.39(6) referable to a determinate sentence. However the delay in dealing with the review of the claimant’s recall was not of the necessary magnitude where such an argument could be advanced; it is not necessary to consider it further.[29]Nor, under the statutory regime, even if there was unlawful detention by reason of the magnitude of the delay, would the consequence be that a claim lay against the Parole Board for false imprisonment. The detention was by the prison governor acting on the authority of the Secretary of State. A claim for false imprisonment would lie against the Secretary of State and not the Parole Board. For these reasons there is, in my view, no claim for false imprisonment against the Parole Board on the facts as set out in the amended particulars of claim and the judge was right to strike it out. (3). THE ISSUE ON LIMITATION

The approach to the grant of an extension

[30]It was common ground in the submissions to us that a court should not add to or qualify or put any gloss upon the words “equitable having regard to all the circumstances” when considering the exercise of the discretion under s.7(5)(b) of the HRA (which I have set out at paragraph 9 above). The words of the sub-section meant exactly what they said and the court should not attempt to re-write it.[31]I accept the submissions made. Parliament gave the court a wide discretion; I do not think it would be helpful to list the factors to be taken into account or to state which should have greater weight or lesser weight. The statute requires the court to consider all the circumstances in deciding whether it is equitable to allow a longer period within which to bring the claim. It is useful, I think, to refer to the observations of Earl Loreburn in the House of Lords in Hyman v Rose [1912] AC 623 in relation to the exercise of a very wide statutory discretion, even though given in the very different context of relief against forfeiture. He disagreed with the approach of the Court of Appeal which had thought it helpful to lay down some general principles according to which the discretion should be exercised. Earl Loreburn made it clear (at page 631) that where the court was given a wide discretion and directed to consider all the circumstances, it was not desirable to fetter that discretion by rules.[32]In my view, it is desirable to follow a similar approach in relation to the HRA and not to list the factors or to indicate which factor may be more important than another. It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.[33]The three first instance cases cited to us might at first sight indicate a more prescriptive approach, but on analysis I do not consider that any of these decisions did more than highlight the factors that the judge thought of greatest weight on the facts of that case. i) In Weir v Secretary of State for Transport [2004] EWHC 2772 (Ch) ([2005] UKHRR 154), a large number of shareholders in Railtrack Group plc brought a claim against the Secretary of State in respect of the Administration Order made for the company. Lindsay J extended the period under s.7(5)(b) in circumstances where the Secretary of State had known for a long time that a HRA claim might be made and the raising of the issue by amendment had caused no surprise. The judge described his approach at paragraphs 36 and 57: “36. So it seems to me that the proper approach, having in mind Lord Woolf’s observations [in R v Commissioner for Local Administration ex Parte Croydon London Borough Council [1989] 1 All ER 1033 at 1046] is that an absence of prejudice, so far as s.7(5)(b) is concerned is a highly material factor but is not of itself conclusive in favour of an extension of time being granted. I cannot say simply because the defendant suffered no prejudice ergo there should be an extension of time. Delay, as it seems to me, must always be a relevant consideration. 57. I have to consider whether here it would be proportionate to deny the Claimants the right to raise the Human Rights aspect of the case simply because a claim form or a stand-still agreement was not sought within the period.” ii) Cameron v Network Rail [2006] EWHC 1133 ([2007] 1 WLR 163) was a claim under Articles 2 and 8 arising out of the Potters Bar railway accident; Sir Michael Turner in declining to extend the period under s.7(5)(b) referred to the provisions of s.33(1) of the Limitation Act 1980 at paragraph 43: “43. Section 7 of the HRA prescribes a limitation period of one year from the date of the occurrence giving rise to, and the initiation of, the proceedings except that, if the court considers it equitable to extend the period, it may do so. The word 'equitable' in this statutory context has an obvious resonance with its use in the Limitation Act 1980. Section 33(1) of that Act permits the court to direct that the primary period of limitation shall not apply if it appears to the court that it would be 'equitable' to allow an action to proceed, having regard to the extent to which prejudice would be caused to the claimant or the defendant as the case might be. While it would not be right to incorporate all the circumstances to which the court is enjoined to have regard as set out in subsection (3) of section 33, which are inclusive and not exclusive of "all the circumstances", it would not make any sense to disregard them as having no relevance to the circumstances which the court should consider in exercising its discretion whether or not to extend time under these provisions of the HRA. After setting out the facts and commenting that he did not consider that there were any circumstances which would make it equitable for time to be enlarged, continued: 48. As a matter of the proper construction of the section, the presumption has to be that the need to prove that it would be 'equitable' not to apply the limitation provisions rests on those who seek that result. In other words, the burden must be on the claimant to prove that there are circumstances which make it 'equitable' why the defendant should not be able to take advantage of the limitation provisions. There are, in my judgment, no circumstances present in this case where it would be appropriate to rule that they should not apply. Quite clearly, a huge administrative burden would fall on the defendant if it was forced to meet the claim on its strict merits. The disadvantage to the claimant is that he has lost the claim, but that is the consequence of failing to issue his proceedings in time.” iii) Dobson v Thames Utilities [2007] EWHC (QB) 2021 was a group claim under Article 1 of the First Protocol to the Convention against a utility company operating a sewage works in respect of odour and the prevalence of mosquitoes. It was submitted that s.33 of the Limitation Act was aimed at personal injury cases and, as this claim was one in nuisance, s.33 was not material; the judge should look at the circumstances of the group of claimants. Ramsay J considered that the reasoning of Sir Michael Turner was correct and he should exercise the discretion with regard to all the circumstances of the individual claimants, including the fact that the individual was part of a group action (see paragraphs 237-245).[34]It was also common ground that the only basis upon which the decision of the judge could be challenged was on the conventional basis upon which decisions as to the exercise of a discretion can be challenged.

The evidence before the judge

[35]The evidence before the judge comprised witness statements by the claimant’s solicitors and by the solicitors to the Parole Board. These set out the circumstances as I have summarised them at paragraphs 2 to 8 above.[36]The Parole Board also claimed that there was prejudice to it as, due to the lapse of time, it was difficult to obtain evidence from those who had dealt with the matter in 2000-2001 and much of the original documentation was not available save through the claimant’s solicitors. The contention that it was difficult for the Parole Board to gather evidence was challenged on behalf of the claimant. The judge’s exercise of the discretion[37]The judge’s reasons for deciding that he would not extend the time for the bringing the claim can be summarised as follows: i) On the basis of the decision in Weir, if prejudice could be shown then the case was stronger for refusing a further period in which to bring the claim, but it was not decisive. On the facts, he did not accept there was any prejudice as the documents had been provided to the Parole Board; it should in any event have kept the file. ii) He could not accept the argument that the claimant was waiting for the outcome of the appeal in West. There was simply no evidence to that effect; if he had been, it would not have been fatal to his claim for an extension that he had not joined in the action. West was decided by Turner J on the narrow point that an oral hearing was not necessary. iii) He found it difficult to determine when the cause of action arose; although the claimant was detained until October 2001, his solicitors were aware (as shown by their letter of 29 May 2001) that he might have a remedy and could have challenged the failure to conduct the review speedily. Rights had accrued before his release, but the breach had continued until his release. iv) As he did not accept the explanation that the claimant was waiting for the outcome of the appeal in West and as there was excessive delay in issuing proceedings after the time the right to bring the claim had arisen in 2001, it would not be equitable to extend the period for the very long time that was required.

The applications to adduce fresh evidence

[38]Both the Parole Board and the claimant sought to adduce fresh evidence before this court. No serious objection was taken by either party to the admission of this evidence. i) A witness statement by the solicitor to the Parole Board dated 20 August 2007 was directed in large part to the issue under CPR Part 11, but it is not necessary to refer to that in the light of the view I have taken of the claimant’s submissions on the scope of CPR Part 11. However the witness statement set out further matters in relation to the prejudice it was said the Parole Board had suffered. First it was said that it was not realistic to expect the Parole Board’s officers to be able to recall the case years later, bearing in mind that they dealt with many such cases each year; enquiries were being made as to whether the officers involved were still employed by the Parole Board. Second, it was said that the Parole Board did not control the dossier as the dossier relating to the sentence was the property of the Prison Service and the dossier relating to the recall was the property of the Ministry of Justice. It was unknown who now had possession of the claimant’s dossier. The Parole Board would ordinarily only retain the dossier for 5-6 months after a prisoner’s recall, as this was the reasonable time in which to expect a challenge and it had limited storage space. The Ministry of Justice ordinarily only stored files until one day after the sentence expiry date of the determinate sentence; that date for the claimant was 24 November 2004. The file could not be traced at the central archive system. ii) The solicitor to the claimant in a further statement dated 18 September 2007 set out the criteria for legal aid funding and his view that in the light of West, the prospects of success were poor. He referred to his conversation with the Legal Services Commission where it confirmed that they would categorise a claim as poor where there was High Court authority against it and would accordingly refuse funding. He stated that if the solicitors who had advised the claimant in 2001-2 had thought that there was merit in the potential claim, the solicitors would have had to persuade the Legal Services Commission that “investigative help” was needed; the process would have taken some time and after investigation and advice from counsel, any public funding would then have been discontinued because of the prospects of success. iii) A witness statement by the claimant made on 18 September 2007 confirmed the account of his actions in seeking legal advice after his release as set out at paragraph 8 above. He added that on more than one occasion when he tried to get solicitors to take on his case that he was told “you have very little chance of success”; no one ever quoted a case or particular reason why at that time no one would take his case on.

The exercise of the discretion was correct

[39]In my view the judge’s exercise of his discretion was right. The further evidence from the Parole Board adds to what was before the judge and supports his conclusion. In my view it would not be equitable to extend the period for bringing the claim by over three years. i) I do not accept the argument advanced on behalf of the claimant that he would not have suffered prejudice until it was known whether the Parole Board would grant his release. Time runs from the time at which the act complained of first took place - the time the Parole Board failed to act speedily: see the discussion in the opinions in Somerville of Lord Hope ( paragraphs 51 and 52), Lord Scott (paragraph 81), Lord Rodger (paragraph 112) and Lord Mance (paragraphs 196-7). As a court would no doubt in a continuing breach extend the period back from the date of the last breach to the date on which the act complained of first took place, it is right to approach this case on the basis that the extension of time was required from one year after the date of the Parole Board hearing on 28 September 2001 and not an earlier date. ii) Both parties made submissions as to the strength of the claimant’s case in support of the argument on proportionality. It is not possible in respect of this claim, as may well be so in many cases, on the evidence before the court to say whether the claimant’s claim is a strong claim or a weak claim; such an assessment would depend on a much more detailed examination of the facts. In any event, I am not presently persuaded that, even if the evidence was available, it would be right for a court to make a full preliminary assessment of the merits on an application such as this. However, the question as to whether the court should reach a preliminary view on the merits (beyond saying the claim has a real prospect of success) does not arise, because the evidence is not available; it is therefore not necessary to express a concluded view on the question. It is sufficient to say in respect of this claim that on the evidence his HRA claim has a real prospect of success, if the period for bringing the claim were to be extended. A refusal of the application to extend the period will therefore deprive him of that prospect. iii) I also accept that if it could be shown that the claimant was in fact waiting for the decision in West, then that would be an important factor in favour of extending the time. One part of the state, the Parole Board, should not be able to rely as against a citizen on the error in the determination of the law by the judicial branch of the state, particularly in circumstances where the error had arisen by the acceptance of the argument of the Parole Board. iv) However, on the evidence, the decision in West played no part in the delay;there was no evidence that the claimant was awaiting the outcome of the appeal. On the contrary, although his then solicitors had relied on Article 5(4) in their submissions to the Parole Board in 2001, there is no evidence in relation to consideration of Article 5(4) or West at any time until late 2005. The claimant’s evidence that solicitors he subsequently consulted in the Croydon area told him that there was little chance of success was not shown on the evidence to be related to the decision in West - the advice could have been given for a number of reasons. If it had been related to West, then it would have been a simple matter to seek an extension of time pending the appeal or, if this had been refused, to have commenced proceedings and sought a stay. v) Nor can I accept the argument that the claimant’s delay is to be excused on the basis that if he had applied for public funding, it would have been refused. In the first place, as his current solicitor explained in his further statement, an application could have been made for investigative help. Any enquiry would at a very early stage have entailed notifying the Parole Board of the potential claim and seeking an extension of time pending the outcome of the appeal in West. There was no explanation why this was not done; no such request was made. Although it is probable that legal aid to commence proceedings may have been refused, not only was no such application made, but no attempt was made to notify the Parole Board of a potential claim. I do not consider that the fact that legal aid for commencing proceedings might well have been refused is a factor of any weight in these circumstances. vi) The decision in West was handed down on 27 January 2005, but proceedings were not issued until 24 January 2006. This delay underlines the conclusion that I have reached that the Claimant was not waiting for the decision in West. vii) There was clearly prejudice to the Parole Board, on the evidence before the judge which is made much stronger by the evidence placed before this court. This was not a claim about which the Parole Board had any inkling that it might be brought until the proceedings were served in January 2006; I cannot accept the argument that in consequence of the proceedings in West the Parole Board ought to have anticipated proceedings such as this; it was for the claimant, if he thought he had a claim, to have notified the Parole Board. Much of the documentation was not available other than that which the claimant’s solicitors could supply; that would plainly not be the documentation which was actually needed to try the claim. Furthermore, it was as the Parole Board submitted, not easy for witnesses, assuming they could be traced, to recall the details of events, if approached over four years after the events in question. viii) It was contended on behalf of the claimant that as six years is permitted for claims in contract and tort, the difficulties which might be faced in a claim under the HRA should not count. However, Parliament has provided for a one year period; one of the reasons for this was no doubt to protect public authorities against difficulties such as these. ix) For these reasons, I do not consider it would be equitable in all the circumstances to extend the period by over 3 years to enable this claim to be brought.

Conclusion

[40]In the result therefore I would dismiss the appeals on all the grounds advanced.

Lady Justice Smith:

[41]I agree with the judgment of Thomas LJ but wish to express a reservation on one aspect of his reasoning in respect of the final issue, the exercise of discretion to extend the limitation period under section 7 of the Human Rights Act 1998.[42]There was very little information before the judge below on which he could exercise his discretion. Both parties put in further written evidence and the appellant provided some further information during the course of the hearing. There was no objection to this on either side. Accordingly, this court had to exercise its discretion afresh.[43]I agree with all that Thomas LJ has said about the undesirability of any court seeking to prescribe the way in which an unfettered discretion should be exercised. It is for the judge to consider all the relevant circumstances and to decide whether it would be equitable to grant the extension sought. In considering the circumstances, the judge will of course have to form a view about various factual matters. It is in respect of one aspect of the facts that I differ from Thomas LJ. He takes the view that the decision in West played no part in the delay on the appellant’s part in commencing proceedings. I take a different view. It seems to me that the decision in West probably had quite an important effect and that the delay by the appellant is understandable and even excusable.[44]The evidence was that, when the appellant enquired of his original solicitors whether he might have a remedy in respect of his late release, he was told that they no longer did civil work. He then consulted three or four firms of solicitors in the Croydon area and was told that an action such as he proposed had no real prospect of success. He did not ask why; of course he could have done, although I do not think it would be easy for a man in his position to do so. I think it is reasonable to conclude that that advice was probably based on the solicitors’ awareness of the decision in West and their realisation that public funding would not be granted for a claim such as the appellant wanted to bring. It would be not at all surprising to me if those solicitors thought (if they thought about it at all) that the prospects of West being reversed were remote. I agree that there could have been other factors behind the unfavourable advice besides the obstacle of West, but the one factor which has changed since that advice was given and the more recent date at which favourable advice was given was the House of Lords reversal of West.[45]Thus, in my view, the fact that the appellant gave up hope of a remedy and ceased to pursue it, as he did, is understandable. It was only by chance (serendipity, one might say) that the appellant was advised by his present solicitors of the possibility of a remedy in the light of the House of Lords’ decision in West. Once that advice was given, in late 2006, action was taken quite promptly. So the fact that a year elapsed between the decision in West and the commencement of these proceedings is understandable.[46]It follows that I find the exercise of discretion rather more finely balanced than does Thomas LJ. I too am prepared to accept that the appellant had a worthwhile cause of action, even though we are not in a position to assess its strength. For the reasons I have just explained, I am prepared to accept that the appellant is not to be criticised on account of the delay. But all that said, the delay is long and the Parole Board has now put in evidence, which I find convincing, that the delay has caused real prejudice to them in the preparation of their defence. In the end, taking all the circumstances into account and carrying out the necessary balancing exercise, I am not prepared to say that it would be equitable to extend time as the appellant requests.

Lord Justice Lloyd:

[47]I agree that the appeal should be dismissed. For the reasons given by Lord Justice Thomas there is nothing in the point that the Defendant’s application was precluded under CPR Part 11 by the fact that it had acknowledged service. Likewise, in the light of the recent decisions of this court in Walker and James [2008] EWCA Civ 30, the Claimant cannot successfully assert that his continued imprisonment was unlawful, so as to found a claim for false imprisonment. So, his only viable claim would be for breach of his rights under article 5(4), for which a short time limit is imposed under the Human Rights Act 1998. If the claim were to survive the Defendant’s striking out application, it would have to be on the basis that an extension of time should be allowed under section 7(5)(b) of that Act, as being “equitable having regard to all the circumstances”.[48]I agree that it is not appropriate to gloss the broad language of the section as to what sort of circumstances are or may be relevant for this purpose, and to what effect. One factor which plainly is relevant, among the circumstances of this case, is the course of the litigation in West, decided by Turner J in the Administrative Court on 26 April 2002, [2002] EWHC 769 (Admin), and ultimately by the House of Lords on 27 January 2005 [2005] UKHL 1. The judge held that there was no evidence that Mr Dunn was waiting for the decision in West. So far as the evidence before him went Mr Dunn was unaware of the West case, and the additional evidence filed on appeal makes no difference on this. So the judge’s finding was correct.[49]Lady Justice Smith points out that it does not follow from this that the course of the West case played no part in the delay. Mr Dunn sought advice from a number of solicitors in 2002. Apart from two firms who said they were unable to advise him at all, the evidence does not identify more than one of the firms to which he turned. Nor, perhaps not surprisingly, does it record anything about the reasons for the unfavourable advice he was given, nor whether any of these occasions was before the decision in West in the Administrative Court, or before the date on which solicitors might have been expected to have been aware of that decision. It is therefore a matter of speculation as to whether the unfavourable advice was based, to any extent, on that decision. It may have been a factor, but even if it was, it may well not have been the only one. I am not sure that I would draw the inference that the adverse advice was “probably” based, even in part, on the decision in West, but I accept that it may have been. Accordingly, it is at least possible that, had Turner J’s decision been to the same effect as the eventual ruling of the House of Lords, Mr Dunn would have received more encouraging advice in 2002.[50]Even if, in that sense, the decision was a factor in the delay, nevertheless I consider that, taking together the length of the delay and the prejudice to the Defendant which is demonstrated by the further evidence on the appeal, time should not be extended. I agree with Lord Justice Thomas as to the factors mentioned at his paragraph 39(i), (ii), (vii) and (viii). Even taking a view more favourable to the Claimant than he expresses at paragraph 39(iv) to (vi), though not quite so favourable as that adopted by Lady Justice Smith, it seems to me that it would not be equitable to extend time for this claim to be made.

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