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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Murray v Parole Board & Anor  EWCA Civ 1561 (06 November 2003)
Cite as:  EWCA Civ 1561
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE PITCHFORD)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
MR. JUSTICE MUNBY
| WILLIAM MURRAY
|- and -
|THE PAROLE BOARD
SECRETARY OF STATE FOR THE HOME DEPARTMENT
MR P PATEL (instructed by theTreasury Solicitor, London SW1H 9JS ) for the Respondents
Hearing date: Monday 6 October 2003
Crown Copyright ©
Lord Justice Sedley:
This is the judgment of the court.
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.
The court has found…. that the tariff comprises the punishment element of the mandatory life sentence. The Secretary of State's role in fixing the tariff is a sentencing exercise, not the administrative implementation of the sentence of the court as can be seen in cases of early or conditional release from a determinate term of imprisonment. After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence [for] murder. These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of Article 5 § 4. It can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of Article 5 § 1 of the Convention.
26. As Mr Patel [for the defendants] submitted, the point at issue in Noorkoiv's case was different from that which arises here. A procedure had been planned and adopted, possibly from a misunderstanding of the legislation that review could only take place after the completion of the tariff, which could not be rectified because sufficient DLP [discretionary lifer panel] chairmen and psychiatrists could not be made available with current resources. Here what has happened is that the claimant's tariff has long expired. He has had his licence revoked and has remained in detention under a regime by reason of Stafford which requires change. His review has to be considered together with the competing interests of hundreds of others. Here it is said that the report-gathering phase of the timetable will take until 21 May 2003. I observe that extra resources cannot assist the Secretary of State in this regard because those who have already had the care of the prisoners are required to prepare those reports. There is a limit on the capacity of those reporters to deal with the demands upon them. This is not a case in which the Secretary of State has instituted an administrative procedure calculated to breach Article 5. What he is doing is dealing with the interim period required to bring his procedure into compliance.
27. In the case of this particular claimant, I accept the submissions made on behalf of the Secretary of State that he does not present an exceptional case which requires him, as it were, to leap the queue and be one of the first to be considered. I do not consider that the measures he has taken bring him out of compliance with article 5 § 4. They are reasonable and they are set with a view to ensuring that others do not undeservedly suffer. The European court has acknowledged that a Convention state may be justified in adopting a gradual but necessary approach to compliance -- see Walden v Liechtenstein (application no 33916/96), a decision which Ms Krause has heard me cite already this week. In the particular circumstances of this claimant, I find that he does have access to proceedings by which the lawfulness of his detention will be decided speedily. I therefore decline to order a Parole Board hearing forthwith and the claim is dismissed.
Is the appeal moot?
The judge's decision
What does the law require?
"16. Ms. Krause, on behalf of the claimant, relies upon two decisions of the European Court on the subject of article 5(4), Hirst v United Kingdom (24 July 2001) and Oldham v United Kingdom (26 September 2000). Mr Hirst was serving a discretionary life sentence for manslaughter. His tariff expired in 1994. His first review took place in December 1994, five and a half months after expiration of his tariff. Subsequent reviews took place on 9 October 1996 and 15 July 1998. A further review was fixed for July 2000. The court held that the period between these dates of 21 months and two years respectively were too long to satisfy article 5(4). It noted that in previous decisions it had approved periods of less than one year and rejected periods of more than one year. In Oldham the Court rejected a period of two years. Stafford applied the same reasoning to mandatory life cases."
29) The issue to be determined is whether this lapse of time complies with the requirement of Article 5 § 4 of the Convention that decisions concerning continued detention be taken "speedily".
30) It is already established in the case-law of the Convention organs that this requirement implies not only that the competent courts must reach their decisions "speedily" but also that, where an automatic review of the lawfulness of detention has been instituted, their decisions must follow at "reasonable intervals" (see the Herczegfalvy n Austria judgment of 24 September 1992, Series A no. 244, p. 24, § 75). In practice, the system of review of discretionary life prisoners involves automatic reviews set at periods of two years or less, at the direction of the Secretary of State, who may or may not have received a recommendation as to timing by the DLP at the previous review.
31) It is true that the question of whether periods comply with the requirement must – as with the reasonable-time stipulation in Article 5 § 3 and Article 6 § 1 – be determined in the light of circumstances of each case (see the Sanchez-Reisse v Switzerland judgment of 21 October 1986, Series A no. 107, p.20, § 55). It is therefore not for this Court to attempt to rule as to the maximum period of time between reviews which should automatically apply to this category of life prisoner as a whole. It notes that the system as applied in this case has a flexibility which must reflect the realities of the situation, namely, that there are significant differences in the personal circumstances of the prisoners under review.
32) In previous cases, the Convention organs have accepted periods of less than a year between reviews and rejected periods of more than one year. In the case of A.T. v the United Kingdom, the Commission found that a period of almost two years before a review of the detention of a discretionary life prisoner was not justified, where the DLP had recommended his case should be reviewed within one year (application no. 20448/92, Commission's report of 29 November 1995, unpublished). The Court in the Herczegfalvy judgment (cited above, pp. 24-25, § 77) found that periods between reviews of fifteen months and two years were not reasonable in the case of a person detained on grounds of mental illness.
33) The Government pointed out that in this case, unlike that of A.T., the DLP made no recommendation for a review to take place before two years had elapsed. This applicant, they agreed, had problems to address, and monitoring his progress could not realistically be done in under that period. They also argued that the case of discretionary life prisoners, who are detained on grounds of risk to the public, should not be compared with that of persons detained on grounds of mental illness.
34) The Court is not persuaded by the latter argument. Article 5 § 4 was held to be applicable to discretionary life sentences since these were imposed on offenders due to considerations of mental instability and dangerousness which were susceptible to change over the passage of time (see, for example, the Thynne, Wilson and Gunnell v the United Kingdom judgment of 25 October 1990, Series A no. 190-A, p.30, § 76, and p.27. § 69, where the Court drew comparisons from its case-law concerning the detention of persons of unsound mind under Article 5 § 1(e)). Nor have the Government substantiated their assertion that mental disorder in the context of mental illness is more susceptible to change over time than mental instability posing risks of dangerousness.
35) As regards the lack of recommendation by the DLP for a review of this applicant within a period of less than two years, the Court does not find this to be decisive ground of distinction. While the applicant underwent courses aimed at addressing the perceived problems of anger, alcoholism and relationships, it appears that these were concluded within eight months of his recall. No further courses were arranged for the applicant during the next sixteen months which elapsed before his next review. The Government have referred to the need to monitor and make reports on his progress without specifying the nature of this process or how long it took. In these circumstances, the Court is not satisfied that the period of two years was justified by considerations of rehabilitation and monitoring.
36) It was in any event open to the Secretary of Sate, the Government asserted, to bring forward the date of the review where a prisoner showed unexpectedly rapid progress in addressing problems. The Court has already noted the flexibility in the system as mitigating the application of an automatic two-year review system. However, while the DLP could recommend an earlier review and the Secretary of State direct an earlier date, there was no possibility for an applicant himself to apply for a review within a two-year period. The applicant in the present case, who had finished the rehabilitation work required of him in the first eight months of his recall, therefore had no possibility of bringing his case back before the Parole Board in the absence of the Secretary of State's exercising his discretion in his favour as an exceptional case.
37) The Court concludes in the circumstances of this case that the two-year delay between reviews was not reasonable and that the question of whether his continued detention was lawful was not decided "speedily" within the meaning of Article 5 § 4 of the Convention. There has, accordingly, been a violation of that provision.
16.The difficulty which Mr Clough faces in relying on Oldham is that the European Court expressly stated in the passage which I have cited from paragraph 31 that it was not going to give a ruling as to the maximum permissible period between reviews to consider a prisoner's release. It recognised that a "reasonable period" will depend on the facts of the particular case.
18. The fact that two years constituted too long a period in Oldham does not necessarily entail that a two-year period in the present case was disproportionately long.
Lord Phillips MR, however, said:
28. This is a case which has turned upon its particular facts, as the Strasbourg court has recognised is appropriate. No general proposition can be based upon it to the effect that a two year interval will satisfy the requirement derived from Article 5 (4) of the Human Rights Convention that a person deprived of his liberty shall be entitled to have the lawfulness of his detention reviewed at reasonable intervals.
30. The problem …. is that the ECtHR has conspicuously declined to be prescriptive about length of the detention period which would lead to a violation of article 5(4) in the absence of a review (see Oldham v UK (App No 36273/97), paras 30-37). Strasbourg jurisprudence makes it clear that the question whether such periods comply with the article 5(4) requirement must be determined in the light of the circumstances of each case (Oldham, para 31), and the evolving Home Office policies, which we have described earlier in this judgment, follow the principles set out in that jurisprudence. It is therefore impossible to say on the particular facts of this case that, viewed prospectively, the Home Office's January 2002 decision somehow or other violated Mr Spence's Convention rights. In R (MacNeil) v Parole Board  EWCA Civ 448 this court applied the principles set out in the Oldham case when it held that there were proper reasons for setting a two year period before the next Parole Board review on the facts of that particular case.
Later he said:
34. If events subsequent to the initial fixing of the review date, but before the review date itself occurs, show that the interval initially prescribed should be shortened, Mr Watts has explained that there are internal procedures whereby a prisoner can request a review of the interval by the Home Secretary. That point is important, not because it is suggested that any such review would be appropriate in this case, but because it demonstrates that the power to initiate a process which may lead to a shortening of the interval does not lie solely in the hands of the executive.
35. The decision as to the length of the interval is thus not one which under the Convention needs to be taken by a court for the purposes of article 5 (4) (see Oldham v UK and Ashingdane v UK (1985) 7 EHRR 528 at paragraph 52). It can be taken by the Home Secretary. In determining whether the interval complies with article 5 (4) on the facts of a particular case, the courts asks itself whether the interval was reasonable. The answer to this question is a matter for the court. The court does not, therefore, apply the Wednesbury test and ask whether the interval was not one which a reasonable decision-maker could determine. In considering the question of reasonableness, the court will give appropriate weight to the views both of the Home Secretary and the Parole Board.
32. The Court recalls that prisoners detained during Her Majesty's Pleasure are entitled, after the expiry of their "tariff", to have the lawfulness of their continued detention reviewed by a court offering the necessary judicial guarantees, in particular, the power to order release and adversial proceedings (see Hussain v the United Kingdom, cited above, §57; Singh v the United Kingdom, cited above, §66). The applicant's tariff expired in 1987. Before his eventual release in May 1997, the applicant did not receive a review by a body fulfilling this criteria [sic] as the Parole Board, even under the interim arrangements, did not have the power to order the applicant's release.
24. We were told that the practice of asking the Board to recommend when the next review of a prisoner's case should begin has now been abandoned because prisoners' legal advisers had developed the practice of making legal challenges to the Board's recommendations (and reasons) and to the Home Secretary's response, as in the present case.