Cooper, R (on the application of) v Parole Board [2007] EWHC 1292 (Admin)

Case No CO/2408/2007

[2007] EWHC 1292 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 18th May 2007

Strand

London WC2A 2LL

B E F O R E:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF MICHAEL COOPERClaimant

-v-

Between

THE PAROLE BOARDDefendant

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MR H SOUTHEY (instructed by Messrs Bindman and Partners) appeared for CLAIMANT

MS M WHEELER (instructed by the Treasury Solicitor) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE COLLINS: In February 1991, the claimant pleaded guilty to arson being reckless whether life would be endangered and was sentenced to life imprisonment. The tariff was five years. There was psychiatric evidence which showed that he suffered from a psychopathic disorder. What he had done was to set fire to premises, causing some £800,000 worth of damage, after he had been drinking and possibly smoking cannabis. In 1997, he was transferred from prison to a mental hospital under section 47 of the Mental Health Act 1983. In August 2000, a Mental Health Review Tribunal recommended further treatment but eventually, in November 2002, he was released on a life licence.

[2]There were some problems. In August 2005 he had apparently fallen asleep because he had been drinking to excess and he had left some food cooking in the oven and a fire resulted. He was not on that occasion recalled to detention but a warning letter was sent and a condition was imposed that he keep all appointments with the Forensic Psychology Service. On one occasion (I do not have a precise date), I understand that he entered a mental hospital as a voluntary patient for a time but in August 2006 he was detained under section 3 of the Mental Health Act. The problem appears largely to have been drink exacerbating his mental state. In November 2006, he was discharged from the hospital but the probation service requested that an additional condition be placed upon his licence, namely that he should not drink alcohol, and that condition was imposed in January 2007. On 1st February 2007 he was seen by a member of the probation staff to have entered a public house and to be drinking beer. He was staggering and quite clearly was affected by drink. He was seen the next day. He then denied that he had been drinking but the decision was made that he should be recalled and that occurred on 7th February 2007. Following such a recall, there is an obligation upon the Parole Board to consider whether the detention should continue. The Parole Board having been notified, a hearing was fixed for 24th May 2007. That was more than three months after the detention had taken place.

[3]He was seen by a consultant psychiatrist and the claimant's solicitors were informed that his mental state was deteriorating whilst he was in custody and so a hearing to consider whether he should be released and whether he should have been recalled should take place earlier rather than later and a psychologist supported that approach, as did the probation officer. There followed correspondence with the Parole Board. On 13th March, the claimant's solicitors wrote to the Parole Board requesting an expedited hearing and they pointed out the concerns which had been expressed by the psychologist and psychiatrist and they included their letters, in which both they and the probation service had recommended the same, and they stated:

"We have been notified that Mr Cooper's recall hearing has been set for 24 May 2007. By this time Mr Cooper will have been in detention for over three and a half months. This is well in excess of the policy guidelines in respect of listed recall hearings and we are of the opinion that this delay is unacceptable. Notwithstanding these concerns, we now specifically request that Mr Cooper's recall hearing be expedited in view of his fragile mental state."

Ms Young confirmed that she would consider this request and pass it on to her case work manager promptly, Ms Young being the official in the Parole Board who was contacted by the solicitor. The reply on 19th March from the Board said this:

"Thank you for your letter dated 13th March requesting the expediting of Mr Cooper's oral hearing. The board received the request to list Mr Cooper's case on the 2nd March 2007 and the case has been listed within our timescale. We also cannot expedite the hearing because of his fragile mental state. Therefore Mr Cooper's hearing will stay as 24 May 2007."

[4]The solicitors had in fact written to the Lifer Review and Recall Section on 13th March and in that letter they asked the Home Office to support their approach that the hearing should take place sooner than 24th May. The reply from the relevant department of the Home Office, which was sent to the Parole Board, was in these terms:

"I write with reference to the above named recalled life licensee and recent concerns shared with us by Mr Cooper's legal representatives. Mr Cooper's solicitors have provided correspondence from a clinical forensic psychiatrist involved in Mr Cooper's case as well as being in Email correspondence with the supervising probation officer (copies attached). Both parties are supportive of Mr Cooper's case being expedited for an earlier listing date for the reasons as contained within the attached material, probation resources allowing. LRRS [that is the Home Office department, the Lifer Review and Recall Section] would also add their support to such a move if this is at all possible to arrange."

In the light of the letter of 19th March, the solicitors on the 20th sent a letter before claim to the Parole Board and, getting no satisfaction, this claim was then lodged with an application for urgent consideration on 22nd March.

[5]The claim is based on an alleged breach of

Article 5(4) of the European Convention on Human Rights

. That 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 his detention is not lawful."

It is accepted that the Parole Board is properly to be regarded as a court for the purposes of Article 5(4), it being an independent judicial body which is able to decide on the lawfulness of the detention. The key word for our purposes in Article 5(4) is "speedily". The complaint is that to have a hearing more than three months after the detention cannot be regarded as a hearing which is held speedily.

[6]Calvert-Smith J refused permission at an oral hearing on 4th April 2007. He took the view that it was not arguable that in the circumstances of this case the delay was such as to breach Article 5(4) because the case was complex and it was necessary to ensure that the right decision was reached and, of course, the Parole Board had to consider the danger to the public as well as the rights of the individual prisoner. There was an appeal against that decision. Originally there was a refusal by Gage LJ on the papers but, on 19th April, Toulson LJ, at an oral hearing, decided that permission should be granted. Having pointed out that by the time the hearing took place it would not be of great benefit to the claimant because it was obvious that no hearing could take place until very shortly before 24th May (and indeed that has been the position because the hearing is due now next week), in giving his reasons he said this:

"I think that there is at least an arguable case that the appellant's state of mental health was a relevant factor for the Parole Board to consider in setting a hearing date compliant with the requirements of Article 5(4). I think that it is at least arguable that the article should be applied in a way that takes into account particular factors affecting the individual, and that would be to read the article in a way which is also compatible with article 8 [Article 8 being the prohibition on interference with private life]. I recognise that there is a contrary view, as expressed by Gage LJ, but it seems to me that the point is at least arguable. It is also a point of some potential importance because the Parole Board has adopted a position on this matter which it will no doubt continue to adopt in other cases, and I think that it is right that the point should be determined."

He went on:

"The Parole Board also had a second ground for resisting the claim, which was that they could not practically fix the hearing date any sooner without causing trouble to other cases. That may be a valid answer to the claim. It raises the familiar question about the extent to which resources can be a reason for not hearing a case as soon as would otherwise be desirable but, as I read it, this was very much the Parole Board's second string argument. My impression is that the Parole Board in reality simply took the view that the appellant's mental state was irrelevant."

[7]The claim thus is based on two main arguments, the first, as I have already indicated, being that the period of over three months was in itself a breach of Article 5(4) and the justification which has been put forward for that period does not suffice to show that it was in the circumstances reasonable to delay for that long. The second point is that, even if, as a general proposition, a period of three months was not to be regarded as excessive because of what had to be taken into account and the paperwork and preparation that was needed for such hearings, nonetheless the Board was required to consider any particular reasons why a case should be expedited. In this case, the mental health of the claimant was said to be deteriorating and indeed there was evidence produced from the medics that that was indeed the case and so the Board should have had a system in place which was sufficiently flexible to enable there to be an earlier hearing, if that was considered desirable.

[8]The Board has put in evidence in the form of a statement from a Mr McCarthy, who is the relevant official. He has annexed the Business Plan which sets out the targets applicable for the times within which hearings should take place. What he says in paragraph 7 of his statement is:

"The Parole Board Rules do not fix time limits for listing oral hearings in recall cases. However, it is the Board's policy, as set out in its Business Plan for 2007 to list such hearings to take place within 55 working days of a case being referred to it by the Home Office (now the Ministry of Justice). The 55-day target is the maximum time in which the Board has set itself to have cases heard. However, the Board's objective with regard to listing is to have cases heard as soon as is reasonably practicable, and if possible this will be in advance of 55 days from referral. There is no system of listing in place whereby a case is automatically listed 55 days after referral."

In fact this case was listed 59 days after referral, so it was just outside the relevant target and, if one looks at the targets, one sees that there is nothing in the plan, certainly nothing in the parts of the plan which have been copied before me, to indicate how those times were reached. The relevant one is number 30 in the list, which indicates that oral hearings to consider representations against recall will be listed to take place within 55 working days, that is to say 11 weeks, and the performance indicator showed that the average success rate in keeping to that was 90 per cent.

[9]Mr McCarthy then went on to suggest that the 55-day period was needed in order to carry out the various steps to which he refers. Some of them quite clearly need no time at all, such as fixing a date and providing the prisoner with notice, but others do; for example providing the prisoner with a reasonable amount of time in which to review the dossier and provide written representations; arranging witnesses to attend and ensuring they are available; providing the chair of the panel with the dossier to ensure necessary directions were issued; collect and review additional evidence, and so on. But most of this depends upon the nature of the particular case and the parties because the parties will on the whole produce such evidence as they consider to be necessary and desirable. I recognise that in a case such as this, involving mental health issues, it may be necessary to obtain more evidence than in a case which is merely concerned with the history of the prisoner, what he has done to breach his conditions and assessment of his danger resulting from that. But in this case it was apparent that by 23rd March the claimant's solicitors took the view that they would be ready for a hearing in April. Indeed, they asked that the hearing be round about 13th April. One recognises that Easter came in and had to be taken into account but effectively they were asking for a hearing some five weeks or so before the date that was fixed. Ms Wheeler has drawn my attention to the fact that now there has been put forward a lengthy report from the psychiatrist, who had seen the claimant back in February, and that report is dated 3rd May. That may well be the case because that was obtained when it was known that the hearing was not to be put forward and was due for 24th May and it does not follow that, had the application to advance the hearing been successful, the report would not have been available earlier. But in any event, as Ms Norton, the solicitor, deposes, they were prepared to go ahead without that evidence if necessary because there was supporting evidence from another psychiatrist.

[10]Equally, the fact that the Home Office department had concurred with the application for an earlier hearing showed that they were not suggesting that they would not be ready at that material time. So it is apparent that on the facts of this case, and I am bound to say on the facts, I would suspect, of almost any case, a period of 11 weeks is not needed in order to carry out the necessary investigations and prepare properly for a hearing. Mr McCarthy then goes on to deal with the expedition request and he says this, in paragraph 14:

"The listing of hearings is not conducted by staff with any specialist medical training and as such the Board is in no position to consider any medical evidence or to make informed judgments concerning the impact of imprisonment on the wellbeing, or otherwise, of individuals recalled to prison by the Secretary of State. Although I have no special expertise, I am aware from my own experience that many prisoners suffer from mental health problems and very few welcome their recall to prison. 15. If the effect of imprisonment on a prisoner were to be a sufficient reason to expedite a hearing, there would be chaos in the system. The listing staff would have to try and determine which cases were most urgent on the basis of medical evidence. They are not trained to do this. It is also likely that this process would result in greater delay and complaints of unfairness. 16. As I understand it, while the Claimant has been in HMP Lincoln, he has received (and continues to receive) the support of the prison mental health in-reach team as well as the support of his community psychiatrist. If his condition were to deteriorate seriously, the Secretary of State has the power to order his transfer to hospital. 17. On 19th March 2007, the Claimant's solicitors also spoke to Mr Paul Garner, Ms John's line manager. Mr Garner had not at this time read any of the correspondence sent to the Board by the claimant on 13th March 2007. However, Mr Garner was very familiar with the listing procedure at the Board and he informed the Claimant's solicitor that it would not be possible to list the Claimant's hearing any sooner than 24 May 2007 in any event due to the lack of available panel members."

It is clear from what is there set out that the Parole Board does not have in place any system which enables it to consider applications for a hearing to be advanced. It is true that that is expressed in relation to mental health grounds but the system appears to be a general one because listing was dealt with and only dealt with by untrained administrative staff.

[11]Listing in a court is regarded as a judicial function. There is no reason of course why the administration should not fix an initial date provided that the system has been designed to ensure that that fixing is compliant with the law. In many courts other than those dealing with criminal cases there is no particular time within which a case has to be heard. If the matter is urgent that will be because of the individual facts of the case. But the Parole Board is in a somewhat different position because of the requirements of Article 5(4). That applies directly to cases such as this which involve recall of prisoners on licence. It also applies to cases where prisoners have served their tariff and so become eligible for possible parole and in their cases too the authorities show that Article 5(4) is in play. That being so, the Parole Board have a duty to produce a system which ensures that such hearings are dealt with speedily in accordance with Article 5(4). If an application is made that a particular case needs especially speedy consideration, that is a matter which ought to be able to be taken into account. As I say, listing in that context is a judicial function and so it is not appropriate that the matter is left entirely to untrained administrative staff. There should be a system in place which ensures that an application is put, if necessary, before a judge and the necessary decision can be made. I recognise that there will be a burden if every application for a particular expedition has to be dealt with in that way. The answer will be that it is only those cases in which there is some supportive material put forward. It is not enough simply for it to be asserted by a prisoner that he needs a particularly speedy hearing. There must be some basis for that application. In this case, there was a basis because there was produced not only the letters from the doctor and psychologist but also the support of the probation service and of the Home Office. It seems to me that in those circumstances there clearly ought to have been a process available whereby the Parole Board could consider, and properly consider, whether in the circumstances the hearing could be advanced.

[12]One of the matters that concerned the Board was that, if this case were advanced, another case would have to be taken out of the list and that comes back to the problem of resources and that is touched on by Mr McCarthy in paragraphs 18 and 19. Particularly 19, but I should read 18 because it follows on from that I have just read. What he says is:

"18. The position of the Board regarding requests for expedition is as follows. The Board will consider any request for expedition and the representations made in support of that request. Where possible, if there is a good reason for expedition, the Board will attempt to accede to the request. In the Claimant's case, the information concerning the Claimant's mental health was considered. However, it is felt that the submissions presented no reason to expedite the case ahead of other cases. In any event had the Board considered expedition justified, it would not have been able to do so as there were no panel members available to conduct the hearing ahead of 24 May 2007. The only way in which the Claimant's case could have been heard, had expedition been justified, was if panel members were removed from other listed hearings. This would result in the cancellation of at least one hearing and possibly others if it was not possible to take all three panel members from the same listed hearing."

[13]I am bound to say I find that paragraph very unsatisfactory. It is clear that the information concerning this claimant's mental health was not considered. Mr McCarthy has said as much because there was no-one who was in a position to deal with it with any knowledge or experience or training in what it indicated. That is apparent from paragraph 14, which I have already cited. If by "considered" all that is meant is that it was read, then so be it, but that is not, in my view, tantamount to consideration. He then goes on to say, "in any event, even if we had decided that expedition was justified, we could not do it, because there are no panel members available". Alternatively, it would mean another case having to go over and he deals with that problem in paragraph 19 where he says:

"The shortage of panel members is, of course, a serious concern to the Board. Each year the Board's workload increases. In 2006 there was an increase of over 30% in the cases handled. Further increases for 2007 have been predicted."

Pausing there, it is predicted that the number of recall hearings will roughly double from 110 in 2006/2007 to 200 in 2007/2008. Going back to paragraph 19:

"This is due to changes in legislation around sentencing, a rise in the number of recalls and a massive increase in oral hearings brought about, in part, by decisions of the courts. Panel members are appointed by the Secretary of State. However the board has requested additional members in the following categories: two psychiatrists, 14 independent, five probation and as many judicial and psychology members as can be appointed. In the interim, 20 members whose appointments end this summer are, with the agreement of the Ministry of Justice, being invited to re-apply for a further six months. Steps being taken to ease the pressure by the Board itself include the recent installation of a video link at the Board's headquarters in London. Changes to the Parole Board Rules are also being considered to enable more cases to be dealt with by single members. The Board is also reviewing its own processes to see, amongst other things, whether oral hearings should be automatic in determinate sentence recall cases."

[14]It is an unfortunate picture. There is no doubt that there is a very much greater pressure upon the Parole Board and that results largely from recent legislation, in particular the Criminal Justice Act 2003 and the sentence of Imprisonment for Public Protection. There are inevitably an increasing number of those sentences being imposed and many of them contain a relatively short tariff period and, following that the Parole Board has to consider whether the individual should be released and that consideration engages Article 5(4). In addition, because of the increase in numbers and because more are released on licence and because of their history of offending, there are more breaches of licence and thus more recalls to prison. I will come back to that when dealing with one argument raised by Ms Wheeler in due course.

[15]I should before going further refer to some of the authorities to which my attention has been drawn. The first case to consider is R(C) v London South and West Region Mental Health Review Tribunal

[2002] 1 WLR 176

. That case, as its title confirms, was concerned with an application to the Mental Health Review Tribunal following the detention of the claimant in hospital and so Article 5(4) was engaged. It was the practice of the Tribunal to set a target date of eight weeks maximum between the application for a hearing and the hearing. The court indicated that that target date was not in itself unreasonable but a practice which made no effort to see that an individual application was heard as soon as was reasonably practicable, having regard to the circumstances of the case, did not meet the requirement of a speedy decision and therefore was unlawful. At paragraph 44, Lord Phillips, Master of the Rolls, as he then was, who gave the only reasoned judgment, referred to decisions of the European Court of Human Rights, in particular in a case called E v Norway 7 EHRR 30, and what the court there said was:

"It remains to be established whether these periods comply with the requirement of article 5(4) that decisions be taken 'speedily'. In the court's view, this concept cannot be defined in the abstract; the matter must - as with the 'reasonable time' stipulation in article 5(3) and article 6(I) (see the established case law) - be determined in the light of the circumstances of each case."

Lord Phillips said:

"It seems to me that the approach of the Strasbourg Court is not compatible with the practice of automatically listing an application for hearing eight weeks after the date of the application, unless it be the case that this is the only practical way of ensuring that individual cases are determined as speedily as their individual circumstances reasonably permit. Furthermore, in considering that question, the Strasbourg Court would not have regard to any alleged constraint of resources. In Bezicheri v Italy [1989] 12 EHRR 210, 215, para 25 the court noted that: 'the Convention requires the contracting states to organise their legal systems so as to enable the courts to comply with its various requirements.'"

It is to be noted that Ms Lieven, who appeared on behalf of the Tribunal in that case, had pointed out various matters which she asserted would mean that the period of eight weeks was in fact reasonably required to enable proper information to be put before the Tribunal. At paragraph 54, Lord Phillips said this: 54. Ms Lieven pointed to the requirement that the patient be examined by the medical member of the Tribunal before the hearing (see rule 11). She submitted that this would normally occur after the provision of the statement under rule 6; that is plainly correct. Ms Lieven went on to attempt to paint a picture of a plethora of other activities which might fill the five week gap before the hearing: (a) giving notice of the proceedings to other interested parties (rule 7); (b) instructing representatives (rule 10); (c) disclosure of documents (rule 12); (d) further directions (rule 13)." To these were added the possibility that a patient might be transferred to a new institution and a different Responsible Medical Officer:

"56. While these are possible incidents of an individual case, I am not persuaded that they inevitably call for a further period of five weeks or more after the delivery of the statement. The time reasonably needed after delivery of the statement before the hearing can take place is likely to turn very much on the manner in which the patient, and the patient's advisors, will wish to respond to the statement. If they require the patient to have an independent psychiatric assessment, more time will be needed than if they do not. 57. Where, as in the present case, a patient is represented from the outset by solicitors experienced in mental health work who are requesting an early hearing date, I can see no reason why that request should not be capable of accommodation, subject to the exigencies of listing to which I now turn."

It seems to me that those observations apply as much as to the situation before the Parole Board as they apply to that before the Mental Health Review Tribunal.

[16]There was then consideration of submissions made by Ms Lieven that it would be impossible to arrange dates at shorter notice because members of the Tribunal and the medical officers would have to identify periods of common availability within crowded diaries. Lord Phillips indicated that he was not prepared to accept that without cogent evidence and he made the point that patients detained under section 2 had hearings arranged within seven days. In paragraph 62 he indicated on the facts that the Tribunal had really disposed of the validity of its own argument because the hearing date had been advanced by ten days in order to accommodate a Responsible Medical Officer, which tended to suggest that it was not impractical to fix hearing dates at relatively short notice. Lord Phillips concluded in paragraph 63 that the practice of fixing hearing dates eight weeks after the date of application was bred of administrative convenience not of administrative necessity. There was nothing inconsistent with Article 5(4) in having a target date of eight weeks maximum and the circumstances of some cases might well require eight weeks preparation and if they did there would be no conflict with Article 5(4) but if they did not then there must exist the necessary flexibility to accommodate an earlier hearing.

[17]The Court of Appeal considered the question in relation to the Parole Board in R (Noorkoiv) v Secretary of State for the Home Department and the Parole Board

[2002] 1 WLR 3284

. The precise details of the timings I do not need, I think, to go into because it is the statements of principle that are material, this being a case involving continued detention after the service of the relevant tariff. The lead judgment was given by Buxton LJ. He dealt with the jurisprudence on Article 5(4) and expressly considered the question of the extent to which, if at all, resources were a relevant consideration in dealing with timing of hearings. He referred to E v Norway and Bezicheri v Italy and to R(C) v London South and West Region Mental Health Review Tribunal and went on in paragraph 25 of his judgment to say this:

"The fact that the state is dealing with people who are at least presumptively detained unlawfully, and the legality of whose detention is controlled by article 5(4), imposes a more intense obligation than that entailed by the need for a prompt trial of people who are not in custody. I therefore view with some caution in this context cases such as Dyer v Watson [2002] 3 WLR 1488, relied on by the Secretary of State, that address article 6(1). But even there it is conspicuous that Lord Bingham, at paragraph 55 of the judgment, drew a distinction between general faults in or underfunding of the system, which provide no defence even in relation to article 6(1); and 'the practical realities of litigious life even in a reasonably well organised legal system'. I find it hard to characterise the Parole Board's submissions, which are that because of lack of resources they are incapable of improving the system, as appealing to the second of the categories identified by Lord Bingham."

Then in paragraph 28, under the heading "Resources and the responsibility of the state", he said this:

"The Parole Board lacks resources in terms of judges and psychiatrists because they have not been made available to it by other government departments. Miss Richards agreed, or at least did not formally disagree, that if this matter were proceeding in Strasbourg it would avail her not at all to say that failings on the part of one organ of the state were attributable to other organs of the state. But, she said, the position was different before the domestic courts."

He went on to say he recognised the general force of a submission such as that but he did not regard it as a basis for saying that resources should be a defence to any delay. At Paragraphs 30 and 31, he said this:

"Mr Noorkoiv was detained by the Secretary of State, who was implementing arrangements made by the state, including the slowness of consideration by the Parole Board forced on it by the limited resources made available to it by the state. The Secretary of State cannot therefore excuse any failing under article 5(4) by pointing to policies adopted by other departments; nor, I am constrained to say, should he seek to do so."

Pausing there, of course it is not another department now, it is the Ministry of Justice who is responsible for the system as a whole and the Home Office does not now come into the picture, but that makes no practical difference. In 31, Buxton LJ continued:

"31. This aspect of the matter was not put to Dyson J in R v Secretary of State for the Home Department, Ex p Norney [1995] 7 Admin LR 861, a case on which some reliance was placed by the Secretary of State; nor was it put to Henriques J. It did not feature in the case until Mr Gledhill appeared on the scene. But in the context of the prohibition on reliance on under-resourcing that is referred to in paragraph 24 above, I see no answer to the argument that the Parole Board and the Secretary of State cannot excuse delays that would otherwise be in breach of article 5(4) simply by pointing to a lack of resources that are provided by other arms of government."

[18]Simon Brown LJ gave an concurring judgment in which he accepted that the scheme then applied by the Parole Board was not properly compliant with Article 5(4) and he said:

"Given the imperative need to release from prison any post-tariff prisoner who no longer remains a danger, (not least in these days of acute prison overcrowding), any system tending to delay such release (as the Parole Board's present system does) requires the most compelling justification. Although by no means unsympathetic to the Parole Board's difficulties, at the end of the day I am not persuaded that any such compelling justification exists, or at any rate that it need continue to exist. Further resources must be found. No less importantly, the Parole Board must devise a new system for pre-tariff expiry date hearings, which amongst other things will ensure, consistently with their statutory duty under section 28(5)(b), that they do not direct the release of a tariff-expired prisoner unless indeed at the date of that direction they are satisfied, as required by section 28(6)(b), that it is safe to do so. It can be done. As soon as reasonably practicable it now should be done."

That case was directed to an expiring of tariff but the principal is precisely the same in relation to recall cases. If the recall was not justified, if the prisoner is not a danger to the public, then it is the same imperative that he/she should be released as soon as possible and, of course, problems of prison overcrowding are now more acute than they were in 2002 when this decision was reached.

[19]Ms Wheeler rightly accepted that Article 5(4) meant that a hearing had to be held as soon as reasonably practicable. It is, of course, important that proper information is before the Board since it is concerned to ensure that someone who is dangerous is not released but, equally, that a person who is not dangerous should not continue to be detained. Therefore detention must be clearly justified. Particularly where mental health problems have led to the offending, it is in a prisoner's interest, as well as that of the public, that he should not be released if it is unsafe to do so. This may mean that time has to be taken to ensure that all material information is available. It is therefore not possible to say that X weeks is a limit applicable to all cases. Each will need consideration on its own facts. However, the European Court of Human Rights has tended to say that even relatively short periods of delay require justification and the justification will clearly be more easily established the shorter the delay. I have no doubt that to wait for 55 working days or 11 weeks, nearly three months (and in fact in this particular case over three months), is prima facie not to provide a hearing speedily. Such a delay requires justification.

[20]I have considered whether a method can be applied to fix a period which is to be regarded as generally acceptable so as to provide a proper target date. It must not be based on administrative convenience or dictated by resource problems. The Board has experience in dealing with recall cases and should be able to assess what time is needed in an average case before the parties are likely to be ready for a hearing. That surely will provide a good starting point for a target if targets are desirable and if the practice is (and I do not criticise it) to fix a hearing date when a request for a hearing is lodged, that should be the maximum time considered appropriate. The problem with targets is that they tend to be regarded, particularly where there is pressure on the tribunal in question, as the period within which it would be appropriate to fix a hearing and inevitably the period is likely to be towards the limit of that target. If there are likely to be any complications which mean a longer time is needed, or reasons for an earlier hearing, it would no doubt be helpful for the parties, or one or other of them, when the application is made, to draw attention to those possible difficulties. Equally, I have no doubt that the target period of 55 days was not chosen as a result of any such exercise. It was driven by the business plan, which itself was driven by the ability to meet the relevant target and that ability clearly depended upon resources. Indeed, it is to be noted that 90 per cent compliance had been achieved.

[21]Another case to which I have been referred was a decision of Stanley Burnton J in a number of cases heard together against a Mental Health Tribunal under the title of MK and others. I have a copy from Westlaw but the neutral citation number is

[2002] EWHC 639

Admin. At paragraph 47 of his judgment, Stanley Burnton J said this:

"47. In my judgment, the correct approach in a case that raises issues of this kind is, first, to consider whether the delays in question are, on the face of it, inconsistent with the requirement of a speedy hearing. If they are, the onus is on the State to excuse the delay. It may do so by establishing, for example, that the delay has been caused by a sudden and unpredictable increase in the workload of the tribunal, and that it has taken effective and sufficient measures to remedy the problem. But if the State fails to satisfy that onus, the claimant will have established a breach of his right under Article 5.4."

[22]This led Ms Wheeler to suggest that the increase in the work load of the Board was sudden and unpredictable and that approach could be relied on. That, I am afraid, I find impossible to accept. The inevitable result of the 2003 Act was that there would be more sentences which involve the Parole Board. The Government got Imprisonment for Public Protection provisions passed by Parliament. It is in the circumstances the obligation of the Government to have provided the necessary resources for what was clearly a predictable and indeed inevitable increase in the workload of the Parole Board. I am satisfied that there was a failure in the circumstances to comply with Article 5(4) in that the hearing, due on 24th May, has not been held speedily. Furthermore, as the Court of Appeal in C made clear, it was not proper to adopt a period which cannot be altered. Listing of cases is, as I have said, a judicial function and mental health issues, just as physical health issues, are capable of justifying a speedier hearing, provided, of course, that there is proper support for the claim in a particular case.

[23]So far as the suggestion that the mental health deterioration can be dealt with by transfer to hospital under section 47 if necessary is concerned, why should, I ask myself, a prisoner be required to wait until his condition reaches such a state as justifies such a transfer? It can only be made if he would qualify for detention in a hospital in accordance with section 3 of the Act. Furthermore, it would surely be to his prejudice as far as prospects of release are concerned if his mental health had deteriorated to such an extent that the Board could not be satisfied that he was not likely to be a danger. There would therefore be clear prejudice, in my view, to him if in circumstances such as this he were to remain in custody longer than was necessary.

[24]I would add that concern has been expressed that even now the Board has not indicated that it is certain that the hearing will take place on 24th May. Apparently the judge who is lined up to hear it is involved in a criminal case which is expected to go short. That may happen but there is a danger, as I understand it, that it will not and in the circumstances the Board was unable to give any guarantee that the hearing would take place on 24th May. Mr Southey pointed out that, if the claimant was to be released, he would need somewhere to live and the accommodation available to him will be lost if he does not take it up before 13th June, so any delay would be highly prejudicial. In any event, as I have already decided, the hearing date of 24th May is itself a breach of Article 5(4). There must therefore be no further delay and the hearing must take place on 24th May, obviously unless there is some unforeseeable circumstance that arises in the meantime, although I cannot see that that is likely to happen.

[25]Accordingly, for the reasons I have given, as I have said, I have no doubt that the present approach of the Board is one which cannot be justified and, insofar as there is a problem with resources, that must be faced by the Government and the necessary resources must be provided to enable the Board to carry out its functions in a manner which complies with the obligations of the law and, in particular,

Article 5(4) of the European Convention on Human Rights

. The claim was for a declaration but, as I indicated yesterday in argument, it did not seem to me that a specific declaration was needed because the terms of the judgment spoke for themselves. However, I indicated that I was prepared to enable both sides to consider this judgment and if either desired a declaration in any particular form then they should put before me in writing such a declaration and I would consider whether it should be granted. Furthermore, Ms Wheeler indicated that those instructing her would like to consider the judgment before deciding whether they would seek leave to appeal and, since I have indicated that I am prepared to provide time to enable there to be consideration of whether a declaration should be requested, it seems to me that I will allow the same time to enable the defendant to decide whether an application is to be made. If it is so decided, then initially it should be made in writing, a copy to the other side, with a view to my considering whether leave should be granted in writing.

[26]There is a claim for damages. So long as lack of proper resources leads to cases not being heard speedily, there will be a breach of Article 5(4) and so damages may be payable. Such a situation is clearly unacceptable. So far as this case is concerned, the amount of any damages recoverable (if any) is likely to be influenced by the decision which is to be made by the Board on 24 May. Even if it decides that the recall was proper and the claimant should be released, there may be a claim based on the adverse effect on his health of the delay. And if it can be established that the decision not to release him resulted from his poor mental state itself caused by the delay the damages may be substantial. In all the circumstances, I think I should, at least for the time being, retain the damages claim to be dealt with (if it has to be determined) by me or a judge of the Administrative Court. If a claim is to be pursued, I shall consider in the light of the issues that need to be decided whether it should continue to be dealt with by a judge of the Administrative Court or it should be remitted to be heard by a Master.

[27]Ms Wheeler, the sensible thing is for me to say that the time for making any application and for dealing with the matter should run from when you receive a copy of the transcript.

[28]MS WHEELER: I am grateful, my Lord.

[29]MR JUSTICE COLLINS: I shall be away for three weeks at the end of next week so what will be done is that the draft transcript will be put before me next week so you will get it, I hope, by the end of next week at the latest. Since I am away then for three weeks, you have three weeks between you in which to consider the question of any declaration and any leave to appeal.

[30]MS WHEELER: That sounds more than adequate.

[31]MR JUSTICE COLLINS: Because obviously the urgency has gone out of it, so far as this individual case is concerned. Ms Wheeler, I do not know whether those instructing you are aware of a case called Durrant v Parole Board. It happened I was given the papers this morning. I have not had a chance, really, to look at them but it seems to raise much the same point, does it not?

[32]MS WHEELER: Your Lordship, I think there are a number of cases, as we indicated yesterday in argument, and I think a inevitable process will be to draw together those pending cases and have them considered at the same time, how they are to dealt with.

[33]MR JUSTICE COLLINS: Durrant appears to be a case where there is a six-month delay for various reasons and the application is that the hearing at the moment fixed for 26th June should be brought forward. I do not expect you to be able to deal with it immediately but, in the light of the judgment I have just given, I would on the face of it, subject to checking the actual facts, be rather sympathetic to any such order.

[34]MS WHEELER: Certainly my instructing solicitor had considered that it does appear a time has come to draw together these different cases. We certainly take account of what your Lordship has said in this particular case and, of course, that will also inform the decision about whether or not to seek leave to appeal and, if so, on what basis. So I am grateful to your Lordship for drawing attention to that.

[35]MR JUSTICE COLLINS: But in the meantime, obviously, I shall have to consider this later today and decide whether some sort of peremptory order is appropriate but in the meantime, in the light of my judgment, I think it would be sensible if you could ask the Parole Board to see whether it is possible to make some arrangements in Durrant. As I say, I have not -- at least to investigate the possibility of making some arrangements. It may be that there are good reasons why they should not be. As I say, I have not had a chance to look at the papers in detail.

[36]MS WHEELER: Your Lordship, certainly for my part I am not at all familiar with the case but I would certainly pass on your Lordship's comments --

[37]MR JUSTICE COLLINS: I only received it at quarter past ten this morning, so I obviously have not had a chance to look at it. Thank you both. There is nothing else, I think, that we need deal with? I should say there be an order of costs in favour of the claimant and the usual order in relation to legal aid, namely detailed assessment if not agreed.

[38]Thank you very much.

Cooper, R (on the application of) v Parole Board [2007] EWHC 1292 (Admin)

Lord Phillips said:

Cited in 5 later judgments