Dilks, R (on the application of) v The Secretary of State for Justice & Anor [2015] EWHC 11 (Admin)

Case No CO/1121/2014[2015] EWHC 11 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Venue Cardiff Civil Justice Centre
2 Park Street
Venue CardiffDate 15/01/15
CF10 1ET
Before
MR JUSTICE HICKINBOTTOM
Between
THE QUEEN ON THE APPLICATION OFClaimantBRIAN DILKSClaimantTHE SECRETARY OF STATE FOR JUSTICEDefendantTHE NATIONAL PROBATION SERVICEInterested Party
Philip Rule (instructed by de Maids Solicitors and Advocates) for ClaimantSimon Pritchard (instructed by the Treasury Solicitor) for Defendant for The Interested Party did not appear and was not representedHearing Hearing dates: 12 November and 17 December 2014
Judgment
[1]The Claimant is a serving life prisoner, who completed the minimum custodial term or tariff of his sentence in 2010. However, he has still not yet been released.[2]In this claim, he contends he was not provided reasonably promptly with a place in open conditions and subsequently a place on temporary licence overnight in premises approved under section 13 of the Offender Management Act 2007 (“Approved Premises”, or “APs”), because, in breach of his domestic law duties and obligations under the European Convention on Human Rights (“ECHR”), the Secretary of State failed to make reasonable provision for systems and resources to enable life and other indeterminate sentence prisoners (“ISPs”) such as they require to demonstrate that they no longer present an unacceptable risk to the public. Although the Claimant has by now been afforded both facilities, the delay in providing him with these places has (he says) caused a knock-on effect, so that his ultimate release date has also been delayed.[3]Before me Philip Rule appeared for the Claimant, and Simon Pritchard for the Secretary of State. At the outset, I thank them for their comprehensive and helpful submissions.

The Legal Background

[4]An individual sentenced to life imprisonment will not necessarily or usually spend the rest of his natural life in prison. Such a sentence has two elements. First, there is a minimum period spent in custody, determined by the court on the basis of the nature and gravity of the offence committed and the individual’s own circumstances. Second, there is an indefinite period beyond that minimum during which the prisoner may be released on licence, but only when he is assessed as no longer presenting an unacceptable risk to the public. That assessment is made by the Parole Board. By section 28(5) of the Crime (Sentences) Act 1997, the Secretary of State is required to release a prisoner if he has served the minimum term and the Parole Board has directed his release. However, by section 28(6), the Parole Board shall not direct release unless “the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”. In other words, post-tariff, the prisoner will be the subject of preventative detention unless and until he can persuade the Parole Board that his risk to the public has been reduced to an acceptable level.[5]To satisfy the Board as to reduction of risk, a prisoner needs an evidential foundation. In practice, this is likely to include evidence of attendance at and successful completion of courses designed to address his violent and/or sexual offending behaviour; and evidence that he has had his progress and eventually readiness for permanent release into the community (subject to the conditions of a life licence) tested by phased release from closed to open prison conditions, and then Release on Temporary Licence (“ROTL”). There are various types of ROTL, including resettlement day release (“RDR”), resettlement overnight release (“ROR”) and childcare resettlement leave. Successful RDR is usually a precursor and precondition of ROR.[6]From 2005 (when it was introduced by section 225 of the Criminal Justice Act 2003) to 2012 (when it was abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012), another form of indefinite sentence was available, namely Imprisonment for Public Protection (“IPP”), which had the same, two-part structure as a life sentence, and was also subject to section 28(5) and (6) of the 2003 Act. It was in effect a life sentence, for most intents and purposes. However, it was available for a wider variety of offences, and resulted in a very large and rapid increase in the number of ISPs. By 2008 the number of prisoners serving such sentences had doubled. Given the nature of IPP, and the circumstances in which it would be appropriate, this dramatic rise in the numbers of ISPs was foreseeable and, indeed, inevitable.[7]The rise in the ISP population resulted in a well-chronicled strain on prison resources, notably in providing prison courses and places in open conditions that were likely to be prerequisites for an individual’s release on life licence. As Lord Carswell remarked in R (James, Lee and Wells) v Secretary of State for Justice [2009] UKHL 22 (“James HL”) at [23], not only were the difficulties encountered “entirely foreseeable”, but:
“Pellion was piled upon Ossa when for some unfathomable reason it was decided that the new [IPP] scheme would be resource-neutral and so sufficient facilities necessary for IPP prisoners to demonstrate their fitness for release were not made available.”

Lord Judge CJ similarly emphasised (at [121]) that:

“The preparation for the inevitable consequences of the new sentencing provisions relating to IPPs was wholly inadequate. To put it bluntly, they were comprehensively unresourced.”
[8]These difficulties gave rise to delays in ISPs progressing towards release, and a series of judicial reviews in which the focus of complaint was the systemic failure of the Secretary of State to provide sufficient courses and places on the progressive stages towards release. It was contended that that failure was in breach of the common law duty owed to ISPs by the Secretary of State to ensure that they have a fair opportunity to demonstrate that they satisfy the criteria upon which the Parole Board recommends release; and also in breach of his obligations under article 5 of the ECHR. Article 5, so far as relevant, provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; … … 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation” (a) the lawful detention of a person after conviction by a competent court; …[9]The human rights breach, if proved, was important in practice, as it added to the available potential remedies. For the common law breach, the only available remedies were a mandatory injunction to require the Secretary of State to comply with his public law duty and provide appropriate courses or places to the relevant individuals, if he had still not done so; and a declaration that he had acted unlawfully. The breach of human rights, it was said, entitled any affected prisoner to an order for release from state detention because it had become arbitrary in article 5 terms, and damages, remedies not available at common law.[10]James HL concerned three prisoners who, several years after the end of the minimum custodial term, were still in local high security prisons without access to recommended rehabilitative courses. In the House of Lords, the Secretary of State did not challenge the proposition that it was implicit in the statutory scheme for IPP in section 225 of the 2003 Act that he would make provision which allowed prisoners a reasonable opportunity to obtain release. At [3] of his judgment, Lord Hope summarised that duty as one “to provide the systems and resources that prisoners serving [indeterminate] sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention”.[11]As Lord Dyson MR later indicated (in R (Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587 at [28]), that is the only public law duty to be derived from James (hence its common appellation as “the James public law duty”); although, out of the same or similar circumstances, other common law obligations of the Secretary of State may be engaged, notably: i) The duty to act rationally in a Wednesbury sense. Where there is a breach of the James public law duty, this duty will usually (if not inevitably) be breached, because it is irrational to have a policy of making release of an ISP dependent upon him undergoing treatment courses, being in open conditions etc, without making reasonable provision for such courses and places (R (Cawser) v Secretary of State for the Home Department [2004] EWCA Civ 1522 at [19], [30] and [34] per Simon Brown LJ, and R (Weddle) v Secretary of State for Justice [2013] EWHC 2323 (Admin)). ii) The duty of the Secretary of State to act in accordance with his own policy (R (Lumba) v Secretary of State for the Home Department [2012] UKSC 12 at [35]). As we shall see, the Secretary of State has a number of policies to ensure ISPs have a reasonable opportunity to progress towards release. The Claimant in the case before me relies upon breaches of not only the James public law duty, but also these other two common law duties.[12]In James HL itself, Lord Hope made clear that, in his view, the concession by the Secretary of State – that it was implicit in the statutory scheme that he would make provision which allowed those sentenced to IPP a reasonable opportunity to demonstrate that they should be released – was appropriate; and, subsequently, the Secretary of State has accepted the burden of that duty as attaching to all ISPs.[13]The Secretary of State also conceded in James HL that he had breached his public law duty to make such provision. Given that concession, the House of Lords was focused on an analysis as to whether and how article 5 was breached, and appropriate relief. At first instance ([2007] EWHC 2027 (Admin)), Collins J had held that Mr James’ continued detention in prison was unlawful and directed his immediate release. The Court of Appeal ([2008] EWCA Civ 30) held that, despite the breach of duty, the claimant was not, under the circumstances then current, unlawfully detained and set aside the order for his release. Messrs Lee and Wells arrived at the House of Lords by a different route. At first instance, in respect of Mr Lee, the Secretary of State conceded – and, in respect of Mr Wells, Moses LJ held – that there had been a breach of article 5. Moses LJ allowed the claims for damages to be assessed, and certified the matter under section 12 of the Administration of Justice Act 1969 as appropriate for an appeal direct to the House of Lords.[14]In James HL, the House held that the continued detention of the prisoners did not become arbitrary, and therefore remained lawful, unless and until the Parole Board was satisfied that it was no longer necessary for the protection of the public that they should be confined. Article 5(1) continued to justify each prisoner’s detention because the causal connection between his conviction and the deprivation of his liberty had not been broken by the Secretary of State’s failure to provide rehabilitative courses.[15]However, when the matter went to Strasbourg, as James, Lee and Wells v United Kingdom (2013) EHRR 12 (“James ECtHR”), the European Court of Human Rights (“ECtHR”) took a different view, holding that the continued detention of the prisoners was, on the particular facts, arbitrary and therefore in breach of article 5(1). The court held that the arbitrary detention would have provoked feelings of distress and frustration, which founded a basis for awards of non-pecuniary damages based upon the period of arbitrary detention.[16]In R (Robinson and Massey) v Secretary of State for Justice [2013] EWHC 3777 (Admin), a case again concerning the alleged systemic failure to provide courses in prison (notably the Extended Sexual Offenders Treatment Programme (“ESOTP”)). Mr Robinson was recommended for the course in July 2008, and was not able to participate in it until July 2013, five years later. The Divisional Court held that the Secretary of State was in continuing breach of the James public law duty; but it was a less serious breach than that found in James itself and, as the breach no longer affected the claimants themselves (who had by the time of the hearing been found places on the relevant courses), the court declined to grant even a bare declaration that the Secretary of State was in breach. Further, applying the principles set out in James HL, the Divisional Court held that the circumstances came “nowhere near to rendering the [prisoners’] continued detention arbitrary for the purposes of article 5(1)”. Both claims were consequently dismissed, but permission to appeal to the Supreme Court by the leap-frog procedure was granted.[17]R (Fletcher, Young and Massey) v Governor of HMP Whatton and the Secretary of State for Justice [2014] EWHC 3586 (Admin) concerned the alleged failure to provide the claimants with another course, the Healthy Sex Programme, which each was required to take to stand any reasonable prospect of the Parole Board making a recommendation that they be moved to open conditions. The estimate was that each would be enrolled in the course about 5-6 years after recommendation that he undertake the course, and indeed several years after tariff expiry.[18]Applying James HL, as he was bound to do, Dingemans J found (at [74]) that the Secretary of State had breached the James public law duty; but, at the time of the judgment (when the delay in providing courses was only about two years), these were not of such a magnitude to establish infringement of article 5 – although future contemplated delays might result in such a breach. He also found (at [79]-[84]) that the Secretary of State was in breach of his own policy with regard to access to courses. In terms of relief, the judge made appropriate declarations, and adjourned consideration of a mandatory order to 12 December 2014 to enable the Secretary of State to provide evidence of compliance with his public law duty. As I understand it, at that hearing, the judge further adjourned consideration of relief, on the same basis, until mid-2015.[19]In R (Haney) v Secretary of State for Justice [2013] EWHC 803 (Admin) (“Haney Admin Ct”), the alleged breach of the James public law duty was not in respect of a failure to make adequate provision for prison courses, but open prison places which (it was said) delayed the claimant’s transfer to open conditions, and thus his eventual release on licence, by about a year. The Secretary of State approved Mr Haney’s transfer to open prison in June 2011, and he was accepted in principle by a suitable open prison shortly afterwards; but the proposed transfer did not take place until 16 July 2012, because of the “intervening logjam to which the introduction of IPP sentences in April 2005 had led…” (R (Haney, Kaiyam and Massey v Secretary of State for Justice; R (Robinson) v Governor of HMP Whatton and the Secretary of State for Justice [2014] UKSC 66 (“Haney SC”) at [47], per Lords Mance and Hughes JJSC).[20]How the Secretary of State had sought to deal with the crisis with regard to availability of open prison places, brought about by the rapid increase in ISPs from 2005, was not in dispute, Lang J setting out the relevant background in her judgment (Haney Admin Ct, at [3]-[15]). That account is consistent with the evidence before me, in the form of the First Statement of Colin Hay dated 8 October 2014 at paragraphs 5 and following. Mr Hay is the Head of the Population Management Section of the Operational Services and Interventions Group within the National Offender Management Service (“NOMS”), an executive agency of the Ministry of Justice.[21]Prior to July 2010, NOMS, through its Population Management Section, held a central list for ISPs waiting to transfer to open conditions. The increase in ISPs following the introduction of IPP, which (Lang J found) the Secretary of State failed to anticipate and for which he failed to make adequate provision, gave rise to a crisis in the provision of places in open conditions, compounded by the fact that some open prisons operated informal restrictions on the ISPs they were willing to take, as ISPs were considered to be a more demanding category of prisoner whose parole reviews required extensive input from prison staff.[22]Revised arrangements were announced in July 2010 in Prison Service Instruction 36/2010 (“PSI 36/2010”), under which each prison was made responsible for managing the intake of ISPs. Prisons were expressly forbidden to apply allocation criteria which excluded or limited the number of ISPs they would hold, except where such criteria were exceptionally authorised.[23]However, during early 2011, NOMS became aware that there remained difficulties in effecting moves for ISPs into open conditions, there being evidence that some prisons were not complying with PSI 36/2010. Anecdotal evidence indicated that some open prisons were reluctant to increase the number of ISPs, in part due to their concerns that they were not adequately resourced to manage them.[24]Various further recommendations were approved by NOMS in June 2011 and thereafter implemented, including a return to centrally managed lists combined with the prohibition of caps, and the introduction of a national prioritisation policy with transparently prioritised waiting lists that could be managed centrally by NOMS. As Mr Hay explained (First Statement, paragraph 13; and Second Statement dated 10 November 2014, paragraph 8), NOMS produced successive lists for transfer to open conditions, prioritised as they considered appropriate; and an individual prisoner had to wait until his name came through on such a list before his transfer to open conditions was effected. Once his name appeared on a list, transfer was effected reasonably promptly. Furthermore, NOMS made a commitment to clear the existing backlog of moves over a 9 month period. The new arrangements commenced in October 2011.[25]In October 2011, there were around 300 post-tariff ISPs in closed conditions awaiting transfer to open. By the beginning of December 2011, the number had risen to 405, as more post-tariff ISPs became eligible for transfer. By June 2012, the number had fallen to 243. The backlog was cleared by the end of August 2012. (For the sake of completeness, I should say that from June 2012, Prison Service Instruction 21/2012 (“PSI 21/2012”) provided for ROTL from closed conditions also.)[26]Immediately prior to the implementation of the new arrangements, the average waiting time for a move from closed to open conditions was 8-9 months. By about August 2012, although there had been no increase in the number of open prison places, it was only about two months, “accounted for by the collation of the waiting list and the time needed to identify an appropriate open establishment” (at [11]). Lang J did not suggest – nor could it be suggested – that a two month period between a recommendation or decision to transfer to open conditions, and actual transfer, was unreasonable. Indeed, the Claimant’s solicitors have, without adverse comment, referred to two months to effect a recommendation of transfer to open conditions as “the standard transfer period” (de Maids’ letter to the Treasury Solicitor dated 6 November 2014).[27]Therefore, in the period June 2011 to August 2012, the Secretary of State identified the systemic problem involved and had implemented a scheme whereby the problem would be eliminated within a reasonable period. Lang J found that the adoption of these new arrangements was lawful, the Secretary of State having carefully considered all available options, taking into account all material considerations and reaching a rational conclusion as to the future course (Haney Admin Ct, at [68]-[86]). The Supreme Court considered that the Secretary of State’s new arrangements could not realistically be regarded as “anything other than a proportionate and realistic reaction to the crisis with which the prison system was faced” (Haney SC, at [54]). No challenge to those arrangements is made before me.[28]Before Lang J, it was conceded by the Secretary of State that, following approval for such transfer, a reasonably prompt transfer of prisoners to open conditions fell within the scope of the James public law duty, and there had been excessive delay in transferring the claimants to open conditions – concessions “properly made”, in Lang J’s view (Haney Admin Ct, at [54] and following). However, although Lang J made appropriate declarations, she dismissed the article 5 claims on the basis of James HL by which, she properly considered, she was bound despite the inconsistent later decision of James ECtHR. The Court of Appeal refused the appeal; but granted permission to appeal to the Supreme Court ([2013] EWCA Civ 1587).[29]The appeals to the Supreme Court in Robinson, Massey and Haney were set down to be heard together, with the appeal in a fourth case (R (Kaiyam) v Secretary of State for Justice [2013] EWHC 1340 (Admin)), which had been heard with Haney in the Court of Appeal. Kaiyam was a prison courses case in which no systemic failure was alleged, but it was said that the application of the scheme to the claimant had failed, such that the date of his release on licence had been unlawfully delayed.[30]The Supreme Court judgments were delivered on 10 December 2014 (now reported as Haney SC). There was unanimity in respect of the principles to be applied, set out in a judgment of Lords Mance and Hughes, with which the remainder of the court (Lord Neuberger PSC, and Lords Toulson and Hodge JJSC) agreed. The lengthy gestation period – the Supreme Court heard the appeal in May 2014 – was, in my respectful view, worth the wait. This is a tightly argued, analytically robust and principled judgment, which gives clear practical guidance as to the proper approach to the now prolific cases involving article 5 claims by an ISP that he has not been given an appropriate opportunity to progress towards release. It replaces most, if not all, of the considerable earlier learning on the subject.[31]The analysis of Lords Mance and Hughes is rewarding in its own right; but I need not dwell upon it here. They set out the jurisprudential basis of the human rights obligation at [38] of their judgment, as follows: “The duty to facilitate the progress of [ISPs] towards release by appropriate courses and facilities cannot therefore be brought, in our opinion, within the express language of either article 5(1)(a) or article 5(4). But it is on any view closely analogous, at an earlier stage, to the duty involved under article 5(4), and it is far more satisfactory to treat it as an analogous duty arising by implication at an earlier stage than that covered by article 5(4), rather than to treat article 5(1)(a) as incorporating it. We consider that a duty to facilitate release can and should therefore be implied as an ancillary duty – a duty not affecting the lawfulness of the detention, but sounding in damages if breached. Such a duty can readily be implied as part of the overall scheme of article 5, read as a whole…”.[32]The court therefore declined to follow James ECtHR which held that a failure by the state to provide facilities to enable an ISP to show his risk to the public had been reduced to an acceptable level rendered his continued detention arbitrary, Lords Mance and Hughes noting that the rationale of James ECtHR involved the possibility of both(i) detention fluctuating between the legitimate and the illegitimate, and(ii) a requirement to release a prisoner whilst still a danger to the public. The appropriate remedy for breach of this ancillary duty identified by their Lordships is an award of damages, to which I return below (paragraph 35).[33]In respect of the content of the duty, Lords Mance and Hughes said this (at [41]-[43]):
“41. … [T]he question arises in what precise terms and in particular at what precise level the duty should be put. As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesburystandard of unreasonableness or any failure to apply established policy. The question is whether liability for breach of article 5 is similarly limited. In our opinion, it is not. The express rights conferred by article 5 are individual rights. The ancillary right which we identify as existing under article 5 is also a right in favour of each individual prisoner and its satisfaction or otherwise depends upon the particular circumstances of the individual case. Although the ECtHR was concerned in [James ECtHR] with circumstances in which there had been systemic failures in the United Kingdom, the ECtHR’s decision was based on a careful individual analysis of each applicant’s prison history: see e.g. paragraphs 218-222. 42. The ECtHR does not however insist at the international level on standards of perfection that would be unrealistic, bearing in mind the numbers of prisoners involved and the limits on courses, facilities and resources in the prison system. Nor should domestic courts do so. In Hall v United Kingdom(Application No 24712/12) (12 November 2013) [(“Hall”)], the ECtHR was concerned with a complaint by an IPP prisoner sentenced on 13 June 2006 with (after appeal) a 30 month tariff expiring on 13 December 2008. Although the ECtHR said that ‘it appears that there may have been some delay from around March 2008 [when the ESOTP was identified as a course he should take] until early 2010 [when he completed that programme]’, it passed over this delay with the comment that ‘it seems that the applicant was able to access the Cognitive Skills Booster programme in the meantime’ (paragraph 33). It appears that this Booster programme was in fact undertaken in or around 2008, that he was on 23 February 2009 transferred to HMP Usk in order to complete the ESOTP and that he in fact completed the ESOTP in early 2010: paragraphs 10-13. The ECtHR was therefore prepared to look at the matter overall, and to accept that no system is likely to be able to avoid some periods of waiting and delay, especially for a highly intensive course such as the ESOTP. Similarly, a delay from 1 March 2012 when transfer to open conditions was recommended by the Parole Board (or from 20 March 2012 when the Secretary of State accepted the recommendation, saying that such a transfer was envisaged in about three months) until July 2012, when transfer actually occurred was not regarded as unreasonable…. 43. We turn to the individual cases, considered in the light of the ancillary obligation under article 5 which we have identified. Whether there has been a breach of the duty is a highly fact-sensitive question in each case.”
[34]Therefore, the ancillary article 5 right they identify – the duty to afford an ISP a reasonable opportunity to reform and demonstrate that he no longer presents an unacceptable risk to the public – is not subject to the same limitations as domestic law rights; although, of course, the same set of circumstances may give rise to both. For example, where the Secretary of State has failed to provide reasonable systems and resources to enable an ISP to progress towards release which results in delay to an identified prisoner, that will likely (if not inevitably) be a breach of both the James public law duty and the duty ancillary to article 5. However, whether this article 5 right has been breached will require, and be dependent upon, a fact-sensitive examination of the individual case.[35]Lords Mance and Hughes dealt with remedy at [39]:
“The appropriate remedy for breach of such duty is, for the reasons explained, not release of the prisoner, for his detention remains the direct causal consequence of his indefinite sentence until his risk is judged by the independent Parole Board to be such as to permit his release on licence. The appropriate remedy is an award of damages for legitimate frustration and anxiety, where such can properly be inferred to have been occasioned. Except in the rarest cases it will not be possible to say what might have been the outcome of an opportunity by way of a prison programme which was not provided or was provided late. It will thus not, except in the rarest cases, be possible to establish any prolongation of detention. Such a breach is likely to attract relief similar to that recognised as appropriate under article 5(4) in frustration/anxiety cases where a Parole Board hearing has been wrongly delayed: we refer to the very full analysis of Strasbourg awards in R (Faulkner) v Secretary of State for Justice, R (Sturnham) v The Parole Board (No 1)[2013] UKSC 23 [“Faulkner and Sturnham SC”], and we note that in some of them the award needed to reflect not only delay but also procedural unfairness. It may be legitimate to infer rather greater frustration in at least some cases when the point of impending decision, which may be for release, has been arrived at, than at the more speculative earlier stage of delay in the provision of prison treatment. The round-figure levels of damages awarded by the ECtHR in [James ECtHR], paragraph 244, do not appear to us to offer appropriate general guidance for future cases under the ancillary duty now recognised. The general approach set out by Lord Reed at points 10-15 in paragraph 13 of [Faulkner and Sturnham SC]and the detailed examination of authority later in his judgment should however provide valuable guidance as to the appropriate approach to damages in respect of any such breach of the ancillary duty.”
[36]Faulkner and Sturnham SC was another case involving delays to the release of ISPs, in which Lord Reed JSC (with whom the other members of the court agreed) considered the proper approach to damages claim in such cases. The cases were particularly focused on delays at the hands of the Parole Board, which were found to be in breach of article 5(4) of the ECHR. At [13], Lord Reed set out a number of propositions relating to relief, as follows (so far as relevant to this claim):
“5. Courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. 6. Where it is established on a balance of probabilities that a violation of article 5(4) has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention. 7. The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the [ECtHR], or by domestic courts under section 8 of the [Human Rights Act 1998], in comparable cases. 8. Pecuniary losses proved to have been caused by the prolongation of detention should be compensated in full. 9. It will not be appropriate as a matter of course to take into account, as a factor mitigating the harm suffered, that the claimant was recalled to prison following his eventual release. There may however be circumstances in which the claimant's recall to prison is relevant to the assessment of damages. 10. Damages should not be awarded merely for the loss of a chance of earlier release. 11. Nor should damages be adjusted according to the degree of probability of release if the violation of article 5(4) had not occurred. 12. Where it is not established that an earlier hearing would have resulted in earlier release, there is nevertheless a strong, but not irrebuttable, presumption that delay in violation of article 5(4) has caused the prisoner to suffer feelings of frustration and anxiety. 13. Where such feelings can be presumed or are shown to have been suffered, the finding of a violation will not ordinarily constitute sufficient just satisfaction. An award of damages should also be made. 14. Such damages should be on a modest scale. 15. No award should however be made where the delay was such that any resultant frustration and anxiety were insufficiently severe to warrant such an award. That is unlikely to be the position where the delay was of the order of three months or more.”
[37]Thus, the court is required to find, on the balance of probabilities, whether the breach of duty by the Secretary of State has resulted in a delay in the prisoner’s release on life licence. If it has, then the prisoner is entitled to be compensated for the additional time he has had to spend in prison. In any event, even if that cannot be proved, there is a strong, but not irrebuttable, presumption that a prisoner who has been subjected to delay in breach of his article 5 rights will have suffered frustration and anxiety as a consequence, that may sound in a modest award of damages. However, for an award of damages, that suffering has to reach a threshold level of seriousness.[38]In the event, applying the principles set out in Faulkner and Sturnham SC, the Supreme Court in Haney SC held that, although neither could prove on the balance of probabilities that delays on providing them with appropriate courses or transferring them to open conditions delayed their eventual release on life licence, there should be awards for breach of the article 5 ancillary obligation to reflect legitimate frustration and anxiety as follows: Mr Haney £500 and Mr Massey £600. The appeals of Mr Kaiyam and (by a majority) Mr Robinson were dismissed. Statutory and Policy Framework I:

Introduction

[39]As from 14 July 2008, section 142 of the Criminal Justice Act 2003 was amended to require regard to be had to reform and rehabilitation (as well as punishment and protection of the public) as an express purpose of any life or IPP sentence passed under section 225. However, in Haney SC, at [36], the Supreme Court accepted that, even for those (like the Claimant) who were sentenced before 2008, “the purpose of the sentence includes rehabilitation, in relation to [ISPs] in respect of whom shorter tariff periods have been set”.[40]The Secretary of State has issued considerable guidance in policies designed to ensure that an ISP has a reasonable opportunity to achieve and demonstrate a reduction in his risk to an acceptable level for release. For example, the Indeterminate Sentence Prisoners Manual (formerly the Lifer Manual) governs the treatment of an ISP. Paragraph 4.1.1 of the Manual (as substituted from 12 July 2010 by Prison Service Instruction 36/2010) states:
“ISPs will be managed through their sentence plan with the primary aim being to meet their individual needs and help them to reduce their risk of serious harm they present to the public, in line with the principles of offender management and in the light of the principle that the ultimate responsibility for demonstrating a reduction of risk lies with the offender. ISP sentence plans will aim to identify the risks the prisoner must reduce and offer the effective and timely delivery of properly identified interventions, having regard to available resources, so that • Parole Board reviews can be meaningful; • the release of ISPs is facilitated where it is safe to do so; • any period of continued detention beyond tariff is necessary because the risk of harm remains to high for release to be appropriate.”
(emphasis in the original). • Parole Board reviews can be meaningful; • the release of ISPs is facilitated where it is safe to do so; • any period of continued detention beyond tariff is necessary because the risk of harm remains to high for release to be appropriate.” (emphasis in the original).[41]I was also referred to paragraphs 4.1.2, 4.3 and 8.2 of the Manual, and to paragraphs 5.4 and 5.5 of Prison Service Order 2205 (Offender Assessment and Sentence Management – OASys), to similar effect; and Prison Service Order 2300 (Resettlement) (“PSO 2300”) which sets out the resettlement process which will normally be applied to prisoners in the open prison estate, and focuses on the progress of the individual in his sentence. Paragraph 22 states:
“Life sentence prisoners will be allocated to a resettlement estate place as a result of progress in meeting sentence planning targets and reducing risk of harm…”
.

Statutory and Policy Framework II: Open Conditions

[42]Section 12 of the Prison Act 1952 provides:
“(1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison. (2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of imprisonment from the prison in which they are confined to any other prison.”
[43]Rule 7(1) of the Prison Rules 1999 (SI 1999 No 728), headed “Classification of Prisoners”, provides: “Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment...”.[44]PSO 2300 emphasises that ISPs will usually spend some time in open conditions as a step towards release: “It will be the norm for male life sentence prisoners to undergo both Stage 1 and Stage 2 of the resettlement estate process in an open establishment or one of the three resettlement prisons” (paragraph 7.24).[45]This is confirmed in paragraph 4.8.1 of Prison Service Order 4700 (Serving the Indeterminate Sentence) (“PSO 4700”), which indicates that a period in open conditions will often be a necessary progressive step towards release for an ISP:
“In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence. A similar approach will apply to many other indeterminate sentence cases, but decisions will need to be taken on a case by case basis. In general terms, the longer the time in custody served by an ISP, the more likely they are to require a period in open conditions as part of a phased release.”
[46]The evidence before me was that about 70% of ISPs are released from open conditions, and only about 30% from closed conditions (the Statement of Christopher Potter dated 6 October 2014, paragraph 23: Mr Potter is responsible for ROTL policy in the Sentencing Policy and Penalties Unit within the Ministry of Justice).

Statutory and Policy Framework III: Temporary Release of Prisoners

[47]Paragraph 4.8.2 of PSO 4700 states:
“The intention is that the ISP will undergo final assessment in conditions as near as possible to those in the community, as long as appropriate risk management plans are in place. S/he will be encouraged to gain work experience in preparation for release back into the community. Whilst the emphasis will be preparing the ISP for their release back in to the community on licence, the risk assessment process must continue. It is important, therefore, a thorough ROTL risk assessment is conducted upon their arrival to ensure all areas of risk have been identified and addressed, before they are considered for ROTL. The risk assessment must be completed within 14 days of the ISP's arrival. ROTL is covered by PSO 6300.”
[48]Prison Service Order 6300 (Release on Temporary Licence) (“PSO 6300”), as from 22 June 2012 amended by PSI 21/2012 (see paragraph 25 above), sets out operational policy with regard to temporary release of prisoners. This guidance makes clear that ROTLs are designed to facilitate release and resettlement by re-establishing links to the local community prior to release, and are linked to the prisoner’s resettlement plan which is a mandatory part of the Parole Board dossier and an important consideration in its decision-making process (see, e.g., paragraph 11 of Appendix A to PSO 6300). The purpose of ROR specifically is said to be “to allow prisoners to spend time at their release address, or an approved temporary hostel address, re-establishing links with family and the local community…” (paragraph 2.2 of PSO 6300). As part of a resettlement plan, it is therefore usually important for the prisoner to spend time on ROR at the address to which he will be ultimately released on licence, whether that be a private address or at APs.[49]The guidance specifies the date upon which an ISP will usually be eligible to be considered for different types of ROTL. For ISPs, prior to the PSI 21/2012 amendments in June 2012, paragraph 4.3.3 of PSO 6300 set out dates upon which a prisoner became eligible to apply for various types of activity and leave, by reference to the period from the arrival in open conditions to the next Parole Board review. Where that period was in excess of 12 months, then a prisoner normally became eligible to apply for RDR after 6 months and ROR after 9 months. Where that time was 9-12 months, he became eligible after 4 and 6 months respectively. These timings were chosen to ensure that ROR did not take place too early in a sentence, because(i) the ROTL regime is designed to test a prisoner first by way of RDR, and(ii) ROR is directly linked to release and the proposed release address (Mr Potter’s Statement dated 6 October 2014, paragraphs 11-13). Mr Rule does not make any complaint about the scheme in which eligibility dates were calculated, or how the Claimant’s eligibility dates for RDR and ROR were calculated under that scheme.[50]From 22 June 2012, eligibility has been determined on the basis of a different calculation, an ISP becoming eligible for ROR generally after two-thirds of the period between the date of approval for transfer and the date set for the next Parole Board hearing. However, the Claimant’s eligibility was determined prior to June 2012, under the unamended scheme; and I need not consider the amendments further.[51]PSO 6300 emphasises that these times only relate to eligibility, and there is no automatic entitlement to temporary release of any kind (see, e.g., paragraph 4.3.4). Once a prisoner becomes eligible for consideration for a particular type of ROTL, it is for the prison governor to decide whether ROTL should be granted in a particular case. In practice, a ROTL Board – the composition of which is set out in paragraph 43 of Appendix A to PSO 6300 – makes a recommendation to the governor, having considered all relevant material (paragraph 46). As I have already indicated, ROTL must be linked to the sentence planning process as part of the overall sentence resettlement plan and relate to the progress made (emphasised in paragraph 11 of Appendix A to PSO 6300).[52]In considering whether or not it is appropriate to release a prisoner eligible for ROTL, paragraph 10 of Appendix A to PSO 6300 sets out the key issues to be taken into consideration, namely: i) the risk the prisoner would present to public safety; ii) the risk of further offending by a prisoner on ROTL; iii) the likelihood of the prisoner failing to comply with any conditions attached to the licence; iv) the propensity to abscond; v) the availability of suitable accommodation where an overnight stay is contemplated; and vi) whether the reasons for granting ROTL are likely to be acceptable to reasonable public opinion.[53]In assessing the level of risk for these purposes, the following factors must be taken into account (paragraphs 13-25 of Appendix A to PSO 6300): i) an analysis of the prisoner’s offence; ii) the prisoner’s home circumstances (where appropriate, having regard to the proposed address); iii) the position of known victims and the community, where relevant; iv) any previous ROTL; v) the prisoner’s behaviour in prison; and vi) any specific areas of concern, such as a history of alcohol or drug abuse or mental disorders.[54]In respect of (iii), paragraph 4.6 of PSO 6300 concerns “Impact on Victims”. It provides: “Governors must ensure that account is taken of the potential impact of any release upon victims. It is important to be aware of significant anniversaries and venues, with particular reference to victims, when considering the timing of the ISP’s temporary release from prison and where the prisoner will go to in the community. Before any release is considered, a check must be made with the offender manager to establish the whereabouts of any identified victims and whether the victim or victim’s family are participating in the victim contact scheme. If so, they must be afforded a reasonable opportunity to make representations about the conditions to be attached to any temporary release and any representations must be put before the ROTL Board. The offender manager must be informed of the outcome of the ROTL Board, including any victim specific conditions, in order that this can be communicated to the victims…”. (emphasis in the original).[55]As I have indicated, in deciding whether to release a prisoner on ROR, one factor that must be taken into account is the availability of suitable accommodation. Paragraph 16 of Appendix A of PSO 6300 provides:
“Prisoners must not be allowed resettlement overnight without suitable accommodation to go to. If the ROTL Board consider that a prisoner in this position could, nevertheless, be granted ROTL, the supervising probation officer (offender manager) must be asked to arrange lodgings or hostel accommodation where possible.”
What amounts to “suitable accommodation” for a prisoner will, of course, depend upon all of the circumstances, including the risk posed by that prisoner.[56]The purpose of APs (i.e. premises approved under section 13 of the Offender Management Act 2007, formerly known as Probation & Bail Hostels) is set out in the Summary to Probation Circular PC 37/2005 (The Role and Purposes of Approved Premises) (“PC 37/2005”), as follows:
“The core purpose of [APs] is the provision of enhanced supervision as a contribution to the management of offenders who pose a significant risk of harm to the public. Admissions criteria and referral processes need to reflect this focus on public protection. The delivery of enhanced supervision encompasses security, staffing arrangements, restrictive measures and rehabilitative components.”
[57]The circular goes on to say that APs are a facility for use where offenders reside short-term for the purpose of assessment, supervision and management, in the interests of protecting the public from those who pose the most serious risk of harm, reducing re-offending and promoting rehabilitiation (see, e.g., paragraph 2). In paragraph 3, it is emphasised that, in terms of admission criteria, “the need for accommodation alone will not suffice”: to be admitted to APs, the individual “must require an enhanced level of supervision, management and oversight”. Thus, offenders who are currently assessed as high or very high risk will be favoured, whilst those assessed as medium risk of harm will be considered where there is evidence that planned intensive supervision is necessary and can only be delivered to that individual in the context of a residential setting or where there is evidence of escalating risk; and admissions of high and very high risk offenders will not be jeopardised. Generally, offenders who pose a risk at less than high level (it is said) can and will be released into other accommodation, e.g. to the home of the offender himself, a friend or relative, supported housing or another type of hostel without the enhanced facilities of APs (see paragraphs 5-12 of the Statement of Sean Langley dated 6 October 2014: Mr Langley is Head of APs in the Safeguarding and Victims Section of the Offender Management and Public Protection Group within NOMS).[58]Other policy documents issued by HM Prison Service more recently, to which I was also referred – e.g. “Referring Offenders to [APs]”, issued as a Senior Leaders’ Bulletin in August 2013; and Probation Instruction 32/2014 (Approved Premises) (“PI 32/2014”), which replaced PC 37/2005 as from 1 June 2014 and which has attached to it as Annex B a further guidance document, “Referring Offenders to [APs]: Guidance for Offender Managers on making referrals and managing offenders who are in [APs]” – are to similar effect.[59]Annex B to PI 32/2014 says that, because “usage [of APs] is generally high and in many parts of the country there is a great pressure on beds, and in some cases a waiting list”, it is essential that APs are targeted on offenders with most need; the part played by APs in the management of the offender is properly planned; and “move-on arrangements are made at the earliest opportunity, if possible before admission, and move-on itself takes place at the earliest suitable time” (paragraph 6).[60]It suggests that APs are particularly focused on determinate sentence prisoners:
“13. [ISPs] should not be released from prison until their risk of harm has reduced to a level where it can be managed safely in the community. This generally means that they will be below the normal entry point threshold for AP residence. Offender managers should be careful to avoid recommending AP residence to the Parole Board unless there is an overwhelming reason to. Determinate-sentence offenders will be released automatically at a fixed point in their sentences, regardless of risk. APs are therefore much more likely to be suitable for these offenders than for those released under indeterminate sentences.”
[61]Paragraphs 23 and following of the annex emphasise the short-term nature of AP residency: plans to move an individual on to accommodation have to be made at the time of placement in APs. The average length of stay is thus only about three months (Sean Langley’s Statement dated 6 October 2014, paragraph 9).

The Claimant

[62]As I have described, Haney SC makes clear that the ancillary article 5 right is essentially individual, and requires a consideration of the individual circumstances of any particular case. It is to the Claimant’s circumstances that I now turn.[63]The Claimant was born on 21 September 1961. He comes from Leicester, where his brother and sister still live.[64]In 2005, in the Crown Court at Ipswich, he pleaded guilty to counts of rape, false imprisonment and affray, as a result of an incident on 14 August 2004 during which, in drink, he went to the home of his ex-partner where he tied up a number of victims (including his 14 year old son) at knifepoint, before taking his ex-partner by force to a nearby common where he raped her. He had twenty previous convictions for 40 offences, including several for grievous bodily harm and wounding, assault, threats to kill and weapons offences, a significant proportion of which were committed in a domestic context. On 28 February 2005, for the rape, he was sentenced to a discretionary life sentence with a tariff of 3 years 48 days; and also to an aggregate determinative sentence of 11 years on the other matters. Because of the part of the determinate sentence required to be served in custody, in practice the minimum custodial term on his life sentence expired on 13 February 2010.[65]From about 2006, the Claimant became a practising Buddhist, and expressed a firm wish to join a Buddhist monastery on release from prison. He had in mind the Auksana Monastery, Bradford upon Avon in Wiltshire. By mid-2011, he regarded himself as a “different person” from his younger self, and considered his faith as a cornerstone of that change. He had successfully completed all recommended offence-related courses that he was required to complete to progress. No complaint is made by him about the provision of those courses.[66]In 2011, the Claimant was detained in category C conditions at HMP Kingston. He was still assessed as posing a high risk of serious harm to the public; but, on 22 November 2011, following a review on 14 November, the Parole Board recommended that the Claimant be transferred from closed to open category D conditions; and that recommendation was accepted by the Secretary of State the same day. This was of course at a time when the problem with availability of open conditions places had been identified, and a scheme adopted for dealing with it that resulted in the backlog of those waiting for transfer being eradicated by August 2012 (see paragraphs 19-27 above).[67]The Ministry of Justice’s letter of 22 November 2011 to the Claimant indicated that his case would next be considered by the Parole Board for a review to commence in August 2012 and to conclude by April 2013, with any oral hearing perhaps taking place in February 2013. The review period was designed to allow the Claimant (amongst other things):
“… • To demonstrate your ability to comply with ROTL conditions. • To develop and test a robust release plan, which should include suitable employment, accommodation, developing your vocational skills and engaging with the relevant support networks to assist with your relapse prevention. …”
[68]The letter said that:
“This review period of 15 months is made up of the following: • 3 months to enable you to transfer to an open… establishment, to allow you to adjust to the more flexible regime of an open prison. • 12 months to allow for testing and consolidation within the less secure environment of open conditions, continued close monitoring, and to fully formulate and test your release plan. This will also allow you for your gradual re-integration into the community. • 6 months for the Generic Parole Process (inclusive).”
[69]Mr Hay explains that, due to the nature of his offence, there were only three prisons with open conditions to which the Claimant could be transferred (Second Statement, paragraph 5). On 28 November 2011, a manager at HMP Kingston emailed HMP Usk/Prescoed saying that the Claimant had been “given” open conditions, and hoped to go to HMP Prescoed, one of those three prisons. HMP Usk/Prescoed is an amalgamation of two prisons: HMP Usk (a category C prison accommodating vulnerable prisoners, mainly sex offenders) and HMP Prescoed (a resettlement open establishment housing adult male category D prisoners). For those wishing to go to the open establishment, it operates a local assessment procedure of approximately three months during which offenders are located in HMP Usk in closed conditions before moving into the open conditions of HMP Prescoed. As the Claimant hoped to resettle in the Auksana Monastery in Wiltshire, and in view of the nature of his offence and the vocational training on offer, the Claimant considered HMP Prescoed would be the best allocation for him. The email said:
“He was wondering if you would accept him at Usk as a transfer to you now, where he would be more than happy to wait for a space at Prescoed.”
[70]The relevant manager at HMP Usk/Prescoed responded the following day, saying that the Claimant would need to share a cell, but otherwise:
“… [W]e agree that risk can be managed here subject to him successfully completing 13 week approximately period of assessment in HMP Usk.”
[71]The following day, HMP Kingston responded: “I have spoken to Mr Dilks, he is more than happy to share a cell, he shared a room on our dorm accommodation. He is really keen to move. I will get him booked on…”.[72]The Claimant was duly transferred to HMP Usk on 14 December 2011, and to open conditions at HMP Prescoed on 2 April 2012, about 4½ months after the Parole Board’s recommendation and the Secretary of State’s decision that he should be transferred to open conditions.[73]In this claim, two reasons are suggested by the Secretary of State for that delay, both of which I have already touched upon. i) First, the prison operated a local assessment procedure of approximately three months during which offenders were located in HMP Usk in closed conditions before moving into the open conditions of HMP Prescoed (see paragraph 68 above). ii) Second, each prisoner had to wait until his name appeared on a centralised NOMS priority list before he could be transferred to open conditions (see paragraph 24 above). The Claimant was on list 8, prisoners on earlier lists being deemed to be higher priority than he. List 8 was not received by HMP Usk/Prescoed until 23 March 2012, and the Claimant was transferred to open conditions at Prescoed shortly thereafter.[74]Evidence concerning the Claimant’s progress at HMP Prescoed has been given by his current Offender Manager, Jason Gall, in a statement dated 9 October 2014. Mr Gall is a Probation Officer in the Norfolk & Suffolk Local Delivery Unit of the South East and Eastern Division on the National Probation Service, the relevant unit given that the Claimant was convicted in Ipswich Crown Court.[75]Following his transfer to open conditions the previous month, in May 2012 the Claimant’s then Offender Manager (Dennis Everton), the Claimant and the Claimant’s Offender Supervisor discussed the Claimant’s release plan. The Claimant indicated that he was a practising Buddhist and wished to reside in a Buddhist monastery on release. A plan was therefore formulated for the Claimant to complete his ROTL in Wiltshire, with a view to him residing at the Auksana Monastery on release.[76]The Claimant was referred to the probation service local to the monastery, Wiltshire Probation Trust, to facilitate visits to the monastery and to undertake the necessary assessments. That Probation Trust reasonably indicated that, given the seriousness of the Claimant’s index offences, they wished Wiltshire Multi-Agency Public Protection Arrangements (“MAPPA”) to apply. This involved multi-agency meetings involving the Wiltshire Police and Probation Service, and HM Prison Service; as well as the involvement of the Norfolk & Suffolk Probation Service. In addition, because of his ties with the area, Mr Everton also explored the possibility of ROTL in Leicester; but it seems that this approach was rejected by Leicester APs because of the potentially adverse impact on his victims of the Claimant going there.[77]The Claimant’s next Parole Board review was 12 months after his transfer to open conditions. He was therefore eligible for RDR four months after transfer (see paragraph 48 above), i.e. on 2 August 2012. In August 2012, Mr Everton retired and the Claimant was allocated a new Offender Manager, Andrew Hannant. Notwithstanding the Claimant’s primary wish to attend a Buddhist monastery, he said he would be prepared to undertake ROTL in Leicester, and, although this had earlier been rejected by Leicester, Mr Hannant again took up the possibility of ROR in Leicester APs.[78]On 11 August, the Claimant undertook day release to visit his brother, and on 1 September he undertook day release to visit his sister. On 18 September 2012, he went on a day visit to the Auksana Monastery. The Claimant makes no complaint about the RDR he was afforded.[79]On 28 September 2012, Mr Hannant prepared a report for the Claimant’s parole dossier. In it, he assessed the risk from the Claimant of serious harm to the public as still being high, and, in his opinion, it would remain high:
“… until he is able to demonstrate that this has been reduced by demonstrating his behaviour in the community…. He is shortly eligible for overnight release on temporary licence which will give Mr Dilks the opportunity to demonstrate that he is able to resettle and reintegrate into the community.”
[80]The Claimant became eligible for consideration of ROR six months after his transfer (again, see paragraph 49 above), i.e. from 2 October 2012. From that date, “there then followed considerable further internal discussion in order to formulate a suitable release plan for the Claimant” (Mr Gall’s Statement, paragraph 20). Following release, the Claimant still firmly wished to reside in a Buddhist monastery; and that drove the release plan, and also arrangements for ROR. It involved day visits to the monastery by the Claimant, and assessments and a home circumstances report from the monastery by Wiltshire Probation Service, together with discussions with that Probation Service and Wiltshire MAPPA. The Claimant was still high risk, the release plan was unusual involving not only a transfer from one probation area to another, but ultimate residence in a Buddhist monastery – and those steps took some time. Whilst they were ongoing, Mr Hannant continued to look at the possibilities of a potential move-on to Leicester.[81]The Parole Board review was delayed. It was due to commence in August 2012, with a hearing in February 2013 and a conclusion by April 2013. In fact, the Parole Board considered the matter, on the papers, in July 2013.[82]For that consideration, various reports were prepared. A report was prepared by a chartered and registered forensic psychologist, Matthew Gobbett. He considered the Claimant’s risk factors and an assessment using the HCR-20 violence risk assessment instrument, which indicated the Claimant presented a low risk of reoffending. However, the report expressed concerns regarding the nature of his release plan to a monastery, and the Claimant’s reluctance to consider alternatives.[83]Mr Hannant also prepared an addendum report dated 25 March 2013. In it, using the Probation Service Offender Assessment System (“OASys”), he assessed the risk of serious harm as, still, high.[84]Unfortunately, although much work had been done towards a release plan that involved the Claimant being released to the Auksana Monastery, and there appear to have been grounds for some optimism that that would come to fruition, in March 2013 shortly before Mr Hannant’s report was written, the monastery indicated that, having appreciated all that was involved with the Claimant’s case post-release, they could not have him as a resident. That was apparently a decision made by the monastery, not the Probation Service.[85]The Claimant was still committed to living in a Buddhist monastery if he could; but(i) regular day visits to the Auksana Monatery, as opposed to permanent residence there, were regarded as impracticable because of concerns about managing the risk he posed to females in the monastery who would be present during day visits and there was no available residential address that could enable such day visits to take place; and(ii) when, on 21 May 2013, the Claimant visited another Buddhist monastery (the Heartridge Monastery in Devon), they too regarded him as too high a risk to reside there. Therefore, by June 2013, the release plan involving the Claimant residing at a Buddhist monastery – very much his first choice – had failed, because monasteries were not prepared to have him in residence.[86]On 12 June 2013, following a telephone discussion the previous day, Norfolk & Suffolk Probation Trust wrote to the Claimant’s solicitors (who were now involved on his behalf), setting out the proposed way forward. The Claimant had by this stage accepted that moving to a Buddhist monastery should be, not an immediate, but a longer term aim. A monastery having been ruled out, he had no other potentially suitable accommodation, for ROTLs or eventual release on life licence, other than APs.[87]He preferred to reside in Leicester on his release, but it was understood that there were issues there concerning victims’ residence. The Claimant moving to Norfolk or Suffolk had already been ruled out on the same grounds. The plan was to make further enquiries of Leicester, but other APs such as those in Luton and Peterborough would also be investigated. It was stressed by the Probation Service in the letter of 12 June that, “unusually”, the Claimant would remain assessed as a high risk of serious harm during his RORs as he remained untested in the community, although this risk would need to be reviewed at an early opportunity. Once appropriate APs were confirmed, it was proposed to do work to establish the whereabouts of local Buddhist centres etc so that his religious and faith needs could be met.[88]On 20 June 2013, the Claimant’s case was re-allocated within the Probation Service from Mr Hannant (who was unfortunately suffering from long-term illness) to Caroline Reeve.[89]The Claimant, through his solicitors, indicated that (other than Leicester) he considered Peterborough APs to be the most suitable in terms of facilitating family contact. Referrals were in fact made by the Probation Service to Leicester APs (already made), Peterborough APs (20 June), Luton APs (28 June), Essex APs (28 June) and Nottingham APs (18 July). On 18 July 2013, Leicester APs confirmed that ROR there would be unsuitable, as travelling to Leicester would inevitably take the Claimant into an area from which it was proposed to exclude him due to the presence of victims. Luton APs were reluctant to take any sex offenders; and, in any event, the waiting time for a bed at Luton APs was eight weeks, only four weeks shorter than the expected time that a bed would be available in Peterborough, which the Claimant preferred. The Nottingham Probation Trust indicated that they could not accommodate the Claimant, because of the number of referrals to APs from their own area. Ms Reeve most actively pursued the Peterborough APs option with Cambridge and Peterborough Probation Trust and, through them, with the local Cambridgeshire MAPPA.[90]At his Parole Board paper review on 31 July 2013, the panel noted the “unusual” nature of the release plan, in that the Claimant had indicated that he wished to reside in a Buddhist monastery on release and, according to a Mr Gobbett’s report, the Claimant had expressed a reluctance to consider any alternatives. It noted that, despite RDR at the Auksan Monastery, the monastery had, in March 2013, informed the Offender Manager that it would not offer the Claimant residency. By the time of the review, it had been agreed that ROR would take place at Peterborough APs, but a date for the first of these was awaited. The panel suggested that ROR should take place as soon as possible:
“Clearly”, the panel said, “this needs to take place without further delay”
. The panel concluded:
“… [The Claimant] has completed a range of appropriate programmes to address his risks and is seen as having made substantial progress. He has now been in open conditions for over a year and his progress has been delayed by the unusual nature of his release plan and the difficulty in arranging overnight ROTLs. It appears to have now been accepted that he cannot immediately reside in a monastery, while this may remain his long term aim. No date has yet been arranged for a first overnight ROTL and to delay this review further in anticipation of this may disadvantage [the Claimant]. It is hoped that his new [Offender Manager] can arrange overnight ROTLs without delay so that by the time of his next review, which can be requested at an early stage if the situation changes, he will be in a strong position to persuade a panel that he can safely be released. At present his risks in the community have been insufficiently tested to see his release as a realistic prospect and as such they remain too high for release.”
[91]As an “Indication of possible next steps to assist future panels”, the panel said:
“Overnight ROTLs need to take place as soon as possible and a clear release plan be formulated.”
[92]By letter of 10 October 2013, the Secretary of State accepted the Parole Board’s recommendation, and set the next Parole Board review at 13 months (i.e. beginning March 2014 and concluding by November 2014) to give a sufficient period for the testing of skills, the completion of any relevant relapse prevention work or booster work, the formulation of a robust release plan and the undertaking of ROTLs.[93]On 1 August 2013 (the day after the Parole Board review), there was a Cambridgeshire MAPPA meeting, which discussed the possible ROTL placement of the Claimant to Peterborough APs. However, concern was expressed that the Claimant was too high a risk for them to be able to offer him a place: they considered the Claimant needed management at MAPPA level 3, the highest level involving more senior representatives of the relevant authorities and greater resources, because the offender poses the highest risk to the public requiring unusual resources. Peterborough APs’ response to the referral was therefore negative, on that basis.[94]On 30 September 2013, Essex Probation Trust indicated that it was willing to offer the Claimant ROTL at Felmores APs in Basildon; but the probation records indicate that the Claimant was unwilling to pursue that offer at that time, because of the distance from his family.[95]Mr Gall took over as the Claimant’s Offender Manager on 11 November 2013. He carried out a telephone interview with the Claimant on 30 January 2014, when the Claimant indicated that he was willing to attend any APs, and denied refusing the referral to Felmores APs. The Claimant asked that a new referral to Felmores APs be pursued.[96]Mr Gall promptly telephoned Felmores APs who responded positively; and, on 5 February, Mr Gall submitted a new referral. As the Claimant had earlier expressed a preference for Peterborough APs, he also made a new referral request there too. Felmores APs agreed to the referral; and the Claimant was accommodated there on ROR from 19-21 March 2014. Mr Gall accepts (at paragraph 33 of his statement) that that would not assist the Claimant with his long-term resettlement plan, as he did not wish to settle in Essex; but it did provide an opportunity for the Claimant to show that he could adhere to an APs regime, and thus progress to that extent.[97]The Claimant makes no complaint of the ROTLs he has enjoyed since March 2014, when he was first placed in ROR at Felmores APs; but it is necessary to complete the story. On 26 March, Peterborough APs responded to the further referral, saying that they could not consider the Claimant for ROR until his case had been discussed at a Cambridgeshire MAPPA meeting. That meeting was held on 10 April; but, then, the members requested more information concerning the Claimant’s risk reduction before supporting the proposal for ROTL to Peterborough APs. A further meeting was set for 7 May.[98]In the meantime, various reports were prepared for the Parole Board review. Mr Gobbett prepared a further report, dated 25 April 2014. This recited the Claimant’s difficulties in arranging ROR, which were “related to his intentions to be released to a different probation area and his plans to reside in a monastery” (paragraph 4.2.2). However, in relation to his future plans, although his long-term plan was still to live in a monastery, “when discussing his future plans he was more flexible than during [the] previous assessment…”. Mr Gobbett conducted a further HCR-20 risk assessment, which indicated the Claimant was a low risk of violence whilst in open conditions, rising to a moderate level if he were to be released into the community. Mr Gobbett concluded:
“An important next step is for [the Claimant] to demonstrate that he is able to continue to manage risk within a hostel environment through the use of Home Leave from prison. If he is able to maintain the level of risk management shown to date through a number of further Home Leaves, I would be supportive of him being released into the community on life licence.”
[99]Mr Gall prepared a further Parole Assessment Report on 28 April 2014, which continued to assess the Claimant’s OASys risk of serious harm to the public as high. Whilst the report notes that, due to the proximity of his siblings, the Claimant had mooted the possibility of residing in Peterborough permanently if he were able successfully to complete RORs at Peterborough APs, that would require a transfer from Norfolk & Suffolk Probation Trust to Cambridgeshire Probation which had not yet been agreed; and therefore “this plan remains a tentative one”. The report concluded: “As noted above there has been some progress in this case in terms of securing [APs] for the purpose of [the Claimant] to be released on temporary licence. However this remains at an early stage and there is a need to secure further ROTLs that cannot only provide the function of allowing [the Claimant] to demonstrate an ability to comply with the ROTL procedure per se, but can offer some added value in terms of developing his social ties with siblings in advance of release (although as noted their attitude to this going forward does need some clarification). It is therefore my proposal that [the Claimant] presently be required to remain in Category D conditions until such time as it can be argued that there is consistent demonstrable evidence that he is able to comply with the ROTL regime over time and that the risk he poses can therefore defensibly be managed in the community… ”.[100]At the Cambridgeshire MAPPA meeting on 7 May, it was agreed that the Claimant could be accommodated at Peterborough APs, although the reason why Peterborough considered they could accommodate the Claimant in May 2014 when they considered they could not in August 2013 is not clear. It appears that they were convinced on the basis of their further enquiries that the risk posed by the Claimant was such as to be manageable at Peterborough APs. The matter then went back to the prison’s ROTL Board, who approved the plan; and temporary licences were prepared.[101]ROR at Peterborough APs was provided for the first time on 19-22 May 2014, and regularly thereafter. As at 3 October 2014, in addition to the ROR spent at Felmores APs, the Claimant had had four periods of ROR at Peterborough APs, usually of four nights each.[102]On 29 August 2014, Mr Gall prepared an updated Parole Assessment Report. By then, the Claimant had completed a number of RORs at Peterborough APs, and a release plan had been formulated to release him to that area, initially to Peterborough APs. That plan had been agreed between the two probation services at director level. It had the agreement of the Claimant, who had the support of his siblings in Leicester, which was relatively nearby. The Claimant intended to obtain private accommodation as a move-on from the APs. Following these developments, Mr Gall assessed the Claimant’s OASys risk to the public as reduced to medium; and he recommended the Claimant’s release on licence to Peterborough APs.[103]The Claimant is currently awaiting a Parole Board review.

The Claim

[104]Mr Rule focused on two periods of delay, namely: i) The 4½ month period from the Parole Board’s recommendation and the Secretary of State’s confirmation that the Claimant be moved to open conditions, both on 22 November 2011; to his actual transfer to open conditions at HMP Prescoed, on 2 April 2012. ii) The almost 18 month period from the Claimant’s eligibility for ROR, on 2 October 2012; to the Claimant’s first ROR at Felmores APs on 19 March 2014.[105]In respect of each of these, he submitted that the Secretary of State failed to make reasonable provision for systems and resources to enable ISPs to demonstrate that they no longer present an unacceptable risk to the public, which resulted in a failure reasonably promptly to provide the Claimant with a place in open conditions and subsequently in APs for ROR. That failure was: i) in breach of domestic law, being(a) in breach of his public law duty to make such reasonable provision for the purpose of giving an ISP a reasonable opportunity to progress himself towards post-tariff release and(b) irrational in the Wednesbury sense; and ii) in any event, in breach of the Claimant’s human rights, namely (a) the ancillary obligation contained in article 5 of the ECHR as explained in Haney SC, and (b) the right to a family and private life under article 8 of the ECHR.[106]Mr Pritchard submitted that these claims were academic, as the Claimant had in fact now been provided with a place in open conditions (since April 2012) and a place in APs for ROR (since March 2014). However, although that may of course affect relief, Mr Rule contends that, on the balance of probabilities, the delays in allocating the Claimant those places have delayed his ultimate release from prison on life licence. In any event, even if that cannot be proved, he submits that, as a result of those delays, the Claimant is potentially entitled to damages for breach of the article 5 right, on the basis of the principles set out in Faulkner and Sturnham SC and Haney SC. I agree. Whilst, as a result of Haney SC and the fact that the Claimant has now been provided with the relevant facilities, the relief for which the Claimant can contend is limited – to declarations and (at most) modest damages – I do not consider that these claims are academic. There are, within the claims, issues that need to be determined on their merits.[107]In addition, Mr Rule relied upon two further grounds of challenge, both of which relate only to the provision of a place in APs for ROR purposes: i) The Secretary of State’s policy seeking to restrict access to APs to high or very high risk prisoners is irrational and defeats the purpose of rehabilitation inherent in an indeterminate sentence; and is directly contrary to his own applicable policies on resettlement and sentence. ii) The Claimant has been the subject of unjustified discrimination, contrary to the Equality Act 2010 and in violation of article 14 of the ECHR, in two respects:(a) he has suffered gender discrimination, because a proper supply of places in APs has been made for female prisoners but not male prisoners, and(b) being an indeterminate sentence prisoner is an “other status” for the purposes of article 14 and, as an individual with such status, so far as the allocation of APs places is concerned, he has suffered discrimination when compared with determinate sentence prisoners.[108]I shall deal with these grounds, as follows: i) the challenge based on the systemic failures resulting in the alleged delay to the Claimant’s placement in open conditions (paragraphs 109-125); ii) the challenge based on the systemic failures resulting in the alleged delay to the Claimant’s placement in in APs for ROR (paragraphs 126-138); iii) the challenge on the basis of the Secretary of State’s own policy (paragraphs 139-142); and iv) the challenge on the grounds of discrimination (paragraphs 143-153).

Transfer to Open Conditions

[109]Put shortly, Mr Rule submitted that the Claimant’s case in respect of the delay in transferring him to open conditions is materially indistinguishable from Haney. In that case, the Secretary of State had approved Mr Haney for transfer to open conditions in June 2011, and he was not in fact transferred until July 2012, the sole reason for that delay being the inadequate provision of open conditions places which required the unfortunate Mr Haney to wait his turn. Here, the Secretary of State approved the Claimant for transfer on 22 November 2011, and he was not transferred to open conditions until 2 April 2012. The wait was not so long - 4½ months as opposed to a year in Haney – but, Mr Rule submitted, the nature of the delay was the same, as was the reason for it, namely the inadequate provision of resources which meant that the Claimant had to wait until late March 2012 before he had risen to the top of the open conditions priorities list. In Haney, the Secretary of State conceded that(i) a prompt transfer of an ISP to open conditions, following approval, fell within the James public law duty; and(ii) there had been excessive delay in transferring Mr Haney to open conditions because of a systemic failure in the arrangements for the transfer of ISP prisoners to open conditions. Although the period of delay in transfer in this case was shorter (i.e. November 2011 to April 2012), it fell entirely within the Haney period of delay (i.e. June 2011 to July 2012).[110]However, boldly, Mr Pritchard did not concede that, at the relevant time, the Secretary of State was in breach of his James public law duty in failing reasonably to provide systems and resources that ISPs needed to demonstrate to the Parole Board by the time of expiry of their tariff (or reasonably soon thereafter) that it was no longer necessary for the protection of the public that they should remain in detention. He submitted that this case could be distinguished from Haney on two grounds.[111]First, as outlined by Lang J in Haney and in the evidence of Mr Hay before me, by November 2011, the problem of lack of availability of open condition places resulting from the systemic inadequacies of foresight and provision in respect of the requirements of ISPs had been identified and a scheme set up to deal with that issue so that the backlog would be eradicated by August 2012. That scheme was held to be lawful (see paragraph 27 above), and (Mr Pritchard submitted) it cured any and all systemic failures.[112]However, although lawful in the sense that it was a rational scheme to deal with the crisis that had occurred, I do not consider it is a complete answer to this claim. The crisis – although apparently in fact unforeseen by the Secretary of State – was created by his failure to anticipate and make reasonable provision for the inevitable increase in ISPs after 2005, and was not only foreseeable but ought to have been foreseen by the Secretary of State. In my view, the fact that he adopted a reasonable scheme to deal with the crisis to which he had given rise did not of itself necessarily cure the Secretary of State’s failings to the extent that no breach of public law duty occurred after October 2011. It is noteworthy that, in the concession made by the Secretary of State in Haney, it was not suggested that the post-October 2011 delay fell outside the scope of the breach of this common law duty; and Haney SC at [48]-[49], although dealing with the article 5 ancillary obligation, suggests that it fell within that scope. In any event, the lawfulness of the remedial measures has no effect on any breach of the ancillary obligation under article 5.[113]Second, Mr Pritchard submitted that the reason that the Claimant was not transferred to open conditions until 2 April 2012 was not because of a systemic failure, but because of the policy in place that a prisoner being transferred to open conditions at HMP Prescoed had first to spend about three months being “locally assessed” at HMP Usk in closed conditions. That assessment would not have been completed until early March 2012.[114]However, I am unpersuaded. I accept that the Secretary of State’s letter of 22 November 2011 suggests that transfer will or might take three months: the letter seems to have been in similar form to the transfer approval in Hall (see paragraph 33 above), where the period of three months was described as one “for transfer to an open establishment” (see [25]), and that such a period was not unreasonable “having regard to the need to prepare the applicant for open conditions and to ensure flexibility in managing prison estate” (see [35]). However, this policy is not fully explained on the evidence before me. It is called a “local” policy, and it is not clear whether the other two open prisons to which the Claimant might have gone have the same policy (Hall concerned a different open prison, HMP North Sea Camp); and, if not, why the policy at HMP Usk/Prescoed is different and how the policy squares with the other policy imperatives of moving a prisoner through the appropriate progressive stages towards release without undue delay. There is no evidence before me that, after the Secretary of State’s approval, a three month period for further assessment and/or preparation was required before transfer to open conditions; and, if so, why.[115]Mr Rule submitted that, on the evidence before me, it seemed that the policy, such as it was, was unpublished, unjustified and unlawful, and I should not allow the Secretary of State to rely upon it. On the evidence before me, which was limited, there was force in that submission.[116]But, in any event, on that evidence, the real and causally potent reason for the delay in transfer was the fact that, under the October 2011 arrangements, the Claimant had to wait until he came to the top of the priorities list, i.e. when he appeared on list 8 on 23 March 2012. Whatever the policy of HMP Usk/Prescoed might have been for the period from 14 December 2011 to mid-March 2012, the reason why the Claimant did not move until after 23 March 2012 was because of the failure of the system to make reasonable provision for open condition places, which led to the Claimant having to wait until his turn came up on the waiting list.[117]We know from James and Haney that the prison service was fundamentally under-resourced at the relevant time, October 2011 to April 2012. The history of that under-resourcing and the steps taken to combat it were set out in the judgment of Lang J in Haney, summarised above (paragraphs 20 and following). Nothing in the evidence before me suggests that the position was any different from that set out by Lang J. It was conceded in Haney that there was, at the relevant time, a continuing failure by the Secretary of State to make reasonable provision of systems and resources, specifically open prison places, for the purposes of allowing ISPs to demonstrate to the Parole Board, by the time of the expiry of their tariff period or reasonably soon thereafter, that they are safe to be released; but it is clear that, had such concession not been made, Lang J would have made findings to the same effect. Nothing in the evidence before me suggests a different position.[118]I shall therefore proceed on the basis that, at the relevant time, the Secretary of State was in breach of his public law duty.[119]However, in my respectful view, that does not get the Claimant very far on the facts of this case, for the following reasons: i) The Claimant was transferred to open conditions on 2 April 2012. Therefore, so far as the common law duty is concerned, mandatory relief is inappropriate. The only possible relief is declaratory. ii) However, the breach of the James public law duty is capable of amounting to a breach of the article 5 ancillary obligation. Whether there was such a breach is dependent upon the particular circumstances of this case. iii) The Secretary of State approved the Claimant’s transfer to open conditions on 22 November 2011. It is now established that a reasonable period to effect transfer after approval would be two months (see paragraph 25 above), i.e. in this case, by 22 January 2012. iv) However, had the Claimant been transferred on 22 January 2012 rather than 2 April 2012 (as he was), it would have had a potentially detrimental effect on the date he became eligible for ROTLs and even his ultimate release date. That is because his next Parole Board review date was fixed to conclude by April 2013. Eligibility for RDR and ROR was dependent upon the dates of transfer to open conditions and the next parole review (see paragraph 49 above). With a transfer date of 2 April 2012, there was no more than 12 months until the next parole board review date, and therefore the Claimant was eligible for ROR six months after transfer, i.e. 2 October 2012. Had he been transferred on 22 January 2012, there would have been more than 12 months until the next parole review, and he would not have become eligible for ROR until nine months after transfer, i.e. until 22 October 2012. Certainly, the delay in transfer did not on the balance of probabilities – or even arguably – result in a delayed release date. v) Haney instructs us that, even where there is no provable delayed release date, where there has been a delay in a progressive step towards release, a prisoner may nevertheless suffer frustration and anxiety that might attract an award of damages. But, on the facts of this case, such a claim is hopeless. I accept that, in appropriate circumstances, such frustration and anxiety might be presumed or inferred from the delay itself; but such frustration and anxiety must reach a threshold level of seriousness before it is capable of attracting an award of damages (see paragraphs 36-37 above). In this case, there is no evidential basis for concluding that the Claimant suffered the requisite (or, indeed, any) harm as a result of the delay in transferring him to open conditions. vi) The delay did not adversely impact upon his progress towards ultimate release: it simply meant that he had to spend a little more time in closed (as opposed to open) conditions. Whilst such a delay in itself might, in some circumstances, found a claim, the period of delay here was only 2½ months, from 22 January 2012 (by when the transfer ought reasonably to have been effected) and 2 April 2012 (when it was in fact effected). The Claimant positively wished to go to HMP Prescoed – and did not apply for any other open prison – because of its proximity to the monastery he wished to visit on ROTL. He knew that that would mean an initial stay of approximately three months in the closed conditions at HMP Usk; but he expressed himself happy with that arrangement. Whilst Mr Rule submitted that the Claimant may have been astutely making the best of a number of (unlawful) options, there is no evidence that he was at all frustrated or anxious as a result of these arrangements. Indeed, quite the opposite. vii) Any delay in progress has to be considered in the full context of a prisoner’s confinement. I shall come to the alleged delay in allocating the Claimant APs for ROR purposes shortly; but the evidence is that he was provided with all other facilities required for his progress to release (including rehabilitative programmes and courses, and RDR) reasonably promptly. viii) Whilst each case must depend upon its own facts, as noted by the Supreme Court in Haney SC at [42] (quoted at paragraph 33 above), in Hall, the ECtHR did not regard as unreasonable a three month period for transfer to open conditions of a post-tariff prisoner, namely the period from 1 March 2012 (when the Parole Board recommended transfer) or 20 March 2012 (when the Secretary of State accepted that recommendation, saying that such transfer was envisaged within three months) to July 2012 (when the transfer was effected). Indeed, the ECtHR found the claim that such a period was unreasonable inadmissible as manifestly ill-founded (see [36]).[120]For those reasons, even on the basis that the Secretary of State was in breach of his James public law duty to make reasonable provision of open conditions places: i) I do not consider that any breach of that public law duty has resulted in the Claimant himself being exposed to any unreasonable delay in being transferred from closed to open conditions, and thus there is no breach of the ancillary duty under article 5; and ii) in any event, any breach would be so minor as not to sound in damages, nor would any other relief (including declaratory relief) in respect of any breach of any duty (common law or article 5) be appropriate.[121]Although, in addition to the James public law duty, Mr Rule relied upon Wednesbury irrationality, he did so only on the basis of the proposition, conceded by the Secretary of State in R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522 at [30], that it would be inherently irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such courses. That does not add anything of substance to the James public duty basis for this claim.[122]He also relied upon article 8 of the ECHR, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[123]It is well-established that a prisoner does not forfeit his Convention rights in their entirety simply because of his status as a person detained following conviction and sentence (Hirst v United Kingdom (2006) 42 EHRR 41 at [69]-[71], Dickson v United Kingdom (2006) 46 EHRR 41 at [68]). The initial sentence of imprisonment necessarily interferes with his article 8 rights, but that interference is justified by article 8(2), as being necessary in a democratic society, in the interests of public safety and prevention of disorder and crime. However, that does not preclude a subsequent breach of article 8 arising from decisions made during the prison term, including decisions made concerning ROTL (see, e.g., R (P and Q) v Secretary of State for the Home Department [2011] EWCA Civ 1151 (“P and Q”), and R (MP and P) v Secretary of State for Justice [2012] EWHC 214 (Admin) (“MP and P”)). If a decision that affects a serving prisoner engages article 8, to determine whether the relevant interference is proportionate to the legitimate aim pursued requires consideration of the particular prisoner’s circumstances and the impact the decision has upon him, and upon his article 8 rights and those of his family (P and Q at [78] per Lord Phillips MR).[124]In this case, the delay in transferring the Claimant to open conditions did not arguably interfere with his article 8 rights. As noted by Lang J in Haney Admin Ct at [102], the Claimant’s transfer did not bestow temporary leave in the community to visit his family. The decision to grant him ROTL was the subject of a separate decision. In any event, for the reasons I have given (see paragraph 119(iv) above), the delay in the Claimant’s transfer in fact brought forward the date of his eligibility for ROTL.[125]Consequently, all grounds relating to the Claimant’s transfer to open conditions fail.

Approved Premises for Overnight ROTL

[126]Again put shortly, Mr Rule submitted that the delay in providing the Claimant with APs appropriate for ROR – from 2 October 2012 when he became eligible for ROR, to 19 March 2014 when he first enjoyed it – was due to the same systemic failure of the Secretary of State identified in cases such as James (in respect of the provision of rehabilitative courses) and Haney (in respect of the provision of places in open condition prisons). For many prisoners, including the Claimant, ROR is an essential progressive step towards release; and such a step for many, including the Claimant, can only be taken if the State provides a place in APs in which the prisoner can enjoy ROR. In this case, appropriate APs were not made available for 18 months. Mr Rule was particularly critical of the lack of activity towards trying to identify APs in the period October 2012 to March 2013, when the Auksana Monastery was ruled out as a possible address at which the Claimant could enjoy ROR – a period in which, he says, no steps at all were taken to identify appropriate APs.[127]The evidence upon which Mr Rule relied to prove that the Secretary of State was in breach of the James public law duty in the specific respect of the provision of APs was as follows: i) The findings in relation to breaches in respect of courses and open conditions places, and the evidence upon which those findings were based. After ISPs have been allocated a place in open conditions, the next step is their release on RDR and then ROR, before release on life licence. For most ISPs, APs are required to facilitate RDR and ROR. As more and more ISPs move progressively through the system, it is natural that strain is put on the various facilities required, in order. In earlier cases, pressure has been noted so far as rehabilitative courses and open conditions places are concerned. Pressure on APs is, logically and temporally, next in line. 71% of IPP prisoners are now post-tariff, and 34% of life prisoners. Over 6,000 ISPs are now eligible for release on permanent life licence, subject to satisfying the Parole Board as to their risk level. 22.5% of ISPs (over 1,650) are in open conditions, and most will require ROR and ultimate release to APs as part of their risk management plan to present to the Parole Board. ii) In response to this increase in demand for APs, the total number of APs places has not significantly increased. For men, in the period 2008 to 2014, the number of places increased by less than 2.5% (from 2041 to 2091), mainly due to the conversion of one female facility to a male facility. The actual increase in places overall is only five. iii) In R (Griffiths) v Secretary of State for Justice [2013] EWHC 4077 (Admin) at [19], Cranston J noted the “high demand in male [APs]”. iv) The lack of provision of APs has been recognised in a number of official documents. In a March 2008 Joint Inspection Report of APs by HM Chief Inspectors of Probation, Prisons and Constabulary, a shortfall in APs places to meet demand of perhaps 100-300 places for men was noted (paragraphs 1.2.2, 1.7.6, 4.1.1 and 4.2.4-4.2.6), and funding arrangements for APs were said to be inadequate (paragraph 6.3.1). PI 32/2014 acknowledged that usage of APs beds was high, limited spaces were available, and in places there were waiting lists (Annex B, paragraphs 6 and 20). v) Mr Rule also relied upon less formal, anecdotal sources, including a case in this court in which he was involved (R (Roberts) v Secretary of State for Justice CO/16518/2013), concerning an alleged failure to provide APs to comply with a direction of the Parole Board to release, in which the Secretary of State settled the claim on a payment to the claimant. However, this added little if any weight to Mr Rule’s submission: as I understand it, the case was settled without any admissions, and in any event the case was distinguishable on its facts from this, in that Mr Roberts was both severely disabled and assessed at only medium risk of serious harm.[128]Mr Rule also relied upon the evidence of the Claimant’s own case, which I have set out above. However, I do not consider that that evidence supports his proposition that, in this case, the delay in allocating APs for ROR to the Claimant resulted from a failure of the Secretary of State reasonably to provide systems and resources. Looked at fairly and as a whole, that is simply not the picture the evidence paints.[129]There is no duty on the Secretary of State specifically to provide APs. His duty is reasonably to provide systems and resources to enable an ISP to have a reasonable opportunity to reform himself and demonstrate that he no longer presents an unacceptable risk to the public. In the case of many ISPs – indeed, the vast majority – that requires an opportunity to demonstrate a lack of risk in a community setting, through RDR and ROR. In its turn, that requires suitable accommodation. That accommodation usually needs to be in the premises to which it is intended the prisoner will be released on life licence. APs become important if the prisoner would not otherwise have such premises available.[130]In the Claimant’s case, he wished to be released to and reside at the Buddhist Auksana Monastery in Wiltshire. His release plan was informed by that wish. There is evidence that the Claimant was, until about May 2013, reluctant to consider any alternative plan. Release to the monastery would, of course, have significant benefits for the Claimant over release to APs: as I have described, APs do not offer permanent accommodation, and the release plan to APs would have to include move-on premises. The Claimant had and has a strong Buddhist conviction and wishes, long-term, to live in a monastery.[131]This case is not at all like James, in which the prisoners were simply stuck in the system waiting for essential courses whilst the Secretary of State did nothing to progress him towards release. In this case, a great deal of work was done by the Probation Service in Norfolk & Suffolk and Wiltshire, and by Wiltshire MAPPA, to work up a release plan for the Claimant to the monastery. There were grounds for optimism for this patently unusual and bold plan for a life prisoner. However, in March 2013, the monastery for the first time indicated that it would not be willing to have the Claimant as a resident; and, by June 2013 and after investigating other monastic alternatives, the Claimant accepted that release direct to a monastery had become unachievable.[132]The Probation Service then sought a different plan, which eventually centred on Peterborough APs. With the benefit of hindsight, one can see that optimally the Probation Service might have acted more quickly; but the Probation Service is not required to act perfectly, only reasonably. In the real world, events such as staff retirements and illness do occur, slowing down processes from the optimal; and the Claimant’s placement was clearly far from straightforward. There were areas into which the Claimant could not be placed, because such a placement would potentially adversely affect victims – and some APs that were approached would not take him, because of the nature of his offending and/or the high risk he posed. Peterborough APs originally refused his referral on those grounds. It is unclear why they changed their minds in May 2014; but what is clear is that there is almost no evidence that the unavailability of APs places due to lack of resourcing caused any delay on placing the Claimant. Once Peterborough APs agreed to take the Claimant on 7 May 2014, the first ROR was arranged and effected within two weeks, on 19 May 2014. Similarly, with Felmores APs: the referral to them was made on 5 February 2014, after the Claimant had indicated to Mr Gall that he would be prepared to attend ROR there, and, although the date on which Felmores APs agreed to take him is not clear, the Claimant’s first ROR there took place on 19 March 2014. Leicester APs (his first choice) could not accept him because of victim issues. Peterborough APs refused the first referral because of the risk he posed; and accepted him on the further referral after discussions with Cambridgeshire MAPPA. Although there is evidence of a general 12 week waiting list for a place at Peterborough APs, the evidence is that he was accepted for a place there on 7 May 2014 and his first ROR there was less than two weeks later. The only APs approached that said they could not accommodate him because of pressure on their places was Nottingham.[133]The Claimant’s case is founded upon the premise that the delay in placing him resulted from systemic failures on the part of the Secretary of State – there is no case made that the Secretary of State acted unlawfully in the manner in which the place was allocated to him within a lawful system. However, there is simply no sufficient evidential basis for the proposition that there was any failure of the Secretary of State to make reasonable provision for systems and resources that resulted in the Claimant being delayed in obtaining a placement in APs for ROR. The delay – unfortunate and frustrating for the Claimant as it no doubt was – was caused by other factors, notably the Claimant’s wish to be released to a Buddhist monastery in a different probation area, and the subsequent difficulty in placing him in APs because of his index offence, his high level of risk, victim issues and the Claimant’s reluctance to be placed for ROR in APs in an area into which he did not wish to be ultimately released. As I have emphasised, no case is put forward that the Secretary of State acted unreasonably within a lawful system; and, in my view, for good reason. On the evidence, it is not arguable that the manner in which the Secretary of State went about the task of progressing the Claimant through to ROR was unreasonable or otherwise unlawful.[134]As with transfer to open conditions, Mr Rule relied upon two further bases of claim in respect of the delay in allocating him APs for ROR. Irrationality is of no more assistance to him here as it was in respect of open conditions, and for the same reasons (see paragraph 121 above).[135]Nor is article 8 of the ECHR. Looking at the circumstances of the Claimant’s case, it is again unarguable that the manner in which the progress of the Claimant to ROR was managed interfered with his article 8 rights.[136]Mr Pritchard submitted, with some considerable force, that this is simply not an article 8 case. P and Q concerned the Secretary of State’s policy of not allowing babies to remain in custodial mother and baby units after the age of 18 months. MP and P concerned the refusal to allow two female prisoners who were sole carers of minor children to take childcare resettlement leave. This case is very different. The Claimant’s only relevant family comprises his adult siblings, with whom he had had no contact for several years.[137]Even if, contrary to Mr Pritchard’s primary submission, article 8 is engaged, the Secretary of State has a wide margin of appreciation when considering whether a potential interference is justified. It is clearly justifiable for him to ensure that ROTL is granted only once a prisoner has appropriate premises in which to stay; and, in this case, for the reasons I have given, the length of time it took to arrange such premises was reasonable and proportionate in light of the Claimant’s index offence, the risk of serious harm that he posed and the inherent difficulties that arose when seeking to find suitable premises, including his firm wish to resettle in a Buddhist monastery. Article 8 adds nothing to this claim. In my judgment, article 8 was not engaged; but, if it was, there was no arguable interference with the Claimant’s article 8 rights, and, if there was such interference, it was unarguably justified.[138]For those reasons, the Claimant’s claim under this head – at common law, and under his article 5 and article 8 human rights – must be dismissed.

Policy Inconsistency and Irrationality

[139]Mr Rule submitted that the Secretary of State’s failure to make reasonable provision of APs for ROR was in breach of his own policies to assist ISPs to achieve and demonstrate reduction in risk to an acceptable level for release on life licence. For the reasons I have already given, on the evidence before me, I am not satisfied that there was such a failure; and, in particular, there is no evidence that the Claimant suffered any detriment as the result of any such failure.[140]More specifically, he submitted that PC 37/2005, whilst not imposing a blanket ban on the APs for ROR being made available to ISPs with less than high risk of serous harm to the public, expressly states that offenders who are currently assessed as high or very high risk will be favoured, whilst those assessed as medium risk of harm will be considered only where there is evidence that planned intensive supervision is necessary and can only be delivered to that individual in the context of a residential setting or where there is evidence of escalating risk; and admissions of high and very high risk offenders will not be jeopardised. Generally, offenders who pose a risk at less than high level can and will be released into other accommodation, e.g. to the home of the offender himself, a friend or relative, supported housing or another type of hostel without the enhanced facilities of APs (see paragraph 56-57 above). This policy of favouring prisoners who pose a high or very high risk to the public, to the detriment of prisoners who pose only a medium risk, is (Mr Rule submitted) in contradiction to the Secretary of State’s express policies of assisting all ISPs to demonstrate reduction in risk (see paragraphs 40-41 above).[141]However, leaving aside any justification for favouring high risk ISPs for placement in APs – for example, because those of lesser risk are more likely to be able to find suitable other accommodation for ROR – the Claimant was at all times and for all relevant purposes (including for the purposes of allocation of suitable promises for ROR) treated as being high risk. The letter of 12 June 2013 from the Probation Service to the Claimant’s solicitors (referred to in paragraph 86 above) made that clear: and there is no evidence that he was ever treated as being less than high risk until August 2014, after several periods of ROR at Peterborough APs, when his Offender Manager (Mr Gall) prepared an updated Parole Assessment Report in which he assessed his risk using the OASys model as being medium (see paragraph 102 above). The earlier assessment of the psychologist, Mr Gobbett, that his risk of reoffending was low, was never used by the Probation Service as a level of his risk of serious harm. There is simply no evidence that the Secretary of State considering the Claimant posed less than a high risk of serious harm to the public led to any delay in finding him APs for ROR, or otherwise acted to the Claimant’s detriment.[142]Therefore, this ground cannot assist the Claimant. There is no evidence to support the proposition that any irrationality in the Secretary of State’s policies adversely affected him at all. Indeed, although I stress that I make no finding or even suggestion that the Secretary of State’s policies were irrational, any legal perversity of the kind suggested by Mr Rule would, if anything, have benefited this Claimant as an ISP who was treated as posing a high risk of serious harm.

Discrimination

[143]Mr Rule submitted that the Claimant has suffered discrimination in two respects.[144]First, he submitted that the Claimant has been the victim of sex discrimination under the Equality Act 2010 (and its predecessor and/or under the provisions of article 7 of the Equality Act 2010 (Commencement No 4 Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010 (SI 2010 No 2317), which relate to continuing acts), on the ground that reasonable supply of APs has been made for female ISPs, but not for male ISPs of which the Claimant is one. The claim, as I understand it, is for direct discrimination as defined in section 13 of the 2010 Act, i.e. that the Secretary of State, because of a protected characteristic (namely, sex), has treated the Claimant less favourably than he treats others (see Amended Grounds, paragraphs 105-108). In the alternative, Mr Rule contended that there was a breach of the section 149 of the 2010 Act, in that the Secretary of State failed to have regard to the public sector equality duty in considering gender disadvantages in access to APs.[145]In R (Griffiths) v Secretary of State for Justice [2013] EWHC 4077 (Admin), in which it was contended that female prisoners were treated less favourably than male prisoners (particularly with regard to geographical spread of APs), Cranston J emphasised the point that: “Less favourable treatment requires comparing like with like…. The female prison population differs in many ways from that of men…”.[146]However, leaving aside that obvious fact and the lack of evidence that the Secretary of State adopts a policy or practice that is less favourable to men than women – for example, although as a mathematical calculation there may be a higher proportion of APs for female ISPs than for male ISPs, there are nearly twenty times as many places for men as there are for women and plans to convert a facility previously used for females to use for men – on the facts of this case: i) I have found that there was no shortage of APs places for men as a result of a lack of provision of systems or resources or otherwise; and ii) in any event, there is certainly no evidence that the Claimant, on the proscribed ground, suffered as a result of any less favourable treatment than others, namely women ISPs. For the same reasons, there was no arguable breach of the section 149 public sector equality duty.[147]Second, Mr Rule submitted that the Claimant is the victim of discrimination under article 14 of the ECHR, on the ground that, regarding allocation of APs, ISPs are treated disadvantageously when compared with prisoners serving determinate sentences. He particularly relied upon paragraph 13 of Annex B to PI 32/2007 (quoted at paragraph 59 above), which suggests that it will not normally be appropriate for ISPs to be placed in APs, because:
“[ISPs] should not be released from prison until their risk of harm has reduced to a level where it can be managed safely in the community. This generally means that they will be below the normal entry point threshold for AP residence.”
Whereas:
“Determinate-sentence offenders will be released automatically at a fixed point in their sentences, regardless of risk. APs are therefore much more likely to be suitable for these offenders than for those released under indeterminate sentences.”
[148]I must say that I find the logic of this passage difficult to fathom. It seems to me likely that many ISPs (including the Claimant) will arrive in open conditions without having convinced Offender Managers and others who assess risk that their risk to the public has been reduced to medium or lower; and it will only be when their progress has been tested by ROTLs (including ROR) that they will be in a position to persuade them that their risk has fallen below high. The difference between ISPs and determinate sentence prisoners is that the latter have an additional factor in the risk analysis which may need testing by exposure to the community by way of ROR, namely that, at the end of their fixed term of imprisonment, they must be released whatever their continuing risk to the public might be. But that is a different issue.[149]However, in my view, any reservations about that policy are not material in this case. The short answer to this ground is the same as that in respect of the claim of sex discrimination: I have found that there was no shortage of APs places as a result of a lack of provision of systems or resources or otherwise; and, in any event, there is certainly no evidence that the Claimant suffered as a result of any discrimination, direct or indirect, in favour of determinate sentence prisoners.[150]That answer – which is determinative of this claim – should not be allowed to detract from two other defences to this claim, upon which Mr Pritchard relied.[151]First, although Lords Mance and Hughes in Haney SC (at [53]) considered there might be some force in the submission that the differences between prisoners might represent a relevant difference in status for the purposes of article 14 – and, when Clift went to Strasbourg, the ECtHR in Clift v United Kingdom (Application No 7205/07) found that there was a relevant difference between prisoners serving determinate sentences of over 15 years and life prisoners as a difference in status – this court remains bound by the House of Lords decision in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54 that being an ISP is not an “other status” for the purposes of article 14.[152]Second, there is no basis for alleging any discrimination between ISPs and determinate sentence prisoners, because, as I have indicated, there is an obvious relevant difference between the categories: ISPs are only released from prison once their risks have been sufficiently reduced to an acceptable level, whereas prisoners serving determinative sentences will be immediately released upon expiry of their term. Even if, contrary to my view, there is some discrimination, for those reasons, it is clearly justified and within the wide margin of appreciation of the State.[153]Consequently, these grounds too fail.

Conclusion

[154]For the reasons I have given, none of the grounds relied upon by the Claimant succeeds. This claim is dismissed.

Cited in 2 later judgments