Smith v Secretary of State for Justice Parole Board [2008] EWHC 2998 (Admin)

[2008] EWHC 2998 (Admin)Case No CO/9565/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/12/2008
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
Between
Craig SmithClaimantSecretary of State for JusticeDefendantParole BoardDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Matthew Stanbury (instructed by Grayson Willis Bennett) for ClaimantChristiaan Zwart (instructed by Treasury Solicitors) for First DefendantVictoria Wakefield (instructed by Treasury Solicitors) for Second DefendantHearing Hearing date: 30 th October 2008
Judgment
[1]The Claimant Craig Smith, who is serving an indeterminate sentence of imprisonment for public protection (‘IPP’) applies for permission to bring a claim for Judicial Review. His Honour Judge David Pearl, sitting as a Deputy High Court Judge, on 15th October 2008 was satisfied that Mr Smith’s claim for judicial review was suitable for urgent consideration. He directed that the court consider by 1st November 2008 the issue of permission and/or expedited rolled-up permission and substantive hearing. By consent of all parties the hearing before me on 30th October 2008 was an expedited rolled-up hearing.[2]By ground one Mr Smith whose fifteen month fixed tariff expired over a year ago challenges the continuing failure of the First Defendant, the Secretary of State for Justice, and the Second Defendant, the Parole Board, to provide him with a prompt end of tariff review. By grounds two and three, Mr Smith challenges the failure of the Secretary of State to prioritise him for and provide him with relevant courses and coursework needed to support his case before the Parole Board on an end of tariff review.[3]Mr Smith relies on Article 5(4) of the European Convention on Human Rights. It is said on his behalf that the failures of which he complains represent contraventions of that provision. In the event that the Court rules in the Claimant’s favour in relation to Article 5(4) he does not invite the Court to consider whether the continuing refusal of the Ministry of Justice to prioritise him for relevant course work was irrational.

The Relevant Facts

[4]On 3rd November 2006 at Sheffield Crown Court Mr Smith was sentenced to imprisonment for public protection for manslaughter. The judge imposed a 15 month tariff. On 7th September 2007 Mr Smith’s fixed tariff expired. On 22nd November 2007 the Parole Board deferred Mr Smith’s post-tariff review and gave the following directions: i) That the Claimant was to be subject to a full prison psychologist risk-assessment to be arranged by HMP Doncaster. ii) That the Claimant was to receive a full sentence plan. iii) That the Claimant be considered for re-categorisation following his sentence plan. iv) The Claimant was to receive any appropriate course assessment following his sentence plan. v) Reporting officers were to provide addendum reports to take account of the documents referred to in the deferral decision letter. vi) Copies of all further documents referred to in the decision letter were to be provided to the Parole Board by 28th February 2008. vii) The Lifer Manager, prison psychologist and seconded Probation Officer were to attend the deferred hearing. The Parole Board was to hold a deferred hearing in March 2008 in the establishment in which the claimant was located. The Parole Board was to notify the parties of the hearing date by 28th February 2008 and the case was to be referred to the ICM system. The deferral letter containing these directions was to be sent to the prison, the Ministry of Justice and the claimant’s legal representative.[5]Although the decision of the Parole Board to defer the post-tariff review and the directions given on the deferral were made on 22nd November 2007 it was not until the 3rd January 2008 that a letter recording the decision and directions was drawn up and sent to the designated recipients.[6]It was only on 30th January 2008 that Doncaster Prison drew up a sentence plan for Mr Smith. This was well after the expiry of the custodial tariff. It was agreed and recognised by those who were concerned with the assessment of Mr Smith, that in the light of the circumstances in which his index offence had been committed, alcohol and violence were the problems which he needed to address. A Controlling Anger and Learning to Manage (‘CALM’) course was recognised to be suitable treatment of an offender who had those particular needs. This course was not available at the local Doncaster prison where Mr Smith was initially held.[7]In February 2008 the Court of Appeal in R (Walker and James) v Secretary of State for Justice [2008] EWCA Civ 30 held that the Secretary of State had failed in its duties by not transferring Mr Walker to a prison where facilities to meet his needs for treatment to enable him to present a case to the Parole Board were available. As in the case of Mr James, the provision of such measures would have allowed and encouraged Mr Smith to demonstrate to the Parole Board that it was no longer necessary for the protection of the public that he continue to be detained. On 21st February 2008 after judgment in Walker Mr Smith was transferred as a Category C prisoner to Ranby, where CALM courses could be provided.[8]It was not until 8th April 2008 that Ranby prison received the directions given by the Parole Board on 22nd November 2007 and drawn up on 3rd January 2008. Enquiries had been made by those acting on behalf of Mr Smith as to when the reconvened Parole Board hearing would take place. No action having been taken, these proceeding for Judicial Review were issued on 8th October 2008. The very next day Mr Smith was assessed as suitable for the CALM course. However, contrary to the Secretary of State’s own self-directions, he was given low priority for a place on such a course, notwithstanding that he was a short term IPP prisoner. A place will be provided for him on a CALM course in January 2009, almost a year after his transfer to Ranby.[9]The Parole Board had on 22nd November 2007 given a direction that Mr Smith be subject to a full prison psychologist’s risk assessment to be arranged by HMP Doncaster. Mr Smith left HMP Doncaster in February 2008 and was only seen by a prison psychologist on 23rd October 2008. The prison psychologist’s report was not available at the time of the hearing before me.[10]The position when the case came before me on 30th October 2008 was therefore that the outstanding and important matter to be done by the Secretary of State was to provide Mr Smith with a CALM course. Although Mr Smith had attended various courses during the course of his custody, these were short and not comparable in intensity and length to the three month CALM course. The information available at the date of the hearing before me was that Mr Smith had been assessed as low priority for the course for which he would have to wait until January 2009.[11]As in Walker completion of the CALM course was necessary for the Parole Board’s post-tariff review if its outcome was not to be a foregone conclusion. Without a report on completion of the course the Parole Board would not have sufficient information to consider whether the release of the claimant into the community would constitute a risk to the public. As can be readily seen given the current timetable, the earliest Mr Smith will complete the CALM course is the end of March 2009.[12]The position therefore is that Mr Smith has remained in prison without a review by the Parole Board of his suitability for release for a period of nearly one year since directions were given on 22nd November 2007 for the deferred post-tariff review. The period of delay of which complaint is made is almost equal in length to the period of his custodial tariff. The Relevant Provisions of the European Convention on Human Rights 13. Article 5(1):
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law: a) the lawful detention of a person after conviction by a competent court;” 14. Article 5(4): “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.”

The Relevant Provisions of the European Convention on Human Rights

[13]It is not in issue between the parties that Article 5(4) applies to the Parole Board as it does to the Secretary of State. In this case Mr Smith asserts a breach of Article 5(4) but not of Article 5(1). The Contentions of the Parties Contentions of the Claimant

The Contentions of the Parties

[14]Mr Stanbury on behalf of Mr Smith contends that both Defendants are in breach of the requirement of Article 5(4) that proceedings by which the lawfulness of his continued detention is to be decided should take place speedily.

Complaint under ground 1 against each Defendant

[15]No complaint is made of delay before 22nd November 2007. However, after that date it is said that there were substantial delays by the Secretary of State in taking steps which were necessary for a proper consideration of Mr Smith’s continued detention. It is said that these delays led the Secretary of State to be in breach of his obligations under Article 5(4). The Secretary of State has now taken all but one of such steps. It is contended on behalf of Mr Smith that Secretary of State continues to be in breach of Article 5(4) and is acting irrationally in delaying the provision of CALM course until January 2009.[16]It is said that the Parole Board failed in its duties under Article 5(4) to actively manage proceedings before it so as to do all within its powers to ensure that its directions given on 22nd November 2007 were complied with, and that the deferred post-tariff review meeting was held within a reasonable period. Mr Stanbury contends that the time for the reconvened hearing to have taken place is long overdue.

The Complaints under grounds 2 and 3

[17]It is contended by Mr Stanbury that the Secretary of State is in breach of his Article 5(4) obligations by continuing to refuse to prioritise Mr Smith’s relevant coursework, namely the CALM programme. Although the Claimant was assessed on 9th October 2008 as suitable for the CALM course, he was assessed as low, not high priority for that course.

Contentions of the First Defendant

[18]Mr Zwart agrees that the Secretary of State is susceptible to review as to whether he has failed in his duty under Article 5(4) to decide speedily the lawfulness of the detention of the claimant. However he contends that the Secretary of State in compliance with Article 5(4) is required to act ‘speedily’. He refers to the Oxford English Dictionary definition of ‘speedily’ and says that ‘speedily’ does not mean ‘as fast as possible’ but it means ‘as soon as possible’. He asserts that the Secretary of State was engaged in making provision for Mr Smith throughout the period in respect of which there is a complaint of delay. Further, Mr Zwart contends that there had been no application by Mr Smith for a resumed hearing before the Parole Board when he had the power to do so and that this failure of Mr Smith is relevant to a consideration of culpability for the delay.[19]Mr Zwart accepts that on the basis of Walker that it can be a breach of Article 5(4) for the Secretary of State to fail to provide measures to allow and encourage prisoners serving IPPs to demonstrate to the Parole Board by the time of the expiry of their tariff period, or reasonably soon thereafter, that it is no longer necessary for the protection of the public that they continue to be detained. However each case is fact-sensitive. In this case it is contended on behalf of Secretary of State that it cannot be said that the Secretary of State failed to act reasonably speedily to provide Mr Smith with measures to allow him to demonstrate to the Parole Board that he was fit for release. Accordingly Mr Zwart contends that on the facts of this case the Secretary of State did act reasonably speedily and was not in breach of Article 5(4).

Contentions of the Second Defendant

[20]For the Parole Board, Miss Wakefield contends that on the facts of this case, the Parole Board cannot be shown to have failed to act in any way which can be subject to scrutiny under Article 5(4). The Parole Board has no means of enforcement of its directions and any findings of breach of Article 5(4) could not specify any default of the Parole Board which it would have been empowered to rectify. Further, she says that even if the Parole Board were in breach of Article 5(4) in failing to actively case manage its directions, there is no evidence that a re-convened Parole Board meeting could have reached any other result than that which would have left Mr Smith in prison. Thus, any order this court may make in respect of the Parole Board could have no practical effect.[21]Miss Wakefield also contends that an order compelling the Parole Board to hear and determine this case, could have the effect of infringing other prisoners’ Article 5(4) rights.

Domestic Statutory Provisions

[22]Mr Smith was sentenced to imprisonment for public protection. His detention came within the scope of the Crime Sentences Act 1997 s.28.[23]The Crime (Sentences) Act 1997 provides as follows. By section 28:
“(5) As soon as, in the case of a life prisoner to whom this section applies – a) he has served the part of his sentence specified in the order or direction (‘the relevant part’); and b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence. (6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless – a) the Secretary of State has referred the prisoner’s case to the Board; and b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
[24]The Secretary of State has produced a detailed policy for the treatment and management of life sentence prisoners, which includes certain express provisions relating to short-tariff lifers (PSO (Prison Service Order) 4700). PSO 4700 applies to the Claimant.[25]PSO 4700 provides: “lifers with short tariffs are managed differently from lifers with longer tariffs, because of the overall objective to release lifers on tariff expiry, if risk factors permit. The Statutory entitlement to review by the Parole Board may, for a short tariff lifer, be triggered relatively shortly after conviction… the essential elements of the policy for short tariff lifers, and arrangements for their management through their period in custody are as follows: They must be prioritised for offending behaviour programme according to the length of time left until tariff expires. … In other words lifers must be given every opportunity to demonstrate their safety for release at tariff expiry.” (p4.13.2)[26]Section 239(5) of Criminal Justice Act 2003 provides that rules may be made by the Secretary of State governing the Parole Board. The Parole Board Rules 2004 provide by rule 8(1):
“Subject to paragraph (4), the Chair of the panel may at any time give, vary or revoke such directions as he thinks proper to enable the parties to prepare for the consideration of the prisoners case or to assist the panel to determine the issues.”
[27]Rule 8(4) provides:
“Directions under paragraph (1) may be given, varied or revoked either – a) of the Chair of the panel’s own motion, or b) on the written application of a party which has been served on the other party and which specifies the direction that is sought;”

The Authorities

[28]In Walker, the Court of Appeal, the Lord Chief Justice, Dyson and Toulson LJJ in a judgment delivered on 1st February 2008 considered three important questions concerning the Parole Board. The first was whether the Secretary of State had acted unlawfully by failing to provide for measures to allow and encourage prisoners serving indeterminate sentences for public protection (‘IPPs’) to demonstrate to the Parole Board by the time of expiry of their minimum terms (often referred to as ‘tariff periods’) that is no longer necessary for the protection of the public that they continue to be detained. Mr Walker and Mr James were what was referred to as ‘short-tariff lifers’, in that they received IPPs with minimum terms of no more than five years detention. That is the situation of Mr Smith in the case under consideration. The Court of Appeal held that it was likely that the Secretary of State would be in breach of Article 5(4) if he continued to fail to provide such measures after the expiry of Mr Walker’s tariff. The question under Article 5(1) of the lawfulness of detention which was considered in Walker is not an issue raised in Mr Smith’s case.[29]In Walker at paragraph 61 the Court held:
“The legality of the post-tariff period of an indeterminate sentence imposed for the public’s 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 the Court.”
In context the body with qualities of the Court is the Parole Board.[30]At paragraph 15 the Court of Appeal observed:
“The evidence is that prisoners serving life imprisonment and IPP have no realistic prospect of being released at the direction of the Parole Board unless they have attended relevant offending behaviour programmes that are run by the Prison Service.”
[31]Courses were not made available to Mr Walker or Mr James which would have enabled them to demonstrate to the Parole Board that they were suitable for release. It is to be noted that in the case of Mr James one of the courses in issue was the CALM course which is relevant to the case before me.[32]The Court of Appeal considered whether the conduct of the Secretary of State in failing to provide the claimants with appropriate courses had prevented the review of the lawfulness of the detention as required by Article 5(4), or was liable to do so. It held:
“65. If the Parole Board is not placed in a position in which it can decide whether a prisoner is a danger to the public it will not be able to determine whether the detention of the prisoner is still necessary and thus whether the detention is still lawful under Article 5(1)(a). In such circumstances the prisoner will have been deprived of the opportunity of satisfying the statutory pre-condition of release and will have been prevented from making a meaningful challenge to the lawfulness of his detention as required by Article 5(4). Is that the position of IPP prisoners? “66…Without a sentence plan and monitoring of the prisoner’s performance against that plan, realistically the outcome of any review by the Parole Board will be a foregone conclusion.”
[33]The Court of Appeal then applied the principle it had outlined to the facts of the two cases. At para.67 in respect of Mr Walker, it observed:
“There was, however, at the time that his case was heard, a likelihood that he would not be able to make a meaningful challenge to the lawfulness of his sentence within the requirement of Article 5(4) once his tariff was completed. The fact that Mr Walker remains in the local prison to which he was first sent would not formally prevent a review by the Parole Board; but, as a matter of substance rather than form, it would at the present time be an empty exercise. That is not an acceptable situation and, if it continues, it is likely to result in a breach of Article 5(4).”
[34]The result in the case of Mr Walker was stated by the Court of Appeal in paragraph 70:
“So far as the appeal in the case of Mr Walker is concerned, the Secretary of State has not succeeded in overturning the declaration of the Divisional Court that the Secretary of State has acted unlawfully by failing to provide for measures to allow and encourage prisoners serving IPPs to demonstrate to the Parole Board by the time of the expiry of their tariff periods or reasonably soon thereafter that it is no longer necessary for the protection of the public that they continue to be detained. We have, however, held that the Divisional Court erred in holding that this breach of duty under public law had the result that the imprisonment of IPP prisoners became unlawful once they had served their tariff periods. Notwithstanding this significant success for the Secretary of State, the appropriate order is that his appeal is dismissed.”
[35]As for the proper approach to the issue of whether there has been delay incompatible with Article 5(4), the Administrative Court in the case of R (Hirst) v(1) Secretary of State for the Home Department and(2) the Parole Board [2005] EWHC 1480 referred to the case of R (C) v The Mental Health Review Tribunal London South and South West Region [2001] EWCA Civ 1110 in which Lord Phillips said at paragraph 43 of the judgment:
“This underlines the approach of the Strasbourg Court in a case such as this. The Court does not attempt to decide in principle whether a particular period of delay is, or is not, compatible with the requirements of Article 5(4). It looks at the facts of the particular case to see whether there was a failure to proceed with reasonable despatch having regard to all the material circumstances.”
[36]Thus Mr

Justice Crane observed in Hirst atparagraph 37:

“…it is clear that what is ‘speedy’ depends on the nature of the case and the other circumstances including whether the case is simple or complicated.”
[37]In R (Emirsoylu) v Parole Board [2007] EWHC 2007, Mr Justice Ouseley in the Administrative Court considered at paragraph 16 that the following proposition was not disputed:
“That the Parole Board has an obligation to ensure that it has the material necessary for it to reach a proper decision on the issues which it has to grapple with.”
[38]This observation was made in the context of considering whether the Parole Board had fulfilled its statutory obligation to review and consider whether a prisoner is safe to be released. The Parole Board proceeded without obtaining a fresh Probation Service assessment in the light of a finding that Mr Emirsoylu had not committed an offence on license. The alleged offence had not been referred in the probation reports already before the Parole Board. Ouseley J decided on the facts of that case that the Parole Board had complied with its duty and could properly conclude that it had proper information as to the Probation Service’s assessment of Mr Emirsoylu.[39]In the case of R (Noorkoiv) v the Secretary of State for the Home Department [2002] EWCA 770, the policy and practice of the Parole Board of not listing parole hearings for three months irrespective of the particular circumstances was considered. It was held by the Court of Appeal that such a practice was unacceptable under Article 5(4). At paragraph 61 the Court held that Article 5(4) required the legality of the claimant’s detention be subject to periodic review by a body with the qualities of a court, in context the Parole Board. With regard to remedy, at paragraphs 47 and 48, the Court observed that expedition of Mr Noorkoiv’s hearing before the Parole Board was then academic. However the Court went on to make a declaration that the consideration of his parole application did not comply with the requirements of Article 5(4) of the Convention.[40]In the case of R (Cawley) v(1) Parole Board and(2) Secretary of State for Justice [2007] EWHC 2649, Mr Justice Sullivan observed at paragraph 22 that both defendants must ensure that systems are in place which enable review hearings before the Parole Board to be arranged ‘speedily’ in accordance with Article 5(4). Whether a hearing takes place ‘speedily’ will depend on looking ‘at the facts of a particular case to see whether there was a failure to proceed with reasonable dispatch having regard to all the material circumstances’.[41]Sullivan J observed:
“24….The [Parole Board] should not be discouraged from requesting more information when it considers that it is necessary to do so in order to obtain a proper appreciation of any potential risk factors, and generally the first defendant should be encouraged to actively case manage the cases coming before panels, and that is precisely what occurred in the present case.”
[42]At paragraph 35 Sullivan J held that ‘What is required of [the Parole Board] is that it proceeds with responsible despatch.’

Discussion

[43]The application of Article 5(4) to the Secretary of State is not in issue in this case. As for the Parole Board, it is clear from the cases of Noorkoiv and Hirst that Article 5(4) applies to its activities. Having regard to the authorities, I hold that Article 5(4) applies to both defendants.[44]Secondly I consider: i) The legal obligations of each Defendant to which the application of Article 5(4) gives rise in the circumstances of this case. ii) Whether on the facts of this case, the Defendants were in breach of those obligations. iii) If there was a breach by either or both of the Defendants, the appropriate remedy.

Legal Obligations

[45]It is clear from the authorities that Article 5(4) requires both defendants to deal speedily with the review of the dangerousness of an IPP prisoner who is reaching or has reached the end of his tariff so that a proper informed decision can then be taken by the Parole Board as to whether to recommend his release on license. The content of that obligation depends upon the legal obligation of each defendant. First Defendant[46]It is clear from paragraph 70 of the judgment in Walker, that the Secretary of State has an obligation to provide measures to allow and encourage prisoners serving IPPs to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it is no longer necessary for the protection of the public that they continue to be detained. Second Defendant[47]In Cawley Sullivan J stated at paragraph 22 that the Parole Board has an obligation as does the Secretary of State to ensure that systems are in place which enable hearings to be arranged ‘speedily’ in accordance with Article 5(4). Further, he observed in paragraphs 24 and 35 that the Parole Board must, in accordance with its obligations, actively manage cases and proceed with reasonable dispatch.

A Breach of Article 5(4)?

[48]The determination of whether there has been a breach of Article 5(4) will depend upon the facts of each case.[49]What is ‘speedy’ and whether the defendants have proceeded with reasonable despatch depends on the nature of the case and the other circumstances, including whether the case is simple or complicated. The

First Defendant

[50]No complaint of delay before 22nd November 2007 is made of either defendant, albeit that Mr Smith’s tariff period had expired by that date. On the 22nd November 2007 the Parole Board considered Mr Smith’s case and decided to defer consideration of his first post-tariff review hearing and gave directions. I have referred earlier in this judgment to the substance of those directions.[51]Regrettably, since 22nd November 2007 there were constant delays in taking action for which the Secretary of State was responsible. There were delays in gathering information as required by the directions of the Parole Board of 22nd November 2007 and in the provision of the important CALM course.[52]It is clear that up to the date of the hearing before me there have been severe delays by the Secretary of State in providing the means of assessment as to whether the claimant is dangerous. Such material was needed for the Parole Board to be able to assess whether it was satisfied that it was no longer necessary for the protection of the public that Mr Smith should be confined. There is continuing delay by the Secretary of State in not providing Mr Smith with a CALM course until January 2009, a step which all parties consider to be essential for a proper post-tariff review by the Parole Board. The delay in the provision of the CALM course and associated reports is delaying the holding of a post-tariff review until after the completion of the course at the end of March 2009. In my judgment it is plain that the Secretary of State has been and is in breach of its Article 5(4) obligations in respect of Mr Smith. The

Second Defendant

[53]The Crime (Sentences) Act 1997 Section 28(5) requires the Parole Board to assess whether a life prisoner has reached the stage where it is no longer necessary for the protection of the public that he or she should be confine and if appropriate direct the Secretary of State to release him on license.[54]In this case, the Parole Board gave directions on 22nd November 2007 as to the steps to be taken to put it in a position where it could reconvene and make that necessary assessment. It is clear that the dates laid down in its directions passed without any further action being taken by the Parole Board. The directions required that information be provided to it, and that by 28th February 2008 the deferred hearing of Mr Smith’s case be fixed to take place in March 2008. Notwithstanding enquiry by those acting on behalf of Mr Smith, no steps were taken by the Parole Board to ensure that action took place according to the timetable it laid down or that it was provided with the necessary reports referred to in its directions.[55]In my judgment the Parole Board failed to actively case manage Mr Smith’s case. Miss Wakefield rightly contends that the Parole Board has no power to enforce its directions. However it is required by statute to assess whether to direct the release of an IPP prisoner such as Mr Smith. It had decided to defer its assessment in order for certain steps to be taken and information given to enable that assessment to take place. The post-tariff review was a necessary precondition to the release of Mr Smith. A failure to actively case manage his case to secure that steps were taken and information given in accordance with its directions has led to a delay in the date on which Mr Smith can be considered for release.[56]No evidence was adduced of any steps taken by the Parole Board to forcefully remind the Secretary of State and relevant individuals the steps required by its directions of 22nd November 2007. Further, there was no evidence that the Parole Board carried out proper case management to ascertain whether its directions had been complied with at the latest by the date it specified for fixing of the deferred hearing.[57]It is not for this court to specify the steps which the Parole Board could have taken. However in my judgment it failed in its duties to actively case manage Mr Smith’s case and to proceed with reasonable despatch. The Parole Board allowed the deferred hearing of Mr Smith’s case to drift.[58]Accordingly I find that the Parole Board was in breach of its Article 5(4) obligations.

Remedy

[59]Since a CALM course is now to be provided for Mr Smith no mandatory order is sought against the Secretary of State.[60]In light of the improbability of the Parole Board making a direction favourable to Mr Smith before completion of a CALM course and the likelihood of other prisoner’s Article 5(4) rights being infringed if his deferred hearing were to be advanced, no mandatory order is now sought against the Parole Board.[61]I have found that both Defendants are in breach of their Article 5(4) obligations. It is also clear from the authorities that a declaration can be made in respect of past delay. I make a declaration in respect of each defendant that it has failed to comply with its Article 5(4) obligations.[62]Mr Stanbury informed me that damages were not being sought for Mr Smith at this stage.

Conclusion

[63]Mr Smithsucceeds in his application for judicial review. There will be declarations that each Defendant failed to comply with its Article 5(4) obligations. The parties are invited to draw up an agreed Order. In the absence of agreement submissions on the wording of the Order should be made in writing. POST J U D G M E N T 1. MRS JUSTICE SLADE: In this matter, there was an application for judicial review against the Secretary of State and the Parole Board. For reasons given in the judgment handed down, there is to be an order that there be a declaration that both defendants failed to comply with their obligations under Article 5(4) of the European Convention on Human Rights, in that the Ministry of Justice caused severe delays in providing the claimant, who was a prisoner on a sentence of imprisonment for public protection, with essential behavioural coursework, namely a CALM course, and in preparing necessary reports so as to facilitate a speedy review of his detention. 2. So far as the Parole Board, the second defendant, is concerned, there is a declaration that it failed to actively case manage the claimant prisoner's case so as to facilitate a speedy review of his detention. Accordingly, the applications for judicial review succeed and there will be orders in the terms I have outlined. 3. Thank you, Mr Stanbury. 4. MR STANBURY: Thank you, my Lady. 5. MRS JUSTICE SLADE: There are no consequential requests? 6. MR STANBURY: No. 7. MRS JUSTICE SLADE: The order will be in terms agreed between the parties. 8. MR STANBURY: An agreed order in respect of costs has been reached between the parties. 9. MRS JUSTICE SLADE: That is that they be subject to detailed Community Legal Services funding assessment, the costs be paid by the defendants on a 50:50 basis and detailed assessment to be made if not agreed. 10. MR STANBURY: My Lady, yes. 11. MRS JUSTICE SLADE: Thank you, Mr Stanbury.

Cited in 4 later judgments