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Cite as: [2017] 1 WLR 2848, [2017] EWHC 729 (Admin), [2017] WLR 2848, [2017] WLR(D) 261

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Neutral Citation Number: [2017] EWHC 729 (Admin)
Case No: CO/5075/2016


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


The Queen (on the application of Shimei Youngsam)
- and -

The Parole Board


Nick Armstrong (instructed by Bhatt Murphy Solicitors) for the Claimant
Tim Buley (instructed by The Government Legal Department) for the Defendant

Hearing dates: 7th March 2017



Crown Copyright ©

    Mr Justice Turner :


  1. This case is about the rights, both under the European Convention and the common law, of offenders on parole who have been recalled to prison following alleged breaches of their licences. It also involves a consideration of the scope of the doctrine of precedent and, in particular, the determination of what part of the decision of a court can properly be considered to be the ratio decidendi.

  3. On 18 January 2002, the claimant was convicted of a gang-related attempted murder by shooting. His instructions had been to lure the intended victim to her death at the hands of a gunman. The plan went awry when the gunman missed his target and accidentally shot himself. The claimant was sentenced to 18 years imprisonment for his part in this botched execution attempt. On 28 March 2013, he was released on parole licence but was subsequently recalled on the ground that, in breach of the terms of his licence, he had been found to be in possession of a controlled drug, namely, cannabis.
  4. Following his re-release, the claimant was recalled again as a result of an incident on 27 May 2015 which occurred in Brent during the course of which he was shot in the leg. It had been a condition of his licence not to enter Brent which had been the scene of his earlier crime. He now complains that following his recall there were untoward delays before the matter of his further release was considered by the Parole Board at an oral hearing.
  5. He contends that these delays were attributable to defaults on the part of the Parole Board in consequence of which his rights under Article 5 of the ECHR and under the common law have been breached. On this issue he proceeds with permission by consent following the grant of permission made by the single judge in the linked case of Nelson (CO/1156/2016). He argues further that the substantive decision of the Parole Board, which was not to re-release him, is flawed and is thus susceptible to judicial review. On this issue the matter proceeds by way of a rolled up hearing. I propose to deal with each of these matters in turn.
  6. ARTICLE 5

  7. In so far as is material, Article 5 ECHR provides:
  8. "Article 5 – Right to liberty and security
    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."
  9. The question, therefore, arises as to whether or not the claimant was, during the period of alleged procedural delay, the subject of "lawful detention…after conviction by a competent court". If so, then Article 5(4) does not apply and this head of claim fails in limine. If not, the Court can go on to consider the substantive merits of the allegation of breach.
  10. Unhappily, there is a surfeit of authority on the point.
  11. The Statutory Framework

  12. It has long been a feature of our criminal justice system that, usually, when someone is sentenced to a period of imprisonment the reality is that he emerges from custody significantly earlier than if the length of his sentence were to be taken at face value. Under such arrangements, the status under the ECHR of offenders who have been released from custody within the determinate period of imprisonment set by the court has proved to be controversial. Are they, after release, still subject to lawful detention after conviction by a competent court in which case they are not entitled to the protection of Article 5(4) or, alternatively, has the fact of earlier release taken them outside the scope of this exception to the application of Article 5(4)?
  13. The issue is made more complicated by the fact that the statutory circumstances under which prisoners may be released before the expiry of their determinate sentences are, and have been historically, many and various. Furthermore, there are categories of sentence in which the date of release is, in whole or in part, indeterminate from the outset.
  14. This has given rise to the practical difficulty that nearly every new relevant change in the regime governing the release of prisoners has attracted a fresh dispute as to the applicability of Article 5(4) thereto. It may be observed, in passing, that few judges have been heard to complain that changes to the statutory provisions relating to sentencing have, over recent years, been too infrequent.
  15. It is therefore necessary to look in a little greater detail at the statutory provisions which presently underlie the release of prisoners before the expiry of the period handed down by the sentencing judge in so far as they apply to the instant case.
  16. Section 244 Criminal Justice Act 2003 provides that "as soon as a fixed-term prisoner…has served the requisite custodial period…it is the duty of the Secretary of State to release him on licence…"
  17. Section 254 empowers the Secretary of State to revoke a prisoner's licence. However, the prisoner must be informed of his right to make representations about his recall and, if he chooses to do so, the matter must be referred to the Parole Board. In the claimant's case, this procedure was duly followed but he complains that there were undue delays before his representations were considered by the Board at an oral hearing.
  18. Case Law

  19. The scope of the application of Article 5(4) to circumstances in which a prisoner has been recalled to custody were recently considered by the Supreme Court in R(Whiston) v Secretary of State for Justice [2015] AC 176. In that case, the claimant had been released even before half of his term of imprisonment had been served pursuant to the home detention curfew scheme. However, he had subsequently been recalled on the ground that his whereabouts could no longer be monitored at the place specified in the curfew condition of his licence. In contrast to the position in the instant case, the statutory framework provided the claimant with no power to seek a review of his recall. Accordingly, he raised a challenge under Article 5(4).
  20. The Court unanimously concluded that Article 5(4) did not apply to the particular circumstances of that case. Furthermore, Lord Neuberger, with whom Lord Kerr, Lord Carnwath and Lord Hughes agreed, went on to formulate a broader principle to the effect that where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4) because, for the duration of the sentence period, "the lawfulness of his detention" has been "decided … by a court", namely the court which originally sentenced him to the term of imprisonment.
  21. Thus broadly stated, the principle would clearly apply to the circumstances of the instant case and result in the swift despatch of the claimant's Article 5(4) claim. However, the claimant contends that the ratio of the decision in Whiston was limited to the narrow point that recall under the detention curfew scheme did not engage Article 5(4) and that, in so far as it went beyond this, the broader statement of principle was merely obiter and thus not binding on this court.
  22. The claimant is emboldened in developing this submission by the observations of Baroness Hale at paragraphs 58 and 59 of her (partly) dissenting judgment in Whiston:
  23. "58 In this case, Mr Whiston was still serving the period of imprisonment which resulted from the sentence imposed on him by the court: it is called "the requisite custodial period". He was not yet entitled to release. Discretionary release subject [to] a home detention curfew enforced by electronic monitoring may or may not be regarded as a continued deprivation of liberty, depending on the length of the curfew, but it is very close to it. The prisoner may be recalled for the purely practical reason that it is not possible to monitor him at his address, which is nothing to do with whether he still constitutes a risk. It is the original sentence which means that he is still a prisoner.
    59 Hence it seems to me that our domestic law, which gives the Parole Board the power to decide on the continued detention of a prisoner recalled after mandatory release on licence, but not after release on home detention curfew, draws a principled distinction. It is a distinction which is certainly consistent with the principles contained in article 5.1 and 5.4 of the European Convention. It is for that reason that, although agreeing with the ratio of the decision in this case, I would prefer it not to be taken further than the situation with which this case is concerned. I comfort myself that the views to the contrary expressed in Lord Neuberger PSC's judgment are, strictly speaking, obiter dicta."
  24. The claimant further reinforces this point with reference to the fact that Lord Neuberger makes express reference to Baroness Hale's judgment within his own judgment without contradicting her suggestion that his statement of broader principle was obiter.
  25. The defendant counters this argument with the assertion that Baroness Hale's observation as to the obiter status of the broad principle endorsed by the majority is wrong and is not binding on this Court because it is, in itself, obiter.
  26. What is the ratio of Whiston?

  27. Much academic learning has been devoted to the topic of distilling from any given judgment that part of it which forms the ratio of the decision. Perhaps predictably, the issue has been much less frequently analysed in decisions of the courts themselves. A detailed review of the territory is to be found in Chapter 2 of Precedent in English Law Cross and Harris 4th Edition. The overall picture is of a broad spectrum of views.
  28. At one end of that spectrum is to be found the approach of Lord Halsbury in Quinn v Leatham [1901] AC 459 at 506:
  29. "A case is only authority for what it actually decides."

    Taken literally, such an analysis would limit the scope of the ratio of any given case to the material facts upon which it was decided thus excluding from consideration as part of the ratio any broader principles forming part of the reasoning of the court.

  30. In contrast is the view of Devlin J (as he then was) as expressed in Behrens v Bartram Mill Circus [1957] 2 QB 1 and summarised thus in Cross and Harris at page 58:
  31. "…the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent."
  32. Taking a middle course in R(Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 Buxton LJ observed at para 17:
  33. "Cases as such do not bind; their rationes decidendi do. While there has been much academic discussion of the proper way of determining the ratio of a case, we find the clearest and most persuasive guidance, at least in a case such as the present where one is dealing with a single judgment, to be that of Professor Cross in Cross & Harris, Precedent in English Law, 4th ed (1991), p 72: "The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him.""
  34. In the circumstances of this case, I am satisfied that the approach of Buxton LJ in Kadhim is the appropriate one allowing as it does a degree of latitude as to how the scope of the ratio is demarcated but requiring the application of the rule of law thus defined to be a necessary step towards the conclusion reached in deciding the case.
  35. In order to decide the appeal before the Supreme Court, it was not necessary for Lord Neuberger in Whiston to go further than to find that recall within the home detention curfew scheme fell outside the scope of Article 5(4). He did not have to go so far as to broaden the basis of his analysis so as to cover the legally distinct status of prisoners released as of statutory right. Indeed, he neither expressly nor impliedly treated such a broadening as being a necessary step in reaching his conclusion. I would thus respectfully agree with the observation of Baroness Hale that, to the extent by which his analysis went beyond the scope of the statutory framework with which the appeal was directly concerned, the remarks of Lord Neuberger were, as she put it, "strictly speaking" obiter dicta.
  36. But this is not an end of the matter. Some obiters are undoubtedly to be given greater weight than others. In this regard, the observations of Megarry J (as he then was) in Brunner v Greenslade [1971] Ch. 993 at p 1002 are apposite:
  37. "In the Lawrence case [1939] Ch. 656, Simonds J held, in a reserved judgment, that on the facts before him no general scheme of development existed. It was accordingly not necessary to determine what rights as between the sub-purchasers there might have been if the main scheme had been held to exist. However, as the point had been fully argued, he expressed his views on it. I do not think that such views can simply be stigmatised as being obiter and so of little weight. A mere passing remark, or a statement or assumption on some matter that has not been argued, is one thing; a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter…"
  38. A particular challenge facing the Supreme Court in Whiston was what had been described by Elias LJ in the Court of Appeal as "a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage" Article 5.4. He went on to observe that problems arise "because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices".
  39. One particular area of tension in the decided cases identified by Lord Neuberger was that which had arisen between the Strasbourg jurisprudence on the scope of Article 5(4)[1] and at least some decisions in domestic law. I do not find it necessary for present purposes to recite the long list of cases to which Elias LJ was making weary reference but of salient importance was that of R (West) v Parole Board [2005] 1 WLR 350.
  40. In West the House of Lords was concerned with two appellants whose licences had been revoked following their mandatory release under the statutory predecessor to section 244 of the 2003 Act. They were, to all intents and purposes, in an identical position to the claimant in the instant case.
  41. The central issue in West related to the circumstances in which the demands of procedural fairness required the Parole Board to engage in an oral hearing at which the merits of any objection made by the prisoner to his recall could be ventilated and adjudicated upon. Lord Bingham concluded at para 35:
  42. "The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."
  43. However, Lord Bingham went further and concluded that the review of the Parole Board was also covered by Article 5(4) concluding at para 37 that: "Its review will in my opinion satisfy the requirements of article 5(4) provided it is conducted in a manner that meets the requirement of procedural fairness already discussed."
  44. This approach was later followed by Lord Brown in the case of R(Black) v Justice Secretary [2009] 1 AC 949 at para 74 p 985:
  45. "74 Inescapably it follows from West that contrary to the view expressed in the Strasbourg court's admissibility decision in Brown, a prisoner's recall for breach of his licence conditions does raise, "new issues affecting the lawfulness of the detention" such as to engage article 5(4) . And that seems to me clearly correct: it would not be lawful to recall a prisoner unless he had breached his licence conditions and there could well be an issue as to this. I wonder, indeed, if the European court would have decided Brown as they did had it followed, rather than preceded, the House's decision in West. Be that as it may, recall cases certainly so far as domestic law goes, are to be treated as akin both to lifer cases in the post-tariff period and to the Van Droogenbroeck-type of case where, upon the expiry of the sentence, a prisoner is subjected to an executive power of preventive detention. And all these cases, submits Mr Owen, weaken the Secretary of State's contention that there exists a core principle of Convention law that article 5(4) cannot be engaged during the term of a determinate sentence…"
  46. I am in no doubt whatsoever that Lord Neuberger in Whiston emphatically and unreservedly intended to reverse the conclusions of Lord Bingham in West and of Lord Brown in Black. He held:
  47. "45 I have some difficulty with the notion, implied by Lord Brown in para 74 of Black, that a court in this country should hold that the reach of article 5(4) is, as it were, longer than the Strasbourg court has held. Assuming (as may well be right, and will no doubt have to be considered in a future case) that a United Kingdom court could, in principle, decide that article 5(4) applied in Mr Whiston's case in the face of clear Strasbourg jurisprudence that it would not, I am quite unconvinced that it would be appropriate to do so. Unless and until I am persuaded otherwise on the facts of a particular case, it seems to me that the common law should be perfectly well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention. The decision in West demonstrates that the common law affords protection in such circumstances, and Lord Brown's actual conclusion in Black underlines the very limited nature of any exception which he had in mind in his obiter observations.
    46 It would be wrong not to confront squarely the decision in West on article 5(4) and Lord Brown's obiter dictum in Black, para 74. As Elias LJ said at [2014] QB 306, para 1, there is "a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage" article 5(4). As he added, "[p]roblems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices". I believe that this makes it particularly important that we grasp the nettle and hold that (i) the decision in West was per incuriam so far as it involved holding (or assuming) that article 5(4) was engaged, and (ii) the obiter dictum of Lord Brown in Black, para 74 is wrong in so far as it suggests that the law of the UK in relation to article 5(4) differs from the Strasbourg jurisprudence as summarised by Lord Hope in Giles, paras 40 and 51.
    47 So far as West is concerned, I have already identified certain problems in para 41 above. Furthermore, and importantly, it is not as if the actual decision in West thereby stands in any way impugned. As the headnote records, at [2005] 1 WLR 350–351, the conclusion reached by the House of Lords was primarily based on the appellant's common law rights, as is reflected in Lord Bingham's opinion, which devotes nine paragraphs to the common law and one to article 5(4). I suspect that the reason that the appellant's Convention rights were considered was that one of the appellants had not relied on the common law in the Court of Appeal (see para 33). Properly analysed, all five opinions in Black support the view that West was per incuriam to the extent I have suggested. Lord Phillips and Lord Brown both expressly said it is inconsistent with the Strasbourg jurisprudence, and Lord Rodger and Lady Hale agreed with Lord Brown. Lord Rodger (with whom Lady Hale also agreed) and Lord Carswell each made it clear that they regarded the law as accurately set by Lord Hope in Giles, which is inconsistent with West so far as the applicability of article 5(4) is concerned.
    48 As to Lord Brown's observation in Black at para 74, apart from being no more than an obiter dictum, it is inconsistent with the analyses of Lord Rodger and Lord Carswell in the same case. I must also confess that, in agreement with Lord Phillips, it seems rather hard to reconcile the reasoning which led Lord Brown to dismissing the appeal with his observations in para 74. It is true that Lord Rodger and Baroness Hale agreed with Lord Brown, but I do not think it would be right to take such a general agreement as approving every sentence in Lord Brown's opinion, at least in so far as a sentence is not part of his "[c]onsiderations and conclusions". Quite apart from that, it does not appear to have been argued in Black that it was wrongly held or assumed in West that article 5(4) was engaged, and therefore it is unsurprising that, in so far as they considered West, the opinions in Black proceeded on the basis that it was rightly decided. Indeed, the inconsistencies and uncertainties on this issue engendered by the opinions in Black appear to me to support the view that West was wrong in so far as it held or assumed that article 5(4) was engaged."
  48. The claimant contends that these observations are not binding on this court because they are obiter and, in any event, wrong.
  49. The issue arises as to whether, by an obiter observation, the Supreme Court can overrule its previous decisions. The starting point must be the Practice Statement (Judicial Precedent) House of Lords of 26 July 1966 [1966] 1 W.L.R. 1234 which provides:
  50. "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
    Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
    In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
    This announcement is not intended to affect the use of precedent elsewhere than in this House."
  51. In Austin v Mayor and Burgesses of the London Borough of Southwark [2011] 1 AC 355 at para 25 Lord Hope observed:
  52. "The Supreme Court has not thought it necessary to reissue the Practice Statement as a fresh statement of practice in the court's own name. This is because it has as much effect in this court as it did before the Appellate Committee in the House of Lords. It was part of the established jurisprudence relating to the conduct of appeals in the House of Lords which was transferred to this court by section 40 of the Constitutional Reform Act 2005."
  53. It is to be noted that the words of the Practice Statement are not prescriptive in identifying the circumstances in which it is appropriate for the Supreme Court to depart from its own earlier decisions. In particular, the Practice Statement:
  54. i) does not require the Supreme Court to make express reference to the Practice Statement as a prerequisite to departing effectively from an earlier decision;

    ii) does not require the decision to depart from precedent to be unanimous;

    iii) does not require the ratio of the decision to depart from precedent to coincide with or entirely to subsume the ratio of the earlier decision or decisions which it rules no longer to be binding.

  55. There are numerous observations in the House of Lords and, latterly, the Supreme Court emphasising the need for caution before departing too readily from earlier decisions. All of these have been drawn to my attention on behalf of the claimant in this case. Ultimately, however, it is for the Supreme Court in any given case to balance the competing demands of fairness and certainty.
  56. In any event, on his own approach to the earlier authorities Lord Neuberger did not need to invoke the Practice Statement. He declared the decision in West to be per incuriam on the issue of the application of Article 5(4) and that in Black to be obiter. Accordingly, the Supreme Court was entitled to depart from these earlier decisions without invoking the Practice Statement. The brave efforts of the claimant to persuade me to reach a contrary view on the status of these earlier cases have been unsuccessful but I would add that even if I had been satisfied that West had not been decided per incuriam I would still have felt bound to follow the statement of broad principle enunciated in Whiston. Where a majority of the Justices have in the clearest possible terms decided that one or more of its previous decisions are not to be followed then it is not for this court to seek to emasculate the later decision by reanalysing the earlier case law and reaching a contrary view. To hold otherwise would be to court judicial anarchy. As Lord Cross emphatically observed in Miliangos v George Frank (Textiles) Ltd:
  57. "It is not for any inferior court—be it a county court or a division of the Court of Appeal presided over by Lord Denning —to review decisions of this House."
  58. Not aspiring to the level of judicial adventurism favoured by Lord Denning, I have come to the firm conclusion that the broad statement of principle articulated by Lord Neuberger in Whiston on the scope of Article 5(4) whilst, strictly speaking, obiter was clearly intended to, and now ought to, be followed by all courts of inferior jurisdiction.

  60. There is no dispute that even if, as I have found, Article 5(4) has no application to the circumstances of the instant case, there still exists a common law duty, breach of which is susceptible to judicial review. As Lord Reed pointed out in R (Osborn) v Parole Board [2014] AC 1115:
  61. "The [Human Rights Act 1998] also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate."
  62. Indeed, some have traced back the origins of the common law duty in the type of case presently under consideration to Magna Carta, chapter 29 of which still carries the force of law:
  63. "No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right."
  64. Eight hundred years on, I am satisfied that the enduring common law obligation of central relevance to this claim is, in a modern context, one to act within a reasonable time. However, the issue of what is or is not reasonable in any given case is bound to be particularly fact sensitive. For example, where, as here, the liberty of the subject is involved a more stringent standard will be applied than if this were not the case. On the other hand, it is not every departure from the ideal that will operate so as to give rise to a breach of the public law duty. Delays which may be fairly categorised as merely undesirable or as resulting from no more than a failure to reach the best standards are not necessarily and in all cases unlawful.
  65. In Guntrip v Parole Board [2014] EWHC 4180, the Divisional Court was concerned with delays in the context of Article 5(4). The court held that there had been actionable delays but recognised the fact that not every slip up would result in a breach of the convention. Blake J observed at para 63:
  66. "Mr Thomann for the Board accepts that after the dossier was provided there were unexplained administrative errors in assigning the file for case management with the effect that the hearing date was set for 2 December 2014, four months outside the target date of August 2014. He submits that an administrative slip up of this nature is insufficient to cause a breach of the right to a speedy hearing under article 5 (4). If it had stood alone, we would be inclined to agree with that submission…"

    Previously, in respect of the same claimant Ouseley J had observed in Guntrip v Parole Board [2010] EWHC 3188 (Admin) at para 30:

    "Mr Hare submitted that no declaration should be made because Lord Hope in paras 20-21 of his speech in R (James) v Secretary of State for Justice (Parole Board Intervening) 2009 UKHL 22, [2010] 1 AC 553, required an entire breakdown in the statutory system before there was a breach of Article 5(4); what was required was a breakdown of such length that detention had become arbitrary. That, said Mr Hare, had not occurred. I am not entirely clear to what Lord Hope was addressing those comments. I think that he was probably dealing with the effect of the sort of modest delays which often occur in reasonably well managed processes, whether through mistakes, carelessness or other factors, for which allowance should be made."

    In the circumstances of the instant case, I am satisfied that it could not be argued that the standards set by the common law impose a higher burden on the Parole Board than the obligation under Article 5(4) to act "speedily". Accordingly, these standards can safely be applied to the common law without giving rise to the risk that the claimant will be jurisprudentially undersold. The extent, if any, to which the standards of the common law may actually be less exacting than those imposed under Article 5 may properly be left for others to decide if the matter should arise in future. This may be a significant issue, for example, where the question of the prioritisation of resources arises. In this case, however, it does not.


  67. The claimant entered Brent in breach of his licence on 27 May 2015. He was recalled on the following day. On 26 June the Secretary of State sent the recall dossier to the Parole Board and, a week later, to the claimant's solicitors. They, in turn, submitted representations against recall to the National Offenders Management Service ("NOMS") which is an executive agency of the Ministry of Justice but NOMS did not forward these representations to the Board sufficiently promptly. In consequence, a decision adverse to the claimant was made on paper before these representations had been received. This decision was promulgated on 11 July and, predictably, prompted a request from the claimant's solicitors that the matter should be reconsidered in the light of their representations. Two days later, the case was re-referred to the Parole Board and on 21 July the case was referred to an oral hearing.
  68. The decision to refer the matter to an oral hearing was communicated to the parties on 27 July and, on the same day, the Parole Board requested witness availability dates by 3 August.
  69. Promptly, on the following day, the probation officer who was the claimant's Offender Manager ("OM") informed the board by email that she was due to be undergoing surgery later in the year as a result of which she was likely to be off work for at least eight weeks. However, she had not yet been given a date for the procedure. The Recall Team of the Parole Board replied to the email within the hour asking for details of an officer who could stand in for the OM in the event that she were unable to attend the oral hearing.
  70. The OM did not respond promptly to this request. On 14 September, the Parole Board emailed again asking for details of availability as a matter of urgency with a view to holding an oral hearing between November 2015 and February 2016. The OM responded saying that she was expecting to undergo her surgery later in the year and would not be available until mid-January. On 10 November 2015 the Parole Board listed the case to be heard on 25 January 2016 when the OM was expected to have returned from sick leave having recovered from her operation.
  71. In the event, the 25 January date proved to be ineffective. On 4 January, Panel Chair Directions were sent to all the parties. They recorded the fact that reports from the OM and the Offender Supervisor remained outstanding. They further provided that the reports should be provided as soon as possible and if they were not ready by the time of the hearing the authors must be ready to deal with the matter by way of oral evidence.
  72. On 12 January, contrary to the earlier indications, NOMS emailed the Parole Board apologising and stating that the OM was still on long term sick leave and that the case had been allocated to another OM as a result.
  73. On the day fixed for the hearing, the substitute OM, despite having been informed of the date, did not attend and had not filed a report. Accordingly the hearing was ineffective and had to be adjourned.
  74. In the event, the oral hearing did not take place until 16 June 2016. It is to be noted, however, that the claimant does not blame the Parole Board for the subsequent delays.
  75. The claimant relies, in part, on the Prison Service Instruction ("PSI") relating to the timetable to be followed in respect of the oral hearings process. It is to be found in Chapter 17 of PSI 30/2014. It mandates a timetable of twelve weeks from the sending of the initial directions to the OM to the date of the oral hearing. The defendant does not dispute that, all other things being equal, it is reasonable to work towards such a timetable but points out, correctly, that the PSI is a NOMS policy and not one which, strictly speaking, binds the Parole Board.
  76. Furthermore, notwithstanding subsequent problems relating to the availability of the OM, it is rightly pointed out on behalf of the claimant that the e-mail of 27 July 2015 had already identified a proposed oral hearing date of November 2015 to January 2016 which, of course, was longer than 12 weeks away. Thus the issue concerning the OM would appear to have run in parallel with a significantly unambitious timetable set from the outset. This email was not sent to the claimant's solicitors.
  77. In my view, although relevant to the determination of the lawfulness of procedural progress, the PSI should not be afforded a quasi-regulatory status breach of the terms of which automatically give rise to a presumption of public law irrationality. I accept that the Parole Board could and, ideally, should have been more proactive in progressing the matter to an oral hearing both at the outset and later when the OM failed timeously to respond to the request that a replacement should be identified. Nevertheless, I am satisfied that the consequent delay was not of such duration, when measured against the background circumstances of this case, to give rise to a breach of the common law duty to act within a reasonable time. I would also add, for the sake of completeness, that, in accordance with my reasoning in paragraph 44 above, I would have reached the same conclusion even had I found that Article 5(4) applied.

  79. The Parole Board upheld the claimant's recall stating:
  80. "The panel found the evidence regarding the circumstances of the second recall difficult to evaluate. Your evidence was that you were shot for an unknown reason by an unknown person. The panel noted that your account of why you were in the area had altered from that given to police at the time. The first recall incident raised concerns that you had quickly returned to elements of your previous lifestyle, i.e. drug misuse. The evidence from Trident was, the panel accepted, somewhat vague. Although it was a finely balanced decision the panel concluded, on the balance of probabilities that you knew more about why you were shot than you admitted in evidence. This led to concerns that there was a possibility of further violence by way of settling scores or revenge. If this was [sic.] the case, the risk management plan would not be able to manage such a risk. In these circumstances, the panel was not satisfied that it is no longer necessary for the protection of the public that you remain confined and makes no direction for release."
  81. The Claimant's challenge to the substantive recall decision is as follows:
  82. "(a) The conclusion reached by the panel that the Claimant poses an ongoing risk of harm was premised on a finding that he might pose a risk of seeking revenge against those who had caused him injury. The starting point for this finding was that the Claimant had not been entirely open or honest about the circumstances in which he was shot. In particular, the panel found that he may have known more about the shooting incident than he had disclosed. This finding was based in part on the Claimant's failure to give a statement to the police who attended him after the shooting. This fails to recognise that the Claimant was seriously injured to the extent that he had to be placed in an induced coma and in consequence was unfit to provide a statement.
    (b) The evidence supplied to the panel by the police and prison staff did not provide any evidence to support a finding that the Claimant was likely to become involved in any reprisals. The police agreed that there was no evidence linking the Claimant to gang activity. The prison staff confirmed that his behaviour had been exemplary with no links to criminality or gangs in custody.
    (c) Against this background, there was insufficient evidence to enable the panel to make a leap to find that there is an ongoing risk of reprisal that cannot be safely managed in the community. There was no evidence that the Claimant had behaved in a violent manner on any occasion since his original conviction or that his behaviour since his recall suggested any attempt at reprisal or any connection with people who might try and effect reprisal on his behalf. Whilst it is accepted that the panel is uniquely placed to make an assessment of the facts and the individual, the assessment in this case has failed to properly take into account important facts (the Claimant's incapacity following his injury) and has reached a determination of risk based on a hypothesis which was not supported by the evidence given by professional witnesses at the hearing and so is inadequately reasoned."
  83. I reject these criticisms of the decision and reasoning of the Parole Board. The whole purpose of imposing the exclusion zone condition was to manage the risk of the claimant re-offending. His explanations for breaching this condition were inconsistent and implausible. The complaint that the Board did not take into account the claimant's medical condition when he gave his first account of why he was in Brent takes his case no further. Perhaps the contention that he was initially unfit to make a statement would have had greater force if he had not at that stage put forward the positive contention that he had no explanation for being in Brent on the occasion he was shot. His subsequent account that he was there because his son was in need of help, combined with the inherently implausible co-incidence that he was shot for no discernible reason, fully justified the Board's conclusions and concerns.
  84. The relevant law was helpfully summarised by HHJ Raynor QC in Edgar v The Parole Board [2010] EWHC 3029 (Admin):
  85. "18. Before dealing with those submissions, I have been referred, and there is no dispute, as to the relevant law relating to the adequacy of reasons for decisions. In the Court of Appeal decision of Owen Oyston v Parole Board (1999/1107/C), in his judgment Pill LJ set out in general terms what administrative law requires in respect of the giving of reasons by a decision maker: that the reasons should be intelligible and deal with the substantial points that have been raised and be of sufficient detail to enable the reader to know what conclusion has been reached on the principally important controversial points. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden.
    19. Specifically with regard to the Parole Board, I was referred to the decision of Turner J in The Parole Board ex p Hart in May 2000. The relevant passages are in paragraphs 29 and 30, where Turner J said that he had to consider whether or not the decision of a Parole Board is a response within the reasonable range of responses of a reasonable decision taker and/or alternatively whether or not the reasons given by the Parole Board for its decision are proper, sufficient and intelligible:
    "The Parole Board is uniquely qualified to make the decision which it is called upon to make. Previous decisions of this court indicate the difficulty which confronts the Parole Board which has a plain and important public duty to perform. A duty which has to extend to consider the wider public interest in terms of risk. But it also has to consider the position of the candidate for parole against the progress which such person has made during his period of imprisonment."

    The reference there, of course, to parole is not applicable directly here, but similar principles apply. Turner J quoted from the decision of Butterfield J in the Lillycrop case ([1996] EWHC Admin 281), where Butterfield J said:

    "21. In our judgment the decision letter should contain a succinct and accurate summary of the reasons leading to the decision reached. When formulating their reasons the members of a panel are not required to create some elaborate formal exegesis, or a detailed analysis of the facts they have considered and the application of those facts to the relevant law. The purpose of the reasons is to tell the prisoner in broad terms why parole has not been recommended, bearing in mind that in most cases the prisoner will himself have been provided with the documentation available to the Board.
    22. The reasons must be such that the prisoner will know why a decision unfavourable to him has been reached.""
  86. I am entirely satisfied that the Board's decision was justified by the evidence in this case and that the reasons given were sound and not susceptible to any valid public law challenge. I am not therefore prepared to give permission for judicial review under this ground.

  88. I summarise my conclusions thus:
  89. i) where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4). The conclusion of the majority in Whiston to this effect should be regarded as being binding on all inferior courts notwithstanding the fact that, strictly speaking, it was obiter to the extent that it was more broadly stated than was necessary for the determination of the central issue in that case;

    ii) there is a common law duty on the Parole Board to make decisions concerning the liberty of offenders without undue delay. Nevertheless, some allowance should be made for the sort of modest delays which often occur in reasonably well managed processes, whether through mistakes, carelessness or other factors;

    iii) in the circumstances of this case, the process of which the claimant makes complaint although falling short of the ideal was not flawed to the extent that it gave rise to a breach of the common law duty relating to delay;

    iv) There is no merit in the substantive challenge to the decision of the Parole Board to decline to order the claimant's release.

  90. It follows that the claimant's case fails in its entirety.

Note 1   In particular, the cases of Ganusauskas v Lithuania [1999] Prison LR 124 and Brown v UK (Application No 968/04) (Unreported) 26 October 2004.    [Back]

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