Bowen v Secretary of State for Justice [2017] EWCA Civ 2181

“… His continued detention cannot be said to be arbitrary, or in any other sense unlawful, until the Parole Board has determined that detention is no longer necessary. As soon as it makes that assessment the causal connection is, of course, broken. A direction must then be given in terms of the statute that he be released on licence. …”

“16. … Under the relevant statutory provisions, which I have summarised at para 3, there is no entitlement to release by the Secretary of State until release has been directed by the Board, and a direction to that effect cannot be given until the Board is satisfied that detention is no longer necessary for the protection of the public. By virtue of the relevant legislation, the prisoner’s detention is therefore lawful until the Board gives a direction for his release. …”

“31.15 … The Board cannot release a prisoner conditionally, nor order future release on a date that is to be specified later. However, a panel can conclude its risk assessment and, without giving assurances about the outcome, can then adjourn for further information or confirmation of details of the risk management plan. This can include the date when a hostel place will become available. There is not fixed time limit for this but the longer the gap, the greater the need for the offender manager to come back to the Panel to report on the situation and, if necessary, confirm that nothing material has changed in relation to the risk which the offender presents. Delay should not be unreasonable. Six to eight weeks is a sensible benchmark; after this, the risk of successful challenge begins to increase markedly. It is therefore not safe to begin the process of securing an AP place only at the time of hearing. 31.17… If a bed is not secured before the hearing and release is recommended – for example, the AP waits until the hearing and only then checks availability – the Board will not be able to delay release pending the bed becoming free. It will recommend immediate release. The difficulty this causes makes it essential that beds are arranged before Parole Board hearings.”

“34. … Once, as here, a panel has decided that a prisoner can safely be released irrespective of whether a particular form of release plan is feasible, then the prison service and the probation service must faithfully accept that determination and do their best to achieve its successful implementation.”

“25. … [23] …s 28 of the 1997 Act cannot sensibly be interpreted to provide that as soon as a Parole Board takes a decision in which it directs release, albeit under conditions or at some future time, the Secretary of State is under a duty there and then and thereby to ensure that that release takes place forthwith. That would give no effect to the provisions of s.31; it would not recognise the difference in language between s.28 and s.32; it would in my view simply have been beyond the contemplation of Parliament that the alternative, which would need to have been in place immediate release to be effected, would operate in an impractical way – as Ms Davies points out, if it were to be the case that it was anticipated that a Parole Board might make a direction which was conditional as to time or circumstance, that (so far as a circumstance such as accommodation in a hostel was concerned) the hostel would have to be held available just in case the Board at its hearing might decide that particular prisoner under review was to be released, even though it equally might not. Supervision arrangements would have to be made in anticipation of a possible outcome; appointments with psychiatrists and the like would have to be in place – all of which would be on a provisional basis which, given that the decision lies in the power of the Parole Board which has not yet considered it, might or might not be given effect to. I cannot sensibly construe s.28 in such a way that it would have that effect.”

“41. The analysis cannot stop there. The Secretary of State plainly is under an obligation to take reasonable steps to ensure that the Parole Board's specified conditions are met within a reasonable time after the Parole Board has directed release. That obligation does not come from s 28 read with s 31 of the 1997 Act, nor does it come from s 2 of the 2007 Act, which I will address in greater detail below as part of Issue 3. It comes from domestic public law, which requires the Secretary of State, as a public body, to operate a proper system, to act reasonably and to apply its own published policy to those within the contemplation of that policy, see R (Kaiyam) v Justice Secretary [2015] AC 1344 at [41] (Lord Mance and Lord Hughes JJSC) where the Court identified the following "ordinary" public law duties owed by the Justice Secretary: “… As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness [see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223] or any failure to apply established policy.” 42. These duties provide the safeguard for any life prisoner who believes that his continued detention, pending a placement at an AP, is excessive or unreasonable.”

“15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a “rehearing” under the Rules of the Supreme Court and should be its approach on a “review” under the Civil Procedure Rules 1998. 16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”

“It is closely akin to, although not conceptually identical with, the scope of an appeal to the Court of Appeal under the former Rules of the Supreme Court. The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependant on inferences and an analysis of documentary material.”

“137. In England and Wales the jurisdiction of the Court of Appeal is set out in CPR 52.11(3), which provides that "the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court". The rule does not require that the decision be "plainly wrong". However, the courts have traditionally required that the appeal court must hold that the judge was plainly wrong before it can interfere with his or her decision in a number of different classes of case. I referred to some of them in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, to which Lord Neuberger PSC refers at para 57, at my paras 9-23. It seemed to me then and it seems to me now that the correct approach of an appellate court in a particular case may depend upon all the circumstances of that case. So, for example, it has traditionally been held that, absent an error of principle, the Court of Appeal will not interfere with the exercise of a discretion unless the judge was plainly wrong. On the other hand, where the process involves a consideration of a number of different factors, all will depend on the circumstances. As Hoffmann LJ put it in In re Grayan Building Services Ltd(In Liquidation) [1995] Ch 241 at 254, “generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision.” “generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision.”

“29. … Where an appeal is to proceed, like this one, by way of a review of the judgment below rather than a re-hearing, it will often be appropriate for this court to give weight to the assessment of the facts made by the judge below, even where that assessment has been made on the basis of written evidence which is also available to this court. The weight to be given to the judge’s own assessment will vary depending on the circumstances of each particular case, the nature of the finding or factual assessment which has been made and the nature and range of evidential materials bearing upon it. Often a judge will make a factual assessment by taking into account expressly or implicitly a range of written evidence and making an overall evaluation of what it shows. Even if this court might disagree if it approached the matter afresh for itself on a re-hearing, it does not follow that the judge lacked legitimate and proper grounds for making her own assessment and hence it does not follow that it can be said that her decision was “wrong”.”

“43. Mr Bowen does not advance any case of unreasonableness in his grounds of challenge. That is perhaps unsurprising, given that the wait for a place at Mandeville House was in his case around two months, in the context of a life sentence with a minimum term of 14 years. Ms Jones, his Offender Manager, did try to find an alternative AP and called Bristol, Gloucester and Swansea, but none had availability. Mr Bowen himself was only willing to consider Cardiff or Swansea, so that he could be close to family members and maintain family ties. The delay was not in the circumstances excessive or unreasonable.”

“44. … i) Mandeville House is in Cardiff, and is the closest AP to Newport where Mr Stanton's family lives. Family links were an important part of Mr Stanton's resettlement and Mr Stanton was very keen to be placed in that area. That was why Mandeville House was selected. ii) Mr Stanton had been supported by an organisation called Invisible Walls. That organisation could continue to support him if he was placed in the Newport / Cardiff area. That was a further reason for selecting and sticking with Mandeville House. iii) Mandeville House could not take Mr Stanton until 23 July 2015. There was no bed available until then. iv) Mr Haskins inquired whether Quay House, another AP in Wales, could take him, but was told that there was no availability there either, and indeed that there was a shortage of AP spaces in Wales at that time, although steps were being taken to increase vacancies. v) The Parole Board was fully aware of the waiting time for Mandeville House, but nonetheless specified residence there as a condition of release, noting that release would be brought forward if a bed became available earlier (in fact it did not).” i) Mandeville House is in Cardiff, and is the closest AP to Newport where Mr Stanton's family lives. Family links were an important part of Mr Stanton's resettlement and Mr Stanton was very keen to be placed in that area. That was why Mandeville House was selected. ii) Mr Stanton had been supported by an organisation called Invisible Walls. That organisation could continue to support him if he was placed in the Newport / Cardiff area. That was a further reason for selecting and sticking with Mandeville House. iii) Mandeville House could not take Mr Stanton until 23 July 2015. There was no bed available until then. iv) Mr Haskins inquired whether Quay House, another AP in Wales, could take him, but was told that there was no availability there either, and indeed that there was a shortage of AP spaces in Wales at that time, although steps were being taken to increase vacancies. v) The Parole Board was fully aware of the waiting time for Mandeville House, but nonetheless specified residence there as a condition of release, noting that release would be brought forward if a bed became available earlier (in fact it did not).”

“46. The real point for Mr Stanton is the four-month delay: was it excessive? In answer, I note two things. First, as a matter of context, Mr Stanton was subject to an "indeterminate" sentence for public protection. He had no right to release at any date certain following conviction. His only expectation was that he would be released if he could demonstrate that his continued detention was no longer necessary for public protection. He knew (or should have known) that any direction for release might be subject to a residence condition, fulfilment of which would depend on a suitable placement being found. That is what happened; that was in line with his reasonable expectations. Secondly, on the facts, his release could only have been secured earlier by sending him to a different AP, because Mandeville House was full. But Mr Stanton wanted to be in the Cardiff area, which was undoubtedly the best place for him given his family and community ties, and that was what the Parole Board had specified, even knowing there would be a delay of around 4 months. Overall, and if this matter is part of Mr Stanton's case, I conclude that his detention until 23 July 2015 was reasonable, while accepting that this case falls closer to the line.”