R (on the application of George Loch) v Secretary of State for Justice [2008] EWHC 2278 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2008] EWHC 2278 (Admin)Case No Case No: CO/2959/2008Venue Royal Courts of Justice, Strand, London. WC2A 2LL
Between
R (on the application of George Loch)ClaimantSecretary of State for JusticeDefendant
Before
Mr Justice StadlenMr Southey (instructed by Michael Purdon Solicitors) for the ClaimantMr Sachdeva (instructed by Treasury Solicitors) for the DefendantHearing dates: 10th June 2008
[1]Stadlen J : This is an application for judicial review by the Claimant, Mr George Loch , of a decision taken by the Secretary of State for Justice on 21 st January 2008 to refer his case to the Parole Board on 1 st June 2009. That would be just over 18 months after his last Parole Board hearing on 30 th November 2007. Mr Loch is a prisoner serving a life sentence imposed on 10 January 2003 for robbery and possession of an imitation firearm whose tariff of five years less time on remand expired on 29 August 2007.[2]The principal issue which arises on this application is, whether the decision of the Secretary of State that the next Parole Board review should take place approximately 18 months after the last one amounts to a violation of Article 5 (4) of the European Convention on Human Rights ("Article 5 (4)"). Factual background[3]On 27 August 2002 Mr Loch entered the Jarrow branch of Lloyds TSB Bank. He passed a note to the cashier demanding money and then spoke to him saying that he had a gun in his bag. The cashier attempted to activate the security system but did not do so after Mr Loch told him:
" Don't do it, it's not worth it."
The cashier, who believed that Mr Loch was in possession of a firearm, then handed over the cash and Mr Loch left. On 10 January 2003 having pleaded guilty to robbery and possessing an imitation firearm, Mr Loch was sentenced to life imprisonment.[4]Passing sentence, the Recorder said that Mr Loch had clearly instilled a great deal of fear in the cashier. He said that if he had passed a determinate sentence, taking into account Mr Loch's previous offending history and the circumstances of the offences as well as Mr Loch's's personal circumstances, and his guilty plea, it would have been one of 10 years' imprisonment. He therefore specified the period of detention which he had to serve before his case could be referred to the Parole Board as one of five years less the 134 days he had spent on remand in custody.[5]The offences took place three months before the expiry on 24 November 2002 of the longer of two previous sentences for robbery passed on 7 February 1994. On that date Mr Loch received concurrent sentences of 6 years and 9 years respectively for two robberies in the South Tyneside area on the same day, 25 November 1993.[6]The first of those offences occurred when he threatened a shop assistant and ordered her to hand over cash. He fled empty-handed when the shop assistant activated the security alarm.[7]The second offence was committed later the same day when he entered a Post Office in Jarrow armed with a sawn-off shotgun in a carrier bag. He threatened customers and staff with the gun, forcing the postmaster, a 55 year old man, to hand over £1,175.00 cash from the counter. He ran off and discarded clothing and the shotgun in a nearby playing field.[8]Mr Loch, who was born on 9 October 1967 and is now 40 years old, is a prolific offender. His convictions, which go back to 1983 when he was 15 years old, include 9 for burglary, 5 for theft, 4 for criminal damage and 3 for assault. From a relatively young age heavy drinking was a feature of his life. In the months prior to the robbery in 2002 he described habitually drinking alcohol throughout the day and regularly using cannabis, with cocaine reserved for weekends. This resulted in unmanageable debts and his decision to rob the bank in 2002 was motivated by his perceived need to finance his established pattern of heavy drinking and weekend cocaine use.[9]On 20 August 2003 he was allocated to H.M.P. Durham where he had been remanded in custody. His early behaviour during his sentence was considered good. He achieved enhanced status, trained as a listener and had a good work record in that capacity. He undertook a Sycamore Tree victim awareness course and in March 2004 completed an enhanced thinking skills programme. The final report suggested that he showed a good understanding of the course content and had completed assignments to a high standard.[10]However in early 2005 he relapsed into drug use and accrued a drug-related debt. In May 2005 he had adjudications made against him for possession of unauthorised items and use of drugs and it was reported that he was preparing a large quantity of drugs for distribution, which he maintained he was placed under pressure to participate in because of his drug debt.[11]On 3 August 2005 Mr Loch was transferred to H.M.P. Kingston, where his conduct improved. On 11 November 2005 the Parole Board did not direct release or transfer to open conditions, but since they had not considered his representations they agreed to reconsider. This they did and on 10 March 2006 the Parole Board recommended that Mr Loch should remain in closed conditions.[12]In giving their reasons the panel stated:
"Although he completed an enhanced thinking skills programme, by his own account he appeared to have gained little from it and his behaviour as evidenced by the matters that led to the adjudication suggests that he needs further work to develop his consequential thinking. The panel considered that until his work has been completed and Mr Loch has been able to demonstrate a prolonged period without further relapse into drug use the risk he represents remains too high for him to be recommended for a move to open conditions."
The Parole Board's recommendation was accepted by the Secretary of State on 24 March 2006.[13]On 29 August 2007 Mr Loch's tariff expired. He thereby became entitled to periodic Parole Board Reviews to assess his continuing dangerousness or lack thereof. On 26 November 2007 the Parole Board reviewed Mr Loch's case. The panel which considered his case declined to direct his release but did recommend that he should be transferred to open conditions. That recommendation involved an explicit rejection of the Secretary of State's view that he should remain in closed conditions. It reflected supportive reports from Mr Loch's lifer manager and his seconded probation officer. The former stated:
"As the most significant factor in the commissioning of his offence was alcohol and drug misuse it would appear that these factors have been addressed during this sentence... I have deduced from my interview with [Mr Loch] and a study of all his relevant reports that he is deserving of the opportunity to move to Category D conditions...."
[14]The latter commented: In my opinion [Mr Loch] has demonstrated a good level of motivation and the appropriate skills to deal with the added risks that will be present in Category D conditions." It is explicitly accepted by Mr Samuel Asiedu, team leader of the pre-release section of the public protection unit of the Ministry of Justice, in a witness statement dated 3 June 2008 served in opposition to Mr Loch's application for judicial review, that the reports received from H.M.P. Acklington, to which Mr Loch had gained a progressive move in March 2007 following an improvement in his custodial behaviour, demonstrated that he had made good progress.[15]It is clear from the Parole Board decision letter that the panel were of the view that Mr Loch had made considerable progress. The letter stated:
"... 7. During your prison career there have been concerns about your use of drugs but you have not had any adjudications since 2004 [this appears to be at odds with the reasons given for not recommending his transfer to open prison conditions on 24 March 2006 which stated that he had adjudications for possession of unauthorised items and use of drugs in May 2005], and you have engaged positively with the CART team on relapse prevention. 8. You do not present a control problem and you have achieved enhanced IEP status. 9. You have successfully completed courses on ETS, victim awareness, cognitive social skills, personal development, assertiveness, financial management and drugs and alcohol awareness. 10. Your risk factors have been identified as financially motivated offending, poor thinking skills, poor victim awareness and poor emotional management.... 13. The panel were impressed by the progress that you have made especially since you were moved to H.M.P. Kingston. You have worked hard to address your areas of risk and the panel took the view that you had achieved a good understanding of the origins of your offending behaviour and its impact on your victims."
[16]The panel's reasons for concluding that it was not satisfied that it was no longer necessary for the protection of the public that Mr Loch be confined were summarised as follows:
" 14. The panel was concerned that you have, in the past, been a prolific offender who has committed serious crimes. Much of your offending has been linked to drug and alcohol abuse and the panel felt that, whilst you have completed all the necessary course-work, there was a need for further testing in open conditions to assess whether or not the lessons you have learnt can be applied in practice. This view is shared by all the report writers and was the preferred course of action of Ms Davison [the external probation officer]. 15. In the panel's view until further testing in open conditions is successfully completed it cannot be said that the risk that you represent has been sufficiently reduced to enable a direction for release on licence. The panel, therefore, recommends a transfer to open conditions."
[17]On 21 st January 2008 the Secretary of State in a decision letter informed Mr Loch that, having considered the Parole Board's recommendation, he had agreed to his transfer to open conditions. He also informed him that it had been decided that his next Parole Board hearing should take place on 1 st June 2009. The reasons given were:
" Formulate a robust and tested release plan. Undertake further relapse prevention strategies (if appropriate). Undertake ROTL Be closely monitored for drugs, alcohol use and financial management. To consolidate and apply his newly acquired knowledge in his daily interactions."
I note that the letter did not identify or prescribe any specific courses for Mr Loch to undertake. The parties' submissions[18]The primary submission of Mr Southey who appeared on behalf of Mr Loch, was that in the light of the authorities to which he referred Mr Loch's Article 5 (4) rights will be violated if the next Parole Board review of his eligibility for parole takes place more than one year after his last review was completed. As a consequence his next Parole Board review must be completed by November 2008. Mr Southey's fallback submission was that even if there is no obligation to hold a Parole Board review one year after the last review, the Secretary of State's decision is unlawful because a gap of 18 months is excessive.[19]At the forefront of Mr Southey's submissions were two matters. First he relied heavily on the acknowledged fact that Mr Loch was making progress. Second he submitted that insufficient justification has been identified by the Secretary of State for deferring Mr Loch's next Parole Board review for 18 months. In particular, although the Secretary of State believes that Mr Loch needs to spend 18 months in open conditions before his next Parole Board review, there is no reason to believe that the Parole Board would necessarily agree with that view and no reason why the progress made by Mr Loch is not sufficient to justify a one year period between reviews. On the contrary, Mr Southey submitted, there is nothing in the decision of the Parole Board to suggest that its view was that a period of 18 months was required. Although the panel concluded that there was a need for further testing in open conditions to assess whether or not the lessons Mr Loch has learnt could be applied in practice, it did not specify a period over which such testing should be carried out or suggest that there was a need for a particularly long period, in particular a period longer than would be consistent with a review after 12 months.[20]Mr Southey further submitted that there is nothing inherent in the testing and monitoring which needs to be done that means that it is incapable of being done in time for a 12 month review. This is not a case where the Parole Board has identified work or courses which need to be undertaken which inherently take more than 12 months to be completed. In this regard he relied on paragraph 4.3.3 of Prison Service Order 6300 which he submitted makes it clear that the period of time necessary to enable a programme of Release On Temporary Licence ("ROTL") to take place can be changed to reflect the time until the next Parole Board review.[21]Although Mr Southey accepted that there is no formal legal presumption that a Parole Board review must be heard within 12 months, he submitted that the case law makes it clear that the Secretary of State must justify periods greater than one year between reviews at least in circumstances in which the prisoner is making progress. In this context he relied in particular on the decision of the European Court of Human Rights in Hirst v United Kingdom , (2001) The Times 3 August, BAILII: [2001] ECHR 481 , the decision of Gibbs J in R ( Day) v Secretary of State for the Home Department [2004] EWHC 1742 (Admin) and the decision of the Court of Appeal in R (Murray) v Parole Board (2003) The Times 12 November, [2003] EWCA Civ 1561 , On the facts of this case Mr Southey submitted that the Secretary of State has failed to justify a period greater than one year.[22]Mr Sachdeva on behalf of the Secretary of State for Justice relied on the witness statement of Samuel Asiedu dated 3 June 2008 to which I have referred above. He submitted that Mr Asiedu's witness statement justified the 18 month period as follows:
" (1) Release on temporary licence typically takes 12 months for a prisoner to work through the various stages, from supervised activities outside the prison boundary, to resettlement day release, to resettlement overnight, to resettlement for up to 5 days per week. Mr Loch, unlike some prisoners, will need very close monitoring during this period to ensure that he does not descend into drugs or alcohol use. (2) The other work required cannot necessarily be carried out concurrently with the release on temporary licence - for instance certain programmes such as the OASys assessment and offending behaviour work must be completed before he would be eligible for ROTL. (3) Although Mr Loch has shown some encouraging progress since arriving at HMP Kingston, the Parole Board emphasised the necessity for proper testing in open conditions - for it is at this stage that he will have ready access to both drugs and alcohol, and they are major risk factors for re-offending in this case. (4) It is therefore considered appropriate that an 18 month period is required before Mr Loch's case is reconsidered by the Parole Board. The likelihood were his case to be reconsidered after 12 months would be that insufficient testing in open conditions had been carried out, and further testing would be required in the particular circumstances of his case; although clearly the decision is a matter for the Parole Board."
[23]Mr Sachdeva submitted that paragraph 4.3.3 of PSO 6300 provides a table listing the length of time which a life sentence prisoner must normally spend in open conditions before becoming eligible for release on temporary licence. He emphasised that paragraph 4.3.3 states that each case is considered on its individual merits and the timetable is applied flexibly where appropriate. Mr Sachdeva submitted that the timetable contemplated for Mr Loch is consistent with the table in paragraph 4.3.3 and (more importantly) is appropriate for Mr Loch, given all the circumstances including his previous similar offending.[24]As to the law, Mr Sachdeva submitted that(1) there is no presumption that a period greater than one year breaches Article 5 (4) (see Gibbs J in R (Day)):(2) the ECHR has conspicuously declined to be prescriptive about the length of the detention period which would lead to a violation of Article 5(4) in the absence of a review as emphasised by the court in (R (Spence) v Secretary of State for the Home Department [2003] EWCA Civ 732(3) the proper test is whether the court decides that the Secretary of State's decision succeeds or fails in providing a speedy review as required by Article 5(4) having regard to all the circumstances of the case giving due weight to the views of the Secretary of State (R (Day) (4) in determining whether the interval complies with Article 5 (4) on the facts of a particular case the court asks itself whether the interval was reasonable. The answer to this question is a matter for the court which does not apply the Wednesbury test. (R v Spence Op. Cit. at para 35).(5) each case depends on its individual circumstances (R (Day) Para 48 and R (MacNeil) v Her Majesty's Prison Discretionary Lifer Panel [2001] EWCA Civ 448 .[25]Applying that legal approach to the facts of this case Mr Sachdeva submitted that there was no violation of Mr Loch's Article 5 (4) rights. In answer to Mr Southey's citation of various cases in which it was held that periods of between 1 and 2 years breached Article 5 (4) Mr Sachdeva referred to Spence, Clough, MacNeil and Day as cases where periods of between 1 and 2 years were found to be unobjectionable. Analysis[26]There is no shortage of authority, both in the European Court of Human Rights and the domestic courts, in which the requirements of Article 5 (4) and the tests to be applied by the Secretary of State and the court respectively in this area have been considered.[27]Article 5 (la) provides as follows:
" (1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) The lawful detention of a person after conviction by a competent court"
Article 5 (4) 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."[28]In the context of a life prisoner, the determinate or penal part of whose sentence has expired, Article 5 (4) has been held to require periodic and speedy review by a court to determine whether his continued detention is necessary for the protection of the public. Before reviewing the case law on the nature of that requirement, it is instructive to keep in mind the reason why the requirement has been held to exist. This was recently explained by the Court of Appeal in The Secretary of State for Justice and David Walker and The Secretary of State for Justice and Brett James [2008] EWCA Civ 30 . Delivering the judgment of the court Lord Phillips of Worth Matravers, CJ said: "Where the court imposes a sentence of indefinite duration, the object is that once the penal tariff has been served, the offender will remain in custody only so long as this is necessary for the protection of the public. In such circumstances the detention will only be justified under Article 5(l)(a) so long as it is necessary to achieve that object. In those circumstances there will be a requirement for periodic review by a court in order to comply with Article 5(4). The object of that review will be to determine whether or not the detention remains justified under Article 5(1)(a) - Weeks at paragraph 49; Thynne, Wilson and Gunnell at paragraph 76. (para. 54). ...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) " (Para 61)

[29]Thus, given that the prisoner's continued detention is only justified so long as it is necessary for the protection of the public, it is immediately apparent why the greatest importance has been attached to the need by means of speedy periodic reviews to eliminate so far as reasonably practicable the possibility of a prisoner remaining in detention when the legal justification for such detention by reason of his continuing dangerousness no longer exists.[30]The European Court of Human Rights has declined to prescribe a maximum period of time between reviews which must be adhered to in order to comply with what it has held is the requirement under Article 5(4) for decisions concerning continued detention to be taken " speedily". It has held that the question of whether periods comply with the requirement for speedy decisions must be determined in the light of the circumstances of each case. It is, nonetheless, possible to derive from certain of its decisions some assistance in the approach to be followed both by the Secretary of State and by the court.[31]Thus in Oldham v United Kingdom (2001) 31 EHRR 34 the court held:
"30. It is already established in the case law of the Convention organs that this requirement [i.e. of Article 5(4) that decisions concerning continued detention be taken "speedily"] implies not only that the competent courts must reach their decisions "speedily" but also that, where an automatic review of the lawfulness of detention has been instituted, their decisions must follow at "reasonable intervals". 31. It is true that the question of whether periods comply with the requirement must - as with the reasonable time stipulation in Article 5(3) and Article 6(1) -be determined in the light of the circumstances of each case. It is therefore not for this court to attempt to rule as to the maximum period of time between reviews which should automatically apply to this category of life prisoner as a whole. It notes that the system as applied in this case has a flexibility which must reflect the realities of the situation, namely that there are significant differences in the personal circumstances of the prisoners under review. ... 32. In previous cases the Convention organs have accepted periods of less than a year between reviews and rejected periods of more than one year. ... 34... Article 5(4) was held applicable to discretionary life sentences since these were imposed on offenders due to considerations of mental instability and dangerousness which were susceptible to change over the passage of time.... 35. As regards the lack of recommendation by the DLP for a review of this applicant within a period of less than 2 years the court does not find this to be a decisive ground of distinction. While the applicant underwent courses aimed at addressing the perceived problems of anger, alcoholism and relationships, it appears that these were concluded within 8 months of his recall. No further courses were arranged for the applicant during the next 16 months which elapsed before his next review. The government has referred to the need to monitor and make reports on his progress without specifying the nature of this process or how long it took. In these circumstances, the court is not satisfied that the period of 2 years was justified by considerations of rehabilitation and monitoring."
The Court thus emphasised that in order to justify a particular period between reviews it is necessary for the government not only to identify a need for monitoring and reporting on progress but also to specify not only the nature of the process but in particular how long it will take.[32]In Hirst v United Kingdom (2001) The Times 3 August, BAILII: [2001] ECHR 481 , the European Court repeated most of the observations quoted above. On the facts of that case the court concluded that periods of 21 months and 2 years between Parole Board reviews amounted to a violation of Article 5(4). That was notwithstanding the facts that the prisoner was a category C prisoner (the inference being that he still had significant progress to make before release), the Discretionary Lifer Panel had not suggested that reviews at intervals of less than 2 years were required (and indeed on one occasion had concluded that the next review should begin in 2 years time) and that in the period between the Discretionary Lifer Panel recommending a transfer to open conditions and the Secretary of State rejecting that recommendation, the prisoner had been found guilty under the prison rules of assaulting a female prison officer who was escorting him to court. After she had refused to allow him to smoke in the vehicle he had slammed the van door against her, causing her to fall and hurt her arm. He had sworn at her, threatening to kill her, adding that he had already killed one woman. The Court held:
"While the applicant was perceived as having remaining problems to address, in particular following an incident with a female prison officer in July 1998, it is apparent that the Panels, who in 1996 and 1998 heard the applicant and the evidence concerning the risk posed by him to the public, considered that he was showing improvement and recommended that this be reflected in progressive steps towards a less restrictive regime. The judge who heard the judicial review application in October 1997 also had doubts as to the rationality of the Secretary of State's decision to keep the applicant in closed conditions, noting that it was only after a long term prisoner had been tested in open conditions that he could safely be released. It is evident therefore that the applicant was a prisoner who had developed significantly during the course of his sentence and could not. be considered as a person in respect of whom no further change of circumstance could be envisaged. Against this background, the court is not satisfied that the periods of 21 months and 2 years which elapsed were justified by considerations of rehabilitation and monitoring."
[33]It is apparent that the court placed considerable weight on the fact that the evidence showed that the prisoner in that case had made significant progress. It is also of note that the court, in pointing out that he could not be considered as a person in respect of whom no further change of circumstance could be envisaged, appeared to be setting a low threshold when considering whether any adverse view on the prospect of further improvement could legitimately justify a protracted gap between reviews.[34]In Dancey v The United Kingdom, application number 55768/00, BAILII: [2002] ECHR 852 , the European Court held that a 2 year period between reviews was compatible with Article 5(4). That was the period which had been recommended by the Parole Board on the ground that it considered that considerable further offence-related treatment/work programmes still needed to be undertaken, e.g. further work on anger management and relationship issues as well as attendance on an Extended Sex Offender Treatment Programme. The applicant himself had acknowledged during the proceedings that transfer to open conditions was not yet appropriate.[35]The European Court held:
"As regards the 1 year period before the next hearing in November 2000, the Court finds that this accords with the case-law set out above. As regards the 24 month period set for the third review, the Court is not persuaded that in the circumstances of this case this shows a failure to apply standards of reasonable expedition. It observes that a 12 month period had been set between the first and second reviews on the basis, inter alia, of anticipated progress but that it transpired that this had been an over optimistic assessment and that much remaining offence-related work had been identified as necessary. To facilitate this work, the applicant was transferred to a category C prison. Though the government assert that the applicant accepted that he was not ready for either open prison or release and has agreed to the treatment plans, this is not conclusive as to any waiver of any entitlement to more speedy review, though it is significant that the applicant has not commented on the government's observations on this point and does not raise any specific complaint on this aspect. The Court is satisfied that the question of review and progress towards release in the applicant's case has been approached with flexibility and due regard to his individual circumstances. Consequently the Court does not find any failure on the part of the authorities to comply with the requirements of Article 5(4) of the Convention."
[36]Dancey is further authority for the proposition that the relevant test is whether there has been a failure to apply standards of reasonable expedition. By upholding a 24 month period it illustrates that this test has to be applied on a case by case basis by reference to the specific facts and that where those facts do not show a failure to apply standards of reasonable expedition a period of as long as 24 months is capable of being held to comply with Article 5(4). It also underlines the importance of the relevant decision maker approaching the question of review and the prisoner's progress towards release with flexibility and due regard to his individual circumstances. On the facts of that case it appears that the court was influenced by the inference it drew from the prisoner's acceptance that he was not yet ready for open conditions that he had not demonstrated that he was capable of significant change in the near future.[37]In Blackstock v United Kingdom (2006) 42 EHRR 2 the applicant was a category B prisoner at the time when his case was reviewed by the Parole Board. The Parole Board recommended a move to category D conditions. The Secretary of State rejected that recommendation as he concluded that it was necessary for the applicant to spend 12 months in category C conditions. In addition, he concluded that there was a need for further offending behaviour work. The Parole Board had also recommended an early review after 12 months in the event of the Secretary of State not accepting its recommendation of a transfer to category D conditions. In the event the next review did not take place until 22 months after the previous review, more than 12 months after a move to category C conditions. The European Court recorded that the lapse of time was explained partly by the time taken by the Secretary of State to reach his decision and partly by an almost 6 month delay in transferring the prisoner to a category C prison, which the government attributed to the difficulties arising from his request to move to a prison near his planned place of release and lack of vacancies in suitable conditions.[38]The European Court concluded that the 22 month delay between reviews violated Article 5(4) for the following reasons:
"47. The Court notes that the Secretary of State considered, on the basis of the reports, that the applicant required further testing in C conditions before entering an open prison. However, while the decision of 29 September 1998 stated that further offence-related work needed to be tackled, together with continuing work to develop more mature, reflective styles of thinking and behaving and enhanced interpersonal skills, it is not however apparent that any formal courses were programmed for the applicant in the category C prison. Nor is it apparent that any consideration was given, in light of the administrative delays, to whether it was necessary to insist on the full 12 months in C conditions before the next review. 48. Given the acknowledged importance of the move to C conditions as part of the applicant's progress towards open conditions and planned release and the absence of any indication of any specific programme of work over this period, as opposed to a general testing of the applicant's capabilities in a less restrictive regime, the Court is not persuaded that the procedure adopted by the authorities, which led to an overall delay of 22 months, paid due regard to the need for expedition." (Emphasis added)
Although of course the decision in Blackstock turns on its own facts, it is relevant in the context of the present case that the court in Blackstock was influenced by two factors: first the lack of consideration as to whether it was necessary to insist on the full 12 months in category C conditions before the next review and second, the absence of any indication of any specific programme of work as opposed to a general testing of the applicant's capabilities in a less restrictive regime.[39]In R (MacNeil) v Her Majesty's Prison Discretionary Lifer Panel [2001] EWCA Civ 448 the appellant prisoner had sought unsuccessfully to challenge by way of judicial review a recommendation by the Parole Board that there should be a 2 year gap before his next review. The sole ground of appeal was founded on the decision of the European Court in Oldham, the appellant submitting that if the judge had been referred to that case he might have formed a different view. The Court of Appeal rejected that submission and held that on the facts of that case the 2 year gap did not constitute a breach of Article 5(4). Giving the lead judgment Peter Gibson LJ, having set out passages in paragraph 31 and 32 of the European Court's judgment in Oldham observed:
"The difficulty which Mr Clough faces in relying on Oldham is that the European Court expressly stated in the passage which I have cited from paragraph 31 that it was not going to give a ruling as to the maximum permissible period between reviews to consider a prisoners release. It recognised that a reasonable period will depend on the facts of the particular case. (Para. 16). ... In my judgment the circumstances of the appellant bear little resemblance to those of the applicant in Oldham. It is impossible to say that, because in Oldham there was found to breach of Article 5(4), there was a breach in the present case, or to say that in the appellant's particular circumstances the recommendation of the Parole Board that the next review date be in January 2002 [i.e. 2 years after the previous review] is unreasonable. I would hold that Article 5(4) has not been breached. (Para.23)"
. Lord Phillips of Worth Matravers, MR (as he then was) gave the following short concurring judgment:
"This is a case which has turned upon its particular facts, as the Strasbourg Court has recognised is appropriate. No general proposition can be based upon it to the effect that a 2 year interval will satisfy the requirement derived from Article 5(4) of the Human Rights Convention that a person deprived of his liberty shall be entitled to have the lawfulness of his detention reviewed at reasonable intervals."
[40]The Court of Appeal thus indirectly confirmed that the question whether there has been a failure to provide a speedy review in breach of Article 5(4) is to be answered by reference to whether the period in question was reasonable, which answer would depend on the facts of the particular case. The Court of Appeal gave double emphasis to that principle in that, having held that it did not follow from the finding in Oldham that 2 years in that case violated Article 5(4) that an identical period necessarily violated Article 5(4) in MacNeil, it went on to stress that by the same token it did not follow from the fact that on the facts in MacNeil a 2 year period did not violate Article 5(4) that an identical period could never do so in other cases.[41]Further guidance on the function of the court on an application such as this and the applicable test was provided by the Court of Appeal in R (Spence) v Secretary of State for the Home Department [2003] EWCA Civ 732 . Giving the judgment of the court Brooke LJ said at paragraph 30 that "... the ECHR has conspicuously declined to be prescriptive about the length of the detention period which would lead to a violation of Article 5(4) in the absence of a review (see Oldham v UK (App. No. 36273/97), BAILII: [2000] ECHR 433 , paras. 30-37.) Strasbourg jurisprudence makes it clear that the question whether such periods comply with the Article 5(4) requirement must be determined in the light of the circumstances of each case (Oldham para. 31) ..." Brooke LJ went on to state: " The decision as to the length of the interval is thus not one which under the Convention needs to be taken by a court for the purposes of article 5(4) (see Oldham v UK and Ashingdane v UK (1985) 7 EHRR 528 at paragraph 52). It can be taken by the Home Secretary. In determining whether the interval complies with article 5(4) on the facts of a particular case, the court asks itself whether the interval was reasonable. The answer to this question is a matter for the court. The court does not, therefore, apply the Wednesbury test and ask whether the interval was not one which a reasonable decision-maker could determine. In considering the question of reasonableness, the court will give appropriate weight to the views both of the Home Secretary and of the Parole Board." (ibid, para 35)[42]In R (Murray) v Parole Board [2003] EWCA Civ 1561 the Court of Appeal considered the decisions in Oldham, MacNeil and Spence. Giving the judgment of the court Sedley LJ having referred to paragraph 32 of the decision of the European Court in Oldham stated: "There is an apparent tension between the suggestion in this paragraph that one year represents, generally speaking, the outer limit of a speedy review within Article 5(4) and the insistence in the remainder of the passage that speediness is fact-dependant. It seems to us, however, that the sense of the passage is that, in the Court's (and previously the Commission's) practice, an interval of up to a year has ordinarily to be shown on some particular ground to be in breach of Article 5(4) in order to be justiciable, whereas an interval of more than a year has generally to be shown not to be in breach of it c.f. Herczegfalvy v Austria (above). In all cases the facts will thus be critical, which is why no principle of law is enunciated; but it is of value to national authorities as well as to prisoners and their advisers to know that this is how the question of the speedy review is approached in Strasbourg. It is noteworthy that in 2001 the Court took the trouble in Hirst v United Kingdom ... to reiterate what it had said on this subject in Oldham the year before." (Paragraph 14).[43]Sedley LJ went on to add: "Our own understanding of the relevant Strasbourg jurisprudence is that which is set out in paragraph 14 of this judgment. That understanding does not call in question the conclusions of this court in either Spence or MacNeil. It does indicate that there is factual significance for Convention purposes in the setting of a period of more than a year between reviews and for that reason legal significance in the process by which review intervals are themselves reviewed. At the Master of the Rolls said in MacNeil, a 2 year interval will not necessarily be Convention compliant." (Paragraphs 21 and 22).[44]The additional guidance to be derived from the judgment of the Court of Appeal in Murray would thus appear to be that in considering whether in any particular case the gap between reviews is reasonable and thus compliant with the Article 5(4) requirement for a speedy decision, while there is no formal presumption that an interval of more than a year is unreasonable and non-compliant, the court should approach the question on the basis that where there is an interval of more than a year it is generally for the decision maker to show by reference to the particular facts of the case that it is reasonable and thus compliant with Article 5(4).[45]In R (Day) v Secretary of State for the Home Department [2004] EWHC 1742 (Admin) Gibbs J, having reviewed the authorities, including paragraph 14 of Sedley LJ's judgment in Murray, held: "I do not accept that there is a presumption that an interval of more than a year between reviews infringes Article 5. I think that the question of whether the Secretary of State's decision provides for a speedy review depends on the circumstances of each individual case. However I do think that the decisions of ECHR provide a useful guide to what the law should or should not regard as speedy. It is plainly on the basis of case law easier to establish that a decision which sets an interval of more than a year falls foul of Article 5, than a decision setting one of less than a year. It is, however, a matter of fact and degree in my judgment in every case." (Para. 48). The proposition that there is not a presumption that an interval of more than a year between reviews infringes Article 5 must, in my respectful opinion, follow inevitably from the decisions of the ECHR and the Court of Appeal to which I have referred above. Mr Southey did not seek to argue otherwise. In my judgment Mr Southey also somewhat overstated the position in his submission that the case law makes it clear that the Secretary of State must justify periods greater than one year between reviews at least in circumstances in which the prisoner is making progress. The language used by Sedley LJ in Murray was that "an interval of more than a year has generally to be shown not to be in breach of [Article 5(4)]. (Emphasis added).[46]On the other hand the effect of the contrast made by Sedley LJ between the need ordinarily to show that an interval of less than a year does breach Article 5(4) and the need generally to show that an interval of more than a year does not breach it is potentially to place a greater evidential burden on the decision maker than necessarily follows from Gibbs J's statement, with which I respectfully agree, that it is plainly on the basis of case law easier to establish that a decision which sets an interval of more than a year falls foul of Article 5, than a decision setting one of less than a year.[47]As to the test to be applied Gibbs J identified it as being: "whether the court decides that the Secretary of State's decision succeeds or fails in providing a speedy review as required by Article 5(4) having regard to all the circumstances of the case giving due weight to the views of the Secretary of State, the Secretary of State being the person who through his servants or agents is in a good position to assess all the relevant circumstances." (Paragraph 43).[48]Gibbs J went on to emphasise the likely importance to the outcome of the application of the test to the facts of any particular case of the likelihood or otherwise of any change or progress in the prisoner's dangerousness in the short term: ".. .there may be many, perhaps the majority of, cases where a review in less than two years is quite unnecessary for the purposes of complying with Article 5; for example, the person who has by past history and by present evidence shown himself to be a continuing danger to the public, and where the situation is highly unlikely to change in the short-term. Such cases may include that of a violent psychopath or serial sex offender. This case, whilst of course the Claimant was found guilty of murder, falls at the other end of the spectrum where a process of change is, on the evidence, well under way and further improvement is anticipated in the short term. It is therefore the sort of case in my judgment for which the ECHR decisions on their own facts provide useful guidance." (Paragraphs 56,57).[49]In this case the evidence that Mr Loch has made good progress is compelling and indeed not challenged by the Secretary of State. The Parole Board stated that they were impressed by the progress he had made especially since his move to H.M.P. Kingston, pointing out that he had worked hard to address his areas of risk and concluding that he had achieved a good understanding of the origins of his offending behaviour and its impact on his victims. In his witness statement Mr Asiedu accepted that:
"Given the previous offending behaviour work completed and recent good custodial behaviour there was no doubt that Mr Loch had made steady progress and ordinarily would not require a long period in open conditions."
He added, however, that:
"Given his criminal background, previous violent offences and the fact that he had committed the index offence before his previous sentence had expired, it was necessary that he be fully tested before eventual release."
While it is hard to take issue with the latter assessment, it does not seem to me to follow, as is suggested in Mr Sachdeva's summary of the Secretary of State's justification for the 18 month interval, that an 18 month period is therefore necessarily required before Mr Loch's case is reconsidered by the Parole Board.[50]A careful reading of Mr Asiedu's witness statement and paragraph 4.3 of chapter 4 of the Prison Service Order 6300 "Release on Temporary Licence" does not in my view support the submission that release on temporary licence typically takes 12 months for a prisoner to work through the various stages or the submission that because the Parole Board emphasised the necessity for proper testing in open conditions it therefore follows that an 18 month period is required before the case of Mr Loch is considered by the Parole Board.[51]As to the first point Mr Asiedu states that the table at paragraph 4.3.3 sets out the length of time that a life sentence prisoner must normally spend in open conditions before becoming eligible for release on Temporary Licence. However the table at paragraph 4.3.3 which is stated to set out the length of time that the life sentence prisoner must normally spend in open conditions before becoming eligible for release on Temporary Licence sets out a range of different times from 4 months to 12 months, each depending on the time to the next Parole Board review from the date of arrival in open conditions. Thus for example while a prisoner who has more than 12 months to the next Parole Board review from his date of arrival in open conditions is said normally to spend 12 months before being eligible for resettlement overnight leave for paid work and/or 5 days per week, a prisoner with up to 6 months to his next Parole Board review from the date of arrival in open conditions must normally spend only 4 months in open conditions before becoming so eligible. Paragraph 4.3.4 emphasises that "it is important to note that these time periods relate only to the prisoner's eligibility to apply; there is no automatic entitlement to temporary release of any kind. It is also important that each case is considered on its individual merits and that the above timetable is applied flexibly where appropriate." It thus appears that so far from the appropriate Parole Board review date being calculated by reference back to the time to be spent in the various stages of release on Temporary Licence, it is exactly the other way round. In other words the time normally spent in the various stages of release on Temporary Licence is calculated by reference to the time to the next Parole Board review date. Moreover in contrast to the submission that release on Temporary Licence typically takes 12 months for a prisoner to work through the various stages, Mr Asiedu in his witness statement says that release on Temporary Licence occurs at various stages and can take up to a maximum of 12 months to complete.[52]As to the second point while it is clear that the Parole Board was of the view that there was a need for further testing in open conditions to assess whether or not lessons Mr Loch has learnt can be applied in practice since much of his offending has been linked to drug and alcohol abuse, the Parole Board did not anywhere suggest that in its view such further testing needed to be carried out over an extended period beyond what might normally be appropriate in open conditions. This is not a case where the Parole Board identified the need for specified courses which could not be completed in less than a specific period of time.[53]I have considered very carefully Mr Asiedu's witness statement and taken into account the Secretary of State's views as expressed therein. However I am not satisfied that it has been shown that an 18 month interval on the particular facts of this case would not be in breach of Article 5(4). On the evidence before me in my judgment it would be in breach of Article 5(4).[54]The position has been somewhat complicated by a period of delay both between the decision of the Parole Board on 30 November 2007 and the decision of the Secretary of State on 21 January 2008 and between the latter date and the date of Mr Asiedu's witness statement on 3 June 2008 by which time Mr Loch had still not been transferred to an open prison. Mr Southey submitted that the period between the two decisions was longer than necessary. As to the latter period the delay was in part due to Mr Loch having expressed certain preferences for particular open prisons which for a variety of reasons were not immediately available. I was told at the hearing that' although Mr Loch had expressed such preferences he had not intended thereby to indicate that he was prepared to prejudice the early hearing of his next Parole Board review. One of the preferred prisons subsequently declined to accept Mr Loch because he had been found to be in possession of a mobile telephone and was found guilty on adjudication resulting in 7 days stoppage of earnings, 7 days loss of association including TV, 7 days no private cash and 7 days no canteen. Mr Asiedu stated in his witness statement that the adjudication clearly underlines the reasons why Mr Loch requires a lengthy period of testing in open conditions. While no doubt Mr Loch's transgression will be taken into account by the Parole Board, it does not seem to me to follow that it is of itself a reason why a longer interval than would otherwise be appropriate is justified, not least given that the particular aspect which the Parole Board indicated required testing was Mr Loch's ability to resist the temptation to fall back into his previous drug and alcohol habits.[55]In any event it appears that part of the delay was caused by absences on leave and a request for more paperwork at one of Mr Loch's preferred open prisons. Taken in the round, in circumstances where the Parole Board recommended a transfer to open conditions on 30 November 2007 as a step on the path to further review for parole and where that recommendation was concurred in by the Secretary of State, it seems to me unsatisfactory that a period of over 6 months should have elapsed before Mr Loch transferred to open conditions. In Day Gibbs J said that "the question of the measures planned for the prisoner in anticipation of the next review and the speed at which they are implemented are bound up with the question of the timing of the next reference to the Parole Board. If objectively on the facts of the case the setting of a speedy review date requires a reference in 12 months, it is no answer, in my judgment, or insufficient answer, to respond by setting an unacceptably leisurely timetable for implementation of those measures and then to rely upon the delay as a reason for not making a speedy reference." While the expression "unacceptably leisurely timetable" may be a little unfair to the Secretary of State in this case, it does not seem to me that the Secretary of State can rely on that delay to justify an 18 month interval if such an interval would not otherwise be justifiable. In my judgment on the evidence before me it would not otherwise be justifiable on the facts of this case.[56]Mr Asiedu in his witness statement stated:
"Even if Mr Loch transferred within the next few weeks to H.M.P. Kirkham he would have still only have 12 months of testing with the existing review date of June 2009. If brought forward to November 2008 the Parole Board process would have to start now (.6 months before the review date) and the reports would still be from H.M.P. Acklington and therefore of no benefit to Mr Loch."
I can understand that given the unfortunate extended delay between 30 November 2007 and June 2008 a Parole Board review in November 2008 sufficiently informed to lead to a realistic prospect of release may be impractical and unrealistic. However while that may be a good reason for declining Mr Loch's application for a mandatory order requiring his next Parole Board review to be conducted by the end of November 2008, it is in my judgment no answer to his application for an order quashing the Secretary of State's decision that the next Parole Board review should take place as late as June 2009. In my judgment the correct course for me to take is to declare that on the evidence before the Court the Secretary of State's decision that Mr Loch's next Parole Board review should be conducted in June 2009 violated Article 5(4) and to quash that decision and to leave it to the Secretary of State to review and reconsider his decision as a matter of urgency in the light of my judgment. Accordingly I make that declaration and I quash the order. It will now be for the Secretary of State in the light of this judgment and the most up to date information available to him to set a new date for the next Parole Board hearing which complies with the requirement in Article 5(4) for a speedy decision.

Cited in 9 later judgments