Bate, R (On the Application Of) v Parole Board of England And Wales [2018] EWHC 2820 (Admin)

[2018] EWHC 2820 (Admin)

Case No CO/459/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

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

Date 26/10/2018

Before

LORD JUSTICE HOLROYDE

LORD JUSTICE GREEN

Between

THE QUEEN on the application of DANIEL BATEClaimant

PAROLE BOARD OF ENGLAND AND WALESDefendant

Philip Rule (instructed by Coninghams Solicitors) for Claimaint

Holly Stout (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 20th and 21st June 2018

Judgment Approved

[1]The claimant Mr Daniel Bate, who until April 2017 was serving a sentence of imprisonment for public protection imposed in 2008, seeks judicial review of what he alleges was unlawful delay on the part of the defendant Parole Board in its review of his detention. He complains of a violation of his rights under

Article 5(4) of the European Convention

of Human Rights (“the Convention”), and claims declaratory relief and damages. Permission to bring the claim was granted on 1st February 2018.

The facts

[2]Mr Bate was born on 18th September 1985, and so is now 32 years old. On 11th March 2005, aged 19, he committed an offence of possession with intent to supply of a controlled drug of class A. On the 2nd and 3rd of November 2006, aged 21, he committed two offences of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. He was remanded in custody for the latter offences on the 5th April 2007. Following trials at which he was convicted of all three offences, he was sentenced on 19th March 2008. He was found to be a dangerous offender (as that term is defined for sentencing purposes under the Criminal Justice Act 2003). For each of the section 18 offences, he was sentenced to imprisonment for public protection (“IPP”). The court specified a minimum period to be served (“tariff”) of 3 years 5 months. A concurrent determinate sentence, which did not affect his date of release, was imposed for the drugs offence.

[3]The minimum period which Mr Bate was required to serve in prison expired in 2010. The effect of section 28 of the Crime (Sentences) Act 1997 is that, from that point on, the Secretary of State for Justice (“SSJ”) was under a duty to release him on licence as soon as the Parole Board had directed his release. By section 28(6), the Parole Board could not give a direction for his release unless(a) the SSJ had referred his case to the Board, and

(b) the Board was satisfied that it was “no longer necessary for the protection of the public” that he should be confined.

[4]Mr Bate has the misfortune to suffer, or to have suffered, from some mental health problems. He was diagnosed in childhood as suffering from Attention Deficit Hyperactivity Disorder. More recently, there have been diagnoses of Autistic Spectrum Disorder, “tic” disorder and mild learning difficulties.

[5]Mr Bate was not released at the end of his tariff period. On 26th April 2011 he was transferred to open prison conditions. On 29th September 2011, however, he absconded. He remained unlawfully at large until 16th January 2012, when he gave himself up and was returned to closed conditions.

[6]On 17th April 2013, Mr Bate was again transferred to open conditions. Again, however, the move was not successful. On 17th September 2013 he was assessed as unsuitable to remain in open conditions, and was returned to closed conditions at HMP Lewes. The adverse assessment related to a number of incidents, including occasions when he was thought to be under the influence of drugs, and was thought to have been using the drug known as spice (then designated a “legal high”). The decision to return him to closed conditions was the subject of an attempted challenge by way of judicial review. However, permission to apply was refused.

[7]A panel of the Parole Board reviewed Mr Bate’s detention (not for the first time) at an oral hearing on 10th December 2014. The panel did not direct his release. In its report, the panel recognised that Mr Bate appeared to cope well in closed conditions and, to his credit, had done work to address aspects of his offending and recent behaviour. The panel was however concerned that he would struggle to cope in less supported conditions. It felt that a recent prolonged outburst of aggressive behaviour showed that Mr Bate needed to do more work to address his poor self-control and anger, and that release at that stage to approved premises would put him and others at risk.

[8]It is relevant to note that, in that report, the panel said: “There was concern that you may have abused substances when last in open, but you deny this and there is no evidence that you have abused drugs although your relapse plans need development”.

[9]On 13th January 2015 the National Offender Management Service (“NOMS”) wrote to Mr Bate referring to the outcome of the recent review. As to when his detention would next be reviewed, the letter concluded by saying:

“Your review period is therefore set at 14 months – February 2016 and is made up of the following: To do more work to address your poor self-control and anger and to engage in treatment to improve your understanding of how to self-manage your behaviour and show that you can cope with challenge and change without resorting to aggression or violence. Your next parole review process will be undertaken in accordance with the Generic Parole Process, a centrally monitored review process. Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and coordination of various parties, including the Public Protection Casework Section, the Prison Service and the Parole Board. Your parole review will commence in August 2015 and the target month for consideration by the Parole Board is February 2016. You will be notified by the Parole Board nearer the time about the exact dates of their consideration of your case.”

[10]On 24th June 2015 the SSJ, through NOMS, formally referred Mr Bates’ case to the Parole Board for consideration as to whether or not it would be appropriate to direct his release. The letter noted that Mr Bate was not eligible to be considered for transfer to open prison conditions, following a policy announcement in 2014 which denied transfer to open conditions to a prisoner who had previously absconded.

[11]On 27th November 2015 a single member of the Parole Board directed that there be an oral hearing, and that “this case should be listed on the first available date”. It was noted that, at that stage, only limited progress had been made in identifying the support which would be available to Mr Bate if he were released. Directions were given as to the reports which should be obtained, as to the witnesses who should attend, and also – having regard to Mr Bate’s mental health needs - as to the need for the panel conducting the hearing to include a specialist psychiatrist member.

[12]The hearing did not in fact take place until 22nd June 2016. Before that date was reached, in March 2016, a new Offender Supervisor was allocated to Mr Bate’s case. When she saw him for the first time, on 18th March 2016, he told her that he wanted to be honest and disclosed that he had been using spice “on and off for 5 years, up until December 2015”. That was a significant admission, because during the period to which it referred Mr Bate had consistently denied that he was using spice. Subsequent to that admission, on 13th April 2016 Mr Bate tested positive for cannabis and cocaine: he told his Offender Supervisor that he had chosen to smoke cannabis because he was frustrated about not knowing what was happening in relation to his parole, and said that he had not been aware that the cannabis had been mixed with cocaine. He saw his Offender Supervisor again on 20th April 2016, when she observed him to be “in a terrible state: shaking, sweating and disorientated”. He told her that he had used spice the previous day.

[13]A panel of the Parole Board, comprised of three members including a psychiatrist, convened on 22nd June 2016 to conduct an oral hearing. The reports available to the panel included reports in which both Mr Bate’s Offender Supervisor and Offender Manager recommended that he be released, initially to Approved Premises with a view to a subsequent transfer for residential drug rehabilitation at a small establishment run by the St Thomas Fund. The Offender Supervisor’s report stated that Mr Bate had been referred to the St Thomas Fund but had not yet been interviewed. She said that if he were accepted, the establishment would provide “specialised substance misuse support” and would also serve to monitor his behaviour. Her opinion was that Mr Bate was determined to address his substance misuse. The Offender Manager’s report referred to the mental health diagnoses which have been mentioned in paragraph 4 above, and commented that Mr Bate’s use of spice in custody appeared to have been linked to several factors, including – “… self-medication to manage anxiety and low mood; the frustration and uncertainty surrounding his efforts to be released and the widespread availability and culture of spice use in the prison.”

[14]No substantive hearing took place on that date. Instead, the case was deferred. The Parole Board uses the word “deferred” to refer to a hearing which is put off until a later date without being reserved to the panel which makes the decision to defer. Where a case is reserved to the panel which has decided to put it off to a later date, the hearing is said to be “adjourned”.

[15]In a letter dated 31st July 2016, the panel gave the reasons for the deferral. The letter summarised the circumstances of Mr Bates’ offending, the course of his prison sentence and his mental health problems. It referred to his admission in March that he had been using spice for 5 years, saying:

“… the discovery that you had been using substances for years and had been untruthful with professionals about it was obviously very concerning and had implications for your manageability on licence. While your problems might be capable of being coped with in Approved Premises, that would only be for a short time; and in your case, appropriate supported provision would have to be established before release, whether or not there was an intermediate period in Approved Premises.”

The panel went on to refer to the proposal that, if released, Mr Bate would be admitted to the St Thomas Fund. The letter said that the St Thomas Fund was not a specialist drug rehabilitation unit. Given the content of the reports which have been summarised in paragraph 13 above, there appears to have been a misunderstanding on the part of the panel. We do not know how that misunderstanding arose. However, this error is not the subject of a ground of claim, and Mr Rule very properly indicated that he would not apply for permission to make a very late amendment in that regard.

[16]The letter went on to say that the panel had no details of the programmes, or the security arrangements, at the St Thomas Fund. It recorded that these problems had been discussed by the panel with Mr Bate and his legal representative Mr Kenyon, and that there had been an adjournment so that Mr Bate could give instructions. Following that adjournment Mr Kenyon had agreed with the panel’s proposal to defer the case, so that consideration could be given to finding appropriate accommodation in a drugs rehabilitation unit or some other unit suitable for treating his drug problem, and to assembling a suitable and robust risk management plan (which did not yet exist because of Mr Bate’s recent admission of spice use). The report made clear that the deferral of the hearing should not be taken as any indication of its likely eventual outcome: the evidence available at the deferred hearing would of course have to be considered in detail. The letter continued:

“Accordingly, it was agreed that your case should be deferred for a period of 3 months; the panel directs that it should not be relisted before the beginning of October 2016; and the panel makes the further directions set out below.”

The directions stated that a specialist psychiatric member of the panel would be needed, because of Mr Bate’s “complex psychiatric needs”. Directions were given for the preparation of addendum reports by the Offender Supervisor and Offender Manager, and a report from the St Thomas Fund (or any other place at which it was intended that Mr Bate should live after release) giving full details of the rehabilitation programme and security provisions. All of those reports were required by a deadline of 9th September 2016. A direction was also given for the attendance at the deferred hearing of the Offender Manager, the key worker at the prison and a representative of the St Thomas Fund, or the provider of any other accommodation at which it was proposed that Mr Bate would reside if released.

[17]An official of the Parole Board emailed the Offender Supervisor and others on 2nd August 2016 attaching the deferral directions and asking to be provided as soon as possible with witness availability dates from October to February. On 1st September 2016 she emailed again, saying she was still awaiting the name and availability of the representative of the accommodation provider.

[18]In the event, the next hearing did not take place until 22nd March 2017. Thus the actual period of deferral was about 9 months, and the eventual hearing took place about 2 years 2 months after the previous substantive review in January 2015 and about 1 year 1 month after the target month of February 2016 set by NOMS in the letter of 13th January 2015 (see paragraph 9 above). On Mr Bate’s behalf, his solicitor Mr Kenyon made a number of attempts to secure an earlier hearing date.

[19]On 14th September Mr Kenyon sent an email to the prison (copied to the Parole Board) asking for an update on the listing of the deferred hearing, and asking whether the availability of a representative of the accommodation provider had yet been supplied to the Parole Board. A reply the following day (again copied to the Parole Board) advised him of the name of the Manager of the St Thomas Fund, but said she was difficult to get hold of because she was not office-based. A Parole Board official replied promptly, asking persons at the prison to let her know the Manager’s availability dates.

[20]On 28th September 2016 Mr Kenyon sent an email to the Parole Board again asking for an update on the listing of the deferred hearing. He said that Mr Bate had been told at the previous hearing “that he would have another hearing on the first available date after 22.9.2016”. Mr Kenyon said that he anticipated that it may be difficult to list the hearing in October if it was not already listed, but suggested that fairness required that Mr Bate be given the earliest possible hearing date. In reply, a representative of the Parole Board sent an email on the following day in these terms:

“This case is now ready to be listed. Our listings team are currently listing cases for December. Getting the case listed depends on witness dates and availability at the prison. You will be notified once the case is listed.”

Mr Kenyon replied saying that Mr Bate had been “told that he was getting a 3 month deferral and reasonably expected that he would have a hearing in October 2016”. He asked for a hearing in October or, at latest, in November. He sent a chasing email on 19th October 2016, and again on 8th November 2016. There appears to have been no reply to the former. The reply to the latter, on 9th November, merely said:

“Really sorry but the case has not been listed yet.”

You will be notified once the case is listed.”

[21]It appears that there was continuing difficulty in obtaining the dates of availability of the appropriate representative of the St Thomas Fund. On 12th November 2016 the Parole Board requested the dates of availability of all the witnesses for the next 6 months. In mid-November 2016 Mr Bate’s Offender Supervisor emailed Mr Kenyon to report Mr Bate’s frustration and anger about the delay in the listing of his case. She reported that Mr Bate had understood that the deferral of his case on 22nd June “would mean a further hearing in around 3 months”. She noted that Mr Bate had “maintained a mostly positive record here since the last hearing”, and that both she and Mr Bate’s Offender Manager were recommending that he be released. Mr Kenyon wrote to the Parole Board on 16th November 2016, referring to numerous previous requests for the hearing to be listed, and quoting the message received from the Offender Supervisor. He too referred to Mr Bate’s “clear impression”, when the previous hearing was deferred, “that he would have a hearing in 3 months’ time, in September or October 2016”. Mr Kenyon said that something had clearly gone seriously wrong in the listing of the hearing, and asked for immediate steps to be taken to list an oral hearing at the earliest possible date and before 2017. He indicated if that could not be done, legal proceedings would follow.

[22]Although Mr Kenyon’s letter did not make any formal application for expedition, the Parole Board treated it as such an application and referred the letter to a single member for directions. A Team Manager of the Parole Board replied by letter dated 7th December 2016 informing Mr Kenyon of that step. He said that unfortunately the panel chair had not submitted the deferral notice to the Case Manager until the beginning of August, by which time it was not possible to list a hearing for September or October. He commented that “a reason” for the ongoing delay was “in part” due to the requirement for a psychiatric member:

“Due to their specialist nature, we have a limited number of psychologist and psychiatrist members. Members are not employees of the Board and their availability can be impacted by other commitments.”

The Team Manager went on to say that he could not offer an accurate estimate as to when the hearing would be listed, but it would be after January 2017.

[23]By the time that letter was sent, the single Board member to whom the case was referred had already considered it. On 2nd December 2016 the single member gave a decision which recorded, without comment, that Mr Bate said that the deferral had been on the basis that he was “told he would have a hearing about 3 months after the deferral”. The single member said that he had ascertained that the reason for the delay in listing the case related to the requirement for a specialist psychiatric member. Having reviewed the dossier, he agreed that such a member was required. The decision (which appears not to have been promulgated until it was sent to the solicitors and others by email on 15th December) was as follows:

“The duty member considered whether there were any exceptional circumstances which meant that the case met the criteria for expedition or prioritisation and concluded that there were no exceptional circumstances in this case. The prioritisation framework already prioritises cases by target date. The target date remains static, notwithstanding the fact that this case has been deferred. Therefore, built into the deferral is the fact that the hearing has a higher priority than those cases currently waiting to be listed. The fact that there is support for release is not an exceptional reason, and the panel has no medical evidence to support the view that Mr Bates’ physical or mental health is being adversely affected, any more than other prisoners who are in a similar position. It would be unfair to prioritise this case, because it would penalise another prisoner who may be in a similar position. The application to expedite or prioritise the listing of this case is refused. Nor will it be possible to list this case in December 2016 (i.e. prior to 2017).”

[24]I will return shortly to the “prioritisation framework” to which that decision referred.

[25]On 21st December 2016 Mr Bate’s solicitors sent a letter before action. They set out the chronology, and recorded their understanding that the hearing would now not be before March 2017 “and potentially much later than that”. They set out the grounds of claim. In a reply dated 9th January 2017 the Parole Board said that the period of breach, and the measure of damages, would only be determined once Mr Bate’s parole review had been concluded. They said that any claim for judicial review would be academic, invited the solicitors to refrain from issuing such a claim, and asked that Mr Bate contact them following the conclusion of his hearing “to consider the position in regards any remedy by way of compensation”.

[26]On 9th January 2017 a psychiatric nurse who had worked with Mr Bate since August 2016 wrote to the Parole Board saying that Mr Bate had experienced increased anxiety over the last couple of months because he had not been given a date for his hearing. She explained that his autism could cause him difficulty in dealing with uncertainty, and asked that a date be confirmed “to help alleviate his anxiety”.

[27]On 26th January 2017 Mr Bate and his solicitors were notified that his hearing would take place on 22nd March 2017. On that date, a panel heard evidence from a number of witnesses, including Mr Bate himself, the manager of the St Thomas Fund, and the Offender Supervisor. The evidence of the Offender Supervisor included reference to the progress which Mr Bate had made in completing a Mood Management course run through the MHIT, which she observed had been particularly helpful to Mr Bate “in dealing with the stress and disappointment of [his] hearing not going ahead in June and the long wait for it to be re-panelled”. Following the hearing, a decision letter was sent on 4th April 2017. It recorded Mr Bate’s “extremely poor record of compliance” but said that there was clear evidence of change since 2014, especially after he had admitted that he had used spice for several years. He had overcome his addiction, engaged with the MHIT and in work with his Offender Manager, and had learnt how to manage better his anxieties, behaviour and emotions. Most importantly, he had developed a trusting relationship with staff and recognised the benefit of asking for help. He had a strong support network and a robust risk management plan in place. The panel concluded that it was no longer necessary for the protection of the public that he remain in prison, and directed his release to the St Thomas Fund. Licence conditions were imposed, including a requirement of residence at the St Thomas Fund. The proceedings

[28]The claim form was issued on 30th January 2017. It challenged the decision of 2nd December 2016 refusing to prioritise or expedite the listing of an oral hearing; alleged an unlawful policy, said to have been in force since 2010; and alleged a continuing violation of

Article 5(4) of the Convention

. Four grounds of claim were pleaded in detail. They can be summarised as challenging - i) a failure, in violation of Art 5(4), to provide a parole hearing within a reasonably speedy interval; ii) a systemic failure to maintain and operate a system for speedy and prompt parole reviews iii) an unlawful policy for prioritisation of listing which ignores support for release and prospects of release which are identified as realistic, and/or ignores a legitimate expectation given as to the timetable for a deferred hearing; iv) an unlawful failure, by the decision letter of 2nd December 2016, to direct expedition in the listing of Mr Bate’s deferred hearing. Claims were made for declarations, damages and the quashing of the order of 2nd December 2016. The defendant filed Detailed Grounds of Defence, responding in detail to the grounds of claim and denying any unlawful delay. A Reply was served on behalf of Mr Bate.

[29]Before considering the submissions made by Mr Rule on behalf of the claimant, and Ms Stout on behalf of the defendant, it is convenient first to consider the legal framework and then to summarise the evidence about the Parole Board’s practice in relation to listing, prioritising and hearings. The legal framework:

[30]

Article 5 of the Convention

provides, in material part:

“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.”

[31]In the context of decisions as to the release on licence or the transfer to open conditions of prisoners serving a life sentence or other indeterminate sentence, the effect of section 28 of the Crime (Sentences) Act 197 is that the Parole Board is the “court” for the purpose of Art 5(4).

[32]In R (Noorkoiv) v Secretary of State for the Home Department

[2002] EWCA Civ 770

[2002] 1 WLR 3284

the process leading to the hearing of the parole application of a prisoner serving an automatic life sentence began before his tariff had expired, but the hearing was not held until after that date. The Parole Board sought to uphold its then system of considering such cases in the quarter after tariff expiry, and also sought to excuse the delay on the basis of a lack of resources. The Court of Appeal rejected the Board’s arguments. It held that detention between tariff expiry and a decision by the Board was lawful, and did not breach Art 5(1), but it required justification in terms of Art 5(4). The system of quarterly review involved a delay of up to three months after tariff expiry in considering a prisoner’s eligibility for release, which was excessive: cases should be referred to the Board before tariff expiry, so that if the Board is to direct release it can do so on the expiry of the tariff period, or as soon as practical thereafter. The court further held that it is the obligation of the state to organise its legal system to enable it to comply with the requirements of the Convention. Delay which would otherwise be in breach of Article 5(4) cannot be excused by pointing to a lack of resources. The court accordingly granted a declaration that the consideration of the appellant’s parole application did not comply with the requirements of Article 5(4).

[33]Noorkoiv thus makes it clear that in the case of a prisoner serving a life sentence or other indeterminate sentence, a parole application must be heard in time to direct release (if appropriate) at or soon after the expiry of the prisoner’s tariff period. If (as in the present case) release is not directed at tariff expiry, subsequent parole applications can be made. In R (Murray) v Parole Board

[2003] EWCA Civ 1561

, [2004] Prison LR 175 the Court of Appeal confirmed that Art 5(4) requires that there be reviews at reasonable intervals of the post-tariff detention of life prisoners (a term which, for present purposes, includes those serving sentences of IPP). What is a reasonable interval has to be determined in the circumstances of each case. The court noted however from previous decisions and from the Strasbourg jurisprudence that “… an interval of up to a year has ordinarily to be shown on some particular ground to be in breach of Art 5(4) in order to be justiciable, whereas an interval of more than a year has generally to be shown not to be in breach of it”. In the later case of R (Loch) v Secretary of State for Justice

[2008] EWHC 2278 (Admin)

the court took the decision in Murray as guidance that “… while there is no formal presumption that an interval of more than a year is unreasonable and non-compliant, the court should approach the question on the basis that where there is an interval of more than a year it is generally for the decision maker to show by reference to the particular facts of the case that it is reasonable and thus compliant with Article 5(4).”

[34]An example of a case in which an interval of more than 12 months between reviews did not breach the requirements of Art 5(4) is provided by R (Parratt) v Secretary of State for Justice

[2014] EWCA Civ 1478

. In that case the claimant’s tariff period expired on 21st January 2010. His parole application was heard on 20th May 2010. The panel did not direct release, but recommended a transfer to open conditions. The SSJ accepted that recommendation, and directed that the next review should be in August 2011. At a hearing on 23rd August 2011, a panel directed the release of the claimant. Proceedings were brought alleging that his rights under Art 5(4) had been infringed. The Parole Board conceded that the delay between 21st January and 20th May 2010 breached the claimant’s rights, and in due course a declaration was made to that effect. As to the decision of the SSJ in respect of the timing of the review hearing, Males J held that the 15 month period between the two hearings did not violate Art 5(4). The Court of Appeal found no error in his approach and upheld his decision.

[35]In R (Faulkner) v Secretary of State for Justice, R (Sturnham) v Parole Board

[2013] UKSC 23

[2013] 2 AC 254

the Supreme Court confirmed that a prisoner whose detention was prolonged as a result of delay in consideration of his case by the Parole Board did not thereby suffer either false imprisonment or a breach of his rights under Art 5(1). Such delay could however breach the prisoner’s rights under Art 5(4). Lord Reed’s judgment included, at paragraph 13, a very helpful summary of the principles applicable in that regard. The following principles are relevant to the present case:

“6. Where it is established on a balance of probabilities that a violation of article 5.4 has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention. 7. The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases. … 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.”

[36]Later in his judgment, at [66], Lord Reed said:

“The question whether feelings of frustration and anxiety are sufficiently serious to warrant an award of compensation will evidently depend to some extent upon the circumstances of the individual case. Where for example there is a particular reason for anxiety, or where there is mental illness, even a relatively short delay may occasion acute mental suffering. It is impossible therefore to lay down absolute rules. It is on the other hand reasonable to suppose that the presumption that the lack of a speedy decision has occasioned sufficiently serious mental suffering to justify an award of compensation should only apply if the delay has been of a significant duration. In the circumstances of a convicted prisoner awaiting review of his case by the Board, the cases which I have discussed suggest that a delay of three months or more is likely to merit an award, whereas the stress and anxiety which can be inferred from a delay of shorter duration are ordinarily unlikely to be of sufficient severity.”

[37]Later, in 2013, the Supreme Court heard an appeal which raised questions as to the circumstances in which the Parole Board was required to hold an oral hearing: R (Osborn) v Parole Board, R (Booth) v Parole Board, in re Reilly

[2013] UKSC 61

[2014] AC 1115

. Previously, the Board had decided the majority of cases on paper and had only held oral hearings in cases where there was a realistic prospect of release or of a move to open conditions, or where live evidence was required because of a significant dispute as to facts. The Supreme Court held that there should be an oral hearing “whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake”. The Court was highly critical of the Board’s practice insofar as it required a realistic prospect of success as a precondition of an oral hearing: at [88] Lord Reed said – “Whether a prisoner’s right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning.” The Court indicated that, in applying its guidance, it would be prudent for the Board to allow an oral hearing if it was in doubt as to whether to do so or not.

[38]The practical consequence of the decision in Osborn, Booth and Reilly was a substantial increase in the number of applications for release, or for transfer to open conditions, which were given an oral hearing. The Board did not have the capacity to hold all those hearings, and a backlog of work arose.

[39]I now turn to a summary of the evidence relating to the policy and procedure adopted by the Parole Board in relation to the hearing of parole applications. The evidence as to listing and prioritising parole hearings

[40]Rule 18 of the Parole Board Rules 2011 (replaced with effect from 22nd November 2016 by rule 16 of the Parole Board Rules 2016) provides that where a single member has referred a case to an oral panel for consideration (as happened here on 27th November 2015: see paragraph 11 above) – “… the case shall be considered by an oral panel within 26 weeks of the case being referred to the Board.”

[41]NOMS publishes a Generic Parole Process which sets out, in relation to different categories of prisoners, the timetable for the steps which must be taken before a hearing can be held. The timetable covers a period of 26 weeks.

[42]Mr Rule relies on an investigation report into the Parole Board published by the National Audit Office in February 2017 which showed that 98% of cases were completed after their target date had passed; that the number of Board members had dropped by 23% between 2011-12 and 2015-16; that in September 2016 2,093 cases were outstanding (ie beyond their due date but not yet listed); that in 2014/15 74% of cases were listed for hearing within 3 months after the case was confirmed ready to list, whereas in 2015/16 that had dropped to 64%; and that the listing queue was on average more than double the number of hearings which could be listed each month. The report also noted that between 2012 and 2016 the Ministry of Justice did not recruit any new members to the Board. In 2016, it recruited 104 new members, of whom only 49 started in 2016-17, with the remainder being due to start in 2017-18.

[43]Mr Rule also relies on statistics published in the Board’s annual report and accounts for 2016-17.

[44]As to the practical workings of the process, the Board relies on the evidence of Mr McHenry, the Board’s operations manager, and formerly its performance analyst. He explains the standard procedure for listing oral hearings, and how hearings are prioritised and decisions as to expedition made. When an oral hearing is directed, the Board will request witness availability. When witness dates have been provided, and any pre-listing directions complied with, the case – and other cases which are ready to list – will be considered at a monthly listing exercise. Mr McHenry indicates that in the period September 2016 to April 2017, and indeed at the time of his witness statement on 29th March 2018, the Parole Board listed oral hearings approximately 3 months beyond the point of the listing exercise. Thus the listing exercise in June 2017 listed hearings in September 2017. The listing exercise for a given month begins with cases which have been given priority and then continues with other cases, in the order of their due dates, until all the cases for the relevant calendar month have been listed.

[45]Mr McHenry refers to the Oral Hearing Listing Framework for Parole Cases dated November 2010 (“the Framework”), which indicates that cases are prioritised according to the date when a review is due. For prisoners serving life or indeterminate sentences, and awaiting a further review after tariff expiry, the due date is defined as the date set by the SSJ when the case is referred to the Parole Board.

[46]Where a listing exercise includes more than one case with the same due date, and there are insufficient panels available to cover all of them during the relevant month, cases are listed according to a table of priority set out in section 2 of the Framework:

“(i) First review at tariff expiry (lifers/IPPs) (ii) ESP [extended sentence prisoner] annual reviews after recall (iii) Further reviews after tariff expiry (lifers/IPPs) (iv) Advice cases (lifers/IPPs) (v) Determinate or extended sentence prisoners applying for early release on parole (non recall cases). Prioritisation can be further refined within each category, by the length of delay and number of occasions the review has been deferred.”

[47]Section 3 states that the Framework is flexible. It provides for higher prioritisation where exceptional circumstances (including mental health issues) are put forward by a prisoner: a Board member may direct that a case has higher priority than would normally be indicated in section 2 and should accordingly receive precedence. However, “In general terms, positive recommendations for release or a progressive move will not, by definition constitute exceptional circumstances as there will be many such prisoners in a similar position. Requests for prioritisation solely on the grounds of positive report recommendations will be refused.”

[48]Mr McHenry then refers to directions for expedition. He explains that, while prioritisation instructs that a case is brought forward at the next available listing exercise (ie for a hearing date 2-3 months in the future), expedition instructs that a case is listed as soon as possible. He adds that in cases which require a specialist member, successful prioritisation or expedition is in practice dependant on an existing panel with a specialist member having spare capacity or an existing hearing slot becoming vacant. In September 2016 there were 14 specialist psychiatric members (15 at the time of his statement).

[49]Mr McHenry refers to the effect of the judgment of the Supreme Court in Osborn, Booth and Reilly. He says that the result of that decision was an increase in oral hearings from 3,697 in 2012/13 to 5,179 in 2016/17. Within that increase, he notes there was a sharp increase in the proportion of recalled determinate sentence prisoners, a category who have priority above that of indeterminate sentence prisoners. Following the decision in Osborn, Booth and Reilly there was also a significant increase in the backlog: a term which the Board uses to measure the number of prisoners serving either a life or an indeterminate sentence whose target date for an oral hearing either has passed, or will pass before the hearing can be held. The backlog rose to a peak of 3,163 cases in January 2015 but, as a result of various initiatives, had by March 2018 been reduced to 1,247, a level which Mr McHenry says is equivalent to the position before Osborn, Booth and Reilly.

[50]In relation to Mr Bate’s case, Mr McHenry describes the steps which were taken to ascertain witness availability, and says that the core reason for the delay was the requirement of a specialist member. With reference to the letter of 31st July 2016, quoted in paragraph 11 above, Mr McHenry explains the direction given when the case was deferred as meaning, not that the case would have a hearing in October, but rather that it would be considered in the monthly listing exercises after October 2016 by reference to the priority criteria. He suggests that “it should have been obvious” to Mr Bate (or to Mr Kenyon on his behalf) that the case would not automatically come back on after three months. As to the further request sent in November 2017 for witness availability over the next 6 months, he says that given the general backlog arising in the wake of Osborn Booth and Reilly the Board – “… recognised that cases would be delayed beyond the 26 week timeline envisaged by the Generic Parole Process. As such, case managers would routinely ask for six months of availability to offset having to repeatedly approach witnesses for availability for shorter periods.”

[51]Mr McHenry goes on to say that the case was ready to list on 1st September 2016, but all the November slots had already been filled. The case therefore had to wait until the listing exercise on 27th September, which was listing for dates in December. There were however 11 other case at the same prison which had priority over Mr Bate’s case. When all the December slots had been filled, there were still 7 cases with higher priority.

[52]The Parole Board also relies on the evidence of Mr Martin Jones, Chief Executive of the Board, which was served very late but for which the court gave permission on the first day of the hearing. He concurs in Mr McHenry’s evidence as to the meaning of the deferral direction. He adds that if the deferral is for 3 months, it is unlikely that the case will be ready to list much before the end of that period:

“Accordingly, given that cases once ready to list are usually listed 3 months ahead, in practice it is likely that a case deferred for 3 months will in fact be re-listed in 5 to 6 months.”

Mr Jones suggests that delay in the submission of reports in this case means that if the case had been listed earlier than it was, the hearing may not have been effective in any event. He refers to the National Audit Office report on which Mr Rule places reliance, and says that it was based on data from 2016 “when the Board was in the midst of backlog clearance” and does not reflect the current position. He says that over the last two to three years the Board has made “significant progress in reducing delays to parole hearings”, and produces (amongst other exhibits) a graph showing that the number of cases waiting more than 90 days “has dipped dramatically”, showing that “very few cases are now held up due to hearings capacity”. Mr Jones produces other recent statistics and says that a snapshot shows that on 12th June 2018 there were around 1,350 cases outstanding, the majority of which were not yet at the stage of being ready for the next listings exercise. He explains that historically – “… the number of GPP cases outstanding has rarely dipped below 1,250 (the pre-Osborn level) and the Board’s view is that at or close to those levels there is no ‘backlog’ – some cases simply need more time to reach a productive hearing.” Mr Jones goes on to say that the majority of prisoners making applications for parole have support for their release, and that it therefore hard to see how cases could be fairly and efficiently prioritised by reference to whether they had support.

[53]Both counsel have provided very detailed written and oral submissions, for which I am grateful. Mr Rule’s overall submission is that the Parole Board, in violation of Mr Bate’s Art 5(4) rights, failed to provide him with a timely hearing to review his detention, failed properly to expedite or prioritise cases such as his which have support for, or a realistic prospect of, release, and unfairly breached an express timetable and legitimate expectation raised in Mr Bate’s case. Ms Stout’s overall response accepts that hearings took place later than the intended dates but denies that the delays were unlawful. She argues that the target date set by the SSJ is an important consideration but is not decisive, and that not every delay constitutes a breach of Art 5(4). In answer to the wider criticisms made of the Board’s system, she relies on the steps being taken by the Board to reduce delays generally. I give a brief summary of their principal submissions as to the four grounds of claim. The submissions

[54]In relation to ground 1 (failure to provide a speedy hearing in the particular circumstances of this case), Mr Rule does not challenge the decision of the SSJ setting a review period of 14 months. He therefore takes the date of 1st March 2016 as the date by which the review should have been heard. He submits that before the review was concluded there were two periods of delay – 1st March to 22nd June 2016, and 1st October 2016 to 22nd March 2017 – for which there was no lawful justification. As to the first period, he points to the target month of February 2016 set by the SSJ and submits that as from 1st March 2016 the Board was in breach of its duty to provide a speedy hearing. He does not challenge the decision of the panel in June 2016 to defer the hearing, but submits that the deferred hearing should have taken place by the end of September 2016 and that accordingly there was a further breach of duty from 1st October 2016 until the eventual hearing on 22nd March 2017. Mr Rule argues that at the June 2016 hearing, Mr Bate was left with a clear understanding that he would have a hearing in 3 months’ time, and he rejects the interpretation of the deferral direction put forward by Mr McHenry and Mr Jones. He relies on the wording of the deferral reasons letter, and he argues that the proposition that the panel intended that the case would only enter a listing exercise in October 2016 (with an inevitable delay of at least 2 -3 months before any hearing could be held) is inconsistent with the steps then taken to obtain witness availability for hearings during a period starting in October. In relation to both periods, Mr Rule points to the evidence that delay was caused by a shortage of resources, including in particular a shortage of specialist psychiatric members, and relies on Noorkoiv for the clear principle that lack of resources does not excuse delay which breaches Art 5(4). He contends that Mr Bate is entitled to damages for frustration, anxiety and distress caused by the breach of his rights under Art 5(4) in relation to both periods, and further entitled to damages for delayed liberty in relation to the later period on the ground that he would probably have been released if the deferred hearing had been held at an earlier date than it was.

[55]Miss Stout submits that the claim in relation to the first period was brought outside the time limit of 3 months in CPR 54.5(1). Given the way the claim is presented, she says, proceedings should have been commenced before the end of May 2016. They were not, and no reason has been shown why an extension of time should be granted. She submits that this head of claim should be dismissed on that basis. She points out that no complaint about the first period of delay was made at the time, and no specific reference was made to it in the letter before action.

[56]On that issue, Mr Rule responds that the claim is not out of time, because the hearing which should have taken place in February 2016 was not concluded until March 2017. Moreover, the defendant’s argument leads to absurd results: a prisoner whose claim would be limited to damages for anxiety and frustration would be required to commence judicial review proceedings before his entitlement to damages had arisen in accordance with Faulkner, Sturnham. In any event, he points out, the claimant has been granted permission to bring all aspects of his claim.

[57]Ms Stout goes on to submit, in relation to the first period, that in any event the hearing in June 2016, albeit later than the target date of February 2016, was within a reasonable period after the review in December 2014. She points out that there were significant risk factors in Mr Bate’s case which needed to be addressed. She denies that there was unlawful delay during the second period, and in any event submits that there is no probability that an earlier hearing would have resulted in Mr Bate’s earlier release. She points to the explanation given in the letter of 2nd December 2016 refusing expedition (see paragraph 23 above) that the target date remains static, and that accordingly a deferred case has higher priority in a listing exercise. She argues that it should have been apparent to Mr Bate’s representative at the deferral hearing that the case would not be considered for listing before October 2016 and there would then be a delay of approximately 3 months, and that it was therefore unlikely that the case would be heard before December 2016. She seeks to argue that the case was ready for listing by the end of September 2016 and that the delay thereafter was only partly due to the lack of availability of a psychiatric member but also in part simply because there were other cases in the system with higher priority. She submits that the second period of delay was not unlawful; in the alternative, that there would certainly not have been any unreasonable delay if the hearing had been held by December 2016, and that accordingly any question of unlawful delay should not begin until after December 2016. Relying on Murray, she submits that the issue in relation to a second or subsequent review (as opposed to a parole application at the time of tariff expiry) is whether the period between reviews is reasonable in all the circumstances of the case. Here, she argues, it was.

[58]In relation to ground 2 (systemic failure to provide prompt reviews), Mr Rule submits that there is, or was, such a systemic failure, and that declaratory relief should be granted in relation to the period 2016-17 even if the court is persuaded that the failure no longer continues. He submits that the shortage of membership of the Board, including specialist members, is a breach of duty which has serious consequences. He points out that it appears to be the Board’s own case that delay was caused in this case by the shortage of psychiatric membership: that in itself, he submits, shows a systemic failure. If on the other hand the cause of the delay was not the shortage of psychiatric members, then there was no reason for failing to list the case for several months, and that too would show a systemic failure. Mr Rule relies on the National Audit Office’s report, and points out that the Board’s annual report for 2016-17 shows that the backlog of cases in March 2017 was higher than it had been at the end of 2016.

[59]Ms Stout denies that this case shows any systemic failure and submits that in any event this court should not grant any declaration in respect of the general system of parole hearings in 2016-17: judicial review is a discretionary remedy, and no relief should be granted where the issue is or has become purely academic. She points to the National Audit Office report and the evidence of Mr McHenry and Mr Jones as showing that the Board has been takings steps to reduce the backlog, and has succeeded in bringing it back to about the level it was at before Osborn, Booth and Reilly. She submits that it would be both inappropriate and pointless for the court now to make a declaration about the position which the National Audit Office found on inspection nearly 2 years ago. She relies on the rejection of a similar argument by Hickinbottom J (as he then was) in R (Hussain) v Parole Board

[2016] 1 WLR 4996

[60]Ms Stout places particular reliance on the evidence of Mr Jones as to the progress made in reducing delays. She points out that a revised “Member Case Assessment Guidance” published in late 2016 directs members to consider whether a case is sufficiently clear to be determined on the papers, thus reducing the number of cases which require a hearing. She also provided the court with draft new listing guidance which she relies upon as a further indication that the Board is successfully addressing problems of delay. She submits that the claimant’s case in relation to the second ground is in reality a challenge to the rationality of the policy which declined to treat support for release as an exceptional circumstance requiring prioritisation. She argues that the policy adopted by the Board, whilst not the only possible policy, was a rational one. She accepts that the decision in Osborn, Booth and Reilly did not prohibit the Board from taking prospects of success into account in a prisoner’s favour, but submits that it was rational not to do so.

[61]In relation to ground 3 (unlawful policy in relation to prioritisation), Mr Rule points out that the November 2010 Framework pre-dates the decision in Osborn, Booth and Reilly and therefore takes no account of the substantial increase in the Board’s workload which resulted from that decision. He submits that the policy is no longer lawful, in particular because it ignores two factors which ought to be regarded as favouring prioritisation or expedition, and which were highly relevant in this case: positive recommendations supporting release, and a realistic prospect of release; and an express timetable agreed with a prisoner and his representative when a case is deferred. It is common ground that when it is not possible to list all cases, a choice has to be made. Mr Rule submits that there is no justification for ignoring the fact that a prisoner has support for his application when the consequence is that his case will be heard after others who have no realistic prospect of release. He points out moreover that some prisoners serving determinate sentences and extended sentences do require an initial release decision from the Parole Board, but they, and prisoners recalled to a determinate sentence following breach of licence conditions, have no right to the protection of Art 5(4). Yet the Framework’s table of priority, referred to in paragraph 45 above, means that a post-tariff IPP prisoner in Mr Bate’s position is subordinated not only to lifers and IPP prisoners at tariff expiry but also to extended sentence prisoners after recall. He relies on an observation of Collins J in R (Betteridge) v Parole Board

[2009] EWHC 1638 (Admin)

that if it is clear that a post-tariff prisoner “is a real candidate for release, then the sooner that particular individual has a hearing, the better”. Before Osborn, Booth and Reilly, oral hearings were generally only held in cases where there was a realistic prospect of release, but that is no longer the position. Moreover, and as a further consequence of that decision, a backlog has developed. In those circumstances, Mr Rule submits, the 2010 Framework fails in many cases to fulfil the duty to provide a speedy hearing.

[62]As to the second factor on which he relies, Mr Rule again points to the circumstances in which the June 2016 hearing was deferred, which he submits amounted to an agreement as to a timeframe of 3 months before the next hearing. A listing policy which ignores such an agreement does not fulfil the duty to provide a speedy hearing.

[63]Ms Stout submits that the Framework lays down a rational and lawful policy, and that it expressly provides flexibility to accord higher priority to a case. She submits that positive support for an application for release or transfer to open conditions is far from uncommon, and that it is a reasonable policy not to regard such support as a reason for prioritisation. She further submits that the argument advanced by the claimant is inconsistent with the decision in Osborn, Booth and Reilly, is unworkable in practice and would not be an effective means of avoiding delays to release.

[64]In relation to ground 4 (unlawful decision on 2nd December 2016 refusing expedition), Mr Rule challenges the decision of the single member, refusing expedition, on the grounds that it failed to take account of the support for Mr Bate’s release, the timetable agreed on deferral and the fact that Mr Bate’s mental health problems, in particular his autistic spectrum disorder, would make the consequences of uncertain delay more harmful to him than to other prisoners.

[65]Ms Stout denies that the decision not to order expedition was unlawful. She relies on her submissions in relation to ground 3, and submits that there was no evidence before the single member as to any relevant mental health issue.

[66]Although Mr Rule was willing to make submissions about quantum, Ms Stout invited the court to defer any such submissions until after its decision on whether the claim succeeds. Discussion and conclusions

[67]The case law to which I have referred shows that in order to discharge the state’s obligations under Art 5(4) to a prisoner serving a sentence of IPP or other indeterminate sentence, the Parole Board must review his detention promptly upon the expiration of the tariff period (which in practice means a short time before tariff expiry), and must thereafter review his detention at reasonable intervals. Although there is no hard and fast rule, an interval of around a year is likely to be reasonable, and there will in effect be a burden on the Parole Board to show good reason for a delay of much more than a year. The SSJ initially determines what is a reasonable period, and is in a good position to do so, having access to all relevant information necessary to make a prospective assessment of what will be needed to fulfil the requirement of a speedy decision in a particular case.

[68]Does it follow that, subject to challenge on grounds of Wednesbury-unreasonableness, the SSJ’s decision as to the target date for a review hearing is determinative of the length of a reasonable interval between hearings? Mr Rule submits that it does. Ms Stout submits that it does not, and that it is for the court to decide what is a reasonable interval between hearings in a given case. I accept Ms Stout’s submission, which in my view is consistent with the decisions in Loch at [41] and Parratt. In my view, the court when considering what is a reasonable interval between hearings in a particular case must start with the SSJ’s determination of the target date, and must give it substantial weight. If however an issue arises as to what is reasonable, it is for the court to decide that issue by making its own decision as to the length of a reasonable interval. The court is not restricted to a Wednesbury review of the SSJ’s decision.

[69]The target date in this case provides an illustration of my reason for taking that view. In January 2015 NOMS on behalf of the SSJ set a review period of 14 months. That was somewhat in excess of the 12-month period mentioned in (for example) Murray and Loch, but that is not a decisive consideration (see Parratt); and in my judgement the 14 month period was not in itself unreasonable in the circumstances of this case, as Mr Rule realistically accepts. It follows that in the circumstances of this case, a hearing taking place in March 2016 would have satisfied the requirement of a speedy hearing. But what if the SSJ had set a review period of 12 months? On Mr Rule’s approach, that would have dictated a conclusion that a hearing taking place in March 2016 was not a speedy hearing (albeit that it may not have resulted in any award of damages), even though nothing else had changed. I do not find that approach persuasive.

[70]The target date was not however met; and plainly, the duty to provide a speedy decision as to the lawfulness of detention is not discharged by merely setting a target date which in the event is missed by a substantial margin. It is therefore necessary to consider whether the interval between the hearings in December 2014 and March 2017 was prolonged by unlawful delay either before the hearing in June 2016, or at some stage after the June 2016 hearing, or during both those periods. But before considering the principal issues in that regard, I should deal with three preliminary points.

[71]First, I reject the argument that the claim in respect of the first of those periods should be dismissed on the ground that it was brought out of time. In that regard, I accept Mr Rule’s submissions.

[72]Secondly, Ms Stout submits that a distinction should be drawn between parole applications at tariff expiry and subsequent reviews, with delay in relation to the latter being more readily excusable. I can see no logical reason to draw such a distinction: both at tariff expiry and subsequently, the prisoner has completed the punitive term of his sentence and the justification for any further detention lies in the protection of the public against any risk which he continues to pose. Neither the need for assessment of any continuing risk, nor the need to ensure that the prisoner is not detained after his detention has become unnecessary, diminishes with the passage of time. Logic therefore does not support the submission; and nor can I find any support for the submission in the case law to which we were referred. On the contrary, a submission to similar effect was expressly rejected by Miss Patterson QC (as she then was), sitting as a deputy High Court Judge, in R (Wells) v Parole Board

[2009] EWHC 2458 (Admin)

[73]Nor, thirdly, can I accept Ms Stout’s submission that the listing exercise necessarily involves fixing dates well in advance, not least because it has to take account of witness availability, and that delay is attributable to that inevitable feature rather than to lack of resources. If that were correct, the simple solution would be to start the listing exercise some weeks or months earlier so as to achieve a hearing at or about the due date.

[74]Turning to the principal issues, it is in my judgment appropriate to focus on the first of the grounds of claim. The court’s task is to decide whether the delay to the review hearing during either or both of the two relevant periods was such as to deprive Mr Bate of his right to a speedy hearing. The court must therefore necessarily have regard to the particular circumstances of Mr Bate’s case. If the conclusion is reached that in relation to one or both periods there was unlawful delay, the further question of whether that delay was attributable to factors specific to Mr Bate’s case, or to generic/systemic factors, or to a combination of the two is principally relevant to the issue of the appropriate remedy.

[75]The SSJ formally referred Mr Bate’s case to the Board on 24th June 2015, thus giving ample time for the 26-week timeline of the Generic Parole Process to be implemented before the target date for the hearing. Five months later, on 27th November, a member of the Board directed an oral hearing to be listed on the first available date. There is no evidence as to whether 22nd June 2016 was in fact the first available date; but whether it was or not, it was four months outside the target date. No explanation at all has been put forward for that delay. I have no reason to doubt that the members and officials of the Parole Board were diligently doing their best to carry out their difficult and important work in a way which met the requirement of speedy hearings insofar as they were able to do so. The inescapable inference, in my view, is that the delay was due to the backlog of work and shortage of resources (in particular of specialist psychiatric members) with which the Board undoubtedly had to contend at that time. I am unable to accept Ms Stout’s submission that the interval between hearings was reasonable. The most recent previous review had been in December 2014; and the target date had allowed an interval of 14 months. If lack of resources is set to one side – as Noorkoiv requires it to be – I can see no basis on which the 4 months of delay beyond that target date are even explained, let alone justified.

[76]Ms Stout seeks to rely on the fact that Mr Bate had made his admission of drug use a comparatively short time before the June hearing. She submits, correctly, that the admission made it necessary to re-assess the risks involved in releasing Mr Bate, and to reconsider what licence conditions and support arrangements would be necessary if he were to be released. From that premise, she argues that a delay which might otherwise have been thought unreasonable became reasonable as a result of that development. I am unable to accept that argument. Mr Bate’s admission no doubt had the consequence that the prospects that the Board would direct his release in June 2016 were much reduced, and provided a compelling reason why the June hearing was deferred; but, consistently with Osborn, Booth and Reilly, that was not a reason not to list a speedy hearing. Moreover, if the target date had been met, the hearing would have been concluded before the new Offender Supervisor first met Mr Bate and received his admission. I cannot see that the timing of the admission can help the Board to justify months of delay beyond the target date.

[77]I therefore conclude that the delay beyond the target date was an unlawful breach of Mr Bate’s rights under Art 5(4), and he is entitled to damages to compensate him for that breach in relation to this period from 1st March to 22nd June 2016. I do not see that his entitlement is in any way reduced, or the measure of damages in any way affected, by the fact that Mr Bate did not complain at the time of this first period of delay. Mr Rule did not strenuously argue that Mr Bate would probably have been released earlier than he was if his case had been heard between 1st March and 22nd June 2016, and again that is in my view a realistic approach on his part. It cannot be said that this first period of delay probably delayed his release. Damages in relation to this first period must therefore be limited to those which will be sufficient to compensate him for his anxiety and frustration caused by the delay in hearing his case. It can fairly be presumed that he did suffer such feelings; but in relation to this first period, I do not think there is any evidence that those feelings were significantly exacerbated by his mental health problems. In those circumstances, no more than modest damages should be awarded.

[78]As is accepted by Mr Rule, there were good reasons for the decision to defer which was made at the hearing on 22nd June 2016. There was no possibility of a transfer to open conditions, and therefore the panel would have to decide between continued detention and release on licence. Having regard to Mr Bate’s recent admissions as to drug use, it was necessary to make a careful assessment of the level of continuing risk and of the management plan which would be needed if he were released. The evidence was not in place to enable a confident decision in favour of release to be made that day. The reality therefore was that if the hearing had gone ahead on 22nd June, it would in all probability have resulted in a decision adverse to Mr Bate. The agreement to defer the hearing was therefore entirely sensible. That agreement of course lengthened the interval of time between hearings which would be reasonable in this case.

[79]It does not however follow that the reasonable interval between hearings was increased by the period of 9 months which in fact passed before the eventual hearing in March 2017. In seeking to justify that delay, or at least to reduce that part of it which may be found to have been unlawful, the Board places much reliance on what is said to have been agreed at the deferral hearing. Mr Rule realistically accepts that there was no assurance that the hearing would take place in September 2016, but he argues that there was a clear indication and agreement that it would take place in September or October, and that Mr Bate both understood that to be the case and had a legitimate expectation that it would be so. Ms Stout argues that no clear and unambiguous indication was given as to the date of the next hearing, and that therefore no legitimate expectation could be raised in Mr Bate’s mind; and that the panel’s deferral directions meant that the listing process would not begin before October 2016 and no hearing would take place before about December 2016.

[80]There is no direct evidence before this court from anyone who was present at the hearing on 22nd June 2016. It is common ground that there was an agreement to defer the hearing; but the only evidence as to the agreed basis of the deferral is to be found in the deferral reasons letter of 31st July 2016, the correspondence sent by Mr Kenyon to the Board, and the reports and emails from others to whom Mr Bate stated his understanding that the deferred hearing would take place about 3 months after the June hearing. Although the Board challenges the claimant’s interpretation of the deferral directions, it should be noted that there has been no challenge to the factual accuracy of the assertions by Mr Bate and Mr Kenyon of their understanding of what was said and agreed.

[81]I accept Ms Stout’s submission that the letter of 31st July does not record a clear and unambiguous assurance as to the date of the next hearing. I note also that the words in that letter which I have quoted at paragraph 16 above are ambiguous, as I shall explain in the following paragraph. For those reasons, I accept Ms Stout’s submissions that the circumstances were not such as to give rise to a legitimate expectation on Mr Bate’s part of a hearing on a specific date. I reject, however, the submission that it was understood by those present that the listing exercise would not even begin until October and that accordingly there would be no hearing before December at the earliest. In my view, the clear meaning of the letter is that there would be a hearing (and not just a listing exercise) in October or very soon afterwards. My reasons are as follows.

[82]First, it is in my view clear that references to listing or relisting, and cognate terms, have been used throughout Mr Bate’s parole application, and indeed throughout these proceedings, in two different senses: first, to mean the actual date on which a hearing is listed and held; secondly, to mean the listing exercise which involves looking ahead to a period some months away and trying (not necessarily successfully) to find a slot within that period when a particular case might be heard. Mr Jones, with respect, uses the words in both senses in the sentence from his statement which I have quoted at paragraph 52 above. All who practise in the courts, civil or criminal, are familiar with this ambiguity of meaning, and it causes no problem so long as there is clarity about which meaning is intended in a particular context.

[83]Secondly, no convincing reason has been put forward why this court should not accept that both Mr Kenyon and Mr Bate understood (as their contemporaneous emails and statements to others show) that the panel was speaking of deferring the actual hearing for 3 months. I am not at all attracted by the Board’s argument that Mr Kenyon and Mr Bate should have understood that the panel was referring to the prospective listing exercise rather than the date of the next hearing. After all, the hearing on 22nd June 2016 was itself intended to be a substantive hearing. There was good reason for it not to proceed as such on the day, but what was being deferred was a substantive hearing, not a listing exercise. If the panel had wanted Mr Bate to agree to the next hearing not taking place before about December, that should have been made very clear.

[84]Thirdly, whilst Mr Bate had good reason to agree that he would not proceed with a hearing that day, I find it very unlikely that either he, or Mr Kenyon on his behalf, would have agreed to an open-ended deferral in which the only indication was that the listing exercise would not even begin until October and would then be very likely to involve a delay at least until December, and possibly longer. The hearing had already been delayed by 4 months; and although further work needed to be done if Mr Bate’s application for parole were to succeed, it cannot have seemed to him that the necessary work would take anything like as long as a further 6 months. Yet there is nothing in the reasons letter to suggest that there was any reluctance to agree that the case “should be deferred for a period of 3 months”. Annex 15 of the Board’s Member Case Assessment Guidance indicates at paragraph 5.4 that members deferring a case have the power to direct an expedited or prioritised hearing (though they are discouraged from exercising that power). If Mr Bate and Mr Kenyon had understood that deferment for a period of 3 months meant in fact that there would be no further hearing for about 6 months, I think it very likely that representations would have been made about the panel making such a direction.

[85]Fourthly, it is to be noted that when the deferral directions were received by the appropriate official of the Board, prompt steps were taken to try to establish witness availability for a period beginning in October. I agree with Mr Rule’s submission that such an enquiry cannot be reconciled with the Board’s argument that all present at the June hearing knew that the hearing would in all probability not be held before December. The same applies to the direction that updating reports should be completed by 9th September 2016: if the purpose of the deferral was to give further consideration to the risk factors, and if the hearing was unlikely to take place before December, it is difficult to understand why the panel would require updating reports to be completed by 9th September.

[86]I therefore conclude that the decision of the panel was, and was understood by Mr Bate to be, a decision that the case would be listed in October 2016 or very soon thereafter. I do not think Mr Rule is correct to say that there was unlawful delay from 1st October: the reference in the deferral reasons letter to the case not being relisted before the beginning of October 2016 in my view excluded any possibility of a hearing in September, but pointed to a hearing at as early a date as possible after the beginning of October.

[87]As to why the hearing did not in fact take place until March 2017, the Board relies on its listing Framework and on its policy as to the type of factor which may be regarded as an exceptional circumstance justifying a direction for expedition. However, in the light of the evidence and submissions before the court, it is in my view perfectly clear that the explanation lies in the Board’s lack of capacity at that time to accommodate all the cases which were awaiting a hearing. The Board itself, in the evidence on which it relies and in the submissions of Ms Stout, ascribes the delay either to the non-availability of a specialist psychiatric member, or to the number of cases with higher priority which were being considered in the same listing exercise, or to both. I do not think it necessary to examine these differing explanations in detail, because both explanations are based on the available resources being insufficient to meet the demands of the workload. Mr McHenry’s evidence, summarised at paragraph 51 above, is in my view very telling: although Mr Bate’s case had an element of prioritisation in the listing exercises because of his due date (and, one might have thought, a significant element, since his due date was February 2016), it was nonetheless the position that in the September listing exercise there were 11 cases with higher priority, and only 4 of those could be accommodated for hearings in December. I am sympathetic to the Board’s position, carrying out important work which required close consideration of individual cases in the face of a significant backlog of cases awaiting hearing; but Mr Rule correctly relies on the principle in Noorkoiv that a lack of resources does not excuse a failure to fulfil the state’s duty under Art 5.

[88]It follows that in my view Mr Bate succeeds on ground 1 of his claim and is entitled to recover damages for the breach of his Art 5(4) rights between 1st November 2016 and 22nd March 2017. Those damages must be sufficient to compensate him for his frustration, anxiety and distress caused by the delay during that period; and in considering the extent to which he suffered from those emotions, it is relevant to bear in mind three features. First, Mr Bate must have been aware that his solicitor was trying to achieve an earlier hearing date, relying on the understanding of what had been agreed in June, but was meeting with no success and not even receiving an explanation for the delay. Secondly, Mr Bate must have felt that he had agreed to a deferment in the expectation that he would have to wait about 3 months, only to find that his agreement had resulted in a much longer delay. Thirdly, although there is no medical report to this specific effect, there is in my view clear evidence from other sources that during this period Mr Bate’s mental health problems did have the effect that the anxiety, etc, which he suffered was greater than it would have been for many other prisoners.

[89]As to whether Mr Bate is also entitled to damages for delayed liberty during this period, I conclude on the evidence that he is. It seems to me that a substantial part of what was needed by the Board at the deferred hearing could be, and ultimately was, provided by the manager of the St Thomas Fund. If the hearing had been listed on a date in October (as it should have been), and if the deferral directions had been implemented so as to ensure that the necessary evidence was available for that date (as they should have been), it is in my view probable that the panel would have decided that a sufficiently robust management plan was in place and would have directed release.

[90]I think it convenient to consider ground 4 next. It follows from what I have said in paragraphs 86 and 89 above that following the June 2016 hearing there were in my views compelling reasons why Mr Bate’s case should have been expedited so as to ensure that the next hearing took place in October or very soon thereafter. It was not correct that the only matter to be considered as a possible exceptional reason for expedition was that Mr Bate’s application had support: the exceptional reason was, in my view, that the case had been deferred to a hearing in October or very soon thereafter. Nor, with respect to the single member, was it correct to say that there was no medical evidence that Mr Bate’s mental health was being adversely affected: whilst there was no medical report, the fact that the hearing was being delayed by the need to have a specialist psychiatric member, coupled with the reports in the dossier referring to Mr Bate’s anxiety and autistic spectrum disorder, were in my view sufficient to show that there was a combination of factors pointing clearly to a need to avoid delay. The ordinary listing exercise in all probability would not result in a hearing before about December. In those circumstances the decision refusing expedition was in my judgement wrong. I do not however think it necessary or appropriate to grant any relief in respect of this ground: the appropriate relief is encompassed within the award of damages under ground 1.

[91]I turn to ground 2 and 3, under which Mr Rule seeks declaratory relief.

[92]In relation to ground 2, I have already stated my view that during the period covered by this claim the Parole Board clearly did have a serious backlog of work and an insufficiency of resources to enable it to deal with cases speedily. The consequence of those problems in Mr Bate’s case was that his application was subjected to unlawful delay, in breach of his Art 5(4) rights, for which he is entitled to be compensated. No doubt there were other prisoners who similarly suffered delay in breach of their rights. But it does not follow that there were breaches of the rights of all prisoners who made parole applications during this period. This court has no evidence about other cases, and it would in my view be wrong to grant a declaration capable of affecting other cases about which we have no information. Moreover, I accept the submissions of Ms Stout that there is evidence to show that the Parole Board has been, and is, addressing the problems with a significant measure of success, that the situation which obtained 18 months to 2 years ago has now changed, and that accordingly it would be inappropriate for this court to grant a declaration going beyond the facts and circumstances of this individual case. Having sufficiently recorded my views in this judgment, I conclude that it is not appropriate to grant any relief under ground 2.

[93]Ground 3 raises two distinct issues of the Board’s policy: the failure to treat support for a parole application as an exceptional circumstance meriting prioritisation; and the failure to treat an agreed timetable for a hearing in the comparatively near future as an exceptional circumstance meriting prioritisation. I will consider those two points in reverse order.

[94]During the hearing, reference was made to the Board’s guidance as to the making of a direction for expedition when deferring a hearing: see paragraph 84 above. Reference has also been made to the provision for flexibility in the Framework: see paragraph 47 above. In the light of that guidance, it seems to me that ground 3 cannot succeed on this point, because there is no policy of refusing to consider expedition on the basis of a legitimate expectation as to the timetable for the next hearing. As a matter of policy, these is scope for expedition to be granted. The complaint here, which I have found to be a valid complaint, is that it was not granted when – on the merits of this case - it should have been.

[95]As to whether support for an application should be a reason for expedition or prioritisation, it seems to me that it must be for the Parole Board to devise a policy which fulfils the state’s obligations under Art 5(4). It is not for this court to devise such a policy. Mr Rule correctly points out that the Framework came into effect in 2010, at a time when the cohort of cases coming before the Board was very substantially comprised of applications which had good prospects of success, and before the decision in Osborn, Booth and Reilly both introduced a substantial number of applications which required an oral hearing even though there was little prospect of success, and thereby also added substantially to the Board’s workload. The decision in Osborn, Booth and Reilly prohibited the Board from refusing to provide an oral hearing solely because the application had no, or poor, prospects of success. I do not think it follows that the Board is prohibited from taking any account of the strength of a particular application. I accept of course that it is necessary to bear in mind the need for overall fairness as between the many prisoners whose parole applications are current at a particular time. A decision to prioritise one case is, inevitably, a decision to delay another. But provided that overall fairness can be achieved, I can see no reason of principle why a post-tariff prisoner whose application is supported, and in respect of whom release is likely to be directed when a panel hears his case, should not have that positive feature of his case recognised and given some weight in the listing exercise. At the very least, if a stage is reached in a listing exercise at which there is only one hearing slot available, but there are two cases which involve the same category of prisoner and which have the same due date, I can see no reason why the prisoner whose application enjoyed support should not on that basis be given priority over the prisoner who (perhaps by reason of his own violent misconduct in prison) had poor prospects of success. What is sufficient to provide a speedy hearing depends on the circumstances of the individual case.

[96]It follows that if the Parole Board operates a listing policy which in all circumstances ignores the strengths (as opposed to the weaknesses) of an individual application, it is in my view likely that the Art 5(4) rights of individual prisoners may be breached. It does however seem to me that all will depend on the circumstances of the individual case. Having found in the claimant’s favour on grounds 1 and 4 in the specific circumstances of his case, I am not persuaded that this court should declare the policy which was applied in Mr Bate’s case was unlawful. Summary of conclusions

[97]For the reason I have given, I would find in Mr Bate’s favour on ground 1 and ground 4, and would award him damages on the basis indicated in paragraphs 77, 88 and 89 above. I would refuse relief in respect of grounds 3 and 4.

[98]In view of Ms Stout’s submission that she should be allowed an opportunity to make submissions as to the quantum of damages, I would direct that the parties seek within 21 days of this judgment being handed down either to agree damages or to make written submissions as to the quantum of damages and as to whether any outstanding issues should be transferred to the County Court. On the basis of those submissions this court will give a decision in writing.

Lord Justice Green:

[99]I agree.

Cited in 1 later judgment

Sean Fitzgerald, R (on the application of) v Parole Board of England and Wales 2025