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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Adams v Parole Board for England and Wales [2022] EWHC 3406 (Admin) (09 December 2022) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2022/3406.html Cite as: [2022] EWHC 3406 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Priory Court 33 Bull Street Birmingham B4 6DS Start Time: 15:04 Finish Time: 14:46 |
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B e f o r e :
____________________
NATHANIEL ADAMS |
Claimant |
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- and - |
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THE PAROLE BOARD FOR ENGLAND AND WALES |
Defendant |
____________________
2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. DX 410 LDE
Email: info@martenwalshcherer.com
Web: www.martenwalshcherer.com
No attendance by or on behalf of the Defendant
____________________
Crown Copyright ©
MRS JUSTICE STEYN :
The facts
i) Directed an oral hearing be listed for three hours and 15 minutes before a panel of two members. A specialist member was not required and the member indicated the case was suitable for a remote hearing by telephone or video platform.
ii) Directed that a post-programme report (i.e. a report following the claimant's completion of the Kaizen accredited programme) was required by 10 January 2022. That was a pre-existing report which was required to be added to the Parole Board's dossier.
iii) Directed that the Community Offender Manager provide an update to the report of 29 September 2021 no later than four weeks before the hearing, specifying various matters (including the claimant's progress) that the update was required to address.
iv) Directed that the Community Offender Manager and the prison offender manager were required to attend the hearing and should be asked to provide their non-availability dates within two weeks. (Both witnesses provided their dates to avoid on 17 November 2021.)
v) Finally, he indicated "[t]his case is ready to list". Paragraph 11.95 of the member case assessment guidance March 2022 V1.1 states:
"The rule is that any case that will be ready to hear within the next three months is ready to be listed because the listings team usually operates three months ahead. Any case which is likely to take longer than three months to be ready to hear for any reason is 'not ready' to be listed."
"At this stage it appears that an administrative error was made at the Parole Board. It appears that after this decision by the member carrying out a DRR exercise the case was mistakenly treated like a fresh MCA case the effect of which was that the case was treated as if it was a fresh case for listing purposes. It is possible that this is due to the way the case status was updated on the Parole Board's case management system, so that the case manager did not realise that it had already spent some months waiting for an oral hearing to be listed."
The Parole Board case manager had previously requested dates to avoid from the parties for the period February to August 2022. As a result of this administrative error the parties were asked to provide dates to avoid for the period June to December 2022. In other words, the listing of the claimant's review was pushed back by four months as a result of an administrative error on the part of the Parole Board. In response to this fresh request the witnesses returned their dates on 25 March 2022. On 16 March 2022, the claimant's solicitors completed a stakeholder response form v5 ('SRF5'), the form by which a party can seek case management directions from a member. In that SRF5 the claimant's solicitors requested an updated COM report as soon as possible. On 1 April 2022, a Parole Board member varied the directions to require the COM's updated report to be provided by 13 May 2022. It is apparent from the directions given on 1 April that the member recognised the need for expedition.
"Mr Adams was re-called to custody on 6/9/21. The matter was sent to OH on the 17/11/21. The matter still has no listing. Given dates are now being fixed in August. This means Mr Adams faces an interval of at least a year in being able to seek re-release. Given the fact that Mr Camilis [sic] in the event of not challenging his initial re-call, would now be facing a second review, let alone a first, the hearing, we submit, must now be expedited. We are aware of other recall cases that have been listed for hearings which were sent to OH up to six weeks after Mr Adams, unlike his. We therefore say it is only right that Mr Adams['] case is now expedited or given priority listing in the alternative."
"The duty member is aware that an SHRF with an application for Mr Adams' hearing to be expedited or prioritised has been submitted for a Duty Member decision. This Duty Member is not aware of the outcome."
"The Duty Member has carefully considered this application. However, given the volume of cases seeking expedited hearings, he has concluded that the application set out above does not provide a suitable reason to expedite or prioritise Mr Adams' case."
It is this decision which the claimant challenges in these proceedings along with the delay in concluding the parole review.
"1. The COM to prepare a short addendum report to confirm any issues with [Mr Adams' parents' address] in the event that the panel are minded to direct immediate release to that address following the oral hearing scheduled on 14.12.22, that report to be submitted by 11.11.22, i.e. allowing approximately 28 days for that report.
2. To cater for the possibility of the chair directing release to approved premises the Probation Service/SSJ to be directed to make such placement available within seven days of the hearing, i.e. a place within approved premises from 21 December 2022 onwards.
3. That the panel confirm it would release any direction for release within 48 hours of the hearing taking place assuming that the hearing on 14.12.22 is effective and that all evidence required is before it on that day.
4. That the period for reconsideration under section 28A Parole Board Rules 2022 as amended is amended to five days from the date of decision of the panel as per direction 3."
"2. In respect of point 2 above the COM has been directed to provide an AP date. However, the date of release is a matter for the Secretary of State and not the Parole Board. It is a matter for Mr Adams if he wishes to pursue this with the Secretary of State by a PPCF.
3. In respect of point 3 above the panel will issue its decision within a reasonable time frame and certainly well within the time allowed for the rules.
4. In respect of point 4 above Mr Adams's case is a determinate re-call. He does not fall under reconsideration in the rules."
I note that in relation to the last point it does not appear that the panel member in fact considered the application which was made in respect of Rule 28A of the Parole Board Rules as opposed to Rule 28.
"An approved premises referral has been completed and, whilst Mr Adams has been accepted in principle, a bed space has not currently been confirmed as available… As an alternative, Mr Adams' parents' address… has been considered and the necessary police and safeguarding checks have been submitted. Mr Adams' parents have confirmed that Mr Adams can reside with them on release and are supportive of him and will support adherence to licence conditions. A home visit to the address has taken place and a further visit will take place on release if release to the address is approved. No concerns have been received in respect of his parents' address that would suggest it is not a suitable address."
"It is unclear as to whether the COM is recommending an approved premises or Mr Adams's parents' address if release is directed. If an AP is considered to be necessary a date for a bed must be available to the panel at the oral hearing. For the avoidance of doubt this is a judicial direction and the necessary information must be provided by stakeholders to enable the COM to comply with the direction. …"
Mr Rule informs me that direction has not yet been complied with. In accordance with the listing given on 7 October, the Parole Board hearing is due to take place in five days' time, on 14 December.
Ground 1: alleged failure to act within a reasonable time
"41. 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 JSC pointed out in R (Osborn) v. Parole Board [2014] AC 1115:
'57. … 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 court 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.'
42. Indeed, some have traced back the origins of the common law duty in the type of case presently under consideration to Magna Carta 1297, chapter 29 of which still carries the force of law:
'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.'
43. 800 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."
Grounds 4 and 5: decision of 9 June refusing expedition or prioritisation
"Prioritising a case is asking the listings team to give the case priority in the next listings exercise. Expediting a case is asking the listings team to list the case as soon as possible and perhaps with a freshly commissioned panel deployed at short notice."
Relief
"(c) An order that enables the Claimant to be released before Christmas:
i. the SSJ's officers shall provide a date for a possible release to an Approved Premises that offers a placement to take effect on or before 23 December 2022 (i.e. before Christmas). The date shall be made available in advance to the Panel of the PB hearing the matter on 14 December 2022.
ii. the PB shall issue its decision no later than 16 December 2022 (i.e. within 48 hours of the parole hearing), and preferably sooner.
iii. The SSJ (if so advised) must make any application to set aside the PB's decision (pursuant to Rule 28A of the Parole Board Rules, or otherwise) no later than 5 days from the date of the decision.
(d) Alternatively, if, despite the long delay to date, the Court deems the Claimant's preferred timetable to be too short to be effective, an order that:
i. the SSJ's officers shall provide a date for a possible release to Approved Premises that offers a placement to take effect on or before 4 January 2023 (i.e. within 28 days of the parole hearing), and preferably sooner. The date shall be made available in advance to the Panel of the PB hearing the matter on 14 December 2022.
ii. the Parole Board shall issue its decision no later than 19 December 2022 (i.e. within five days of the parole hearing), and preferably sooner.
iii. the SSJ (if so advised) must make any application to set aside the PB's decision (pursuant to Rule 28A of the Parole Board Rules, or otherwise) no later than five days from the date of the decision."
Conclusion