“… you are anxious to return to work but [the Panel] has no doubt that a gradual approach with a period in Approved Premises where you will not only be able to turn to your supervising officer but also your key worker, where you can show respect for the rules of the establishment before moving on perhaps to your son’s home and then to employment, is likely to be of much greater benefit to you, allowing you to make the difficult steps necessary to achieve a resettlement smoothly…”
“Having considered all the evidence before it, the panel has decided that your risk is now manageable in the community subject to the risk management plan that has been proposed and directs release subject to additional licence conditions. It notes that Mandeville House do not anticipate having a bed available before late July, but assumes that release would be brought forward if that availability date should change for any reason.”
“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.”
“28.— Duty to release certain life prisoners. (1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order. … (5) As soon as (a) a life prisoner to whom this section applies has served the relevant part of his sentence, (b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence. (6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless— (a) the Secretary of State has referred the prisoner's case to the Board; and (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. … (8A) In this section “minimum term order” means an order under— (a) subsection (2) ofsection 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (determination of minimum term in respect of life sentence that is not fixed by law), or (b) subsection (2) ofsection 269 of the Criminal Justice Act 2003 (determination of minimum term in respect of mandatory life sentence).”
“[14] The indeterminate sentence which he received was passed on the ground that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further offences of the kind specified in Schedule 15 to the 2003 Act. The essence of it was the need for the public to be protected against that risk. His continued detention cannot be said to be arbitrary, or in any other sense unlawful, until the Parole Board has determined that detention is no longer necessary. As soon as it makes that assessment the causal connection is, of course, broken. A direction must then be given in terms of the statute that he be released on licence. But continued detention that results from any decisions that the Parole Board may issue before that stage is reached must be attributable to the original ground for it. The causal connection will not be broken until the Parole Board, on whom the responsibility rests under the statute, has determined otherwise.”
“15 The starting point is that the role of the board, when deciding whether or not to direct the release of a prisoner, is judicial. As Sir Thomas Bingham MR explained in Ex p Watson[1996] 1 WLR 906 , 916 e – f , the Secretary of State is a party to the review procedure, whereas the board is the decision-maker. Submissions are made to the board on behalf of the Secretary of State which are often directly opposed to those made on behalf of the prisoner. Where the board directs release, the effect of section 28(5) of the 1997 Act is that the Secretary of State must release the prisoner. He has no discretion. As we understand it, this was accepted on all sides before the judge, in our opinion correctly.”
“…In any event, the Board has an overriding statutory duty under Article 5 and section 28 of the 1997 Act to direct release of a prisoner if satisfied that the risk criterion set out in that provision has been satisfied, and nothing in paragraph 1 of the Directions could detract from that.”
“[23] …s 28 of the 1997 Act cannot sensibly be interpreted to provide that as soon as a Parole Board takes a decision in which it directs release, albeit under conditions or at some future time, the Secretary of State is under a duty there and then and thereby to ensure that that release takes place forthwith. That would give no effect to the provisions of s.31; it would not recognise the difference in language between s.28 and s.32; it would in my view simply have been beyond the contemplation of Parliament that the alternative, which would need to have been in place immediate release to be effected, would operate in an impractical way – as Ms Davies points out, if it were to be the case that it was anticipated that a Parole Board might make a direction which was conditional as to time or circumstance, that (so far as a circumstance such as accommodation in a hostel was concerned) the hostel would have to be held available just in case the Board at its hearing might decide that particular prisoner under review was to be released, even though it equally might not. Supervision arrangements would have to be made in anticipation of a possible outcome; appointments with psychiatrists and the like would have to be in place – all of which would be on a provisional basis which, given that the decision lies in the power of the Parole Board which has not yet considered it, might or might not be given effect to. I cannot sensibly construe s.28 in such a way that it would have that effect.”
“Justice to discretionary life prisoners in the post-tariff period in my judgment requires that once a prisoner succeeds in the face of opposition in satisfying a panel that he can safely be released, that decision must be regarded as final and conclusive, subject only to the Secretary of State demonstrating that it was fundamentally flawed or pointing to a supervening material change of circumstances. All that then remains is the making of detailed arrangements for the implementation of the decision within a comparatively short time.”
“For indeterminate-sentence prisoners, while the timing of a hearing is predictable, the result is less certain, but it is still essential to plan ahead. A Parole Board panel may decide to release an offender against the offender manager’s advice; it is quite common for the Board to acknowledge that he is still relatively high-risk and to rely on an AP to manage that risk effectively. Failure to secure an AP place can, as a result, put the public at risk. In cases like this the Board can adjourn to allow a place to be secured, but with its intentions being clear there is relatively little time to do it. The suggested maximum is six to eight weeks. Being prepared before the parole hearing is a much better approach.”
“… 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 Wednesbury standard of unreasonableness [see Associated Provincial Picture Houses Ltd v Wednesbury Corpn[1948] 1 KB 223 ] or any failure to apply established policy.”
“[26] According to Saadi v United Kingdom , the “arbitrariness” which might at an international level affect lawfulness under article 5.1 is relatively confined. The main examples which the European Court gave of situations in which detention might, although lawful under domestic law, be unlawful under the Convention, were: (a) Detention following on the unlawful kidnapping or luring within the domestic jurisdiction of a person wanted for trial can render a person's detention following his or her subsequent conviction unlawful … (b) The deprivation of liberty must genuinely be for one of the purposes permitted by article 5.1 and must, in the case of a sentence, retain a sufficient causal connection with the original conviction: see e g Van Droogenbroeck v Belgium(1982) 4 EHRR 443 , paras 35 and 40 (referring to detention “based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives”), Weeks v United Kingdom 10 EHRR 293, Kafkaris v Cyprus 49 EHRR 877 , para 118 and the House's reasoning in the Walker case[2010] 1 AC 553 , paras 15 and 49. … [29] In neither situation covered by points (a) and (b) mentioned in para 26 above does there appear domestically to be any difficulty about accepting that the prisoner should not have been detained and should be, or have been, released. That is subject to the important proviso that the possibility of a break in the chain of causation envisaged by point (b) is understood—as we consider that it must and should be in domestic law—in the remote and restricted sense indicated by the House in the Walker case[2010] 1 AC 553 . … That “remote and restricted sense” cross refers back to earlier passages in their Lordships’ judgment, citing Walker: “[10] … [The House of Lords in Walker] held that continued detention remained lawful until the Parole Board was “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”, as provided bysection 28(6)(b) of the Crime (Sentences) Act 1997 and in accordance with the principles since considered by this court in R (Sturnham) v Parole Board (No 2)[2013] 2 AC 254 . [11] The only possible exception that the House contemplated was for the (hypothetical) case of detention continuing for a very lengthy period in circumstances where the system of review had completely broken down or ceased to be effective: per Lord Hope, at para 15 and Lord Brown of Eaton-under-Heywood, at para 51. …”
“[38] The duty to facilitate the progress of such prisoners 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, as suggested in In re Corey[2014] AC 516 .”
“[67] This means that although the allocation of resources is not a matter for the Court, the duty on the Secretary of State cannot be met by identifying a lack of resources. If Parliament retains sentences of IPP's for these Claimants, as it has done and is entitled so to do, the Secretary of State has a duty to provide resources to discharge the public law duty.”
“This is not correct”