Delay – Detention – Parole – Prisoners’ rights

Ian Gray v (1) Secretary of State for Justice (2) Parole Board: QBD (Admin) (Mr Justice Burnett): 11 January 2010

The claimant prisoner (G) applied for judicial review of the actions and decisions of the first defendant secretary of state and the second defendant Parole Board in connection with the process of his continued detention.

G had been convicted of two sexual offences and, in February 2007, a sentence of detention for public protection (DPP) was imposed, with a specified minimum term of two years. The impact of that specification was that G had to serve at least two years, his release thereafter being conditional upon an assessment by the board that it was safe to release him. As a result of time served while on remand, G’s earliest release date was in October 2008. G’s representatives had sent the board a dossier in May 2008, ahead of an anticipated parole hearing in September 2008. The board did not, however, consider G’s case until February 2009, when it declined to order his release or recommend that he be transferred to an open establishment. In the course of that hearing, the secretary of state had stated that the test to be applied by the board in satisfying itself that it was no longer necessary for the protection of the public that the prisoner should be confined, was whether the lifer’s level of risk to life and limb of others was considered to be more than minimal. G was subsequently informed by the secretary of state that his next board meeting would take place in August 2010.

G contended that (1) the delay in convening the board gave rise to a violation of article 5(4) of the European Convention on Human Rights 1950, such as to entitle him to a declaration and other such just satisfaction pursuant to section 8 of the Human Rights Act 1998 as was appropriate; (2) the period of time between the board’s decision in February 2009 and the date of the next hearing in August 2010 represented further unlawful delay in breach of article 5(4); (3) the secretary of state’s directions to the board were unlawful and irrational because they required the board to apply the same test to the release of a prisoner or detainee serving a sentence of imprisonment for public protection as for a life sentence; (4) the secretary of state had acted unlawfully in failing to produce guidance on the approach to transfer to open conditions concerned explicitly with short tariff DPP prisoners, as opposed to life prisoners, as had the board in failing to generate its own guidance.

Held: (1) Article 5(4) imposed an obligation on the secretary of state to provide a speedy and meaningful review of the legality of detention of a person subject to an indeterminate sentence for public protection. It was not a strict requirement of article 5(4) that a board hearing should take place before the expiry of a minimum term, although it was the aim of the secretary of state and the board to achieve that goal, R (on the application of Noorkoiv) v Secretary of State for the Home Department (No2) [2002] EWCA Civ 770, [2002] 1 WLR 3284 followed. Whether there had been a speedy determination was fact specific in any given case, R (on the application of Cawley) v Parole Board [2007] EWHC 2649 (Admin) applied. In the present case, the board had not acted with reasonable despatch. There was no active case management before September 2008 and no explanation for that inaction. G was, accordingly, entitled to a declaration that the board’s failure to provide a hearing until February 2009 gave rise to a breach of article 5(4) of the convention. It was, however, not appropriate to make any monetary award, given that G would not have been released had a timely hearing occurred, Wells v Parole Board [2009] UKHL 22, [2009] 2 WLR 1149 followed.

(2) Article 5(4) required that a detained person had to be able to challenge his detention at reasonable intervals, and it was a matter for the court to determine whether the proposed interval was a reasonable one. In the present case, the next hearing had been set for August 2010 to enable G to do the work necessary to reduce risk and thus achieve release, and there was no hint of the timetable being set for the convenience of the secretary of state or otherwise because of a lack of resources. In those circumstances, the decision to set an interval of 18 months did not bring with it a breach of article 5(4).

(3) The impact of the directions in G’s case was wholly academic because there was no question of his release. In any event, the board had not been diverted from considering the real issue in the case, namely the risk of sexual offending upon which it had focused. The third ground in G’s challenge had, accordingly, to fail.

(4) The challenges to the failure of the secretary of state to issue fresh directions on the transfer to open conditions or the board itself to circulate guidance were unarguable. There was no question of such a recommendation in G’s case, and the secretary of state had not been obliged to issue directions of the sort envisaged by G.

Application granted in part.

Philip Rule (instructed by Mark Williams Associates) for the claimant; Simon Murray and Matthew Slater (instructed by the Treasury Solicitor) for the first and second defendants respectively.