NW & YW, R (on the application of) v Secretary of State for Justice [2010] EWHC 2485 (Admin)

Case No CO/6685/2010

[2010] EWHC 2485 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 12th August 2010

Strand

London WC2A 2LL

B e f o r e:

MRS JUSTICE DOBBS DBE

Between

THE QUEEN ON THE APPLICATION OF NW AND YWClaimant

Between

SECRETARY OF STATE FOR JUSTICEDefendant

Computer-Aided Transcript of the Stenograph Notes of

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Mr Hugh Southey QC (instructed by Messrs Bhatt Murphy Solicitors) appeared for Claimant

Mr Vikram Sachdeva (instructed by the Treasury Solicitor) appeared for Defendant

J U D G M E N T

INTRODUCTION

[1]The Claimants are a female prisoner NW and her seven and a half month old daughter YW (born on 23rd December 2009). Both are currently in the mother and care unit of Holloway prison but can only stay there until September as the prison has no capacity to house babies above the age of nine months. However, there are other female prisons which can accommodate children up to the age of 18 months.

[2]The First Claimant is a post-tariff automatic life sentence prisoner awaiting a Parole Board review of her detention, the last review having taken place in October 2009.

[3]The defendant's decisions challenged at the time of the filing of the claim form were the decisions of 4th February 2010, as confirmed on 12th May 2010, to set a 15 month period before the next Parole Board hearing and the decision to refuse to expedite or shorten the six month generic parole process (GPP). The grounds also challenged an ongoing failure to have in place arrangements to ensure that the interests of the child were properly protected and taken into account when reaching decisions on the timetabling of the Parole Board review. The grounds sought relief such as would ensure that the First Claimant's parole review could be heard in September 2010.

[4]On 19th July 2010, at an oral hearing, Nicol J made the following order. He granted permission for the claimants to challenge the Secretary of State's decision stated orally to maintain his earlier decision that the First Claimant's next parole review should taken place in January 2011, notwithstanding what was contained in the minutes of the Mother and Baby Unit (MBU) separation board of 14th June 2010. This was to include the argument that the decision to maintain a 15 month period between reviews breaches

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

. Permission to challenge the other matters raised in the grounds was refused. Nicol J ordered that the defendant was to ensure that there was no separation of the claimants before the date for hearing.

[5]The Secretary of State by way of written decision dated 29th July 2010 has issued a fresh decision maintaining the Parole Board review date as January 2011, having taken into account the minutes of the MBU separation board. The amended grounds challenge that decision.

[6]The issues raised by the Claimant are: i). Whether the date set for the First Claimant's next Parole Board is a breach of

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

because there is insufficient justification for that period. ii). Whether the date set for the First Claimant's next Parole Board is a breach of Article 5(4) when read with

Article 8 of the European Convention on Human Rights

because it will result in a failure to consider whether the potential separation of the Claimants can be avoided by releasing the First Claimant.

[7]In brief, the defendant's response is that i) there is ample justification for the 15 month period in the decision letter of 29th July and ii) there is no final decision to separate, a decision which is for the defendant rather than the separation board to make. The potential separation of the mother and baby has been taken into account as one factor, albeit not a determinative one, in assessing the appropriate review period. THE BACKGROUND.

[8]NW received an automatic life sentence on 30th August 2000 when, aged 19, she was convicted, on her plea, of causing grievous bodily harm (gbh) with intent. She had a previous conviction for gbh dating from 24th August 1998 when she was 17.

[9]At that time, Section 2 of the Crime (Sentences) Act 1997 made provision for an automatic life sentence for anyone aged over 18 convicted for the second time of certain specified offences, including gbh. Whilst the sentencing judge noted the draconian effect of the legislation, he found no exceptional circumstances in the case to justify not imposing the life sentence. The tariff was set at three years.

[10]NW was released on life licence on 29th August 2003 at the expiry of her tariff. On 8th June 2004 her licence was revoked and she was returned to custody. This recall was confirmed by the Parole Board in September 2004. On 1st May 2008, her release was directed by the Parole Board. However, on 12th January 2009, the probation service requested NW's recall to prison, and on 13th January, the defendant revoked her life licence. She remained unlawfully at large until she was arrested for drink-driving and was returned to prison on 14th April 2009. She was pregnant at the time.

[11]A Parole Board hearing took place on 29th October 2009 and the written decision was issued on 10th November. The board considered that the recall was justified in all the circumstances and did not direct the First Claimant's release.

[12]Following the decision, the Claimant's solicitors wrote to the defendant regarding the setting of the timetable for the next review. The decision was communicated on 5th February 2010. The letter of 5th February stated that the next review would take place in 15 months from the date of the previous parole hearing, namely in January 2011, and that the interests of mother and baby had been taken into account in formulating the review period. The letter set out ten risk factors said to be outstanding and detailed work which was recommended to be carried out. There was correspondence which ensued between the parties before proceedings were issued. THE LAW

[13]Section 28 of the Crime (Sentences) Act 1997 requires the Secretary of State for Justice to release a life sentence prisoner on licence if the Parole Board so directs and if the prisoner has served the tariff - i.e. the minimum term. The board may only give such a direction if the Secretary of State for Justice has referred the case to the board and the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The relevant parts read:

"(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; 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. (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- ... (b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference ..."

[14]

Article 5(4) of the ECHR

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 SUBMISSIONS

[15]In support of the submission that the 15 month period is unlawful, the Claimants make the following points: i). The starting point derived from the authorities is that the default period between reviews is one year and thus the Secretary of State must identify some particular ground to justify an excess of that period; ii). A relevant factor to consider is what work has been identified to be completed. In the First Claimant's case, the sentence planning targets have almost been completed - she has done alcohol abuse and anger management courses as highlighted by the sentencing judge and there is little further work to do. She has had a period of stability with her baby in a controlled environment as envisaged by the Parole Board, which, it is submitted is the important starting point for identifying the needs. The Parole Board did not identify any offending behaviour work to be done. iii). The First Claimant has made significant progress in addressing her risks despite the original setbacks. The recent reports do show progress and change - the capacity to change being important. Particular reference is made to pages 285, 292 and 296 of the bundle which show that she has done valuable work, has behaved well and is a caring mother. iv). The First Claimant was very young when first sentenced which is significant. She has matured and avoided any further criminal convictions. v). To the extent that the Generic Parole Process (GPP) is relied on by the defendant, this can afford no adequate justification for arranging a review in 15 months, as the state is obliged to organise relevant systems to avoid delay. Six months delay by virtue of the GPP in conducting Parole Board reviews is far in excess of periods held to violate Article 5(4). vi). The justification that the review cannot be listed before November 2010 without any other prisoner losing their hearing cannot stand. The defendant must justify a period of longer than 12 months. vii). The Defendant's reliance on the need to protect the public is irrelevant because if the First Claimant poses a risk she will not be released by the Parole Board. It is not for the Secretary of State for Justice, relying on the reports, to decide whether or not the First Claimant is suitable for release, it is for the Parole Board to determine if the risk is acceptable, even if that decision rejects the Secretary of State's submissions.

[16]With regards to the second ground: i). The decision has failed to take into account the best interests of the child as the separation board has stated that the child's best interests require her to be separated from her mother at eight months, unless the parole review is brought forward, as separation at 13 months would not be in her best interests. Any separation of a female prisoner and her child must conform with the obligations imposed by Article 8 - the prison service must show that interference with Article 8 rights is necessary in a democratic society and that a fair balance has been struck - the burden being on the defendant to demonstrate this. The MBU's prison service order 4801 (PSO 4801) states that the policy is that, where separation is to take place, it may be less damaging for it to take place earlier rather than later. The Children's Commissioners report entitled "Prison mother and baby units - Do they meet the best interests of the child?" states that sudden separation between care-giver and child aged six months and four years could cause severe psychological damage. Any separation of the Claimants is a particularly serious interference with Article 8 rights. ii). The central question is whether separation is necessary. In this case it is impossible to see how the necessity of separation can be established unless a Parole Board review is conducted before separation, because it is only the Parole Board that can determine release. iii). The Secretary of State for Justice has in effect taken a decision that he is content that the January review should take place whether or not separation has occurred. iv). When Article 5(4) is read with Article 8, it is clear that the decision is unlawful and that the First Claimant's Parole Board hearing should be prioritised bearing in mind that the court's paramount concern should be the welfare of the child.

[17]In response the defendant reminds the court that: i). The decision under challenge is that of 29th July and not a challenge to the provisional proposal of the separation board. ii). It is clear that the provisional proposal of the separation board is not final, as the board has expressed its intention to reconsider the matter once the judicial review claim is determined. The First Claimant would be entitled to make representations before any final decision, including representations about prospects of release and can judicially review any decision made. Article 8 rights are not engaged because there has been no decision engaging Article 8.

[18]So far as the principles are concerned the defendant draws attention to the following: i). the test which the Parole Board must apply is whether it is satisfied that it is no longer necessary for public protection that the prisoner should be confined; ii). the continuing detention of a post-tariff life sentence prisoner must be reviewed by the Parole Board at "reasonable intervals": in order to satisfy Article 5(4): Oldham v UK

(2000) 31 EHRR 813

; iii). the case of R (MacNeil) v Her Majesty's Prison Discretionary Lifer Panel

[2001] EWCA Civ 448

: the Court of Appeal noted that it was not for the 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. On the facts of that case it found that a two year period was not unreasonable; iv). that in R (Spence) v SSHD

[2003] EWCA Civ 723

, the Court of Appeal noted that the European Court of Human Rights had declined to be prescriptive about the length of detention which would lead to breach of Article 5(4) in the absence of a review. The Court found on the facts of the case that an 18 month period was not unreasonable.

[19]In relation to the claimants' submissions on ground one, the defendant submits that: i). There is no default period which, without more, complies with Article 5(4). The Claimants are seeking a parole review in 11 months - a period which does not find support in any of the case law cited by them. ii). The 29 July 2010 decision letter sets out the following reasons for the 15 month parole review period: a) The Parole Board decision of 10th November 2009 did not recommend release, and gave reasons for its decision. b) The First Claimant's risk factors have been identified as Alcohol Abuse, Impulsivity, Anger Management, Emotional Vulnerability and Drug Misuse. There is no evidence that the risk posed has significantly reduced since the last parole review. c) The First Claimant has yet to complete the offending behaviour programmes and demonstrate her understanding of what she has learnt. d) Further time is needed in which to fully engage, develop new relapse prevention strategies, and practice her new skills. e) The two previous recalls demonstrated that the First Claimant had been unable to utilise the skills learnt from the substantial amount of offending behaviour work completed prior to the first and second recalls, and a period of consolidation is essential for her to demonstrate her ability to do this. f) The updated reports were of the view that the First Claimant was not suitable for release, nor even for transfer to Open Conditions. g) There remained concerns about the First Claimant's confrontational behaviour in custody. h) The provisional view of the Separation Board had been taken into account. iii). There is further work planned for the First Claimant: the final module of the HOST programme is due to start on 23rd August 2010 and finish on 18th October 2010, some eight weeks later. A consolidation period follows during which the First Claimant should review the skills learned and put them into practice. Moreover, there is an unresolved issue of psychotherapy, which the First Claimant declined to undertake, preferring to have therapy under the HOST programme. iv). The First Claimant has made some progress in the past, been released and then recalled. There is still significant progress to be made, as can be seen from the recent parole reports. Put shortly, she has made one step forward and two steps backwards. v). Although young when she first committed the relevant offences, and having undertaken the offending behaviour work identified by the sentencing judge, the First Claimant has been recalled on more than one occasion in the past, failing to put what she had learnt into practice. It is important that when she is next released she has properly learned strategies for avoiding recall. vi). The Defendant agrees that the fact that the GPP is six months should not in itself delay a parole hearing if the circumstances of an individual case require an earlier review to comply with Article 5(4). The 15 month period has been set because it represents an appropriate time for the First Claimant to address her risk; the GPP is set once the parole review period is ascertained, and the GPP runs concurrently with the parole review period. vii). The fact that a parole hearing cannot in fact be listed before November 2010 without any prisoner losing their hearing date was not taken into account in setting the parole review period at 15 months. Nor could it affect the question whether a 15 month parole review period complies with Article 5(4). viii). The need to protect the public is relevant because the risk test which the Parole Board must use is based on the need to protect the public. When fixing the review period, the Secretary of State has to have in mind a period within which the person can have a realistic chance of demonstrating lack of risk. If there is no evidence of significant progress, it is hard to call for a shorter period of review.

[20]With regard to the second ground the defendant submits that: i). The MBU recommendation is a relevant factor in setting the parole review period. The difference between the parties is the weight to be given to it. The recommendation itself is a proposal rather than a decision; it is clearly not a final decision and, were the Claimants to attempt to judicially review the separation board, permission would be refused for the claim would be premature - as the Claimants accept. ii). The Defendant has taken account of the MBU recommendation, and the interests of both of the Claimants in remaining together. However, bearing in mind the other circumstances of the case, including the recent reports obtained on the First Claimant's progress, a review period of 15 months is considered appropriate. Any decision to separate the Claimants will be ultimately taken by the Defendant, who will take careful account of the recommendation of the separation panel, an expert body which will provide reasons for its recommendation. iii). The parole review decision must be clearly distinguished from any decision to separate the Claimants. They involve different principles, and the relevant considerations for each decision are different. Any decision to separate the Claimants must have at its heart the best interests of the Second Claimant. By contrast, the critical question in setting a parole review period is the risk to the public posed by the First Claimant. Any decision to separate the Claimants must clearly comply with Article 8. However, any allegation that the decision of 29 July 2010 breaches the Claimants' Article 8 rights is bound to fail, for causation cannot be established. No recommendation to separate has been made by the separation panel, nor has the Secretary of State made a decision yet. iv). The parole review period is primarily based on the First Claimant's risk, and it is incorrect in principle for that link to be subverted in favour of a decision to separate the Claimants which may or may not be taken. THE PRINCIPLES

[21]A significant number of authorities have been referred to. I do not intend to rehearse them. The case of R (Loch) v Secretary of State for Justice

[2008] EWHC 2278 (Admin)

reviewed most of them. I set out some of the principles to be derived there from.

[22]Article 5(4) requires that the lawfulness of a prisoner's detention is decided speedily, which, in the context of life prisoners, means that reviews should take place at reasonable intervals - see Oldham v UK

[2000] 31 EHRR 813

[23]It follows that the decision as to the reasonableness of the length of the gap is fact sensitive: R (Day) v Secretary of State for the Home Department

[2004] EWHC 1742 (Admin)

; R (Loch).

[24]The question of reasonableness is not by reference to the "Wednesbury" test, but by the court deciding for itself whether the period in question is reasonable (Day and Loch).

[25]The defendant must identify a need for monitoring and progress and specify how long it will take (paragraph 31.4 of Loch).

[26]The decision maker should approach his task with flexibility and due regard to the individual circumstances. Relevant considerations will include the need for a specific period during which a course has to be undertaken and completed, the degree and quality of progress which the given prisoner has made and has been identified in the reports, the degree to which the defendant has worked out sensible timetables for the various stages which need to be completed before the Parole Board could sensibly order a change in status (R (Harrison) v Secretary of State for Justice

[2009] EWHC 1769 (Admin)

[27]In determining that question, the court will accord due weight to the views of the Secretary of State for Justice, who has particular expertise in these matters (Day and Loch) (See also Gray v Secretary of State for Justice

[2010] EWHC 2 (Admin)

for the reasons for this principle). THE DECISION UNDER CHALLENGE

[28]The decision of 29th July 2010 needs to be considered against the history of the First Claimant, as well as against the decision of the Parole Board in November 2009, the decision of 5th February and including the minutes of the meetings of the MBU separation boards. The history of the claimant

[29]The First Claimant has had a troubled childhood and engaged in self-destructive behaviour, including the abuse of drink and drugs. She has a history of previous convictions dating back to 1991, mainly for dishonesty, but in August 1998 she was convicted of gbh, an attack which was carried out whilst she was heavily under the influence of alcohol, involving slashing the victim's face with a broken can. She was sentenced to three years probation, an order which was breached on a number of occasions. The automatic life sentence was for an offence where, still under the probation order and heavily under the influence of alcohol, the First Claimant attacked a man in a nightclub, stabbing him in the face and neck with a broken bottle, causing very serious injuries indeed. The First Claimant's recollection is that the bottle broke on impact.

[30]Following her conviction, she completed a number of courses including anger management, a course to address violent behaviour and an enhanced thinking skills course. She also undertook alcohol and relapse prevention courses and attended AA meetings. She was transferred to open conditions in February 2003 and released on licence on 23rd August 2003. By June 2004, she had returned to alcohol and illicit drugs. She was arrested for assault occasioning actual bodily harm and assault on a female in June 2004. The charges were eventually dropped. Her licence was revoked on 8th June. On 6th September 2004 the Parole Board concluded that her recall to prison was entirely warranted.

[31]Following her first recall, she received adjudications, including for attempted escape and possession of a controlled drug. She undertook further courses and was transferred to open conditions on 8th December 2005, but then returned to closed conditions following an attempt to obtain alcohol in January 2006. She completed further courses to address her behaviour and in March 2007 the Parole Board recommended transfer to open conditions. This was achieved on 22nd May 2007. Following a reduction in the OASys risk assessment score with the risk of harm to the public and reconviction assessed as medium, the Parole Board directed her re-release on 1st May 2008.

[32]It is said that following her release she repeatedly acted in a confrontational manner and professionals frequently felt intimidated by her conduct. She received formal warnings for breaches of the conditions of the hostel where she resided and, having being warned that recall was being considered, she absconded in January 2009, remaining unlawfully at large until she was arrested in April 2009. In May 2009 she apparently made a phone call seeking to have a member of staff of Tumin House, where she had been staying, endangered by tampering with the brake cables on the car. It is to be noted, however, that the Parole Board was unable to make a finding on this incident. The decision of the Parole Board

[33]On 29th October 2009 there was a Parole Board hearing relating to the legality of recall. The terms of reference of the Parole Board were to re-affirm or otherwise the decision to recall and to advise on immediate release. The board was specifically asked not to comment on any specific treatment needs, the security classification and date of the next review. The board's decision of 10th November observed that the First Claimant had matured to an extent since the last recall and that there had been a period of improvement in her conduct, but concluded that she needed a period of stability and the opportunity to cope with the stresses of childbirth and caring for a new baby in a controlled environment before she was ready for release.

[34]The Parole Board accepted that most of the risk factors were still present - namely alcohol abuse, impulsivity, anger management, emotional vulnerability and drugs misuse. Impulsivity and poor decision making were identified as real problems. The Board found that she continued to minimise her behaviour and blame others for problems and it had no confidence that she would comply with supervision in the future. Neither the offender manager nor the offender supervisor recommended release. The Board concluded that the risk posed by her was too great to be safely managed in the community. The decision letter of 4/5th February 2010

[35]Accompanying the decision letter of 5th February is a letter to the First Claimant dated 4th February which set out a) the result of the Parole Board hearing and the risk factors which were considered to be outstanding; b) the recommendations of the Claimant's offender supervisor and offender manager of work to be completed to address the risk factors. It noted that the Mother and Baby Unit at Holloway only accommodated babies up to nine months, but noted that there were several other prisons which had an upper limit of 18 months and consideration for transfer might be appropriate in due course. The letter also set the review period of 15 months and set out the timetable for work which would allow for the next review to take place before the child reached 18 months of age. The period was to be made up of six to eight weeks to undertake the Sycamore Tree restorative justice and victim empathy course; nine months to undertake psychotherapy in order to address the First Claimant's impulsivity and poor problem solving skills; on going one-to-one intervention with CARATS to develop relapse prevention strategies; a period of sustained good behaviour in a controlled environment to demonstrate that the First Claimant could abide by the rules and instructions and that she could stay adjudication free; six months review process GPP. It was explained that the review process would take 26 weeks to complete and that the parole review would begin in August 2010 the month for the hearing being January 2011. Minutes of the separation board 13th April 2010

[36]The minutes noted the Parole Board hearing date of January 2011 and indicated that, in the event of an unsuccessful parole hearing, the daughter would need to be separated from the mother, but that there would need to be transfer to a unit taking children up to 18 months. In light of the potential separation, should the First Claimant be unsuccessful, a parallel plan had been put in place for the benefit of the baby - which would involve day visits and then overnight stays with the First Claimant's sister, allowing them to build up a relationship, so that any separation would be done smoothly with no harm done to the baby. The First Claimant's sister's suitability was still being assessed. The First Claimant agreed with the plan, but complained that the assessment of her sister's suitability was not being done swiftly enough. The decision letter of 12th May 2010

[37]This letter was in response to correspondence with the Claimant's solicitors in which they enclosed the minutes of the separation board, explained the rationale for the decision of 5th February, addressed some of the criticisms levelled at the defendant and maintained the decision. The minutes of the MBU separation board 14th June 2010

[38]The meeting started by noting that the First Claimant's daughter had just returned from an overnight stay with the First Claimant's sister and had very much enjoyed herself and had settled well. The following extracts are relevant:

"It was decided by the Board that no further plans could be finalised regarding the long term plans for NW and YW until the outcome of the Judicial Review is known. The original parallel plan would still continue, with YW regularly going out to Rochelle in preparation for a possible separation. The reason no long term plan could be finalised was due to the fact that if the JR was successful then the Parole hearing could be brought forward and there could be a possibility of NW being released with YW or being separated then, if the Parole Board was unsuccessful. If the JR was unsuccessful then a separation around 8 months would be the route to take, as the possibility of separation after the original Parole date would mean that YW would be at least 13 months old and this would not be in YW's best interests. ... The possibility of a move to an 18 months Mother & Baby Unit was again discussed and NW stated her preference would be Styal, but the Board believes that Bronzefield would be in YW's best interest, due to the distance and journey time. NW stated that her sister, Rochelle, has shown commitment to regular visits with YW and has accessed the Assisted Prison Visits scheme. This was highlighted by the fact that Rochelle had just taken YW for the weekend. The Board still raised concerns over the journey time to Styal, but NW said that her family had committed to the journey twice a month... In summing up it was noted that, due to the Judicial Review application, the timescales had changed, so there can be no final plan made until the outcome of the Judicial Review was known. Once the outcome of the Judicial Review was known then further discussion could take place, with a view to having a more definite plan for NW and YW. The date of the next Board was not set, as it would need to be after the Judicial Review and the date for this has not been set."

[39]A statement from Lisa Burrell, the civil servant with oversight of the decision challenged, is included in the bundle - this statement is of significance, submits the Claimant, in that she states that it had been assumed that the Claimants would remain together during the review period but sight of the separation board minutes shows that assumption to be incorrect. The decision letter 29th July 2010

[40]The latest decision letter is dated 29th July 2010, signed by Lisa Burrell. To that letter are appended five reports from the acting offender manager, the offender supervisor, the lifer manager and two members of staff from the Mother and Baby Unit. The letter sets out the First Claimant's history and then the reasons for the decision to maintain the date of January 2011, which are as follows:

"Following your recall hearing in October 2009, when the Parole Board concluded that the risks you posed continued to be too great to be safely managed in the community, the Secretary of State decided that your next review would be considered in January 2011. This was to allow you sufficient time to continue to address your risk by receiving the necessary interventions identified for you by treatments managers, to demonstrate a sustained period of good behaviour. Such a period would also have the effect that your next Parole Board review would take place prior to your child attaining the age of 18 months, which was supposed to give the opportunity for you to keep your baby throughout the review period. However, since that time, the Separation Board of the Mother and Baby Unit at HMP Holloway has proposed that separation might take place at an earlier stage if this would be in the best interest of your child. You are challenging the Secretary of State's refusal to bring your review forward to an earlier date in light of this information, as you say this would give you a greater opportunity to be released with your child before separation takes place. The Secretary of State's duty when considering the timing of a Parole Board review in the first instance is protecting the public from harm. In order to review your case the Secretary of State has commissioned up to date reports about your progress since your recall in January 2009. The Secretary of State notes that since your return to custody you have completed the Sycamore Tree, Victim Awareness Course. You have completed modules 1 and 2 of the HOST programme and are due to start the final module of that programme on 23 August. You have recently started to re-engage with CARATs and have attended three afternoon sessions with them. He also notes your initial reluctance to accept the advice of your treatment managers about engaging in Psychotherapy and CARATs. Whilst acknowledging that you have begun to address the outstanding areas of concern identified by your treatment managers and by the Secretary of State, you have yet to finish your offending behaviour programmes and demonstrate your understanding of what you have learnt. Your re-engagement with CARATs is very recent and the Secretary of State is of the view that you need further time in which to fully engage, develop new relapse prevention strategies and practice your new skills. From the Secretary of State's observation and that of the Parole Board, you had been clearly unable to utilise the skills learnt from the substantial amount of offending behaviour programmes completed prior to your first and second recall, and he considers that a period of consolidation is essential for you to demonstrate your ability to do this. He considers that a period of 15 months is the appropriate period for completion of offence focused work and consolidation. The writers of the current reports, attached to this letter, who were qualified to comment on your risk were of the opinion that you are not suitable for release or transfer to open conditions at this current stage. Ms M Robinson, the Indeterminate Sentence Prisoner Manager at HMP Holloway says this: 'I am not completely satisfied that if released back into the community Ms W has enough insight into her impulsivity, use of alcohol or indeed the seriousness of her offending behaviour which has led to 2 previous recalls and for those reasons I would not recommend release ... I also cannot recommend open conditions for Ms W at this time. I still feel that she needs to gain a deeper insight into her impulsive behaviour and accept full responsibility for her actions and these risks would be best addressed in closed conditions by way of psychotherapy'. You were assessed by your Offender Supervisor, at the end of a very detailed report, as presenting at this time a high risk of harm, which indicates that your risk of harm has not reduced sufficiently since being recalled to prison. Your Offender Supervisor concludes: 'Ms W is engaging in interventions aimed at addressing her offending behaviour and records show that her interactions with others, in general, are becoming more positive. However, if the Parole Board was brought forward to September I would not be in a position to support either release or a progressive move to open conditions. Ms W will need to demonstrate a period of stability, sustained good behaviour and that she has addressed her risk factors in more in-depth ways before I would feel confident in supporting a progressive move at this stage.' The Parole Board in its reasons noted that whilst in the community you repeatedly acted in a confrontational way and were frequently pushing the boundaries. Although report writers have expressed their view that there has been an improvement in this area; that you are engaging in interventions aimed at addressing your offending behaviour and your interactions with others is positively improving, this is still an area of concern that needs to be fully addressed and where you need to demonstrate that the improvement has been sustained. There have been several instances described in the current reports where you have continued to behave in a confrontational manner and continue to push the boundaries. Your behaviour has been a constant concern throughout your prison history and this still remains the case. It is also considered to be a pattern of behaviour that is consistent with the circumstances of your recall and serves to illustrate your risk of harm. There would have needed to be a significant improvement in this area before consideration could be given to setting a shorter review period. The Secretary of State has read and noted the contents of the Separation Board minutes recording their meeting on 14 June 2010. It was proposed at that meeting that if the judicial review were unsuccessful then separation would need to take place at eight months because the possibility of separation after the original review date (January 2011) would mean that your child would be at least 13 months at separation and this would not be in the child's interest. This, together with the separate interests of both mother and baby in staying together as their relationship develops, no separation decision having been taken until now, is a relevant factor in consideration of the parole review period. If all other things were equal, it would represent a reason for a shorter parole review period. However in this case there are cogent reasons for considering that the appropriate period is 15 months which are based on risk of offending which no doubt outweigh the effect of the most recent views of the Separation Board. When consideration is given to bringing a review forward a number of factors are taken into account, including successful completion of offending behaviour work, the impact of this work on a prisoner's level of risk and conduct and behaviour whilst in custody. There is still outstanding offending behaviour work for you to complete and there remains concern about your conduct and behaviour. In light of these factors, coupled with the assessment that indicates that you are still a high risk of harm, the Secretary of State does not accept that your risk of harm to the public has been sufficiently reduced to justify bringing your review forward. He considers that, always having regard to his duty to protect the public, these factors must carry greater weight than the possibility of early separation from your child. There needs to be evidence that your good behaviour can be sustained for a prolonged period of time to give you every opportunity to remain in the community on life licence when you are once again released. The review process has already been commenced and your case is on schedule to be considered in January 2011 as planned."

DISCUSSION AND DECISION Ground One

[41]Summarised in court this morning, Mr Southey's key points were that a) there is a basic right to have a regular review so that a court can decide on the legality of detention; b) that the Secretary of State for Justice should have regard to the individual's capacity for change and its effect on risk; c) the starting point is what was identified by the Parole Board; d) limited weight only can be placed on the Secretary of State's view of risk; e) the interests of the child was a very significant factor; f) the issue is whether the court considers it is a reasonable period, not what the Secretary of State thinks.

[42]Turning to the authorities - whilst it is apparent that the period of twelve months is one that features in many of the authorities quoted and that decisions of the ECtHR demonstrate that successful challenges have been made to periods in excess of 12 months, I do not approach the issue on the basis that there is a 12 month default setting or that there is a presumption of 12 months as being the benchmark. Rather I incline to the approach of Langstaff J in Johnson v Secretary of State for Justice

[2009] EWHC 3336 (Admin)

that, the greater the period between reviews is beyond 12 months and towards 24 months, the more cogent reasons will have to be if the court is not to be persuaded that the period is unreasonably long in the particular circumstances of the case.

[43]I start by asking whether the considerations set out above in the principles have been taken into account by the defendant by posing the following questions.

[44]Has the need for monitoring and progress been identified? The answer is yes, both as seen in the Parole Board decision which (contrary to the Claimant's submissions) clearly recognised that most of the risk factors which were set out in the report of Delanie Balsamo were still present. The Parole Board, although not required to make any recommendations about treatment, had before them in the same report the identified areas of work planned. The need for monitoring and progress and the proposed measures to address the need was also contained in the decision letter of 5th February 2010.

[45]Has a period of time been specified? The answer is in the affirmative, to be seen in the decision letter of 5th February and also in subsequent documents including the decision letter of 29th July.

[46]Has a sensible timetable been prepared for the various stages to be completed before the Parole Board could realistically order a change in status? The answer is yes - as already noted, the decision letter of 5th February set out the proposed work to be done and the time scales for the work. Within that period is encompassed the six month generic parole process. Whilst Mr Southey read the letter as indicating that the GPP process was an add-on, the evidence from the defendant is that it was not. There was ample work to do to fill a 15 month period, taking into account the need for consolidation.

[47]Moreover, the decision letter under challenge of 29th July has set out the progress made to date and the outstanding work still to be achieved. Mr Southey urges caution in relation to the decision letter now under challenge, on the basis of the risk of ex-post facto justification of an earlier decision made. However having kept that in mind, it seems to me that there is no need for such justification. There has been consistency from the report of Ms Balsamo, the decision letter of 5th February and to date as to the work necessary. The present position is that the work is still ongoing. The final module of the HOST programme is to be started on 23rd August and will last until approximately 18th October, some eight weeks later. This does not take into account a reasonable time for consolidation and demonstration that the courses as a whole have been effective. Moreover, it is to be noted from the original decision letter of 4th/5th February that nine months of psychotherapy was recommended. The reports show that the claimant, against advice, decided to undergo the HOST therapy programme instead which is for a shorter period, three modules of eight weeks each. The conclusion of the Indeterminate Sentence Prisoner Manager is that the risks identified as of 22nd July 2010 would be best addressed in closed conditions by way of psychotherapy. This is an unresolved issue and will need some assessment.

[48]Has the Secretary of State approached the task with flexibility and considered whether a shorter period for review in the circumstances of this case is possible and appropriate? The answer again is yes. This has been addressed specifically in the decision letter. The Secretary of State for Justice deals with the issue of the Second Claimant in light of the minutes of the MBU board and the conclusion is, for the reasons given, that it would not be possible to bring the review forward. It is apparent from the minutes of the MBU that a final decision has not been taken. There is a chance of separation and possibly a high chance, but until the Claimant has had the opportunity to properly put her case, then no decision can and will be taken and there can be no foregone conclusions.

[49]With regard to the Claimant's submission that the "risk to the public" test is irrelevant - in my judgment, the Secretary of State for Justice has to consider the "risk to the public" test in order to determine an appropriate period before review, because the work needed to address the identified risk or risks has to be ascertained and the length of time such work would take. It is difficult to see how else the Secretary of State for Justice could determine the review period without having regard to the test. This is not the same as saying that the Secretary of State for Justice is taking a decision about whether the Claimant is ready for release, but rather is assessing a period in which there is a realistic chance of her being released for parole in light of the risks identified.

[50]In my judgment it is clear that the Secretary of State for Justice gave careful thought to the interval between the two reviews setting out the work that needed to be done, the timescales involved in order to achieve a position where the Parole Board could sensibly order the Claimant's release, bearing in mind the background in this case, and has given cogent reasons to justify that decision.

[51]If the review were to be moved to November, the earliest date that can be achieved without prejudicing the cases of others, it would be an unsatisfactory state of affairs. The HOST course would have finished just after the middle of October, giving insufficient time for reflection, consolidation and demonstration that the course had been effective. There is also the unresolved issue of psychotherapy, which would need to be re-visited in the light of the progress made by the First Claimant on completion of the HOST course.

[52]It is for the court to decide whether the 15 months period for review as set out in the decision letter of 29th July is Article 5 compliant and is reasonable. In all the circumstances of this case, I find that it is. Ground two

[53]As to the second ground, the defendant clearly did take into account the interests of the Second Claimant, found it to be a factor, but not a decisive one. In light of the time constraints on the court, and without repeating them, I accept the defendant's submissions on this ground.

[54]Whilst it is tempting to be seduced by the arguments that arranging an early hearing is in the best interests of the Second Claimant and that the Second Claimant's interests are paramount, on analysis, it is clear that too early a parole review would help neither Claimant in this case. As matters stand, and in particular from the updated reports supplied to the Defendant, if the First Claimant had a parole review in September 2010, which is the relief sought in the grounds, a matter of a couple of weeks or so from now, it is highly unlikely that she would be recommended for parole, not least because she will not have completed all of her courses, but more particularly because the First Claimant's allocated offender supervisor as of 23rd July 2010, considered that she remained a high risk of harm to the public; that she is not able to support release or a progressive move to open conditions before demonstrating a period of stability, sustained good behaviour and has addressed her risk factors in more depth ways. The indeterminate sentences prisoner manager would not as of 22nd July, recommended release or open conditions because the First Claimant needs to gain a deeper insight into her impulsive behaviour which are best addressed in closed conditions by way of psychotherapy. The probation officer had concerns that if the 15 month period were brought forward that the offending behaviour targets may not have been achieved.

[55]It is to be remembered that the First Claimant seeks release from a secure prison thus seeking to leapfrog the next category of open conditions. Whilst in principle this is possible, it does mean that the hurdle is higher, particularly in light of the First Claimant's previous history of transfer from closed to open conditions and back again and the previous two recalls and also because the authors of the two main reports cannot even recommend transfer to open conditions at present. If there was no recommendation for parole, it is far from clear that the next parole review would take place before the Second Claimant turned 18 months, which would mean that there would not be the option of the Second Claimant remaining with the First Claimant in custody and, if already separated, would mean that separation would be even longer than in the event of a successful hearing in January. I have already made my observations about a date in November, which was the Claimants' fall-back position.

[56]To summarise, therefore, taking all the circumstances into account, including the interests of the Second Claimant, I find that the period of review is not unreasonable and accordingly the challenge must fail. It is to be noted that this decision does not fetter the Claimants' ability to make full representations to the MBU board, as well as to the Secretary of State, on the issue of separation and, in the event of an adverse decision, to challenge that decision, if needs be with an application for interim relief.

MRS JUSTICE DOBBS: Yes, Mr Southey?

[58]MR SOUTHEY: My Lady, I obviously have no instructions from my lay client on permission to appeal but, in order to preserve her position and also in light of the relatively important consequence of your Ladyship's judgment, namely that there remains a risk -- I cannot remember actually I ended up formulating this, but your Ladyship will remember how I formulated it, about there remaining a risk of separation without a review of whether detention is justified, we do seek permission to appeal.

[59]I should add that one of the factors that may influence your Ladyship in relation to that is that, as your Ladyship has remarked, there has been a considerable body of case law, developed since in fact the Court of Appeal last looked at this, regarding this area and in particular the significance of one year. As I think your Ladyship's remarks indicated, there is not necessarily consistency of approach in particular to the significance of one year and, given the inconsistent judgments and the number of times this comes up as an issue, in my submission there is perhaps a need for the Court of Appeal to look at again the significance of one year. I recognise the last time that Sedley LJ said what he said, but maybe additional clarification is possible.

MRS JUSTICE DOBBS: Yes, Mr Sachdeva?

[61]MR SACHDEVA: Two points, my Lady. On these facts, it is not arguable that your judgment is wrong. In particular, there are cogent reasons for a 15 month period on the facts of this case and which have been most recently bolstered by the reports of the offender manager et cetera et cetera in relation to risk; secondly, as to clarification of the Court of Appeal, I think the central lesson of this field is that one cannot lay down prescriptive periods for guidance in future. The European Court has declined to do so and so has the Court of Appeal and a further Court of Appeal case is highly unlikely to develop any set of guidelines or comment on the significance of a year, because it is simply not possible to do so.

[62]MRS JUSTICE DOBBS: Do you have any observations on the initial point that Mr Southey raised, which, I have just put it by way of shorthand, is that the decision in essence imports that there remains a risk of separation?

[63]MR SACHDEVA: That the decision itself merely accepts the possibility that the separation board may recommend separation before the Parole Board hearing takes place, so that is all that the decision implies, that there is a possibility that the separation board may recommend separation before the Parole Board. But the consequences of that are far from clear, the Secretary of State needs to then decide what to do and I am quite sure that Mr Southey, and Mr Creighton, not unfamiliar with this area of law, will decide what to do at the appropriate time and that is why it is simply premature to make any convincing submission that there are any consequences vis a vis separation from this decision.

MRS JUSTICE DOBBS: Yes, thank you.

[65]The claimant seeks leave to appeal essentially on two grounds, firstly that the decision of the court in effect leaves the situation where there is a risk of separation of the two claimants, secondly that there has been a considerable body of case law developed, with some lack of consistency in approach as to the 12 month or one year period and therefore it would be helpful for clarification by the Court of Appeal.

[66]In my judgment, there is no prospect of success in this case. As in all cases, the decisions have to be fact specific. I do not think that the Court of Appeal is likely to enlarge further. The argument in relation to Article 8, for the reasons already given, is a premature one and the claimant will have her opportunity for representations and indeed remedies in due course and, looking at it from one point of view, one does not know what the decision of the separation board would be should any premature application be unsuccessful. When I say premature application, I mean premature application to the Parole Board. Given that the unit can have regard to the likelihood of release and any evidence that is put before the board, it seems to me that there is no good reason or any other reason for granting leave to appeal.

[67]MR SOUTHEY: One other application, certainly that I would wish to make, which is an assessment of the claimant's publicly funded costs.

MRS JUSTICE DOBBS: Yes.

[69]MR SOUTHEY: Sorry, actually there is one other application I should probably make, given the time of year, which is that, if an application is made to the transcribers for a transcript, could it be expedited.

[70]MRS JUSTICE DOBBS: It can be, but it will not help because I am out of the jurisdiction from the weekend until 1st October.

[71]MR SOUTHEY: Okay. I am not sure what we can do about that, but we will have to --

MRS JUSTICE DOBBS: Not a lot.

[73]MR SOUTHEY: Yes.