Human rights – life prisoners – parole board – Periodic reviews – Release on licence

R (on the application of George Loch) v Secretary of State for Justice: QBD (admin) (Mr Justice Stadlen): 2 October 2008

The claimant (L) applied for judicial review of a decision not to refer his case to the Parole Board until more than 18 months after his last Parole Board hearing.

L was a prisoner serving a life sentence imposed for robbery and possession of an imitation firearm whose tariff period of five years less time on remand had expired. L had previously served sentences for robbery. He was a prolific offender and had convictions for burglary, theft, criminal damage and assault. He had been a heavy drinker and drug user.

After L’s tariff expired, the Parole Board had reviewed his case. It declined to direct his release but did recommend a transfer to open conditions. The board took the view that much of L’s offending had been linked to alcohol and drug abuse and that, until further testing in open conditions had been successfully completed, it could not be said that the risk L represented had been sufficiently reduced to enable a direction for release on licence.

The defendant secretary of state agreed to the transfer to open conditions and decided that L’s next Parole Board hearing would take place some 18 months later. L submitted that, in the light of the authorities, his rights under article 5(4) of the European Convention on Human Rights to periodic and speedy review of his detention would be violated if the next Parole Board hearing took place more than one year after his last review.

Held: (1) The European Court of Human Rights had declined to prescribe a maximum period of time between reviews which had to be adhered to in order to comply with what it had held was the requirement under article 5(4) for decisions concerning continued detention to be taken speedily. It had held that the question of whether periods complied with the requirement for speedy decisions had to be determined in the light of the circumstances of each case. In order to justify a particular period between reviews, it was necessary for the government not only to identify a need for monitoring and reporting on progress but also to specify not only the nature of the process but in particular how long it would take, Oldham v UK (36273/97) [2001] 31 EHRR 34 ECHR and Hirst v UK (40787/98) [2001] Prison LR 383 ECHR applied. The relevant decision-maker had to approach the question of review and the prisoner’s progress towards release with flexibility and due regard to his individual circumstances. In considering whether, in any particular case, the gap between reviews was reasonable and thus compliant with the article 5(4) requirement for a speedy decision, while there was no formal presumption that an interval of more than a year was unreasonable and non-compliant, the court should approach the question on the basis that, where there was an interval of more than a year, it was generally for the decision-maker to show by reference to the particular facts of the case that it was reasonable and thus compliant with article 5(4), R (on the application of Murray) v Parole Board [2003] EWCA Civ 1561, [2004] Prison LR 175 applied.

(2) In the present case, the evidence that L had made good progress was compelling and was not challenged by the secretary of state. The Prison Service Order 6300 ‘Release on Temporary Licence’ did not support the submission that release on temporary licence typically took 12 months for a prisoner to work through the various stages, or the submission that because the Parole Board emphasised the necessity for proper testing in open conditions it therefore followed that an 18-month period was required before L’s case was considered by the Parole Board. On the evidence, an 18-month period beforeL’s case was again considered by the board would be a breach of article 5(4).

Application granted.

Mr Southey (instructed by Michael Purdon) for the claimant; Mr Sachdeva (instructed by the Treasury Solicitor) for the defendant.