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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bate, R (On the Application Of) v Parole Board of England And Wales [2018] EWHC 2820 (Admin) (26 October 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/2820.html Cite as: [2018] EWHC 2820 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE GREEN
____________________
THE QUEEN on the application of DANIEL BATE |
Claimant |
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- and - |
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PAROLE BOARD OF ENGLAND AND WALES |
Defendant |
____________________
Holly Stout (instructed by Government Legal Department) for the Defendant
Hearing dates: 20th and 21st June 2018
____________________
Crown Copyright ©
Lord Justice Holroyde:
The facts
"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".
"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."
"… 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."
"… 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.
"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.
"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."
"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.
"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)."
The proceedings
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.
The legal framework:
"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."
"… 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)."
"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."
"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."
"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.
The evidence as to listing and prioritising parole hearings
"… the case shall be considered by an oral panel within 26 weeks of the case being referred to the Board."
"(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."
"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."
"… 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."
"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.
The submissions
Discussion and conclusions
Summary of conclusions
Lord Justice Green: