Salte, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 1497 (Admin)

[2009] EWHC 1497 (Admin)

Case No CO/11263/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 26/06/2009

Before

MR JUSTICE HICKINBOTTOM

Between

THE QUEEN (ON THE APPLICATION OF KAI SALTER)Claimant

THE SECRETARY OF STATE FOR JUSTICEFirst Defendant

THE PAROLE BOARD OFSecond Defendant

ENGLAND & WALESDefendant

Philip Rule (instructed by Pickup & Scott) for Claimant

Simon Murray (instructed by the Treasury Solicitor) for First Defendant

Matthew Slater (instructed by the Treasury Solicitor) for Second Defendant

Hearing Hearing dates: 11 June 2009

Judgment

Introduction

[1]In the early hours of 9 May 2006, the Claimant entered a petrol station kiosk wearing a balaclava and carrying an air rifle, which he pointed at the head of the elderly attendant on duty. He demanded the cash from the till and cigarettes from behind the counter, which the attendant put into a bag and gave him. He left, but he was picked up by the police later that morning, and charged with robbery and possessing a firearm during the course of committing an offence.

[2]At his trial at Taunton Crown Court on 22 November 2006, when he was still 18 years of age, he pleaded guilty to both charges. They being specified offences for the purposes of section 223 of the Criminal Justice Act 2003 (“the 2003 Act”), the sentencing judge (HHJ Hume-Jones) considered whether there was a significant risk to members of the public of serious harm occasioned by the commission of further specified offences by the Claimant: and found, given the nature of these offences, his history of violent offences since the age of 12 and the views set out in reports from both a psychiatrist and probation officer, that he did pose such a risk. He did not consider a life sentence warranted, but passed a sentence of detention for public protection under section 226 of the 2003 Act, with a minimum term of 2 years less time spent on remand. The expiry date of that term was 11 May 2008. I will deal with the relevant statutory provisions and procedure in due course but, in short, that meant that the Claimant could not be released from detention before that date. After that date, he could only be released upon an appropriate direction from the Second Defendant (“the Parole Board”) based upon their satisfaction that it would no longer be necessary for the protection of the public that he should be detained.

[3]On 26 July 2007, the First Defendant (“the Secretary of State”) referred the Claimant’s case to the Parole Board, and sent the parole dossier to the Board on 22 February 2008 with a formal request that the Board consider whether or not it would be appropriate to direct the Claimant’s release or, if not, to advise whether or not he should be transferred to open conditions. On 4 April 2008, a single member of the Parole Board conducted a paper review, but declined to recommend release or removal to open conditions. There is some uncertainty as to date, but on either 5 May (shortly before the expiry of the Claimant’s tariff) or 12 May (the day after the expiry of that tariff), the Claimant challenged that decision, which gave him a right to a de novo hearing at an oral hearing before a panel of three parole Board members, which took place on 14 August. Following that hearing, on 19 August 2008 the panel gave its decision in writing, refusing to release the Claimant or transfer him to open conditions.

[4]To complete the chronology, on 2 September 2008 the Secretary of State confirmed that the Claimant’s case would next be referred for a Parole Board hearing to take place in February 2010.

[5]In these proceedings, brought with the leave of McCombe J granted on 16 February 2009, the Claimant challenges the letters of 19 August and 2 September 2008 on the basis that they did not meet the relevant standards for procedural fairness and were therefore contrary to both domestic law and (particularly)

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

. 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”

. The review required by Article 5(4) is a substantive or “meaningful” review with appropriate rigour and scrutiny, particularly given that the liberty of the individual is at stake.

[6]The Claimant challenges the Parole Board’s letter of 19 August 2008 on three grounds, as follows:(i) The Parole Board breached Article 5(4) by not hearing and determining the case until mid-August 2008, because Article 5(4) required them to hear and determine the case (a) before the expiry of the tariff, and (b) in any event before mid-August 2008 (Ground 1).

(ii) The Parole Board’s decision was vitiated by procedural irregularity in that (a) the Board adopted the wrong legal test for granting parole, and (b) the information used by the Board was so inadequate as to render the hearing insufficiently “meaningful” and consequently unlawful (Ground 2).

(iii) The decision of the Parole Board not to transfer the Claimant to open conditions was disproportionate and irrational (Ground 3). 7. He also challenges the Secretary of State’s decision of 2 September 2008, on the grounds that: (i) There was procedural irregularity in that the date for the next review was set by one of the parties to the parole determination, namely the Secretary of State, rather than the Parole Board (Ground 4). (ii) The period proposed to elapse before the Claimant’s next review is so long as to be unlawful (Ground 5).

The Statutory Framework

[8]Section 226 of the 2003 Act authorises the imposition of detention for public protection for serious offences. Such a sentence is authorised and was, prior to the coming into force of the Criminal Justice and Immigration Act 2008, required if(i) the defendant is under 18 years of age and is convicted of a “serious offence”, which is an offence listed in schedule 15 to the 2003 Act (section 226(1)(a)):

(ii) the court considers that “there is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences” by the defendant (section 226(1)(b)): and

(iii) the court does not consider either a life sentence or an extended sentence under section 228 of the 2003 Act appropriate (section 226(2) and (3)).

[9]Such a sentence has two elements. The first is in the form of a fixed term or tariff, considered an appropriate measure of punishment for the crime. It is calculated as the term which the offender would serve if given an appropriate determinate sentence. In the Claimant’s case, the judge considered that the appropriate determinate sentence would have been 4 years, of which the Claimant would have served half less the time he had already spent in detention on remand. That is how the judge (properly) calculated the Claimant’s tariff of 1 year 169 days, expiring on 11 May 2008.

[10]The second element is not focussed upon punishment, but the need reasonably to protect the public from a temporally indefinite risk to the public posed by a particular offender. Where there is such a risk, after the expiry of the tariff element, the offender must remain in detention until the Parole Board assesses him to be safe for release. As a matter of mechanics, that assessment is done in the same way as an assessment for someone serving a life sentence: section 230 of and paragraph 3 of schedule 18 to the 2003 Act simply include someone sentenced to detention for public protection within the ambit of the definition of “life prisoner” for the purposes of the statutory parole provisions.

[11]Those provisions include section 28(5)-(7) of the Crime (Sentences) Act 1997, which provides:

“(5) As soon as – (a) a life prisoner to whom this section applies has served the relevant part of his sentence [i.e. the tariff part], (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 direction under sub-section (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. (7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time – (a) after he has served the relevant part of his sentence; and (b) where there has been a previous reference of his case to the board, after the end of the period of 2 years beginning with the disposal of that reference; and (c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one half of that sentence…” (a) a life prisoner to whom this section applies has served the relevant part of his sentence [i.e. the tariff part], (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. (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. (a) after he has served the relevant part of his sentence; and (b) where there has been a previous reference of his case to the board, after the end of the period of 2 years beginning with the disposal of that reference; and (c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one half of that sentence…”

[12]Therefore, in summary, where an offender is serving a sentence of detention for public protection, the Secretary of State cannot release him without a direction from the Parole Board: and the Parole Board cannot direct release unless the Secretary of State has referred him to the Board and they consider it is no longer necessary for the protection of the public that the offender should be confined. The first step in obtaining release is consequently a reference by the Secretary of State to the Parole Board.

[13]Of course, in exercising this statutory function, the Parole Board require information and reports about the offender: and the Secretary of State is under an obligation to provide those. By section 239 of the 2003 Act, when considering an offender for parole, the Parole Board must consider “any documents given to it by the Secretary of State, and… any other oral or written information obtained by it”, including of course any information that the offender may himself submit. Rule 6 of the Parole Board Rules 2004 (which are contained in Prison Service Order 4700 (PSO 4700)) requires the Secretary of State to provide the Parole Board, within 8 weeks of a case being listed, with the information and reports set out in schedule 1 to the Rules, including:

“3. Current reports on the prisoner’s risk factors, reduction in risk and performance and behaviour in prison, including views on suitability for release on licence as well as compliance with any sentence plan. 4. An up-to-date home circumstances report prepared for the Board by an officer of the supervising local probation board…”

The information and reports provided by the Secretary of State to the Parole Board is known as “the Rule 6 dossier”.

[14]One of the reports to be included in the dossier is a risk assessment known as “the OASys assessment”. Paragraphs 6.5-6.7 of the Prison Service Order 2205 (PSO 2205) provide as follows:

“6.5 For public protection sentences (when implemented) and lifers, reviews must be completed as part of the parole process. 6.6 Final reviews in custody must be completed at least one month and not more than three months before release. 6.7 An OASys assessment must be reviewed in preparation for a parole review, if it has not been reviewed within the previous three months or if there has been any material change since the most recent review. The full OASys assessment must be included in the parole dossier.”

[15]Within 14 weeks of a case being listed, a single member of the Parole Board considers the case without a hearing (Rule 11): but, if that member makes a provisional decision against release, the offender may require a three member panel to consider the case with a hearing. The hearing has to be heard within 26 weeks of the case being listed (Rule 17). The panel’s decision has to be given in writing within 7 days after the end of the hearing.

The Facts

[16]Before I turn to the individual grounds of challenge, I need to deal with the lead up to the challenged decisions in some more detail.

[17]The Claimant was detained in HMYOI Exeter until November 2007, when he was transferred to HMYOI Aylesbury. During his time in detention he completed two risk reduction courses, namely Enhanced Thinking Skills (2007) (“the ETS course”) and Sycamore Victim Empathy (“the Sycamore course”). He has also been identified as benefiting from other work on offending behaviour including that tackling anger management and alcohol misuse - and, as I understand it, he is part way through a number of other courses.

[18]Where a tariff is less than three years, it is the policy of the Secretary of State to schedule a parole review to conclude at about the tariff expiry date. The Claimant fell into this category.

[19]The skeleton Rule 6 dossier was sent to HMYOI Aylesbury on 9 February 2008 for them to complete and add relevant reports, and reports were also sought from and provided by HMYOI Exeter. In addition to information concerning the Claimant’s offending history and the index offences, the dossier when complete included the following reports: i) OASys assessment (30 November 2007) ii) Post-programme report for the ETS course (September 2007). iii) “Lifer” manager report (HMYOI Exeter) (4 November 2007). iv) Wing manager report (HMYOI Exeter) (22 October 2007) v) Personal officer’s report (HMYOI Exeter) (22 October 2007). vi) Seconded probation officer’s report (HMYOI Exeter) (18 December 2007). vii) External probation officer’s (HMYOI Aylesbury) (16 November 2007). viii) Activity supervisor’s report (HMYOI Exeter) (22 October 2007) ix) Health care report (HMYOI Exeter) (2 November 2007). 20. Upon receipt of the completed dossier from HMYOI Aylesbury, the Pre-Release Section of the Public Protection Unit of the National Offender Management Service (“the PRS”, an arm of the Ministry of Justice) sent it to the Parole Board on 22 February 2008, with a formal referral under section 28(6)(a) of the 1997 Act. That referral letter asked the Parole Board to consider whether or not it would be appropriate to direct the Claimant’s release and, if not, it was invited to advise on(a) whether the Claimant should be transferred to open conditions and

(b) the continuing areas of risk that need to be addressed. 21. The case was considered by a single member of the Parole Board on 4 April 2008, but the member’s view was not to order release or recommend a move to open conditions. As a result, as indicated above (paragraph 3), the Claimant sought consideration by a three member panel with a hearing. That panel heard the case on 14 August 2008. In addition to the Rule 6 dossier, it heard evidence from both the Claimant himself and Senior Officer Colin Paine (the General Manager of HMYOI Aylesbury G Wing). The Claimant’s mother, who attended the hearing as an observer, also submitted a letter and petition which were also considered. 22. The Parole Board’s decision from that hearing was notified to the Claimant by a letter of 19August 2008. That letter stated as follows:

“1. The Parole Board is to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you should be confined. The Panel who heard your case on 14 August 2008 is not so satisfied and does not direct your release nor does the Panel recommend that you should be transferred to open conditions. 2. At the hearing the Panel took into account all the material placed before it, including your own evidence, the oral and written submissions of your counsel Mr Philip Rule and the evidence of Senior Officer Colin Paine, the General Manager of G Wing. Your mother… was present as an observer and submitted a letter and petition…”

The letter went on to outline the offence, the sentencing judge’s remarks, the Claimant’s antecedents, and his behaviour and activities whilst in detention. It continued: “6. It is noted that the written reports are all of some age. Nonetheless, none of them support a move to open conditions yet. They all speak of the need to do further work to address your offending behaviour. Having listened to your own evidence and the more up-to-date views of Senior Officer Paine, the Panel is also of the view that you need to do more work in closed conditions to address your offending behaviour before there can be any confidence that your risk has reduced. The Panel is concerned about your impulsivity and lack of consequential thinking as well as your apparent inability to cope with setbacks without losing all motivation and withdrawing. It is a great pity that you were not able to stick at your job [the Claimant had had a cleaning job in the young offender institution, from which he resigned], which would have demonstrated a rather more positive approach to life. It may be that you would benefit from further contact with a psychologist who might be able to assist with your lack of motivation and highly variable moods. You also described a range of obsessive-compulsive thoughts and behaviour. It may be that a psychology assessment would indicate a need for a psychiatric evaluation. The psychiatrist on the Panel did not see this as essential at the current time. 7. The Panel has carefully considered the written submissions on the law relating to the test that it ought to apply to you. The Panel is satisfied that there is a positive need for continued detention to protect the public from a significant risk of serious injury. Were it the law that the test is that the Panel must conclude that you pose a significant risk of causing serious harm through the commission of further specified offences, the Panel is also satisfied of that, in all the circumstances of this case… ”.

[23]On 2 September 2008, the PRS wrote to the Claimant again, under the heading “Outcome of Parole Board Review”, as follows (all emphasis in the original):

“As you know the Parole Board has considered your case and did not direct your release on life licence or your transfer to open prison conditions for the reasons attached. The Secretary of State has now considered the Parole Board recommendation, agrees with this view for the reasons given by the Panel and considers that the following risk factors are outstanding and require further work in closed conditions: Drug addictive, work on management of yourself, emotions and behaviour Your case will next be referred to the Parole Board for a provisional hearing to take place in February 2010 for the following reasons: The panel is concerned about your impulsivity and lack of consequential thinking as well as your apparent inability to cope with setbacks. It may benefit you to have contact with a Psychologists. You will be notified by the Parole Board nearer the time about the exact date of that hearing…”

Drug addictive, work on management of yourself, emotions and behaviour

[24]It is of course the decisions set out in those letters of 19 August and 2 September 2008 that the Claimant now challenges by way of judicial review.

The General Approach

[25]Most of the grounds relied upon are in relation to the parole process, and in particular the process by which the Parole Board approached its section 28(6) responsibilities in the Claimant’s case.

[26]The proper approach of this court in such cases was recently considered by the House of Lords in The Secretary of State for Justice v James

[2009] UKHL 22

, to which I will have recourse when dealing with specific grounds relied upon by the Claimant. However, in respect of the general approach of this court in such cases, Lord Judge LCJ said this (at [134]): “I am not to be taken to be encouraging applications by prisoners for judicial review on the basis that the prisoner may somehow direct the process by which the Parole Board should decide to approach its section 28(6) responsibilities either generally, or in any individual case. These are questions pre-eminently for the Parole Board itself. Although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the Administrative Court cannot be invited to second-guess the decisions of the Parole Board, or the way it chooses to exercise its responsibilities. Your Lordships were told that the Board is frequently threatened with Article 5 (4) challenges unless it requires the Secretary of State to provide additional material. Yet it can only be in an extreme case that the Administrative Court would be justified in interfering with the decisions of what, for present purposes, is the “court” vested with the decision whether to direct release, and therefore exclusively responsible for the procedures by which it will arrive at its decision”.

[27]Those sentiments were echoed throughout the Lord Chief Justice’s opinion, and in the opinions of rest of the Appellate Committee. For example, Lord Hope said (at [21]):

“Article 5(4) requires that a system must be in place for making that assessment [i.e. the assessment of risk required under section 28(6)] at reasonable intervals which meets the requirement of procedural fairness. How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs, to conclude that for whatever reason the information that is available for the time being is inadequate and to set its own timetable for the information that it needs to be made available. It is entitled to expect co-operation from those who are responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not of itself mean that there will be a breach of Article 5(4). As in the case of Article 5(1)(a), it will only be if the system which the statutes have laid down breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary but the guarantee that Article 5(4) provides will be violated and the prisoner be entitled to a remedy in damages.”

[28]In addition to passages from James being relevant to discrete grounds relied upon by the Claimant, as Mr Slater for the Parole Board properly urged, these comments inform the whole approach to this challenge and similar claims. For Article 5 purposes, the Parole Board is the “court” to which Parliament has assigned the decision whether and when to direct release of an offender subject to an indeterminate sentence who has served his tariff period, in relation to which it has not only unique authority but unique experience and expertise. As such, the process adopted for review is “pre-eminently for the Parole Board itself”. The Administrative Court has only an ultimate supervisory jurisdiction, and interference by this court will only be warranted in “extreme cases”. In other words, in relation to reviews, the Parole Board has a very wide margin of appreciation or discretion in relation to its own process and procedures, including timetabling, and this court will not intervene unless the Board strays outside that ambit. The Grounds of Challenge Ground 1: Unlawful delay in providing for the review of the legality of the Claimant’s continued detention

The Grounds of Challenge

[29]For the Claimant, Mr Rule submitted that it was in breach of Article 5(4) for the Parole Board not to hear and determine the Claimant’s case in relation to his detention after the expiry of his tariff until mid-August 2008, three months after the expiry of that tariff. There were two limbs to this submission. First, he submitted that Article 5(4) required the hearing (including, as I understand the submission, the Board’s determination after any oral hearing) to be before the expiry of the tariff. Second, he submitted that the time taken to hear and determine the Claimant’s case was so long as to be in breach of Article 5(4) in any event.

[30]I do not find this submission compelling for the following reasons.

[31]With regard to the first limb of the submission, I do not accept that Article 5(4) requires the Parole Board to hold an oral hearing and/or determine whether it is any longer necessary for the protection of the public that an offender should remain in detention after the expiry of the tariff period before that expiry.

[32]In Noorkoiv v The Secretary of State for the Home Department

[2002] EWCA Civ 770

, Lord Woolf LCJ indicated (at [69]) that “references to the Parole Board should be made before the expiry of the tariff period”. That is an obligation to refer imposed upon the Secretary of State; and it is one which he acknowledges. However, on any view, in this case, he did refer the Claimant’s case to the Parole Board for review well before the expiry of the tariff.

[33]After that reference has been made, the focus turns to the Parole Board. Does the Board have an obligation to hear the case - at an oral hearing, if the offender requires - and determine the matter before the end of the tariff period? The answer given to that question in James is, “No”. As a matter of principle, timetabling for conducting a review is a matter for the Board (see, for example, the opinions of Lord Judge and Lord Hope cited above at paragraphs 26-27). More particularly, Lord Hope expressly indicated that the system was required to give offenders an opportunity “by the time of the expiry of their tariff periods, or reasonably soon thereafter” (at [3], emphasis added) to demonstrate that it was no longer necessary for the protection of the public that they should remain in detention. Whilst perhaps obiter, these comments are of extreme persuasive authority, made by the House of Lords in the context of setting out the proper role of the Parole Board.

[34]What amounts to “reasonably soon thereafter” will depend upon the facts of any particular case, because the Article 5(4) requirement that questions of lawful detention are “decided speedily” is a fact-specific matter in respect of which recourse to other fact-specific cases will be of limited assistance (R (Cawley) v The Parole Board and The Secretary of State for Justice

[2007] EWHC 2649 (Admin)

at [22]-[23], per Sullivan J: see also Oldham v United Kingdom

(2001) 31 EHRR 34

at [31], a judgment of the European Court of Human rights to the same effect). As James makes clear, the Parole Board itself is in by far the best position to consider and determine what might be an appropriate timetable, within its wide discretion in relation to procedural matters. However, this is moving into the ground covered by the second limb of Mr Rule’s submission, to which I shall come shortly.

[35]In relation to the first limb (i.e. that Article 5(4) required hearing and determination of a case such as that of the Claimant prior to the expiry of his tariff period), Mr Rule relied upon authority in the form of two passages from Noorkoiv itself. First, he relied upon Buxton LJ at [43], where he suggested that a full (i.e. oral) hearing should be held “at a stage reasonably close to the operative date”. However, that does not suggest it needs to be before the tariff expiry, but merely within a reasonable time after it, in line with the requirement under Article 5(4) for a speedy decision. Second, he relies upon Simon Brown LJ (as he then was) at [57], where he said that:

“The real question on this appeal, therefore, is whether the requirement under Article 5(4) for a speedy decision by the Parole Board of the prisoner’s continuing dangerousness requires that all practicable steps are taken to ensure that, whenever possible, those no longer dangerous can be released actually on or very shortly after their tariff expiry dates. If so, then the oral hearing of their cases must, as the appellant now submits, pre-date rather than post-date the expiry of the tariff period.”

[36]That is a question that Simon Brown LJ did not expressly answer, although I accept that his reference to the Parole Board having to devise a “new system for pre-tariff expiry date hearings” (in [58]) suggests that, in the context of the case before him, he appears to have considered that Article 5(4) did or at least may require all practicable steps to be taken to ensure those no longer dangerous could be released at (or, possibly, very shortly after) their tariff expiry dates. However, Noorkoiv was very different from the case before me in a number of respects. In Noorkoiv, the delay was not only systemic, but the Secretary of State referred the offender’s case to the Parole Board with a direction that it should not be listed until after the expiry of the tariff because of a lack of resources within the Parole Board. In the case before me, timetabling of the listing remained within the hands of the Parole Board, and there is no evidence that delay has been caused by any lack of resources in the Board. Simon Brown LJ did not expressly hold that hearing and determination must be completed before the expiry of the tariff period; and, insofar as his judgment appears to suggest that, it has now to be read in the light of later cases, most notably James (in which, of course, Lord Brown made no such similar suggestion).

[37]The other cases relied upon by Mr Rule appear to me to go to the second limb of his submission, to which I can now turn. However, it is noteworthy that, insofar as it goes, R (Smith) v The Secretary of State and the Parole Board

[2008] EWHC 2998 (Admin)

particularly does not help him on the first limb: because in that case the tariff expiry date was 7 September 2007, and no complaint about delay was made in respect of the period up to 22 November 2007 (two and a half months after the expiry date), after which date the judge (Slade J) found that the delay was unlawful because of various factors to which I shall return.

[38]Moving to the second limb of the submission, did the Parole Board breach Article 5(4) by dint of lapse of time, by not hearing and/or determining the case until mid-August, i.e. three months after the expiry of the Claimant’s tariff period? I do not consider it did.

[39]As I have stressed, as a matter of principle, timetabling of the hearing was essentially a matter for the Board. There is no evidence in this case that any of the delay was caused by lack of resources. Mr Slater for the Parole Board said that, for oral hearings to operate effectively, some time is necessary to enable the complicated logistics of listing nationally across 139 establishments with a mixture of professional/expert and independent members on the panels. That must be the case. Further, there is no evidence that any delay was caused by (e.g.) any systemic failure on the part of the Board, or any operational ineptitude of their part.

[40]Given that each case depends on its own facts, I found the authorities to which I was referred on this point of very limited value. Mr Rule relied upon both Cawley and Smith. I have already dealt with Cawley sufficiently: in relation to Article 5(4) and delay, Sullivan J especially stressed that each case turned upon its own facts. There is nothing in Cawley that offers Mr Rule significant support. Nor did I find Smith instructive. It was common ground in that case that a hearing two and a half months after the expiry of the tariff was (on the facts of that case) unobjectionable on Article 5(4) or any other grounds. However, once that time had expired, the Parole Board gave directions which the Board itself and the Secretary of State failed to comply with and, in these circumstances, the court held that the further delay to January 2008 was objectionable and unlawful as being in breach of Article 5(4). Those facts are very different from those before me: in the Claimant’s case there is no evidence of any such failures. In my view, Smith does not significantly assist the Claimant: and is in some ways supportive of the Defendants’ case. Nor did I find helpful the cases concerning the intervals between reviews (such as R (MacNeil) v The Parole Board

[2001] EWCA Civ 448

(two years between reviews held not to be in breach of Article 5(4), relied upon by Mr Slater), as they too very much turn on their own facts. The most that can perhaps be taken from these cases in my view, is that, where a review takes place three months after the expiry of an offender’s tariff, then that is certainly not necessarily manifestly excessive or necessarily in breach of Article 5(4). Whether it is in breach will be dependent upon the circumstances of the particular case, which, given an appropriately timed reference from the Secretary of State, the Parole Board is in the best position to consider and appoint an appropriate timetable. Indeed, under section 28(6), that is its very statutory function.

[41]In the case before me, by holding and determining the Claimant’s review three months after the expiry of his tariff, it cannot be said that the system broke down completely, such that the detention of the Claimant until mid-August 2008 was arbitrary. As Lord Brown said in James (at [61]), the Parole Board scheme satisfies the Board’s Article 5(4) obligation, which is one of procedural fairness. There is no evidence of any failure of that system, at either policy or operational level. In my judgment, on the evidence, it cannot be said that the fact that the Claimant’s case was not the subject of an oral hearing until about 3 months after his tariff was unreasonable. On the facts of this case, that timetable was within the legitimate ambit of the Parole Board’s case management discretion - and, in my view, clearly so.

[42]For those reasons, there was in my judgment no breach of Article 5(4) (or any domestic obligation of fairness or procedural propriety) in relation to the timing of the review - and this ground fails.

Ground 2: Procedural irregularity by the Parole Board

[43]Mr Rule submitted that the 14 August 2008 Parole Board hearing did not meet the minimum requirements of Article 5(4), in two respects. First, he said that the Board adopted the wrong test for release on parole. Second, he submitted that the information available at that hearing was inadequate to the extent that meaningful consideration of the case was not possible and hence the decision reached was unlawful.

[44]I can deal with the first sub-ground shortly. Mr Rule submitted that, adopting a purposive approach to construction, section 28(6) of the 1997 Act (which prescribes the test for release on parole in terms of the Board being “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”) should be construed in a way which mirrors section 226 of the 2003 Act relating to the imposition of detention for the protection of the public. Given that the purpose of the non-tariff element of such sentences is the protection of the public from the risk of serious harm from the commission of specified offences by the offender, when that risk no longer applies, then the purpose of the sentence is exhausted. That consequently informs the proper construction of section 28(6).

[45]That is a submission which other judges of this court have found attractive (see, e.g., R (O’Connell v The Parole Board and the Secretary of State for Justice

[2007] EWHC 2591 (Admin)

at [27] (Latham LJ) and R (Bayliss) v The Parole Board and the Secretary of State for Justice

[2008] EWHC 3127 (Admin)

at [15] (Cranston J)). However, it was not necessary for either court to decide the point, nor is it necessary for me to do so - because, in paragraph 7 of their letter of 19 August 2008, the Parole Board panel expressly said that, on the basis of the test of “significant risk of causing serious harm through the commission of further specified offences”, they would neither release the Claimant nor recommend his transfer to open conditions. In that alternative, the Board therefore used the very test that Mr Rule submitted they ought to have adopted. The point does not therefore arise for determination in this case.

[46]Turning to the second sub-ground, Mr Rule submitted that the material available to the Parole Board for the 14 August 2008 hearing did not meet the minimum requirements required by Article 5(4) to enable there to be a proper, “meaningful” and, therefore, lawful consideration of the Claimant’s case. In particular, the deficiencies were that(i) the OASys assessment was out of date, having been completed in November 2007 (nine months before the hearing):

(ii) all of the other reports relied upon were out of date (none being less than eight months old at the time of the hearing), and in particular they all pre-dated the Claimant undertaking the Sycamore course:

(iii) there had been no consideration of multi-agency public protection arrangements (MAPPA), there was no proposed release plan before the Parole Board and no probation officer attended the hearing to give evidence of potential release plans: and

(iv) there was no psychological assessment.

[47]The Defendants rely upon an overarching submission with regard to each of those suggested deficiencies, to which I shall turn shortly. However, let me first comment upon the individual alleged deficiencies in turn.

[48]OASys Assessment: The OASys assessment in the dossier was completed on 30 November 2007, and was referred to the Parole Board in February 2008. That was within the three month window envisaged in paragraph 6.7 of PSO 2205. Before me, it was submitted on behalf of both Defendants that paragraph 6.6 (“Final reviews in custody must be completed at least one month and not more than three months before release”) is applicable only to determinate sentence prisoners, because for those on indeterminate sentences the release date (as opposed to the tariff expiry date) is, by definition, not known. It was submitted that paragraph 6.5 (“For public protection sentences (when implemented) and lifers, reviews must be completed as part of the parole process”) applies to indeterminate sentences. As a matter of construction, those submissions appear to me to be correct. In any event, it is important to stress that the OASys report is only part of the information available to the Board, and other information and evidence is able to cure any deficiencies in the OASys assessment whether those deficiencies are caused by outdatedness or otherwise (see paragraphs 53-55 below: and also see Bayliss at [26], where Cranston J rejected an almost identical ground of challenge in that case).

[49]Other reports: In relation to the OASys and other reports, Mr Rule relied upon schedule 1 to the Parole Board Rules (see paragraph 13 above), and in particular the references to “current reports on risk factors” (paragraph 3) and “up-to-date home circumstances report” (paragraph 4). The Secretary of State’s response was that all of the reports were adequately up-to-date at the time they were submitted to the Parole Board: and thereafter, it was for the Board to ensure that they had appropriate and sufficiently up-to-date material. With regard to the Board’s position, see paragraphs 53-55 below.

[50]MAPPA: There is no legal requirement for the responsible authorities (namely the police, probation and prison services acting jointly) to propose arrangements for a prisoner’s release in advance to facilitate release.

[51]Psychological Report: Mr Rule submitted that it was incumbent upon the Secretary of State and/or the Parole Board to ensure that a psychological assessment of the Claimant was available to the 14 August 2008 panel. He relied upon the progress report by the external probation officer (Ms Powell) dated 16 November 2007, in which she says (at paragraph 4.4):

“He denied any current thoughts of self harm although again a psychological assessment could provide useful further exploration of such self harming behaviour.”

He also particularly relied upon the Parole Board decision of 4 April 2008 (the decision made on the papers), in which the member said:

“Future Parole Board panels will be aided by the completion of a psychological risk-assessment and formulation of his offending behaviour.”

There was some debate before me as to whether this last extract was a reference including any panel hearing the oral hearing of this review, or whether it referred only to future reviews. It seems to me that it probably meant the latter. However, in any event, the panel on the reconsideration in August 2008 (which had a psychiatrist as a member) were firmly of the view that such assessment was not at that stage required. In paragraph 6 of their letter of 19 August, they said as much: “[T]he psychiatrist on the panel did not see this as essential at the current time”.

[52]That covers the points relating to the individual items raised by Mr Rule. However, the Defendants relied upon an overarching submission in response to all, namely that, as made clear in James, the Parole Board is master of its own procedure and, in particular, it is the Board that must decide what information it requires to carry out its statutory obligation under section 28(6). That submission is compelling and, in relation to this ground, in my judgment overwhelming. The whole thrust of James is supportive of this submission, but perhaps the most pointedly relevant passages are as follows: “How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs…” (Lord Hope at [21], emphasis added). “I accept that Article 5(4) requires the basic Rule 6 dossier to be made available: without this the Board simply cannot function. But I cannot accept that Article 5(4) requires more than in the way of enabling the Board to form its own judgment.” (Lord Brown at [60]). “Your Lordships were told that the Board is frequently threatened with Article 5 (4) challenges unless it requires the Secretary of State to provide additional material. Yet it can only be in an extreme case that the Administrative Court would be justified in interfering with the decisions of what, for present purposes, is the “court” vested with the decision whether to direct release, and therefore exclusively responsible for the procedures by which it will arrive at its decision.” (Lord Judge at [134]).

[53]Of course, any report provided to the Parole Board will, to an extent, be out of date by the time of the oral hearing, however quickly the procedure moves. However, any actual or perceived deficiencies as a result of outdatedness (or other cause) can be cured at the hearing, by evidence from the offender himself and/or others. As Lord Hope said in James (at [20]):

“It is open to [the detainee] to argue his case for release, and to have his position noted, although the contents of the dossier for the time being fall short of what is desirable.”

In this case, in addition to the Rule 6 dossier, in August 2008 the Parole Board panel had the Claimant’s evidence and “the benefit of Mr Paine’s up to date views” (the Board’s own language: see paragraph 6 of the Board’s 19August 2008 letter). Contrary to the submission of Mr Rule, the Board expressly took account of the Claimant’s evidenced progress since the Sycamore, ETS and other courses (see paragraph 5 of their letter of 19 August 2008).

[54]As stressed in James, it was for the Board to consider whether the information and reports available to them, taken as a whole, was sufficient to enable them to perform the assessment required of them by section 28(6): and to consider whether any potential deficiencies in the Rule 6 dossier were remedied by that additional evidence. In this case, the panel considered that they did have adequate information to undertake their task. That was a matter for them: and, in my judgment, on the facts of this case, there is no arguable claim for this court interfering with that judgment. Of course, the weight it gave to the various parts of evidence was entirely a matter for the panel itself.

[55]For those reasons, ground 2 fails. Ground 3: The decision of the Parole Board not to transfer the Claimant to open conditions was disproportionate and irrational

[56]Mr Rule submitted that the failure of the Parole Board to transfer the Claimant to open conditions was disproportionate and irrational.

[57]I cannot accept that submission. As I have indicated, the Secretary of State expressly requested advice from the Parole Board on transfer, if they did not direct release. The panel expressly consider the matter, to which reference is made in paragraph 6 of their letter of 19 August 2008:

“It is noted that the written reports are all of some age. Nonetheless, none of them support a move to open conditions yet. They all speak of the need to do further work to address your offending behaviour. Having listened to your own evidence and the more up-to-date views of Senior Officer Paine, the Panel is also of the view that you need to do more work in closed conditions to address your offending behaviour before there can be any confidence that your risk has reduced….”

. The judgment that the Claimant needed to undertake further offending work to reduce the level of risk and that that should be undertaken in closed conditions before a recommendation for transfer to open condition could be made was a judgment that the panel were entitled to make on the evidence. This submission was made in similar form to Cranston J in Bayliss and if I might, respectfully and with appreciation, adopt his response to it:

“In my view, even applying the enhanced rationality test because liberty is at stake, the Parole Board’s decision in this regard cannot be treated as flawed…. [I]t seems to me that the Parole Board was coming to its conclusion regarding open conditions in a perfectly open and straightforward way and properly applying the test mandated by statute.”

That applies equally to the facts of this case.

Ground 4: Procedural irregularity in respect of the 2 September 2008 letter

[58]Mr Rule submitted that there was a procedural irregularity in the 2 September 2008 letter, because the date for the next review was set by one of the parties to the parole determination, namely the Secretary of State, rather than the Parole Board.

[59]However, as a matter of law, it is clear that Article 5(4) does not require a judicial body to fix the review date, and that the Secretary of State is entitled to do that (R v (Day) v The Home Secretary

[2004] EWHC 1742 (Admin)

[60]The letter of 2 September 2008 is in line with the statutory scheme, under which the Parole Board cannot consider cases unless and until referred to them by the Secretary of State: see paragraphs 11-12 above. The letter merely indicates that the Secretary of State proposes to refer the case to the Board at such a time to enable the Claimant’s next review hearing before the Board to take place in February 2010. The letter is entirely within the terms of the scheme, and is procedurally unobjectionable.

Ground 5: Delay in the next proposed review

[61]The final ground relied upon by Mr Rule was that the period between the first review (August 2008) and the next proposed review date as set by the 2 September 2008 letter (February 2010) is so long that it is in breach of Article 5(4).

[62]Whilst section 28(7)(b) effectively requires a review period of no more than two years (see paragraph 11 above), Article 5(4) requires reviews of the lawfulness of post-tariff detention of an offender serving an indeterminate sentence to take place at “reasonable intervals” (Oldham v United Kingdom

(2001) EHRR 813

, at [30]). However, as indicated above in relation to the timing of the first review, what is a reasonable interval depends on the facts of a particular case (Oldham, at [31]). Clearly, although there may be cases in which a two year period is appropriate (e.g., R (MacNeil v The Parole Board

[2001] EWHC Civ 448

), there will be other cases in which a review after a shorter (perhaps, much shorter) period than two years will be required. Because cases are fact-specific, reference to authorities is again of limited assistance. However, although it has been held that there is no presumption that the interval should be no more than one year (R (Day) v The Home Secretary

[2004] EWHC 1742 (Admin)

at [48], and R (Loch) v Secretary of State for Justice

[2008] EWHC 2278 (Admin)

at [45]-[47]), it has been said that it is easier to establish that there is a breach of Article 5(4) where the period between reviews is more than a year than when it is less (R (Murray) v The Parole Board

[2003] EWCA Civ 1561

, and Loch at [46]).

[63]In this case, I had evidence before me as to how the PRS approach review intervals, in the form of a statement from Mr Samuel Asiedu (the Team Leader for the South West Region of the PRS, the relevant region in the Claimant’s case). At paragraph 12, he said:

“… All decisions on the timing of future reviews are based on the individual circumstances of each case. Consideration of the review date must take into account such factors as:- • The extent and nature of the outstanding risk reduction work needed in each case. • The period of testing needed to demonstrate the impact and efficacy of such work on the prisoner. • The need to recognise that the review and report writing process begin 26 weeks before the provisional hearing date. • Whether or not the period of time between reviews needs to be reliant on a transfer to another prison, to complete offending behaviour course, for example….” • The extent and nature of the outstanding risk reduction work needed in each case. • The period of testing needed to demonstrate the impact and efficacy of such work on the prisoner. • The need to recognise that the review and report writing process begin 26 weeks before the provisional hearing date. • Whether or not the period of time between reviews needs to be reliant on a transfer to another prison, to complete offending behaviour course, for example….”

[64]In relation to the specific circumstances of the Claimant, the PRS identified in its letter of 2 September why the next review would be in February 2010, 18 months after the August 2008 review, namely “The panel is concerned about your impulsivity and lack of consequential thinking as well as your apparent inability to cope with setbacks. It may benefit you to have contact with a Psychologists (sic)” There is nothing to suggest that the PRS did not have well in mind both the age of the claimant (of course, obvious from the fact that he is in a young offender institution with whom the PRS liaised in relation to the review exercise), and that he was subject to a short tariff.

[65]The timing of reviews is properly a matter for the PRS, on behalf of the Secretary of State. The evidence indicates both a responsible policy and approach towards that task, and, in relation to the Claimant, proper consideration and determination that the review period should be 18 months. This challenge amounts to no more than an attack on the merits of the decision which, I well understand, may be disappointing for the Claimant. However, there is nothing before me which suggests that the decision in relation to that period is disproportionate or unreasonable, or unlawful. This final ground, too, fails.

Conclusion

[66]For those reasons, this application fails. I shall dismiss it: and, unless these matters can be agreed before I formally hand down this judgment, I shall hear submissions in relation to costs and any consequential matters.