Hussain, R (on the application of) v The Parole Board of England and Wales [2016] EWHC 288 (Admin)

Case No CO/1022/2015[2016] EWHC 288 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/02/16
Before
MR JUSTICE HICKINBOTTOM
Between
THE QUEEN on the application ofClaimantANWAR HUSSAINClaimantTHE PAROLE BOARD OFDefendantENGLAND AND WALESDefendant
Philip Rule and Varsha Jagadesham (instructed by EBR Attridge LLP Solicitors) for ClaimantBen Collins and David Bedenham (instructed by Government Legal Service) for DefendantHearing Hearing dates: 3-4 February 2016
Judgment
[1]In this case, the court returns to the legal effect of delays in the Parole Board advising and making recommendations to the Secretary of State in respect of life prisoners, this time in the context of pre-tariff reviews to determine whether a prisoner should be transferred from closed to open prison conditions. The case raises an important issue as to the scope of the duties owed by the state to an indeterminate sentence prisoner during the currency of his minimum custodial term to enable him to demonstrate, after the expiry of that term, that he no longer presents an unacceptable danger to the public; and thus he can and should be released.[2]Before me Philip Rule and Varsha Jagadeshamappeared for the Claimant prisoner, and Ben Collins and David Bedenhamappeared for the Defendant Board. I thank them at the outset for their full submissions.

The Legal Background

[3]The claim is made under article 5 of the European Convention on Human Rights (“ECHR”) and at common law.[4]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; …[5]Turning to the relevant domestic sentencing provisions, a person convicted of murder, who was under 18 at the time the offence was committed, must be sentenced to be detained during Her Majesty’s pleasure (sections 90 and 93 of the Powers of Criminal Courts (Sentencing) Act 2000).[6]That is a mandatory life sentence to which section 28(5)-(8) of the Crime (Sentencing) Act 1997 (“the 1997 Act”) and section 269 of the Criminal Justice Act 2003 (“the 2003 Act”) apply. Those provisions require the sentencing court to fix a “tariff” by reference to the seriousness of the offence and the circumstances of the offender, the object of which is punishment. Subject to an offender who was a minor being entitled to apply for advancement of the date if he is able to demonstrate exceptional and unexpected progress during the course of his sentence (under the principles set out in R (Smith) v The Secretary of State for the Home Department [2005] UKHL 51 (“Smith”)), that tariff is the minimum term which the offender must spend in custody. However, even after that term has been served, he will remain in detention unless and until he can demonstrate that he no longer presents an unacceptable risk to the public. The object of that second part of the sentence is to prevent unacceptable risks to the public as presented by the offender, coupled with the continued rehabilitation of the offender with a view to reducing the risk he poses to an acceptable level to allow his release. If and when released, he will still be subject to licence conditions (and liable to recall) for the rest of his life.[7]The date the offender will be released is therefore not determined at the time the sentence is passed. A life sentence is thus one of several forms of “indeterminate sentence” and those serving a life sentence are part of a cohort of “indeterminate sentence prisoners” (“ISPs”).[8]In terms of article 5, the fact that an ISP has been sentenced by a court following conviction means that his whole period in custody is justified by article 5(1)(a); and, for the minimum custodial term, article 5(4) is satisfied by the fact that that term was fixed by the sentencing court as punishment in the form of the appropriate determinate period. However, after the expiry of the tariff, the original sentence is insufficient to satisfy article 5(4). That second and indeterminate part of the sentence cannot be justified on the grounds of punishment, but only on the basis that this is a period for rehabilitation and risk reduction until a point is reached when the offender’s risk to the public is reduced to an acceptable level, whereupon there is no further lawful purpose in his continued detention. Since, after the tariff period has expired, there is a question whether an offender’s continued detention is consistent with that object, the offender has an entitlement under article 5(4) to have that question determined “speedily by a court”.[9]It is immediately apparent that, once an ISP’s tariff has expired, both our domestic scheme and article 5(4) require the assessment of the risk he poses to the public and, in particular, an assessment of whether that risk has been reduced to an acceptable level to allow for his release. Those assessments are made by the Parole Board for England and Wales (“the Board”), established by the Criminal Justice Act 1967 as an arm of the executive government but transposed into an independent executive non-departmental public body exercising judicial functions by the Criminal Justice and Public Order Act 1994. It is associated with the Ministry of Justice, and the Secretary of State for Justice is ultimately responsible for it.[10]The Board operates in the following way. By section 239(2) of the Criminal Justice Act 2003, the Board has a duty to advise the Secretary of State “with respect to any matter referred to it by him which is to do with the early release or recall of prisoners”. Most referrals “to do with the early release… of prisoners” seek the Board’s advice on the risk that a prisoner would represent to the public on release, and a consequent direction as to whether he can now be released permanently subject only to licence conditions. For any particular prisoner who might be ready for release, the first such referral takes place at a time to enable release at, or reasonably shortly after, the expiry of tariff (i.e. “at tariff”); and, if unsuccessful, regularly thereafter.[11]By section 28(5) of the 1997 Act, the Secretary of State is required to release a prisoner if he has served the minimum term and the Board has directed his release. However, by section 28(6), the Board shall not direct release unless “[it] is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”. Thus, the decision to release a life prisoner from preventative detention after the tariff period has expired is effectively in the hands of the Board who are required to assess the relevant risk he poses after the Secretary of State refers him to them for assessment and recommendation.[12]To satisfy the Board that his risk has been reduced to an acceptable level, a prisoner needs an evidential foundation. In practice, that is likely to include evidence of successful completion of courses designed to address his offending behaviour, whether of a violent or sexual nature; and evidence that he has had his progress and eventually readiness to be released into the community successfully tested by phased release involving a transfer from closed to open prison conditions.[13]In open conditions, the offender’s progress is assessed in a number of ways not in practice available whilst he is in closed conditions, e.g. in the context of short-term temporary release on day and overnight licence. Paragraph 4.8.1 of Prison Service Order (“PSO”) 4700 (the Indeterminate Sentence Prisoner Manual, guidance issued by the Secretary of State), inserted by Prison Service Instruction (“PSI”) 36/2010, therefore acknowledges that:
“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.”
Similarly, paragraph 4 of Annex A to PSO 2300 (Resettlement), recognises that phased release enables:
“… life sentence prisoners… [to] be tested and monitored under varying degrees of supervision to enable the Parole Board to take an informed view of their suitability for release on licence.”
[14]This theme is taken up in the Secretary of State’s directions to the Board itself. The directions at the relevant time were those published on 28 July 2004 which, under the heading “Transfer of life prisoners to open conditions”, stated:
“1. A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions. 2. The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed lifer estate. In this context, the focus in open conditions is to test the efficacy of such core risk reduction work and to address, where possible, any residual aspects of risk. 3. A move to open conditions should be based on a balanced assessment of risk and benefits…”
. This guidance was replaced on 1 July 2015 by Annex O to PSI 22/2105 (Generic Parole Process for Indeterminate and Determinate Sentenced Prisoners); but it was not suggested by Mr Collins that the earlier guidance did anything other than appropriately reflect the importance of transfer to open conditions for a life prisoner, and set out the reasons for it.[15]The Secretary of State has a discretion to transfer a prisoner from closed to open conditions without any Board review (see R (Guittard) v Secretary of State for Justice [2009] EWHC 2951 (Admin); as well as guidance in Chapter 5 of PSI 36/2012 which applied at the relevant time, and Chapter 5 of PSI 22/2015 which applies now). However, prior to transferring a prisoner, the Secretary of State will usually refer the case to the Board under the provisions of section 239(2) of the 2003 Act for their advice on the risks and benefits of doing so, and a recommendation as to whether or not to do so at that stage of the sentence. The transfer of an ISP from closed to open conditions involves the re-categorisation of the prisoner’s security classification, which is generally an administrative matter. However, it is now well-established that a transfer is “to do with [the prisoner’s early] release” since the withholding of transfer prevents progress towards release; and the earlier a prisoner is transferred to open conditions, the sooner he is likely to be released (R (Hill) v Secretary of State for the Home Department [2007] EWHC 2164 (Admin) at [5]-[7] per Irwin J, and R (Yusuf) v Parole Board [2010] EWHC 1483 (Admin) at [7] per Keith J).[16]Therefore, for most ISPs, transfer from closed to open prison conditions is an essential step towards release, which is in practice almost always in the hands of the Board.[17]By section 239(5) of the 2003 Act, the Secretary of State is empowered to make rules for the proceedings of the Board, “including… requiring cases to be dealt with at prescribed times”. That is a recognition by Parliament of not only the potential importance of timeliness in parole proceedings, but also the Secretary of State’s role in ensuring that proceedings are dealt with in a timely manner.[18]The current rules are the Parole Board Rules 2011 (SI 2011 No 2947) (“the Rules”). These “apply where the Secretary of State refers a case to the Board relating to the release or recall of a prisoner” (rule 3); and therefore, as was common ground before me, they apply to a referral for advice with regard to the appropriateness of the transfer of a prisoner to open conditions.[19]Where the Secretary of State refers a matter to the Board, the Rules provide for a procedural timetable. Although the timetable prescribed on the face of the Rules runs from the date of referral to the Board (e.g. by rule 7 the Secretary of State is required to serve various information and reports on both the Board and the prisoner within eight weeks of the referral), it is in reality set by reference to the date by which the Secretary of State considers the prisoner’s status should be reviewed, the timetable being designed to ensure that that review date is met. This is apparent from the Board’s own case management guidance document current at the relevant time (Intensive Case Management (“ICM”): Oral Hearing General Guidance (July 2008)) (“the ICM Guidance”)), which, in the section headed “Late referrals”, makes provision for an abbreviated timetable where the referral from the Secretary of State is “late” – in the sense that it does not allow time for the usual procedures before the review date – that ensures that that date is still met.[20]Within 14 weeks of being referred to the Board, the Rules require that a single member shall consider the case without a hearing (rule 16(1)), and that he shall either make a provisional decision that the prisoner is unsuitable for release or “decide that the case should be referred to an oral panel” (rule 16(2)). Where the member refers the case to an oral panel, rule 18 provides:
“… the case shall be considered by an oral panel within 26 weeks of the case being referred to the Board”; and rule 20(1) provides that: “The hearing shall be held within 26 weeks of a case being referred to the Board.”
The date for the oral hearing by the Board is thus, like other procedural dates, determined by reference to the date of referral by the Secretary of State to the Board; which is itself determined by reference to the date by which the Secretary of State considers prisoners should be transferred to give them the opportunity he considers appropriate to demonstrate reduced or reducing risk in open conditions.[21]As I understand it, that 26 week date is, as a result of policy and practice, construed as requiring a hearing in the calendar month from the first day of the month following the referral (see paragraph 26 below). Panel listing is done by the Board in a once-monthly exercise, when cases are considered for listing three months hence. So, for example, where a reference is made in (say) mid-January, the panel hearing is required to be listed in August of that year. That means that a panel hearing date may be slightly after 26 weeks of a referral; but it will certainly be no more than seven months from the referral date. However, in this claim, nothing turns on that construction or precise calculation (see paragraph 52(ii) below).[22]There is no express provision for extensions to the time limits in the Rules; although rule 10 provides that:
“(1) Directions may be given, varied or revoked – (a) before the appointment of a panel, by a member of the Board; or (b) after the appointment of a panel, by the chair.

(a) The timetable for the proceedings…”

. The Board is required to serve notice on the parties of any directions given (rule 10(9)). There is an appeal to the Chairman of the Board against any direction made (rule 10(3)). (a) before the appointment of a panel, by a member of the Board; or (b) after the appointment of a panel, by the chair. (a) The timetable for the proceedings…”.[23]In addition to the Rules, the National Offender Management Service (“NOMS”), part of the Ministry of Justice and an arm of the Secretary of State, has issued guidance to NOMS staff. At the relevant time, the guidance was contained in PSI 36/2012. From 1 July 2015, that was replaced by PSI 22/2015, which is in materially the same terms. Subject to any indication to the contrary, references in this judgment are to the 2012 guidance.[24]In respect of transfer from closed to open conditions, the guidance said (at paragraph 4.1):
“Pre-tariff ISPs are eligible to have their cases referred to the Parole Board to consider their suitability for transfer to open conditions up to three years before the expiry of their tariff. In order to target Parole Board and NOMS resources effectively, the Secretary of State refers only those pre-tariff cases to the Parole Board where there is a reasonable prospect of the Board making a positive recommendation.”
Thus, ISPs may be referred to the Board for consideration of transfer to open conditions at any time after a point three years before the expiry of their tariff. This recognises that, for ISPs who have made such progress in their risk reduction that they may be in a position to be released at tariff, the Secretary of State considers that the appropriate time for transfer to open conditions is at, or reasonably soon after, a point three years before expiry of tariff, which (in the Secretary of State’s assessment) will enable them to have an appropriate opportunity to be able to demonstrate an acceptable level of risk at tariff to allow for their release.[25]It also implicitly requires the Secretary of State to make an assessment of whether, in the case of a particular prisoner, there is “a reasonable prospect of the Board making a positive recommendation” for his transfer to open conditions, if that issue were to be referred to the Board. That obligation arises before the three-year point is reached; so that an appropriate review by the Board can take place at, or reasonably soon after, that point. In the remainder of paragraph 4, there is extensive guidance with regard to how the assessment of and sift for suitable candidates for referral to the Board on the question of transfer to open conditions should be undertaken.[26]The guidance was not formally addressed to the Board, no doubt because of its required independence. However, paragraph 3 stressed the importance of maintaining the “Generic Parole Process” (“GPP”) timetable, as set out in the guidance, namely: “3.1 The GPP timescale and process is divided into 3 parts:• Part 1: 26 week period starting at week 26 and leading up to Week 0, which is the 1st day of the calendar month period in which the Parole Board hears the case. The dossier compilation and disclosure and Parole Board directions are completed during this stage.• Part 2: the calendar month during which the Parole Board hears the case. The Parole Board may list the case anytime during that month.• Part 3: follows on from the oral hearing, and requires that the Parole Board provide the decision and supporting reasons within 2 weeks of the oral hearing date. After the decision has been issued [the Public Protection Casework Section, on behalf of the Secretary of State] must consider any Parole Board recommendation to transfer to open conditions in cases where the Secretary of State has invited the Parole Board to consider such a transfer, and/or set a new further review date if the Parole Board does not direct release. … 3.4 The GPP sets out the key milestones that are required to be achieved at various stages during the process…”.• Part 1: 26 week period starting at week 26 and leading up to Week 0, which is the 1st day of the calendar month period in which the Parole Board hears the case. The dossier compilation and disclosure and Parole Board directions are completed during this stage.• Part 2: the calendar month during which the Parole Board hears the case. The Parole Board may list the case anytime during that month.• Part 3: follows on from the oral hearing, and requires that the Parole Board provide the decision and supporting reasons within 2 weeks of the oral hearing date. After the decision has been issued [the Public Protection Casework Section, on behalf of the Secretary of State] must consider any Parole Board recommendation to transfer to open conditions in cases where the Secretary of State has invited the Parole Board to consider such a transfer, and/or set a new further review date if the Parole Board does not direct release.[27]Paragraph 3.5 of the guidance, referring to the same three-part process, sets out a table of “key milestones and required action” which has, as the “responsibility” of the Board, “issue oral hearing exact date notification” and “confirms hearing date to all parties” at 18 weeks after referral; “PB Oral Hearing taking place during this calendar month” at 26 weeks after referral; and “Deadline for receipt of PB decision (2 weeks following oral hearing)”.[28]The 26 week period referred to in Part 1 of that timetable and paragraph 3.5 of the guidance of course reflects the requirement of rules 18 and 20(1) of the Rules to hear a case within 26 weeks of referral (see paragraph 20 above).[29]Whilst the guidance is not formally addressed to the Parole Board: i) Rules 18 and 20(1), of course, do impose requirements on the Board. ii) The Board in practice appears generally to consider the guidance timetable to apply to it. Mr Collins did not suggest otherwise. iii) In their own guidance document current at the relevant time (i.e. the ICM Guidance), the Board quote this guidance; and make provision for late referrals to ensure that the appropriate review date is met (see paragraph 19 above). In fact, the ICM Guidance has a timetable for a pre-tariff case in which the oral hearing takes place within 22 weeks (rather than 26 weeks) of referral; but no point is taken by Mr Rule as to that (see paragraph 52(i) below).[30]Therefore, in the case of an ISP with a minimum term of more than three years, once he is approaching a point three years before tariff expiry, he is considered by the Secretary of State for referral to the Board for advice and recommendation for transfer to open conditions. If, and only if, the Secretary of State is satisfied that there is evidence upon which the Board might reasonably conclude that the prisoner could safely be transferred, does he identify a review date that he considers will give the prisoner an appropriate opportunity to show a sufficiently reduced risk to allow for release at tariff; and he makes a referral to the Board to advise and make a recommendation as to transfer. Once such a referral is made, to meet the review date identified by the Secretary of State, there should be a Board panel hearing within about 6-7 months of referral; and advice and a recommendation from the Board to the Secretary of State should be provided within two weeks thereafter.

The Facts

[31]On 1 August 2005, as one of a group of young men, the Claimant (then aged 16) chased, assaulted and stabbed to death Charles Anokye, who was defenceless and had done nothing to provoke the attack. Mr Anokye was stabbed thirteen times, including, fatally, a deep wound through his heart. The Claimant took a knife to the scene, was the main participant in the assault, and almost certainly delivered the fatal blow.[32]On 18 December 2006, following a trial at which he was found guilty of murder, the Claimant (still only 17) was sentenced to detention during Her Majesty’s pleasure with a tariff of 12 years. By the time he was sentenced, the Claimant had spent over a year in custody on remand. As a result, subject to any acceleration of the date under the principles set out in Smith (see paragraph 6 above), his tariff expiry date is 19 August 2017. The Claimant has not made any application for review of his minimum custodial term.[33]On 16 April 2014 (about three years four months before tariff expiry), the Secretary of State referred the Claimant’s case to the Board for a pre-tariff review, seeking the Board’s advice as to whether the Claimant was ready to be moved to open prison conditions; and, if they decided to make such a recommendation, asking for their comments on the degree of risk involved. That was the full extent of the advice and recommendation sought.[34]In line with the calculation of the required hearing date to which I have referred (paragraph 21 above), the target month for the panel hearing was set by the Board as November 2014.[35]On 5 August 2014, in accordance with the ICM regime then in place, a member of the Board reviewed the dossier, and directed that there should be an oral hearing. By this time, the Claimant’s Offender Supervisor and Offender Manager had lodged statements recommending that the Claimant be moved to open conditions; and solicitors acting for the Claimant had also lodged representations. The member conducting the review noted that there were no reports outstanding before the hearing could be listed; but directed that various updating reports be lodged by 15 September 2014. Two witnesses were directed to attend the hearing, i.e. the officers who had lodged positive statements. Their dates of availability were filed by 9 September; and the case was then ready to list.[36]The first listing exercise after the Claimant’s hearing was ready to list took place on 23 September, for the calendar month of December 2014. However, the Claimant’s case was not then listed. Nor was it listed at the subsequent monthly exercises until the exercise that commenced on 23 February 2015, for the month of May. Dates of availability for the witnesses were then checked, and the hearing listed on 8 March for 22 May 2015.[37]The reason for the failure to list the case in the five month period December 2014 to May 2015 is clear and uncontroversial: the Board accept that it was a result of a lack of panel capacity to hear the cases that were ready to list (see, e.g., paragraph 17 of Sir David Calvert-Smith’s statement of 12 October 2015: Sir David is the Board’s Chairman, a post he has held since October 2012). As Mr Collins put it in his oral submissions: the Board simply could not list enough hearings to meet the demand. The Claimant’s case was not one that fell within the Board’s policy for prioritising hearings; and it therefore had to wait its turn. At the five listing exercises from September 2014 to January 2015 inclusive, it was not sufficiently high on the list of non-prioritised cases to be set down for hearing. It came to the top of the list by the February 2015 exercise, which listed for May 2015.[38]Nor is there any uncertainty about the cause of this lack of hearing capacity. The Board having only just overcome the challenge posed by the introduction of sentences of imprisonment for public protection (“IPP”) – a new indeterminate sentence which resulted in large numbers of additional cases being referred to the Board – on 9 October 2013, the Supreme Court handed down judgment in R (Osborn, Booth and Reilly) v Parole Board [2013] UKSC 61 (“Osborn”), which gave guidance as to when the ECHR and the common law duty of procedural fairness require the Board to hold an oral hearing. This very substantially increased the number of oral hearings that the Board were required to hold. In October 2013, the number of hearings ready to be listed was 305, and the number which the Board failed to list was 57. By September 2014, the figures were 1188 and 1101 – and by October 2014, 1587 and 1322 - respectively. The capacity of the Board to hold hearings simply could not cope with this new level of demand. I deal with the action taken by the Secretary of State and the Board in the light of Osborn below (see paragraph 45 and following).[39]The Claimant was promptly informed that there would be delay in the listing of his case. On 23 September 2014, the Board wrote to him explaining the effects of Osborn. They said that, each month, they were hearing as many cases as they could, but a queue of hearing-ready cases was developing. It continued:
“At the moment your case is proceeding as swiftly as possible but we have not been able to secure a date for your oral hearing at this time. We fully acknowledge that this may cause you concern and that any long wait term delay is unacceptable. Should you hearing date be further delayed you may want to discuss your options with a legal representative.”
[40]The Claimant did. On 6 November 2014, his solicitors wrote to the Secretary of State requesting an administrative transfer to open conditions without a Board review (a so-called “Guittard application”: see paragraph 15 above) – and the Claimant followed that up with a personal request to the Board in January 2015 – but without response. On 23 February 2015, the Claimant’s solicitors wrote a pre-action protocol letter to the Board requiring rectification of the failure to provide a hearing date by 2 March. After Osborn, such claims were not unexpected by the Secretary of State: indeed, he gave the Board additional funding in the year 2013-14 on the basis that claims would be received (see paragraph 47 below).[41]The Board responded to the pre-action protocol letter on 3 March. Their letter purported to concede that the delay breached the Claimant’s rights under article 5(4) of the ECHR, so that the Claimant was entitled to damages. That concession was later withdrawn, on the basis that the Claimant was still pre-tariff, and thus article 5(4) had no application (see paragraph 8 above). But, in any event, the letter denied that the Claimant was entitled to any mandatory relief, and refused to expedite the Claimant’s Board panel hearing date over those above him in the queue. The Claimant issued these proceedings that day (3 March 2015).[42]By 8 March 2015, the Board had ascertained witness availability for the panel hearing in the Claimant’s case; and, immediately, listed his hearing for 22 May 2015 which proved to be an effective date.[43]Following that hearing, on 27 May, the Board recommended the Claimant’s transfer to open conditions. On 24 June, the Secretary of State informed the Claimant that he accepted that recommendation; and the Claimant was transferred to open conditions at the end of August 2015.[44]To complete the chronology, on 30 October 2015, due to alleged intimidation of other offenders, inappropriate comments to staff and other offenders and failures to comply with the open prison routines, the Claimant was returned to a closed prison, where he has remained since.

The Board’s Action Post-Osborn

[45]Sir David Calvert-Smith deals with the effect of Osborn on the work of the Board – and the steps taken to deal with the consequent increase in oral hearings – in paragraph 48 and following of his statement of 12 October 2015. This very full evidence has been adduced primarily to respond to the wide-ranging general relief sought by the Claimant. I can deal with it relatively shortly.[46]The Parole Board set up a project board to understand and respond to the impact of the Supreme Court decision, the project being called “Fair for the Future: Delivering on Osborn”. By November 2013, the project board had produced a “project initiation document”, identifying two phases to the project: phase A concerned obtaining proper impact analysis and immediate planning, whilst phase B involved the development of a new case management model that would enable the Board to conclude cases in a timely manner and have the versatility to adapt to any future change in demands.[47]As part of phase A, the Board asked the Ministry of Justice Foreseeing and Model Development Unit to prepare an analysis of the impact of Osborn, which was produced in December 2013. That analysed the impact on the basis of a number of scenarios. On the basis of the “higher demand scenario”, it suggested that the Board would need capacity to hear up to 1,400 hearings per month. Over time, that estimate changed, and was 950 hearings per month by September 2014. In the year 2013-14, the Secretary of State also provided an additional £1.25m of funding, although £0.5m of that was in the event returned because(i) the number of post-Osborn claims were less than expected, and the amount of legal costs awarded against the Board was lower than expected, and(ii) the number of members constrained the number of panel oral hearings the Board was in fact able to conduct.[48]In respect of phase B, the project initiation document had a timetable for the preparation of a new model of working, for which Ministerial approval was required; and for the establishment of that model by October 2014. In the event, the new model was first rolled out in December 2014, when it ran alongside the existing regime from which it took over in March 2015.[49]In addition, in July 2015, the Secretary of State announced a broader strategic review of the whole parole process; and, in October 2015, members of the Sentencing Policy Team within the Ministry of Justice, in conjunction with senior executives from the Board, prepared a document setting out the scope of the proposed review etc. On the basis of that, a Parole System Review Board has been created, to undertake the review. One of the aims of the review is to maximise the use of IT; but, it seems, consideration of a replacement computer system to allow for better case management and “smarter working” is “currently on hold due to lack of funding” (paragraph 39 of Sir David Calvert-Smith’s statement of 25 January 2016).[50]The success of these steps is being measured against what is called “the GPP Backlog”, which is the number of cases which have passed the “26 week” hearing target date (as calculated above) without being listed. For some of these cases, there is a valid reason for their missing that target, e.g. the delay is to accommodate witnesses, or to allow the prisoner to complete a course which he may benefit him in showing he is ready to be transferred to open conditions. The Board consider that the number of those cases remains constant at about 1,250 – the GPP Backlog figure was at that level immediately pre-Osborn – and that any GPP Backlog of significantly greater than 1,250 represents cases that are past their target date and ready to list subject only to having the panel hearing capacity to deal with them. The GPP Backlog figure is therefore, in effect, used as a surrogate for the backlog of cases in respect of which the hearing is delayed only as a result of the lack of capacity.[51]The GPP Backlog figure peaked at something over 3,000 in January 2015, when it plateaued. From about October 2015, there is evidence of something of a decline. In tackling the problem, the Board has set a goal of reducing the GPP Backlog figure to 1,450 by October 2016, and to 1,200 cases by April 2017 thus eliminating the backlog of hearing-ready cases by that date. Sir David Calvert-Smith, whilst making it clear that these goals are not “binding” and the achievement of them not guaranteed, considers them to be “possible and realistic” (see paragraph 8 of his statement of 25 January 2016). It is fair to say that Mr Rule not only submits that, even if the backlog were to be reduced to that acceptable level by April 2017, that would not prevent the Board being in breach of its public law obligation to provide systems that ensure ISPs have a reasonable opportunity at tariff to show their risk has been reduced to an acceptable level; but, in any event, he regards the suggestion that the backlog will eliminated by April 2017 with some considerable scepticism. The Duties

Introduction

[52]To clear the decks, it would be helpful to set out those matters in respect of which the Claimant makes no complaint or claim in these proceedings, namely: i) The failure of the Board to comply with the ICM Guidance timetable. Mr Rule does not rely on the Board’s own ICM Guidance, which provided for a timetable from referral to hearing of 22 weeks, rather than 26 weeks (see paragraph 29(iii) above). ii) The precise calculation of when the Claimant’s oral hearing ought to have taken place. Despite the 26 week period for a hearing date fixed by rules 18 and 20(1) of the Rules being in mandatory terms – and the practice of extending that for reasons of operational practicality (see paragraph 20-21 above) – for the purposes of this claim, Mr Rule does not contend that a hearing in November or even December 2014 would have been unlawful. For his part, Mr Collins conceded that the hearing was delayed by about six months as a result of lack of panel hearing capacity (although he denied that that delay amounted to a breach by the Board of any public law or ECHR duty). It is common ground that, but for the shortage of panel hearing capacity, the Claimant’s hearing would have taken place (and his transfer to open conditions would have been effected) about six months earlier than in fact occurred. iii) The holding of the ICM directions hearing (when there was a direction for an oral hearing) on 5 August 2015, rather than any earlier. That, in any event, had no material impact upon the hearing date fixed. iv) The period from the setting of the hearing date on 8 March 2015, to the Board’s direction on 27 May 2015 to transfer the Claimant; and indeed to the Claimant’s actual transfer to open conditions at the end of August 2015.[53]The claim is thus focused exclusively on the delay between September 2014 (when the case was ready for oral hearing) and February/March 2015 (when it was listed for a hearing), a period of 5-6 months, which meant that the transfer of the Claimant to open conditions was delayed by a similar period.[54]Mr Rule submitted that, in delaying the hearing for that period as they did, the Board breached their duties at common law and under article 5 of the ECHR.[55]These duties have been the subject of substantial consideration by the higher courts, particularly in the context of a failure to provide rehabilitative courses etc and a failure to provide prompt Board hearings at or post-tariff. The jurisprudence was comprehensively considered by the Court of Appeal in R (Kaiyam and Haney) v Secretary of State for Justice [2013] EWCA Civ 1587 (in which the common law duties were considered by Lord Dyson MR, giving the only substantive judgment), and by the Supreme Court in the appeal from that case (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) (in which Lords Mance and Hughes JJSC gave a joint judgment in conjoined appeals with which, in respect of the relevant matters of principle so far as article 5 is concerned, the entire court agreed). For convenience, I shall refer to these judgments as Kaiyam (CA) and Kaiyam (SC) respectively.[56]In Kaiyam (CA), drawing together learning from previous authorities, Lord Dyson identified “three distinct, but closely-related, public law duties” with respect to the provision of such facilities (at [23]), as follows: “… the duty(i) to act rationally in the provision of courses and assessments;(ii) to provide and operate a reasonable and sufficient system of courses and assessments in accordance with the statutory scheme and its underlying policy; and(iii) to follow his own policy at the material time”.[57]I will look at each of those duties, briefly, in turn – although in an order which is more convenient for the purposes of this claim – before turning to article 5.

The duty to provide and operate systems and resources

[58]In Kaiyam (CA), at [24], Lord Dyson approved the articulation by Lord Hope in R (James, Lee and Wells) v Secretary of State or Justice [2009] UKHL 22 at [3] (“James”) (a case concerning a failure to provide recommended rehabilitative courses) of a duty, implicit in the statutory scheme:
“… 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”; or, as Lord Dyson himself later reformulated it (at [28]), a duty: “… to provide systems and resources necessary to afford to [ISPs] a reasonable opportunity to demonstrate that they are no longer dangerous.”
As Lord Dyson indicated (again, at [28]), this 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 duties of the Secretary of State, referred to below, may be engaged.[59]James laid an emphasis upon resources – in the sense of funding – because it seemed that the inability of prisoners to obtain placements on prison courses, necessary for their progress towards release, was due to a failure of the Secretary of State to provide adequate funding. In James, the Secretary of State conceded that it was implicit in the statutory scheme that he had an obligation to make provision which allowed those sentenced to imprisonment for public protection a reasonable opportunity to demonstrate that they should be released. Lord Hope made clear that, in his view, that concession was appropriate; and, subsequently, the Secretary of State has accepted the burden of that duty as attaching to all ISPs. He has been right to do so.[60]As Mr Collins frankly concedes, the domestic and European authorities make abundantly clear that, in the context of article 5(4), the state cannot defend what would otherwise be a breach of the obligation to determine the lawfulness of continued detention “speedily” by reference to constraints on resources (see, e.g., R (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ 770 (“Noorkoiv”) at [31] per Buxton LJ; and STS v Netherlands (2012) EHRR 35 at [48]). As Richards LJ put it at the Divisional Court stage of R (Robinson & Massey) v Secretary of State for

Justice [2013] EWHC 3777 (Admin) at [61]:

“We understand the tight financial situation across the entire prison estate and the difficulty of allocating limited resources between a range of competing demands. But the duty is to make reasonable provision, and that duty plainly requires sufficient resources to be made for its fulfilment.”
[61]However, the provision of adequate funding is not the full scope of the duty: the duty of the state is to provide and operate a system that gives ISPs a reasonable opportunity of demonstrating to the Board, at tariff or at one of the required regular reviews thereafter, that the risk they pose to the public is at no more than an acceptable level. Whilst the state will breach that duty if it fails to dedicate sufficient funds for the purpose, any failure to provide and operate such a system will amount to a breach.[62]That too is made clear in the authorities. In James and Kaiyam (CA) Lord Hope and Lord Dyson respectively referred to “systems and resources”. It is also emphasised in the article 5(4) authorities, to which I was referred. The following are sufficient by way of example: i) In Noorkoiv, Buxton J said (at [24]):
“… [I]t is the obligation of the state to organise its legal system to enable it to comply with Convention requirements” ii) In R (Cawley) v Parole Board [2007] EWHC 2649 (Admin), Sullivan J said (at [22]: “Both defendants [i.e. the Board and the Secretary of State] must ensure that systems are in place which enables hearings [before the Board] to be arranged ‘speedily’ in accordance with article 5(4)…”. iii) That passage from Cawley was reiterated and approved by Slade J in R (Smith) v Parole Board [2008] EWHC 2998 (Admin) at [40]. iv) R (Biggin) v Secretary of State for Justice [2009] EWHC 1704 (Admin) was a case concerning a delay in a prisoner’s on-tariff review, caused in part by a late referral by the Secretary of State and in part by the failure of the Board to list a hearing in a timely manner. Although an at tariff hearing, the claimant prisoner did not press for his immediate release; but rather contended that, at that stage, he ought to be transferred to open conditions. As a result of the delay in the review process, his transfer to open conditions was delayed by several months. Having reviewed the authorities, Cranston J said (at [33]): “In relation to responsibility for the delay, clearly in this case the Ministry of Justice bears the major share of the blame. They needed to ensure that the matter was referred to the Parole Board at the appropriate time…. Nonetheless, in my view, the Parole Board cannot escape completely. The Ministry of Justice and Parole Board need to work together to ensure that article 5(4) is satisfied…. In terms of their [ICM] system there is a responsibility on the Parole Board, as Slade J made clear in the Smith decision, to ensure that the proceedings work smoothly. Consequently, while they do not have the primary responsibility for delay, they bear a secondary responsibility.”
[63]Of course, most of these authorities concern the application of article 5(4) to at tariff or post-tariff prisoners. However, the common law duty of the state is to provide and operate a system that gives ISPs a reasonable opportunity of demonstrating to the Parole Board at tariff that the risk they pose to the public is at no more than an acceptable level. The principles set out above therefore apply equally to prisoners who can, pre-tariff, show that, as a result of a systemic failure by the state, they have been deprived of a reasonable opportunity of demonstrating to the Board at tariff that the risk they pose to the public is at no more than an acceptable level. In other words, the state will breach its James public law duty if the system it has set up and operates is such as to deprive ISPs of that reasonable opportunity by steps it has taken, or failed to take, pre-tariff.

The duty to provide systems and resources in a rational way

[64]The James public law duty does not of course emasculate the traditional Wednesbury test: the Secretary of State and Board are still obliged to set up and operate systems (including the funding of those systems) in a rational way. However, where there is a breach of the James duty, the duty to act rationally is likely also to 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 providing reasonable systems and resources for such courses and places (see Kaiyam (CA) at [29], R (Cawser) v Secretary of State for the Home Department [2004] EWCA Civ 1522 (“Cawser”) at [19], [30] and [34] per Simon Brown LJ, and R (Weddle) v Secretary of State for Justice [2016] EWCA Civ 38).

The duty to act in accordance with rules and policy

[65]Mr Rule did not differentiate between the Rules and general policy. Both are promulgated by the Secretary of State; but they require separate treatment because, whilst the Rules no doubt represent the policy of the Secretary of State, they are in the form of delegated legislation which has been approved by Parliament in the manner Parliament chose, namely the negative resolution procedure.[66]As confirmed by paragraph 7.1 of the Explanatory Memorandum, one of the obvious purposes of the Rules is to afford prisoners rights including the procedural rights conferred by article 5 and the common law. Rules 18 and 20(1) have to be construed in that context. The requirement for a prisoner’s case to be considered by an oral panel within 26 weeks of referral is in mandatory terms (“… shall be considered by an oral panel…” (rule 18); and “… the hearing shall be held…” (rule 20(1)), and is clearly intended for the benefit of the prisoner. It is an obligation that can be varied by the Board acting in its judicial capacity by way of extension of that time, if (e.g.) a variation is required as a result of the prisoner’s own conduct or it is in the prisoner’s interests to extend that time to allow important witnesses to attend or to allow a prisoner a period of time to complete a rehabilitation course. Those examples are anything but exhaustive, and rule 10 no doubt gives the Board a wide discretion in respect of its own procedures in an individual case. However, a policy or practice which means that the mandatory requirements of rules 18 and 20(1) are routinely not met would be fundamentally inconsistent with the intention and will of Parliament; and, as such, could not be lawful.[67]In respect of the general policy documents upon which Mr Rule relies, these are not inconsistent with, but properly complementary to, the Rules. They set out, in more detail, how in practice the 26 week requirement can and should be met. There is a public law duty generally to act in accordance with any policy that the executive sees fit to adopt at the material time, unless there are good reasons to depart from that policy (In re Findlay [1985] AC 318 at page 338E, and R (Lumba) v Secretary of State for the Home Department [2012] UKSC 12 at [35] per Lord Dyson JSC).

Article 5 of the ECHR: The Ancillary Duty

[68]In respect of the article 5 claims, in Kaiyam, the Court of Appeal declined to offer its own view because, despite the European Court of Human Rights subsequently finding that the House of Lords’ determination was wrong (James v United Kingdom (2012) 56 EHRR 399), it was bound by the House of Lords’ ruling in James to dismiss such claims. The human rights claims were thus considered by the Supreme Court in Kaiyam, where they were analysed in the judgment of Lords Mance and Hughes; although the Supreme Court did not have before it the common law claims, in respect of which the Court of Appeal’s judgment remains good law.[69]The relevant parts of article 5 are quoted above (paragraph 4). As I have indicated, for an ISP, once the tariff has expired, article 5(4) bites, because there is a question as to whether, in line with the sentencing court’s object, the offender needs to be detained because rehabilitation efforts have failed sufficiently to reduce the risk he poses to the public to allow for his release – and he is entitled to have that question determined “speedily by a court” (see paragraph 8 above). Therefore, when he is subject to delays in release, a post-tariff prisoner is able to invoke article 5(4) (Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, as explained by Lord Reed JSC in R (Faulkner) v Secretary of State for Justice, R (Sturnham) v The Parole Board (No 1)[2013] UKSC 23 (“Faulkner and Sturnham”) at [9]-[10]).[70]But, the same analysis does not apply to pre-tariff prisoners, who are excluded from the scope of article 5(4), the language of which is in terms confined to access to review of continued detention after the expiry of the tariff period – i.e. under the scheme applicable in England and Wales, review by the Board – and does not extend to the prior, pre-tariff stages even in circumstances in which they are intended to produce the information necessary for that review.[71]However, even where article 5(4) does not bite, the Supreme Court in Kaiyam (SC) held that the state is nevertheless under some duty to facilitate an ISP’s release. That duty, not expressly set out in article 5 but arising out the article 5 scheme and analogous to the duty involved under article 5(4), was identified by Lords Mance and Hughes (at [37]) as a duty: “… to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public”.[72]Prisoners, of course, have the corresponding right to be given such an opportunity by the state. That right, like other rights conferred by article 5 and the other provisions of the ECHR, is an individual right (see Kaiyam (SC) at [41]); and, whether it is breached, is “a highly fact-sensitive question in each case” (at [43]).[73]This right focuses upon the reasonable opportunity that the state must accord to an ISP to obtain the evidence that, at the appropriate time, may satisfy the Board that the risk he poses has been reduced to an acceptable level, and thus there is no reason for his continued preventative detention and he should be released. Under the duty, the state must ensure that an ISP has such a reasonable opportunity: as with the James public law duty, the state cannot plead in defence to a claimed breach that it has taken reasonable and/or proportionate steps to that end (e.g. by establishing a reasonable system for the allocation of resources and facilities to the relevant category of prisoners), or that it has taken a fiscal decision to allocate resources in such a way that the arm of the state responsible does not have sufficient resources to ensure that a particular ISP has that reasonable opportunity (see the authorities cited at paragraph 62 above; and, recently, R (Fletcher) v Secretary of State for Justice and Another [2014] EWHC 3586 (Admin) (“Fletcher”) at [61] and following per Dingemans J). The duty is “absolute” in that sense – it is a duty to ensure that an ISP has an opportunity to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public – but “reasonableness” comes into the equation, because the opportunity that must be afforded is restricted to that which is reasonable.[74]Nor is the ultimate outcome relevant. The duty is focused, not on outcome (in the sense of an earlier release date), but on opportunity, namely the reasonable opportunity to obtain the evidence that may satisfy the Board at the appropriate time that the risk the prisoner poses has been reduced to an acceptable level (which may or may not have the consequence of affecting the release date, depending upon the extent to which the offender is able and willing to take the opportunity tendered). The only sense in which the duty is focused on outcome is therefore if the intended outcome is seen in terms of only the provision of a reasonable opportunity. The duty is breached where that reasonable opportunity is not afforded by the state, even where it can be shown that the prisoner probably would not have seized that reasonable opportunity had it been given to him. It is therefore not a defence to a claim of breach that the prisoner cannot show that he has been or will be detained for a longer period in prison than he would otherwise have been as a result of the state’s breach. For example, if the state fails to offer a required course to a prisoner in a reasonably timely manner, it is no answer to an alleged breach of article 5 that, when he was offered the course late, he did not complete it satisfactorily, thus showing that his period of detention will in the event not be a day shorter as a result of the state’s failure.[75]The ancillary article 5 duty on the state identified by the Supreme Court in Kaiyam therefore has some features in common with the James public law duty; but it is not the same as, or co-extensive with, that duty. For example, the common law duty is focused upon the system that the state is bound to provide, resource and operate; whilst the article 5 duty is focused on the individual’s rights to an opportunity. A system failure is not therefore a prerequisite to a finding of a breach of article 5 – an ISP may be deprived of an opportunity to obtain evidence showing a reduced risk by an idiosyncratic failing by an individual, working within a scheme which is systemically sound. For example, in the individual case of Kaiyam, a prison courses case, it seems that no systemic failure was even alleged; but it was said that the operation of the scheme in the claimant’s case had failed (in that, in particular, following an appropriate recommendation, he was simply not transferred from one prison to another to allow access to appropriate courses), such that the date of his release on licence had been unlawfully delayed. However, of course, a systemic failure may result in a breach of article 5 for an individual prisoner. For example, where the Secretary of State has failed to provide systems and resources to give ISPs a reasonable opportunity to progress towards release which affects 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. As a consequence, in most of the cases in this area, both the James public law duty and article 5 (in the form of article 5(4) and/or the ancillary article 5 duty) will be in play.[76]Lords Mance and Hughes emphasised (at [48]) that the ancillary article 5 duty “clearly exists throughout a prisoner’s detention”. Therefore, where an individual prisoner can show that he has been deprived of a reasonable opportunity of demonstrating to the Board at tariff that the risk he poses to the public is at no more than an acceptable level, it does not matter whether the relevant action or inaction of the state which led to that reasonable opportunity being lost occurred before or after the expiry of the prisoner’s tariff.[77]However, the reasonable opportunity has to be “lost”: an opportunity will not be lost if, despite delay in a step towards release, the state takes further steps to ensure that, by the time of the prisoner’s next review, he has had a reasonable opportunity to show that his risk has been reduced to an acceptable level. Thus, in Kaiyam (SC) at [48], Lords Mance and Hughes said:
“This ancillary obligation clearly exists throughout a prisoner’s detention, and is separate from any obligation to release, whether under domestic law or the Convention. It is geared towards the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period. A failure before the tariff expiry may thus constitute a breach if it remains uncorrected so that he is deprived of such reasonable opportunity, which he ought to have had…”
(emphasis added)

The Claim: The Parties’ Arguments

[78]In lengthy written and oral submissions, Mr Rule contended that, in failing to list the matter for hearing in the period December 2014 to May 2015, the Board was in breach of each of the four common law and ECHR duties identified in Kaiyam. He put forward the claims for breach in a wide variety of ways that were disparate and sometimes lacking optimal analytical consistency, precision and clarity.[79]I shall focus on the best formulation of the claim, as I understood it. The James public law duty and the article 5 ancillary duty each requires the state to afford ISPs a reasonable opportunity to demonstrate to the Board, at tariff, that the risk they pose to the public is at no more than an acceptable level. He submitted that what amounts to a “reasonable opportunity” in these circumstances is in practice determined by the Secretary of State himself. The Secretary of State properly considers that, to afford a prisoner a reasonable opportunity to demonstrate to the Board sufficiently reduced risk at tariff, a prisoner must be given a prior reasonable opportunity to rehabilitate in open conditions.[80]In terms of the common law duty, that is dependent upon a system that ensures that an ISP is transferred to open conditions at the appropriate time, and no later. The Secretary of State assesses the stage of the point in the sentence at which transfer might be appropriate. Whether that is in fact appropriate is dependent upon an assessment of risks and benefits conducted by the Board. However, the parole system set up by the state means that oral hearings before the Board (and, hence, the response, advice and recommendations of the Board, and thus the ultimate decision of the Secretary of State on transfer) are routinely delayed. That deprives prisoners generally of a reasonable opportunity to rehabilitate in open conditions and thus a reasonable opportunity to demonstrate to the Board, at tariff or at their next review, that the risk they would pose to the public is at no more than an acceptable level. In failing to ensure that such a system is set up and in operation, the state is in breach of the James public law duty.[81]In the Claimant’s case, it is also in breach of the ancillary article 5 duty; because, as a result of the systemic failure, the Claimant has been denied a reasonable opportunity to demonstrate to the Board, at tariff, that the risk he personally would pose is at no more than an acceptable level.[82]Mr Collins frankly acknowledged that the system adopted by the Board has been unable to deal with hearings by the time required by the Rules and Secretary of State’s policy; and he acknowledged that, as a result, the listing of the Claimant’s hearing was delayed. However, he did not accept that the Board had materially breached any duty.[83]Relying upon the passage from the judgment of Lords Mance and Hughes at [48] quoted above (paragraph 77), he submitted that Kaiyam (SC) did not describe the ancillary article 5 duty in terms wider than a duty to provide a prisoner with a reasonable opportunity to prove his suitability for release at the time of, or reasonably soon after, his tariff expiry date. In this case, despite the unfortunate delay in listing his panel hearing, the Claimant was in fact transferred to open conditions at the end of August 2015, two years before his tariff expiry date. The failure to list the hearing more promptly (Mr Collins submitted) has not denied the Claimant a reasonable opportunity to prove his suitability for release at the time of his tariff expiry date; because, in the two years from August 2015, the Claimant will have every reasonable opportunity to produce an evidential basis upon which he could prove that suitability. Any failing of the Board thus has been, or will be, “corrected”; and there has been no breach of the ancillary duty.[84]As the Claimant has not been denied a reasonable opportunity to prove his suitability for release at the time of his tariff expiry date, it is not open to him to claim in respect of an alleged defective system which has not had any adverse impact upon him. For those in the position of the Claimant, there is no material systemic deficiency.

The Claim: Discussion

[85]It is common ground that the six month delay in listing the Claimant’s oral hearing arose as a result of a failure by the Board to provide sufficient panels to enable prompt hearings to take place in cases that were “hearing-ready”. It is also clear that this was not an idiosyncratic problem for the Claimant: the evidence is firmly to the effect that all non-prioritised cases were in 2014, and still are, delayed for several months. In that sense, the delay was and is “systemic”. Whether the precise cause of the lack of hearing capacity is inadequate funding, as Mr Rule asserts, is not to the point: the delay in any event arises as a result of the system which the state has provided.[86]The core issue in this case is, in my view, the scope of “reasonable opportunity”. This concept arises in the context of the James public law duty and the ancillary article 5 duty, both of which are defined or described by reference to “reasonable opportunity” of demonstrating to the Board, at tariff, that risk to the public is at no more than an acceptable level. In the case of the James duty, the focus is on the system provided by the state: it is a duty to provide systems and resources necessary to afford to ISPs a reasonable opportunity to demonstrate that they are no longer dangerous. In the case of the ancillary article 5 duty, the focus is on the individual prisoner: it is a duty to provide a reasonable opportunity for a particular prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public.[87]Inherent in the concept of “reasonableness” is an evaluative assessment. In this context, I accept Mr Rule’s submission that the Secretary of State essentially defines “reasonable opportunity” to demonstrate an appropriately reduced risk, in that the assessment of what amounts to a “reasonable opportunity” in all the circumstances is primarily a matter for the Secretary of State.[88]This is helpfully illustrated in the individual case of Haney which, Mr Rule submitted, is materially indistinguishable from the Claimant’s case. Mr Haney was serving a life sentence for robbery, with a tariff due to expire on 13 November 2012. The Secretary of State approved him for transfer to open conditions in a letter of June 2011, but he was not in fact transferred until July 2012, the sole reason for that delay being the inadequate provision of open prison places which required the unfortunate Mr Haney to wait his turn. In Mr Haney’s case, it was common ground that the delay in transfer to open conditions – which led to the transfer being made only about four months before the date of his tariff expiry – meant that, at tariff, he would not on any view be in a position to put forward an evidential basis upon which the Board would find his risk had diminished to an acceptable level for his release. Four months in open conditions was simply insufficient time for him to demonstrate that reduction in risk.[89]However, that single fact should not distract from the careful analysis provided in Kaiyam (SC). Immediately after the passage relied upon by Mr Collins quoted above at paragraph 77, Lords Mance and Hughes continued:
“48. … The question [in Mr Haney’s case] is accordingly this: was Haney afforded a reasonable opportunity to reform himself and (crucially in his case) to demonstrate that he no longer presented an unacceptable risk to the public. 49. The answer to this question is, in Haney’s case, given by letter to him from the Secretary of State of June 2011. By this letter the Secretary of State identified what a reasonable opportunity was for Haney to demonstrate that he was no longer a danger – that is to say a transfer to open conditions – and adjudged that he should have that opportunity there and then. Unlike the other claimants, there was no other opportunity which could be afforded to him to demonstrate this. That he did not have this reasonable opportunity was the result of the systemic failures identified in [James]. It is clear that but for those failures, Haney would have been transferred to open conditions in or about late summer 2011. What he would have made of that opportunity cannot be known, nor can it be known when or whether the Parole Board would have adjudged him safe for release on licence which would endure for the rest of his life. But that he was deprived of the reasonable opportunity which the Secretary of State himself said that he should have is clear.”
(emphasis added).[90]Similarly, in the case of Massey. In October 2010, NOMS on behalf of the Secretary of State wrote to Mr Massey accepting an earlier recommendation that he should attend a particular rehabilitative course on the basis of a specified timetable leading to a Board hearing in about June 2012. However, there was no place for him on a course until May 2013. Again, Lords Mance and Hughes held that the Secretary of State had himself identified what was regarded as a reasonable opportunity. They said (at [69]):
“… [T]he Secretary of State by the formal letter of October 2010 effectively defined what was regarded as a reasonable opportunity for Massey to build on the partial progress which he had made and to demonstrate (if he could) that he was safe to release, namely over a two-year period. Neither this timetable nor anything approximating to it was honoured. Instead, it was not until after that period had come and gone that he was able to begin the [course], and the letter shows that even if this produced a successful outcome, a further year or thereabouts was contemplated. We conclude that in Massey’s case there was a failure to provide him with the opportunity to try and demonstrate that he was safe for release which the Secretary of State regarded as unreasonable.”
(emphasis added).[91]I would also briefly refer to the case of Jarvis (heard at first instance by Lang J, together with Haney: [2013] EWHC 803 (Admin)), the facts of which appear to have been even closer to those of the Claimant than Haney. Mr Jarvis’s tariff expiry date was 8 July 2013. In June 2011, the Secretary of State accepted a Board recommendation that he should be transferred to open conditions, thereby identifying what he considered to be a reasonable opportunity for the prisoner to show reduced risk. Lang J, understandably, found that, the terms of that letter indicate that the Secretary of State intended Mr Jarvis to be transferred to an open prison promptly, so that areas of concern could be addressed before his next Board review in July 2013. Because of a lack of places, he was in fact transferred in July 2012. By the time of the hearing before Lang J (in March 2013), the reports for the forthcoming review appeared not to recommend his release, in part because those areas of concern had not been adequately tested during his period in open conditions through employment and leave in the community (see [40]).[92]In each of those cases, the Secretary of State circumscribed what he considered to be a reasonable opportunity of demonstrating to the Board, at tariff, that the risk to the public is at no more than an acceptable level by identifying a step that, he considered, was essential to providing such an opportunity, including the time at which that step should be taken.[93]Whilst in Massey the Secretary of State set out a timetable which (he considered) would ensure that such a reasonable opportunity was given, I accept that the circumscription of the steps which (in the Secretary of State’s view) comprise a reasonable opportunity to persuade the Board as to risk at tariff may be somewhat more sophisticated in cases which are referred to the Board pre-tariff. However, the same principles and approach apply. I accept Mr Rule’s submission that the Claimant’s case is materially indistinguishable from Haney and, indeed, these other cases.[94]As I have described, in pre-tariff cases, the Secretary of State identifies what he considers to be a reasonable opportunity through the Rules and his own guidance, promulgated in part to comply with the state’s duties at common law and under the ECHR. As I indicate above (paragraphs 23-30), his own policy recognises that, where the risk-benefit analysis is appropriately positive, an ISP should be transferred to open conditions at a point about three years before the expiry of his tariff period. That is identified by the Secretary of State as the appropriate period in open conditions to give those prisoners a reasonable opportunity to prove themselves suitable for release at tariff.[95]Having made that assessment, it is incumbent on the state to satisfy the James public law duty, namely to establish and operate systems that will ensure that that reasonable opportunity is afforded. Here, it demands that appropriate prisoners are identified and are transferred to open conditions at or about that stage of their sentence. The Secretary of State has established what he considers to be an appropriate scheme, through the Rules and his guidance. They provide a timetable designed to ensure that, generally, prisoners are identified, assessed and transferred to open conditions at, or reasonable shortly after, the point three years from their expiry of tariff, if the assessment made of them is to the effect that the risk is sufficiently low for such transfer then. In an appropriate case, that timetable is triggered by the Secretary of State, who considers, first, whether the individual prisoner’s case is one in which the Board might recommend transfer to open conditions at or about the three-year point; and, if so, to refer the prisoner to the Board for advice and a recommendation. In the Claimant’s case, the Secretary of State triggered the timetable by making a reference to the Board about three years and four months before his tariff expiry.[96]The timetable required by the Secretary of State requires the Board to have an oral hearing in a case within 26 weeks of the reference to them. That is mandated by the Secretary of State, not just as a matter of policy but in the form of Rules which have been approved by Parliament. The reference by the Secretary of State in the Claimant’s case was such as to enable the Claimant to be transferred at, or reasonably shortly after, the three-year point.[97]In the Rules and policy, the Secretary of State thus defines “reasonable opportunity” to demonstrate, at tariff, that a particular prisoner would no longer present an unacceptable danger to the public, because they set a provisional review date and set mandatory time limits from the date of referral by which a case must be heard by the Board to ensure that that review date (and, thus, the date for transfer deemed appropriate by the Secretary of State) is met. The Rules and policy require the referral of a particular prisoner to the Board by the Secretary of State, when he assesses that there is a reasonable prospect of the Board recommending transfer, with a mandatory timetable that ensures that the prisoner will be afforded a reasonable opportunity to rehabilitate in open conditions and to satisfy the Board as to his level of risk at tariff expiry.[98]The timetable set does not require the review date to be met in all cases, irrespective of circumstances. Case management directions may be made by the Board exercising its judicial function under rule 10 of the Rules, if an extension of time for a particular time limit in the Rules is required because (e.g.) of witness availability problems, or to allow the prisoner to complete a course that might produce evidence that will assist the Board’s assessment of the transfer issue (see paragraph 22 above). Indeed, such an extension may be necessary to ensure fairness to the prisoner. However, the “reasonable opportunity” having been identified by the Secretary of State in terms of a review by a particular date (and, thus, a panel hearing by a fixed date before), it is not open to the Board to establish or operate a practice that inherently includes wholesale delay, e.g. on the basis of a general lack of capacity of panels, either because of inadequate resources or the way in which adequate resources are managed. Such a practice would be contrary to both the will of Parliament as set out in the Rules, and also the established policy of the Secretary of State.[99]As I have indicated, Mr Collins contends that the failure to list the Claimant’s hearing more promptly has not denied him a reasonable opportunity to prove his suitability for release at the time of, or reasonably soon after, his tariff expiry date, because he was in fact transferred in August 2015 – two years prior to his tariff expiry date – and, in those two years, the Claimant would have every reasonable opportunity to produce an evidential basis upon which he could prove that suitability.[100]However, I do not find that submission compelling: in particular, in my view, it fails adequately to distinguish a breach of this duty from the possible consequences of such a breach. As I have indicated, the duty is to ensure that a prisoner has a reasonable opportunity to establish that he is safe to release at the expiry of the tariff period, whether or not his date of release is ultimately affected. This case does not focus on whether the delay to listing ISP hearings before a Board panel will or will not, in fact, result in the date of his release being delayed; rather, at the heart of this case is whether the delay in listing hearings has or has not deprived ISPs of a “reasonable opportunity” to demonstrate at their tariff period expiry that they would no longer present an unacceptable danger to the public – which is a very different question.[101]In the Claimant’s case, the Secretary of State assessed that an appropriate period for the Claimant to demonstrate a sufficiently reduced risk in open conditions was about three years. He considered that to be essential to afford the Claimant a reasonable opportunity to satisfy the Board as to his level of risk at tariff expiry. As a result of the failure of the Board to list the hearing in a timely manner, the Claimant had available only about thirty months in open conditions prior to his tariff expiry. That was less than the time in open conditions considered by the Secretary of State to be necessary to afford the Claimant that reasonable opportunity. There is no evidence – indeed, there is no suggestion – that that diminution in opportunity would have been “corrected” in some way prior to the Claimant’s tariff expiry.[102]Nor is it a defence for the Board to say (as they do) that they have taken considerable – and, at least, reasonable – steps to cope with the caseload crisis that has followed Osborn. This defence was put forward in R (Dilks) v Secretary of State for Justice [2015] EWHC 11 (Admin), which involved a challenge by another prisoner who alleged that he had not been provided with an open prison place in a timely manner, because of the paucity of such places. The delay in his case was about four and a half months. In his defence, the Secretary of State submitted that he had taken reasonable steps to overcome the backlog of prisoners waiting for places in open conditions. In that case also, Mr Rule acted for the claimant. I dealt with the Secretary of State’s submission at [109]-[112], pointing out that in Kaiyam (SC) at [48]-[49], although dealing with the ancillary article 5 obligation, Lords Mance and Hughes appear to proceed on the basis that, even after a scheme has been put in place eventually to remedy that backlog and thus delay to prisoners, unless and until the backlog has been removed there will be a continuing breach of the James public law duty. That appears to be in accordance with principle and, in my respectful view, right. In any event, such “remedial measures” can have no effect on any breach of the ancillary obligation under article 5.[103]In Haney, the reason for the delay was simple: as I have described (see paragraph 89 above), because of inadequate provision of open prison places, although the Secretary of State approved him for transfer in June 2011, he had to wait his turn and he did not arrive at the top of the waiting list for a year. In this case, the reason for the delay is a failure of the state to provide, not open prison places as such, but a proper mechanism for a prisoner to obtain a place in open conditions in a timely manner. The nature and result of the delay are the same. Had the state provided a mechanism, ISPs in the position of the Claimant would have been transferred to open conditions earlier than they were in fact transferred, i.e. they would have been transferred at the time the Secretary of State had identified as the right time to give them a reasonable opportunity to provide an evidential case for release at tariff expiry through their rehabilitative work in open conditions.[104]Therefore, the Claimant has satisfied me that the system adopted by the state – under which it was and is the practice of the Board to delay oral hearings of those referred to them by the Secretary of State so that, for many prisoners, the review date for transfer to open conditions is inevitably missed – is unlawful as being in breach of the James public law duty. The delay results from a systemic failure, which deprives ISPs of a reasonable opportunity to demonstrate at their tariff period expiry that they will no longer present an unacceptable danger to the public.[105]Further, as a result of this systemic failure, the Claimant’s transfer to open conditions was delayed, thus depriving him of a reasonable opportunity to demonstrate at his tariff period expiry, that he will no longer present an unacceptable danger to the public. Therefore, the ancillary article 5 duty is also breached.[106]In addition to that being a breach of both the James public law duty and the ancillary article 5 duty, Mr Rule submitted that the circumstances of this case amounted to a breach of both the duty to comply with policy and the duty to act rationally. These submissions did not materially add to the primary argument, and I can deal with them briefly.[107]With regard to the duty to act rationally, at the hearing, Mr Rule submitted that the system adopted was Wednesbury unreasonable on the basis (and only on the basis) that it was irrational to have adopted a system that resulted in the transfer of prisoners to open conditions being inevitably delayed that was more expensive than a system that enabled timely transfers. However, leaving aside the fact that, even if the system adopted does cost more, generally the state has a wide discretion in any system it adopts which requires an assessment of many factors and not just cost, that submission is inconsistent with the challenge pleaded at paragraph 63 of the Statement of Grounds settled by Mr Rule, namely there had been a breach of the article 5 ancillary duty in that the state had adopted “an approach of paying modest damages from the Parole Board budget rather than the more expensive option of resourcing properly the parole system to remove violations of article 5…”. It is true that, after the Board’s evidence had been served, the Claimant did submit (in paragraphs 115-117 of his Reply and through Mr Rule at the hearing) that the adopted system costs more than a system without the delays, but no formal application was made to amend the grounds and, in any event, the ground was far from made good on that basis.[108]In my view, as apparently conceded by the Secretary of State in Cawser at [30], it is strongly arguable that it is inherently irrational to have a policy or practice of making release dependent upon the prisoner taking a particular step – whether undergoing a treatment course, or obtaining a recommendation from the Board – without making proper provision for such a step being taken in a timely way. “Provision” here includes not just resources in the form of simply funding, but the administration necessary to ensure that otherwise adequate money and resources are used to fix hearings in a timely way. However, irrationality on that basis does not add to the substance of the James public law and article 5 grounds dealt with above.[109]In relation to the duty to comply with rules and policy, Mr Rule emphasised the need for compliance. However, as I understand it, he does not expressly rely upon the failure of the Board to list hearings within 26 weeks of referral, in breach of rules 18 and 20(1) of the Rules, as a separate ground of challenge – there does not appear to be any discrete claim based upon such a breach – but, rather, he essentially relies upon those rules to define “reasonable opportunity” in this case in the way I have described. Again, this does not add to the substance of the grounds with which I have already dealt.[110]For those reasons, I conclude that, on the basis I have described above, in having a system in which oral hearings were and are routinely delayed so that the review date for consideration by the Secretary of State of the transfer of ISPs to open conditions and the actual transfers were also delayed, the Board were in breach of the James public law duty; and, as that systemic failure directly affected the Claimant, also in breach of his ancillary article 5 right.

Relief

[111]There was a substantial amount of time spent before me debating appropriate relief, should I find the alleged breaches proved, as I have. Despite that lengthy debate, I can deal with the issue shortly.[112]So far as the breaches of the common law duty I have found proved, the Claimant is entitled to appropriate declaratory relief.[113]A breach of the ancillary article 5 right finds satisfaction in a declaration of unlawfulness and, in appropriate cases, damages. Mr Rule, realistically, does not suggest that the Claimant can show that his release date has been adversely affected by the Board’s breach of duty. In those circumstances, the award of damages is limited to damages for “legitimate frustration and anxiety”, if and to the extent that such can properly be shown or inferred to have been occasioned, on the basis of the general approach set out by Lord Reed JSC in Faulkner and Sturnham (see Kaiyam (SC) at [39]). In Faulkner and Sturnham at [13], Lord Reed set out a number of propositions relating to this head of damage, as follows:
“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.”
[114]The Board accept that, if (as I have found) they breached the ancillary article 5 duty, damages are payable subject to and in accordance with these principles.[115]I did not, however, hear detailed or focused submissions on quantum. I shall therefore adjourn that issue, to allow the parties time to agree the amount or, if they are unable to agree, to provide me with written submissions on quantum within the next 14 days. Unless any party considers it necessary to have a further hearing, I shall determine the amount of damages due on the basis of those written submissions alone.[116]In addition to that relief, which is relatively uncontroversial, the Claimant seeks wider relief as follows (see paragraph 65(4) and (5) of the Statement of Grounds, repeated in paragraph 127(4) and (5) of Mr Rule’s skeleton argument): i) “a declaration that the Board is not sufficiently resourced or managed, and consequently the state is failing to properly resource and provide a parole system that meets its obligations under the ECHR”; and ii) “a mandatory order that the state must supply to the Court its proposals within 35 days of judgment identifying what steps are to be taken to remedy the systemic problem with the Parole Board lacking the resources to meet, inter alia, the requirements of article 5(4) of the ECHR. Thereafter the Court shall determine whether to make any further mandatory order.”[117]There is no doubt that, in appropriate cases, this court has the power to make orders to ensure that a public body will, in the future, comply with its public obligations. Lord Judge LCJ said in James, in the context of the failure of the Secretary of State to make sufficient provision for rehabilitative courses that prisoners subject to a sentence of IPP required to enable them to obtain a recommendation from the Board for release (at [133]):
“If the Parole Board failed to comply with its own public law duty, or if complaints legitimately made by the Board were ignored by the Secretary of State, then the Administrative Court might see fit to intervene, to direct either the Parole Board better to fulfil its responsibilities, or the Secretary of State to comply with the reasonable requests of the Parole Board for improvements to the IPP regime, sufficient to enable the Parole Board to be satisfied that it can fully discharge its own section 28(6) [i.e. of the 1997 Act] public law responsibilities.”
[118]Mr Rule accepts that such relief would be unusual; but he submits that this is a case in which it is appropriate for the court to take on “a supervisory responsibility for the proper discharge of the functions of the state”, because “without [a] mandatory order insufficient respect is paid by the state authorities to the need to fund and resource the system of [ISPs]…” (paragraph 66 of the Statement of Grounds).[119]In support, he relies upon a case, in which he appeared and in which he says the court did take on such a role in the context of the release of ISPs, namely Fletcher. The claimants in that case had been sentenced to IPP, and had been the subject of long delays in obtaining rehabilitative courses which most of the claimants still awaited. Dingemans J found a breach of the James public law duty, and then adjourned to allow the Secretary of State to submit evidence to address the continuing breach of that duty. Mr Rule said that it was his understanding that that adjournment was not to consider mandatory orders only in respect of the individual claimants (i.e. orders that those particular prisoners be put onto the relevant courses without further delay), but more general declaratory and mandatory orders addressed to the Secretary of State and/or the Board (paragraph 119 of Mr Rule’s skeleton argument).[120]However, I am entirely unpersuaded that an order for such wide relief would be appropriate in this case. In coming to that conclusion, I have particularly taken into account the following: i) In James, immediately after the passage quoted above, Lord Judge went on to emphasise that, although the court had power to make such orders, they would be highly unusual – reserved, he said, for “extreme cases” – because: “Although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the Administrative Court cannot be invited to second-guess the decisions of the Parole Board, or the way in which it chooses to exercise its responsibilities”, the Board being “… exclusively responsible for the procedures by which it will arrive at its decision” (at [134]). I accept that that was said in a slightly different context; but it rightly emphasised that the Secretary of State and the Board have the primary role here. Whilst the court is able to determine whether the Board is acting unlawfully, a lawful scheme may be developed in a wide variety of ways; and the court is not equipped to supervise how that might be done. ii) The evidence before me suggested that the Board are confident that the new model of working that has been set up will eradicate the hearing backlog by April 2017 (see paragraphs 50-51 above). If this court were to make an order requiring the Board (and/or the Secretary of State – although he is not currently a party to these proceedings) to produce proposals for the establishment of a lawful scheme, that scheme is bound to take some time to set up. Mr Rule asserted – without any apparent evidential foundation – that it should be possible to set up a new system and get rid of the current hearing backlog within, say, six months, i.e. by about August or September. However, the court is not well-equipped to consider whether proposals for eradicating the backlog – which the Board (and, it seems, the Secretary of State) are committed to do – are the “best” or most expeditious that can be devised in the current circumstances. iii) Although Mr Rule appeared in Fletcher, in determining the court’s intention in that case, I can only read and interpret the judgments of Dingemans J. They appear to me to be clear. He gave three judgments reported as [2014] EWHC 3586 (Admin), [2014] EWHC 4338 (Admin) and [2015] EWHC 3451 (Admin); which I shall refer to as simply the First, Second and Third Judgment respectively. The judge rightly emphasised that it is not for the court to determine how public law duties (including those that arise from the ECHR) should be discharged, “management” being ultimately a matter for the Secretary of State (see, e.g., the Second Judgment at [12], and the Third Judgment at [5]). Although he required the Secretary of State to address the continuing breach of the James public law duty in the form of further evidence, he did so because he “hoped would lead to a situation where the claimants were put on the [relevant] course” (the Third Judgment, at [6]). Once it became apparent that the individual claimants had been put on courses – or it was imminent that they would be – he considered it was “no longer necessary to make a mandatory order” (the Third Judgment at [16]). Whatever Mr Rule had understood, it seems clear from these judgments that Dingemans J was only concerning himself with mandatory orders requiring the individual claimants to be put upon the relevant course; and not more general relief. iv) The declaration that Mr Rule seeks is little more than a declaration that the Board comply with their legal obligations. It appears to do no more than reiterate in the form of an order, the findings of law and fact that I have made. In the circumstances of this case, I do not consider such further relief necessary or appropriate: it would not be helpful to attempt to encapsulate those findings in the manner proposed. v) The mandatory order sought – said by Mr Rule in his oral submissions to be a mere proposed “direction” – requires the Board to produce proposals for a new system of dealing with oral hearings, with a lead-in time, which the court is ill-equipped to assess. In terms of the mandatory relief proposed, if and when proposals were forthcoming, it is difficult to see how the court could mandate particular steps to be taken. Again, I do not consider such relief to be necessary or appropriate.[121]In my view, although the Board have been found to have been in breach of the James public law duty, this case falls very far short of one in which it would be appropriate to give the wide, general relief sought – or, indeed, anything like it.

Conclusion

[122]For those reasons, I shall allow this judicial review.[123]I shall ask the parties to agree an appropriate form of declaration on the basis of my judgment, and to make efforts to agree quantum and consequential matters. Insofar as the order cannot be agreed, then I shall direct that the parties lodge a draft order of the parts agreed and written submissions of those parts not agreed, within 14 days of the hand down of this judgment. Unless there is an application for a further hearing, I propose to deal with the outstanding matters on the basis of written submissions alone.

Cited in 2 later judgments