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Cite as: [2016] EWHC 2057 (Admin)

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Neutral Citation Number: [2016] EWHC 2057 (Admin)
Case No: CO/5850/2014 & CO/3179/2015


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :

Mrs Justice Whipple DBE

The Queen (on the application of Raymond Bowen & Christopher Stanton)

- and –

Secretary of State for Justice


Philip Rule (instructed by Kesar & Co Solicitors) for the Claimants
Hugh Flanagan (instructed by the Government Legal Department) for the Defendant

Hearing dates: 12 & 13 July 2016



Crown Copyright ©

    Mrs Justice Whipple:


  1. The Claimants, Mr Bowen and Mr Stanton, were both convicted of serious offences and sentenced to indeterminate sentences. In the case of Mr Bowen, his was a life sentence for murder, with a minimum tariff of 14 years. In the case of Mr Stanton, his was an indeterminate sentence for public protection (an "IPP") for a s 18 wounding with intent, with a specified term of 3 years, less time on remand. Each Claimant served the term specified. The Parole Board then reviewed their cases. In each case, the Parole Board concluded that detention was no longer necessary for the protection of the public, and directed them to be released, subject to additional licence conditions, including a period of residence at Mandeville House, an Approved Premises or "AP". Each Claimant had to wait some months for a bed at Mandeville House. Their claims relate to that period of waiting which they challenge as being, in whole or part, unlawful detention.
  2. The claims are advanced under three main headings, reflecting the pleaded grounds. They are as follows:
  3. i) Ground 1: Breach of Section 28 of the Crime (Sentences) Act 1997.

    ii) Ground 2: Unlawful detention contrary to Article 5 ECHR.

    iii) Ground 3: Breach of the James public law duty to provide sufficient Approved Premises.

  4. Mr Stanton in addition argued in his Grounds that there was excessive delay in effecting his release in breach of public law duties. This point was not pursued by him in argument separately from his arguments under Ground 1.
  5. Mr Bowen's Claim Form included a challenge brought under Article 8 ECHR. Permission was refused on the papers and it has not been pursued further. Mr Stanton's Claim Form included challenges by way of indirect discrimination against him including an alleged breach of the Public Sector Equality Duty. Permission was refused for those and they have not been pursued further.
  6. Before embarking on my analysis of the Grounds, I wish to record the unhappy procedural progress of these claims. Mr Bowen issued his claim on 15 December 2014. Mr Stanton issued his claim on 21 July 2015. Permission was granted in both cases, to Mr Bowen by Elias LJ on 28 October 2015 on a renewal to the Court of Appeal, and to Mr Stanton by Langstaff J following a renewal hearing on 18 February 2016. There were habeas corpus proceedings originally attached to each claim, but those fell away when each of the Claimants was, in fact, released from prison to Mandeville House. On 28 February 2016, the Claimants applied for both cases to be heard together. That application was granted by Order of Master Gidden dated 11 April 2016, with directions for the Defendant to serve its Detailed Grounds in both cases within 28 days. The Defendant in fact served its Detailed Grounds and supporting evidence on 21 June 2016, by which time the hearing was fixed for 12 and 13 July 2016 with a time estimate of 1.5 days. The Defendant applied for and was granted an extension of time. On 4 July 2016, directions were given by the Court staff under delegated powers for the Claimants to serve any responding evidence by Wednesday 6 July 2016. The Claimants' efforts to file their skeleton and supporting evidence electronically in the week of 4 July 2016 failed, for the simple reason that the wrong Administrative Court email address was apparently typed in. The Court only received these documents when a supplemental bundle was lodged after 4pm on Friday 8 July 2016. By this time, there were (at least) three separate tranches of materials: the original papers, the Defendant's papers lodged in June, and the Claimants' reply and skeleton lodged just before the hearing. In addition, there were diffuse Court papers, additional materials, and correspondence. A substantially revised index was emailed to the Court the day before the hearing, with an implicit request that the various additional papers listed in it should be interleaved in the now woefully out of date bundle which had been filed some weeks earlier. I regret that my preparation time was largely spent trying to make sense of an unwieldy stack of papers, from which several vital elements appeared to be missing. The appropriate step would have been, as Mr Rule's solicitors very fairly accepted at the hearing, for a fresh and comprehensive bundle to have been compiled and lodged in good time before the hearing, under cover of a letter clearly indicating that the bundle needed to be put before the Judge urgently because of the imminent hearing. Happily, a fresh and complete bundle was produced at the hearing, and I worked off that.

    Mr Bowen

  8. Mr Bowen was born on 2 June 1952. He is now 64. He was convicted of the murder of his wife and sentenced on 29 May 1998 to life imprisonment. The tariff was set at 14 years. It expired on 22 August 2011. On 12 September 2012, the Parole Board recommended a move to open conditions. That move was effected on 31 October 2012. A paper review on 14 January 2014 led to an oral hearing before the Parole Board. That hearing was originally set for 1 March 2014. Ms Leigh Jones, Mr Bowen's Offender Manager, contacted Mandeville House Approved Premises ("MHAP") in February 2014 to explore the possibility of a place. She was told that no place would be available for Mr Bowen until 21 January 2015. The date of the oral hearing was subsequently changed to 30 October 2014 (for reasons unconnected with this judicial review application). Mr Bowen was already having periods of "Release on Temporary Leave" (or "ROTL"), and these continued in the run-up to the Parole Board hearing; these took place with his son or daughter, both of whom lived in the South Wales area, or at Mandeville House. The probation service recommended that Mr Bowen should be released to an AP because his risk of harm was assessed as high at the point of release.
  9. Following the oral hearing, on 13 November 2014 the Parole Board directed release. In its decision letter, it addressed the documentary evidence before it (consisting of a dossier of 182 pages including psychological assessments) and oral evidence from Ms Leigh Jones, Mr Bowen's Offender Manager and Mr Mark Lewis, his Offender Supervisor, and from Mr Bowen himself. The Panel noted, amongst other things, that:
  10. "… you are anxious to return to work but [the Panel] has no doubt that a gradual approach with a period in Approved Premises where you will not only be able to turn to your supervising officer but also your key worker, where you can show respect for the rules of the establishment before moving on perhaps to your son's home and then to employment, is likely to be of much greater benefit to you, allowing you to make the difficult steps necessary to achieve a resettlement smoothly…"
  11. The Panel took the view that Mr Bowen's risk of reoffending was now manageable within the community. The Panel directed additional licence conditions, including permanent residence at Mandeville House for as long as directed by his supervising officer, reporting requirements while resident at Mandeville House, and other conditions. Under the heading "Evaluation of effectiveness of plans to manage risk" the Panel noted the risk management plan put forward by Mr Bowen's Offender Manager, and that it was
  12. "based on your residing at Approved Premises for 4-6 months, where you will be supported by your key worker …. The Panel endorses your additional licence conditions as being robust and comprehensive".

    (It may be that the reference to 4-6 months was an error. It should have said 4-6 weeks.)

  13. Mr Bowen was released to Mandeville House on 21 January 2015. This was 69 days after the Parole Board decision. Mr Bowen remained at Mandeville House for eight weeks, and was then released into the community on licence.
  14. Mr Stanton

  15. Mr Stanton was born on 9 August 1974. He is now 41. He was sentenced to an indeterminate sentence of imprisonment for public protection ("IPP") on 8 October 2010, for offences of wounding with intent to cause harm and unlawful wounding. The tariff or specified term was set at 3 years, less time on remand. That period expired on 24 May 2013. On 11 December 2013, the panel of the Parole Board recommended that he should be moved to open conditions. He moved to open conditions on 4 February 2014. Following the next review, the Parole Board convened an oral hearing which took place on 26 March 2015.
  16. On 13 February 2015, in advance of that hearing, Mr Stanton's offender manager, Ms Curley, emailed Mandeville House asking for a place for Mr Stanton (on the basis that placement in an AP was to form part of his risk management plan on release). Mandeville House responded that a place would become available in July, which was subsequently confirmed as 23 July 2015.
  17. At the hearing on 26 March 2015, the Parole Board considered the dossier consisting of 175 pages which included the proposed risk management plan, with the recommendation of residence at Mandeville House. It heard oral evidence from Mr Stanton's Offender Manager (Ms Edwards standing in for Ms Curley), his Offender Supervisor, and from him personally. By its decision dated 27 March 2015, the Parole Board directed release subject to additional licence conditions. The Panel evaluated the risk management plan, and noted that it was based around a period of residence at Mandeville House. It noted that he was expected to stay there for around 3 months before returning to the Newport area where the local authority would house him. It noted that his former partner and six year old daughter, as well as his mother, live in that area. Its conclusion was as follows:
  18. "Having considered all the evidence before it, the panel has decided that your risk is now manageable in the community subject to the risk management plan that has been proposed and directs release subject to additional licence conditions. It notes that Mandeville House do not anticipate having a bed available before late July, but assumes that release would be brought forward if that availability date should change for any reason."

    Residence at Mandeville House was specified as a condition of release, alongside other conditions which would apply indefinitely.

  19. Between the date of the Parole Board hearing and Mr Stanton's release, he had at least one period of ROTL. Mr Stanton was released to Mandeville House on 23 July 2015. This was 118 days after the Parole Board hearing. He stayed at Mandeville House for a period of 12 weeks, following which he was released into the community on licence.

    The Convention

  21. Article 5 of the European Convention on Human Rights (the "Convention") provides as follows (so far as is relevant for this case):
  22. "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."

    Domestic Legislation

    Crime (Sentences) Act 1997

  23. Chapter II of the Crime (Sentences) Act 1997 (the "1997 Act") is headed "Life Sentences". By s 34 of the 1997 Act, a "life prisoner" includes any person serving a life sentence, which includes a sentence of imprisonment for life (as in Mr Bowen's case) as well as a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003 (an "IPP", as in Mr Stanton's case). Section 28 provides as follows (so far as relevant):
  24. "28.— Duty to release certain life prisoners.
    (1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order.
    (5) As soon as
    (a) a life prisoner to whom this section applies has served the relevant part of his sentence,
    (b) the Parole Board has directed his release under this section,
    it shall be the duty of the Secretary of State to release him on licence.
    (6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—
    (a) the Secretary of State has referred the prisoner's case to the Board; and
    (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
    (8A) In this section "minimum term order" means an order under—
    (a) subsection (2) of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (determination of minimum term in respect of life sentence that is not fixed by law), or
    (b) subsection (2) of section 269 of the Criminal Justice Act 2003 (determination of minimum term in respect of mandatory life sentence)."

  25. Section 31 of the 1997 Act provides as follows (so far as relevant):
  26. 31.— Duration and conditions of licences.
    (3) The Secretary of State must not include a condition in a life prisoner's licence on release, insert a condition in such a licence or vary or cancel a condition of such a licence except—
    (a) in accordance with recommendations of the Parole Board, or
    (b) where required to do so by an order under section 62A of the Criminal Justice and Court Services Act 2000 (compulsory electronic monitoring conditions).

    Offender Management Act 2007

  27. Section 1 of the Offender Management Act 2007 (the "2007 Act") provides as follows (so far as relevant):
  28. 1 Meaning of "the probation purposes"
    (1) In this Part "the probation purposes" means the purposes of providing for–
    (a) courts to be given assistance in determining the appropriate sentences to pass, and making other decisions, in respect of persons charged with or convicted of offences;
    (b) the giving of assistance to persons determining whether conditional cautions should be given and which conditions to attach to conditional cautions;
    (c) the supervision and rehabilitation of persons charged with or convicted of offences;
    (d) the giving of assistance to persons remanded on bail;
    (e) the supervision and rehabilitation of persons to whom conditional cautions are given;
    (f) the giving of information to victims of persons charged with or convicted of offences.
    (2) The purpose set out in subsection (1)(c) includes (in particular)–
    (a) giving effect to community orders and suspended sentence orders (or, in the case of persons mentioned in subsection (3), any corresponding sentence which is to be carried out in England and Wales);
    (b) assisting in the rehabilitation of offenders who are being held in prison;
    (c) supervising persons released from prison on licence;
    (d) providing accommodation in approved premises.
  29. Section 2 of the 2007 Act provides, so far as relevant, as follows:
  30. 2 Responsibility for ensuring the provision of probation services
    (1) It is the function of the Secretary of State to ensure that sufficient provision is made throughout England and Wales–
    (a) for the probation purposes;
    (b) for enabling functions conferred by any enactment (whenever passed or made) on providers of probation services, or on officers of a provider of probation services, to be performed; and
    (c) for the performance of any function of the Secretary of State under any enactment (whenever passed or made) which is expressed to be a function to which this paragraph applies;
    and any provision which the Secretary of State considers should be made for a purpose mentioned above is referred to in this Part as "probation provision".
    (2) The Secretary of State shall discharge his function under subsection (1) in relation to any probation provision by making and carrying out arrangements under section 3.
    (3) The Secretary of State must have regard to the aims mentioned in subsection (4) in the exercise of his functions under subsections (1) and (2) (so far as they may be exercised for any of the probation purposes).
    (4) Those aims are–
    (a) the protection of the public;
    (b) the reduction of re-offending;
    (c) the proper punishment of offenders;
    (d) ensuring offenders' awareness of the effects of crime on the victims of crimes and the public; and
    (e) the rehabilitation of offenders.
    (5) The Secretary of State is not required by subsections (1) and (2) to take any action in relation to the making of provision for a purpose mentioned in subsection (1) if it appears to him that appropriate provision is being or will be made by any person acting otherwise than in pursuance of arrangements under section 3.


  31. The 2007 Act refers to "Approved Premises". These used to be known as probation or bail hostels. The power to approve a premises is conferred on the Secretary of State by s 13 of the 2007 Act. APs offer residential provision to selected offenders and some bailees in order to provide enhanced levels of protection to the public and reduce the likelihood of further offending. They are principally reserved for prisoners released on licence who pose a high or very high risk of harm in the community. APs are resource intensive, with 24 hour staffing and enhanced supervision of residents, often in the context of delivering specific interventions for individual prisoners. Residence at an AP is only ever temporary, usually in the region of three months, as an intended transition to living in the community. If the resident re-offends or breaches any licence conditions during that period, the Secretary of State can recall that individual to prison.
  32. GROUND 1: SECTION 28

    The Arguments

  33. The Claimants, by Mr Rule, advance a disarmingly simple argument, that once the Parole Board has directed release, it is the duty of the Secretary of State under s 28(5) to effect release forthwith or at the very least within a very short period thereafter.
  34. One authority on which Mr Rule places particular emphasis is R (James, Lee and Wells) v Justice Secretary [2010] 1 AC 553 (which I shall refer to as Walker, which is how the Supreme Court in Kaiyam referred to it). Lord Hope said this (with my emphasis added to reflect Mr Rule's arguments):
  35. "[14] The indeterminate sentence which he received was passed on the ground that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further offences of the kind specified in Schedule 15 to the 2003 Act. The essence of it was the need for the public to be protected against that risk. His continued detention cannot be said to be arbitrary, or in any other sense unlawful, until the Parole Board has determined that detention is no longer necessary. As soon as it makes that assessment the causal connection is, of course, broken. A direction must then be given in terms of the statute that he be released on licence. But continued detention that results from any decisions that the Parole Board may issue before that stage is reached must be attributable to the original ground for it. The causal connection will not be broken until the Parole Board, on whom the responsibility rests under the statute, has determined otherwise."

    And, to similar effect, see Lord Judge LCJ at [108].

  36. Mr Rule reminds me of Lord Mance's words in R (Sturnham) v Parole Board (Nos 1 and 2) [2013] 2 AC 254 at [28], in the context of a debate about the meaning of s 28(6)(b) of the 2007 Act, that "It is preferable to concentrate on the statutory language and not to paraphrase". So, his submission goes, you cannot read into the statute a caveat which is not there, and you cannot continue to detain in the face of a direction, simply because the named AP is not available.
  37. The mandatory nature of a direction by the Parole Board to release was emphasised in R (Girling) v Parole Board [2007] QB 783, where Sir Anthony Clarke MR said this (my emphasis, again):
  38. "15 The starting point is that the role of the board, when deciding whether or not to direct the release of a prisoner, is judicial. As Sir Thomas Bingham MR explained in Ex p Watson [1996] 1 WLR 906 , 916 e – f , the Secretary of State is a party to the review procedure, whereas the board is the decision-maker. Submissions are made to the board on behalf of the Secretary of State which are often directly opposed to those made on behalf of the prisoner. Where the board directs release, the effect of section 28(5) of the 1997 Act is that the Secretary of State must release the prisoner. He has no discretion. As we understand it, this was accepted on all sides before the judge, in our opinion correctly."
  39. Further, once the Parole Board has directed release, because it is satisfied that it is no longer necessary for the protection of the public for the offender to be detained, then release must follow. This was the point made by Sales LJ in R (on the application of John Gilbert) v Secretary of State for Justice [2015] EWCA Civ 802 at [57]:
  40. "…In any event, the Board has an overriding statutory duty under Article 5 and section 28 of the 1997 Act to direct release of a prisoner if satisfied that the risk criterion set out in that provision has been satisfied, and nothing in paragraph 1 of the Directions could detract from that."
  41. Sensibly, Mr Rule accepts that the duty to release cannot become operative the very moment the Parole Board has pronounced their decision, and there must be some reasonable time allowed for the Secretary of State to implement the directions of the Parole Board. In making this concession, he doubtless had in mind the scorching refusal of permission by Langstaff J in R (Elson) v Greater Manchester Probation Trust [2011] EWHC 3692 (Admin) where, faced with an argument for immediate release following the Parole Board's decision in an analogous case, he said this:
  42. "[23] …s 28 of the 1997 Act cannot sensibly be interpreted to provide that as soon as a Parole Board takes a decision in which it directs release, albeit under conditions or at some future time, the Secretary of State is under a duty there and then and thereby to ensure that that release takes place forthwith. That would give no effect to the provisions of s.31; it would not recognise the difference in language between s.28 and s.32; it would in my view simply have been beyond the contemplation of Parliament that the alternative, which would need to have been in place immediate release to be effected, would operate in an impractical way – as Ms Davies points out, if it were to be the case that it was anticipated that a Parole Board might make a direction which was conditional as to time or circumstance, that (so far as a circumstance such as accommodation in a hostel was concerned) the hostel would have to be held available just in case the Board at its hearing might decide that particular prisoner under review was to be released, even though it equally might not. Supervision arrangements would have to be made in anticipation of a possible outcome; appointments with psychiatrists and the like would have to be in place – all of which would be on a provisional basis which, given that the decision lies in the power of the Parole Board which has not yet considered it, might or might not be given effect to. I cannot sensibly construe s.28 in such a way that it would have that effect."
  43. Mr Rule argues that the time permitted for implementation of the Parole Board's direction is very limited, and can be counted in days, or at the very most, a small number of weeks. That is because, by the time the Parole Board has given their direction, they are satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined, and accordingly, there is no legitimate basis on which that individual can be detained further.
  44. In this context, Mr Rule relies on R v Parole Board (ex p Robinson) [1999] EWHC 764 (Admin), where the Divisional Court concluded that a second panel of the Parole Board was not entitled to countermand the direction given by a first panel of the Parole Board to release the offender; the second panel's only role was to examine the release plan, the release direction having already been given. Simon Brown LJ (as he then was) said this at paragraph 33:
  45. "Justice to discretionary life prisoners in the post-tariff period in my judgment requires that once a prisoner succeeds in the face of opposition in satisfying a panel that he can safely be released, that decision must be regarded as final and conclusive, subject only to the Secretary of State demonstrating that it was fundamentally flawed or pointing to a supervening material change of circumstances. All that then remains is the making of detailed arrangements for the implementation of the decision within a comparatively short time."

    In exchanges following its ex tempore judgment, the Court indicated that "the comparatively short time" meant "within a week of tomorrow", ie 8 days.

  46. Mr Rule showed me two pieces of internal guidance published by the National Offender Management Service ("NOMS") on the Generic Parole Process, issued on 3 December 2012. The first shows, he submitted, that NOMS (which service is responsible for offenders on release) understands very well that a direction for release must be implemented. That guidance stated:
  47. "The prisoner must be released on or after tariff expiry, if directed by the Parole Board. A release date can only be made if the Parole Board is satisfied the risk of serious harm the offender poses to the public is acceptable. This means ISPs [Indeterminate Sentence Prisoners] can remain in prison after they have served the punitive period of imprisonment (the tariff) on public protection grounds".
  48. The second demonstrates an understanding of the relevant timeframe for release, and is contained in NOMS' Approved Premises guidance dated 19 May 2014, where it is said:
  49. "For indeterminate-sentence prisoners, while the timing of a hearing is predictable, the result is less certain, but it is still essential to plan ahead. A Parole Board panel may decide to release an offender against the offender manager's advice; it is quite common for the Board to acknowledge that he is still relatively high-risk and to rely on an AP to manage that risk effectively. Failure to secure an AP place can, as a result, put the public at risk. In cases like this the Board can adjourn to allow a place to be secured, but with its intentions being clear there is relatively little time to do it. The suggested maximum is six to eight weeks. Being prepared before the parole hearing is a much better approach."

    This suggests that NOMS well understands that there is a maximum time for implementation before the continued detention becomes unlawful. This same "benchmark" of six to eight weeks was contained in the Ministry of Justice's "Approved Premises Manual" dated April 2013, which contains guidance to the National Probation Service, see paragraph 31.15.

  50. Mr Rule also pointed to the European Prison Rules adopted by the Committee of Ministers on 11 January 2006, paragraph 33.1 of which states that all prisoners are to be released without delay when a court or other authority orders their release.
  51. I believe I have listed the most important documents on which Mr Rule relied in advancing his submission: there were others but they were less weighty, and I do not list each and every one. Putting it together, Mr Rule submitted that once the Parole Board had directed release, the Secretary of State was obliged to action that release. Although there was room for argument about how long the Secretary of State might have to do that, and accepting that some reasonable time was permitted, the 2 and 4 month delays in this case for these Claimants exceeded even the most generous allowance and rendered the Claimants' detention – or at least the latter part of it - unlawful.
  52. Mr Flanagan argued to the contrary, with equally disarming simplicity. He submitted that the Secretary of State was obliged to release a life prisoner in relation to whom the Parole Board had directed release "on licence": see s 28(5). The Parole Board has power to recommend conditions on that licence: s 31(3). The Secretary of State can thus only release on license and subject to the conditions attached, and not otherwise. More specifically, if the Parole Board directs release on condition of residence at a specific AP, then that is what must happen. Unless and until that AP is available, the Secretary of State is under no duty to release. That meets this case, because each Claimant was in fact released only once a place became available at Mandeville House.
  53. Mr Flanagan accepts that there is in practice a limit to the waiting period for an AP once the Parole Board has directed release. If, for example, the AP specified by the Parole Board was not available for a year, or had burnt down, then plainly the Secretary of State could not simply keep the offender detained during all that time. But the answer, he says, is not that the offender would simply be released because the condition could not be complied with; rather, the Secretary of State would investigate alternatives, and would go back to the Parole Board and ask for a different licence condition to be specified, typically, residence at a different AP. The steps which the Secretary of State can reasonably be expected to take in any given case to comply with the Parole Board's direction (or to vary it if compliance is not possible within a reasonable time) will depend from case to case, but must be assessed by reference to (i) the whole statutory framework, including the nature and scope of the obligation to "make sufficient provision" under s 2 of the 2007 Act which imposes a high level duty, which does not confer rights on individuals to any particular form of provision, which is dependent on resources and political choices, and which is not subject to close judicial scrutiny; and (ii) all the facts of the individual case.
  54. He argues that in both of these cases, the Parole Board directed release subject to a condition of residence at Mandeville House. Therefore, unless and until space at Mandeville House became available, the Secretary of State was under no duty to release. Given the family ties which each man had with Cardiff and the area surrounding Mandeville House, it was not unreasonable to wait for places to come up at that specific AP. The wait of 2 and 4 months respectively was not unlawful, is not unreasonable, and cannot properly be criticised.
  55. Discussion: s 28

  56. The starting point must be an analysis of the statute. The Secretary of State is under a duty to release any life prisoner in relation to whom the Parole Board has made a direction, but that release is to be on licence: s 28(5). The Parole Board can recommend conditions to be imposed on that licence: s 31(3). These two provisions work together. Release is subject to any conditions imposed on the licence. As a matter of statutory construction, I conclude that the Secretary of State is not under any obligation to release a life prisoner from custody the moment the Parole Board directs release, rather he/she is obliged to implement that direction as soon as he/she is able to do so. Where residence at an AP is a condition of release, that moment comes when the the condition is capable of being fulfilled.
  57. In these cases, the Parole Board specified residence at Mandeville House as a licence condition, and I conclude that the Secretary of State was not under any obligation to release the Claimants unless and until a place at Mandeville House became available. To argue otherwise, and thereby to contend that the Secretary of State was obliged to release either Claimant even though a place at Mandeville House was not available, is to ignore what the Parole Board directed in each case. That is not what the statute requires the Secretary of State to do; quite the contrary.
  58. There is no surprise in such an analysis which is consistent with the purpose of the legislation. The Parole Board has the heavy responsibility of determining whether it is still "necessary for the protection of the public" that the prisoner should be confined. The Parole Board has at its disposal the power to recommend licence conditions, and it uses that power in the context of determining whether detention remains necessary, by imposing conditions in order to mitigate risk. Any conditions imposed are part and parcel of the Parole Board's decision to direct release.
  59. One possibility open to the Parole Board in life prisoner cases is to direct that the prisoner must reside at an AP before being released into the community. There is good sense in so directing in a suitable case: if, for example, the life prisoner has been held in custody for a long period, it may be sensible to require residence at an AP, as a condition of release, to smooth that individual's transition back into ordinary life; if the prisoner has demonstrated significant violence in the past, residence at the AP is a sensible means by which to check that the risk posed by that individual really has diminished to the point that custody is no longer necessary – if it has not, then the prisoner can be recalled forthwith. The imposition of a condition of residence at an AP fulfils two main objectives: certainly, it promotes public protection, because the individual will be closely supervised and monitored while in the AP and can be recalled if he or she puts a foot wrong; but it also promotes the rehabilitation of the particular offender by cushioning his or her re-entry into life outside prison, thereby promoting the prospects of successful long term rehabilitation. Both purposes are united by the same overall aim, to minimise the risk of that individual re-offending.
  60. I believe that this analysis is entirely consistent with the authorities I have been shown. I accept the principle that the Secretary of State is obliged to implement any direction by the Parole Board for release. Cases such as Walker, Sturnham, Girling and Gilbert attest that principle. But those cases do not suggest that a direction for release is separate from the conditions to which it is subject, or that the release direction can be implemented without regard to the specified conditions. In my judgment, the reference in those cases to the Parole Board's "direction for release" must, sensibly, be understood to mean the Parole Board's direction including and subject to any conditions attached to it relating to the individual's accommodation on release.
  61. In summary, I reject the Claimants' construction of s 28. The Secretary of State is not under any duty to release a life prisoner the moment the Parole Board has directed release. That analysis is over-simplistic, and ignores the role of licence conditions which are an integral part of any direction to release. The Secretary of State is only obliged to release in a case where an AP is specified once that AP is available for the particular prisoner, and not before.
  62. Discussion: Reasonable timeframe

  63. The analysis cannot stop there. The Secretary of State plainly is under an obligation to take reasonable steps to ensure that the Parole Board's specified conditions are met within a reasonable time after the Parole Board has directed release. That obligation does not come from s 28 read with s 31 of the 1997 Act, nor does it come from s 2 of the 2007 Act, which I will address in greater detail below as part of Issue 3. It comes from domestic public law, which requires the Secretary of State, as a public body, to operate a proper system, to act reasonably and to apply its own published policy to those within the contemplation of that policy, see R (Kaiyam) v Justice Secretary [2015] AC 1344 at [41] (Lord Mance and Lord Hughes JJSC) where the Court identified the following "ordinary" public law duties owed by the Justice Secretary:
  64. "… As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provision for an individual prisoner so egregious as to satisfy the Wednesbury standard of unreasonableness [see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 ] or any failure to apply established policy."
  65. These duties provide the safeguard for any life prisoner who believes that his continued detention, pending a placement at an AP, is excessive or unreasonable.
  66. Mr Bowen does not advance any case of unreasonableness in his grounds of challenge. That is perhaps unsurprising, given that the wait for a place at Mandeville House was in his case around two months, in the context of a life sentence with a minimum term of 14 years. Ms Jones, his Offender Manager, did try to find an alternative AP and called Bristol, Gloucester and Swansea, but none had availability. Mr Bowen himself was only willing to consider Cardiff or Swansea, so that he could be close to family members and maintain family ties. The delay was not in the circumstances excessive or unreasonable.
  67. Mr Stanton does advance a case on paper that his continued detention for approximately four months after the Parole Board's decision was unreasonable. Mr Rule did not address this point separately from the s 28 arguments at the hearing. I am unclear whether it still forms part of Mr Stanton's case before me. In case it does, I have noted the account advanced by Ms Curley and Mr Haskins (Mr Stanton's Offender Managers) to the following effect:
  68. i) Mandeville House is in Cardiff, and is the closest AP to Newport where Mr Stanton's family lives. Family links were an important part of Mr Stanton's resettlement and Mr Stanton was very keen to be placed in that area. That was why Mandeville House was selected.

    ii) Mr Stanton had been supported by an organisation called Invisible Walls. That organisation could continue to support him if he was placed in the Newport / Cardiff area. That was a further reason for selecting and sticking with Mandeville House.

    iii) Mandeville House could not take Mr Stanton until 23 July 2015. There was no bed available until then.

    iv) Mr Haskins inquired whether Quay House, another AP in Wales, could take him, but was told that there was no availability there either, and indeed that there was a shortage of AP spaces in Wales at that time, although steps were being taken to increase vacancies.

    v) The Parole Board was fully aware of the waiting time for Mandeville House, but nonetheless specified residence there as a condition of release, noting that release would be brought forward if a bed became available earlier (in fact it did not).

  69. Against that, I note that Mr Stanton argued that he should have had the benefit of a bed reserved for another prisoner he knows, who was not in fact released by the Parole Board at his hearing in April 2015. Ms Curley knew nothing about this other prisoner, and (correctly) said that allocation of beds is a matter for Mandeville House. Mr Rule faintly argues that it costs more to keep Mr Stanton in prison than to release him, but that is not a cogent basis on which to argue that continued detention became unreasonable or unlawful.
  70. The real point for Mr Stanton is the four-month delay: was it excessive? I n answer, I note two things. First, as a matter of context, Mr Stanton was subject to an "indeterminate" sentence for public protection. He had no right to release at any date certain following conviction. His only expectation was that he would be released if he could demonstrate that his continued detention was no longer necessary for public protection. He knew (or should have known) that any direction for release might be subject to a residence condition, fulfilment of which would depend on a suitable placement being found. That is what happened; that was in line with his reasonable expectations. Secondly, on the facts, his release could only have been secured earlier by sending him to a different AP, because Mandeville House was full. But Mr Stanton wanted to be in the Cardiff area, which was undoubtedly the best place for him given his family and community ties, and that was what the Parole Board had specified, even knowing there would be a delay of around 4 months. Overall, and if this matter is part of Mr Stanton's case, I conclude that his detention until 23 July 2015 was reasonable, while accepting that this case falls closer to the line.
  71. Conclusion on Ground 1

  72. I agree with Mr Flanagan's construction of s 28. Further, I agree with him that domestic public law principles provide the necessary safeguard for life prisoners who are subject to release directions on condition of residence at an AP. The delay in moving these Claimants to APs following the Parole Board's direction in each of their cases did not exceed what was reasonable.

  74. The Claimants argue that their detention after the date of the Parole Board hearings in each of their cases was contrary to Article 5 on a number of different bases.
  75. Article 5(1)

  76. By a number of routes, the Claimants contend that their detention became arbitrary, and therefore unlawful, under Article 5(1). By their first argument, the Claimants contend that the Parole Board's direction breaks the chain of causation between the conviction and the continued detention, because continued detention ceased to be necessary once the Parole Board had directed release, and at that moment the causal connection between the conviction and detention was broken. This argument is closely linked to the construction of s 28 which I have already dealt with. I have concluded that s 28 envisages detention continuing up to the point that an AP becomes available. That puts paid to the Claimants' first argument. There is no break in the chain of causation if detention is continued while waiting for a place at an AP.
  77. By their second argument, the Claimants contend that their detention became arbitrary, because the length of detention was ultimately determined by the executive, rather than a judicial body in the form of the Parole Board. This is in many ways the same argument as the first recast: the short answer is that the Parole Board – a judicial body – determines whether the life prisoner can safely be released, and the executive is required to implement that direction, including any conditions specified in it relating to residence at an AP. The executive is not determining the length of sentence at all; that remains a function of the Parole Board.
  78. But as Mr Flanagan pointed out, in whichever way the Article 5 argument is put, it necessarily founders on the Claimants' apparent misunderstanding of what amounts to arbitrary detention for the purposes of Article 5(1). Arbitrariness in that context has a very narrow compass. I need to return to Kaiyam, where Lord Mance and Lord Hughes JJSC said this (with my emphasis added):
  79. "[26] According to Saadi v United Kingdom , the "arbitrariness" which might at an international level affect lawfulness under article 5.1 is relatively confined. The main examples which the European Court gave of situations in which detention might, although lawful under domestic law, be unlawful under the Convention, were: (a) Detention following on the unlawful kidnapping or luring within the domestic jurisdiction of a person wanted for trial can render a person's detention following his or her subsequent conviction unlawful … (b) The deprivation of liberty must genuinely be for one of the purposes permitted by article 5.1 and must, in the case of a sentence, retain a sufficient causal connection with the original conviction: see e g Van Droogenbroeck v Belgium (1982) 4 EHRR 443 , paras 35 and 40 (referring to detention "based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives"), Weeks v United Kingdom 10 EHRR 293, Kafkaris v Cyprus 49 EHRR 877 , para 118 and the House's reasoning in the Walker case [2010] 1 AC 553 , paras 15 and 49.
    [29] In neither situation covered by points (a) and (b) mentioned in para 26 above does there appear domestically to be any difficulty about accepting that the prisoner should not have been detained and should be, or have been, released. That is subject to the important proviso that the possibility of a break in the chain of causation envisaged by point (b) is understood—as we consider that it must and should be in domestic law—in the remote and restricted sense indicated by the House in the Walker case [2010] 1 AC 553 . …

    That "remote and restricted sense" cross refers back to earlier passages in their Lordships' judgment, citing Walker:

    "[10] … [The House of Lords in Walker] held that continued detention remained lawful until the Parole Board was "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined", as provided by section 28(6)(b) of the Crime (Sentences) Act 1997 and in accordance with the principles since considered by this court in R (Sturnham) v Parole Board (No 2) [2013] 2 AC 254 .
    [11] The only possible exception that the House contemplated was for the (hypothetical) case of detention continuing for a very lengthy period in circumstances where the system of review had completely broken down or ceased to be effective: per Lord Hope, at para 15 and Lord Brown of Eaton-under-Heywood, at para 51. …"
  80. In determining whether there is a sufficient causal connection with the original conviction, the basic position is that detention will remain lawful, and sufficiently causally connected with the original conviction, unless and until the Parole Board directs release: Kaiyam [10]. The only possible exception to the basic position is where the system of review has completely broken down or ceased to be effective: Kaiyam [11]).
  81. The Supreme Court in Kaiyam and the House of Lords in Walker were considering the system by which the Parole Board reviews detention. The system under challenge here is a different one, namely the provision of APs. But accepting for present purposes that the two are analogous (Mr Flanagan did not argue to the contrary), there is quite simply no evidence here of a 'complete break-down' of the system for providing APs. Whatever the shortcomings in provision, and I shall consider that shortly in relation to Ground 3, the 'complete system break-down' envisaged by these passages must be something extreme and exceptional, and it is not present on the facts here.
  82. In conclusion, there has been no breach of Article 5(1). There is no break in the causal connection, no arbitrariness. The continued detention was lawful.
  83. Ancillary Duty

  84. The Claimants further argue that the Secretary of State is in breach of an ancillary duty under Article 5 to make adequate provision of APs. That argument is predicated on the factual premise that the supply of APs is inadequate. That is not a premise with which I am able to agree: see Ground 3, to which I will come shortly. That is an end to this point.
  85. But I wish to address, albeit briefly, the legal arguments on this topic which occupied some time at the hearing. The Claimants' starting point is the Supreme Court's analysis in Kaiyam. That case involved the Secretary of State's duty to provide a reasonable opportunity for a prisoner subject to an IPP to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. That duty could not be found in the language of Article 5(1) (see [36]) or Article 5(4) (see [37]). Instead, the duty was to be implied as part of the overall scheme of Article 5:
  86. "[38] The duty to facilitate the progress of such prisoners towards release by appropriate courses and facilities cannot therefore be brought, in our opinion, within the express language of either article 5.1(a) or article 5.4 . But it is on any view closely analogous, at an earlier stage, to the duty involved under article 5.4, and it is far more satisfactory to treat it as an analogous duty arising by implication at an earlier stage than that covered by article 5.4, rather than to treat article 5.1(a) as incorporating it. We consider that a duty to facilitate release can and should therefore be implied as an ancillary duty—a duty not affecting the lawfulness of the detention, but sounding in damages if breached. Such a duty can readily be implied as part of the overall scheme of article 5 , read as a whole, as suggested in In re Corey [2014] AC 516 ."
  87. The Claimants argue before me that the duty for which they contend in this case is analogous to the duty to facilitate the progress of prisoners towards release by appropriate courses and facilities, and therefore should also be characterised as an ancillary duty under Article 5.
  88. I am not persuaded of that. Kaiyam was dealing with a different problem altogether, namely the acknowledged deficit in the Secretary of State's provision of courses and facilities to enable life prisoners to apply for release at the end of their tariff period. Here, even if a deficit in provision of APs was established on the evidence (which it has not been – see below), it gives rise to a very different problem, affecting a different cohort of prisoners, in different circumstances. For reasons I will explain further under Ground 3, I do not accept that there is a James public law duty here at all.
  89. In any event, and even if such a duty did exist, I would not accept that it was properly characterised as an ancillary duty within Article 5 giving rise to a right to claim damages for breach. I gratefully adopt the views expressed by Leggatt J when he dismissed a very similar argument in R (Taylor) v Secretary of State for Justice [2015] EWHC 3245 (Admin), as follows:
  90. [39] Ms Weston submitted that the analysis of the Supreme Court in Kaiyam's case can be extrapolated to the situation in the present case. Just as the state is under a duty to provide reasonable access to appropriate courses and facilities to enable a prisoner serving an indefinite sentence to progress toward release, so likewise must the state promote the purpose of rehabilitation by providing reasonable access to appropriate facilities to allow prisoners who have progressed to the point where their risk can be managed in the community to be released on licence.
    [40] … There is in any event a material distinction between Kaiyam's case and the present case. Kaiyam's case was concerned with a situation in which a prisoner is denied a reasonable opportunity to demonstrate that he no longer poses a risk which justifies his continued detention in prison in circumstances where his release depends on being judged no longer to present such a risk. It would be a significant extension of the ancillary duty recognised in that case to hold that article 5 obliges the state to facilitate release by providing accommodation outside prison for any prisoner who has been able to demonstrate that his risk is capable of being managed in the community.
    [41] This case is not the occasion to decide whether such an extension is warranted. There seem to me, however, to be cogent reasons for thinking that it is not. Finding that the state has such a duty would involve treating the provision of supervised accommodation in the community as a matter of individual right. That would plainly have major implications for public expenditure. It seems to me that the court does not have the information, the institutional expertise or the democratic mandate that would qualify it to decide that the claims of offenders to be provided with supervised accommodation in the community should be given priority over other competing claims of other individuals to the resources available to the Secretary of State in providing for the probation purposes. Yet that would be the effect of elevating the former to the status of legal rights."
  91. In conclusion, there has been no failure analogous with that considered in Kaiyam. In any event, and even if there was such a failure, I am not persuaded that the Secretary of State is subject to any ancillary duty under Article 5 in relation to it.
  92. Conclusion on Ground 2

  93. The Claimants' Article 5 arguments fail.

  95. The Claimants' arguments proceed on two levels. The first relates to the asserted existence of the "James public law duty". The second relates to the alleged breach of that duty by the asserted inadequate provision of APs.
  96. (1) Existence of the duty

  97. As to the first: the Claimants maintain that the Secretary of State is under a public law duty to "enable reasonable opportunity of release from an indeterminate sentence" (from [127] of the Claimants' skeleton). This duty is said to arise by reference to previous case law which has examined the Secretary of State's failure to provide courses to assist offenders towards rehabilitation and/or excessive delay in moving prisoners to open conditions, in both cases frustrating that prisoner's ability to demonstrate to the Parole Board that detention was no longer necessary for public protection. The key cases relied on by the Claimants, apart from Walker, are: James v United Kingdom (2013) 56 EHRR 12 (State's failure to provide courses aimed at helping prisoners to address their offending behaviour and the risks they posed) and R (Haney and Another) v Secretary of State for Justice [2013] EWHC 803 (Admin) (excessive delay in transfers to open conditions following approval for transfer). There were many other cases cited to similar effect. These authorities attest the "James public law duty". (A very helpful summary of the relevant cases and the wider legal background is given by Hickinbottom J in R (Brian Dilks) v Secretary of State for Justice [2015] EWHC 11 (Admin), at [4] – [38].)
  98. The Claimants press keenly the point that a James public law duty is a duty to make reasonable provision, which requires sufficient resources to be made available for the fulfilment of that duty; it is not subject to resources being available, as Dingemans J emphasised in R (Fletcher) v Governor of HMP Whatton [2014] EWHC 3586 at [61] – [67], concluding:
  99. "[67] This means that although the allocation of resources is not a matter for the Court, the duty on the Secretary of State cannot be met by identifying a lack of resources. If Parliament retains sentences of IPP's for these Claimants, as it has done and is entitled so to do, the Secretary of State has a duty to provide resources to discharge the public law duty."
  100. The Claimants' arguments depend on drawing an analogy between Walker, James, Haney, Fletcher and other cases in this line of authority, and this case, to arrive at the conclusion that here too the Secretary of State must be under a James public law duty to make reasonable provision of APs. The first problem, to which I have referred above, is that this case is very different from those cases, on its facts. This case concerns the availability of resources to meet the Parole Board's directions for release, where a condition of residence at an AP is specified. In these cases, the Parole Board has directed release (on conditions). That is very different from the situation in James and the other cases where the problem arose at an earlier stage in the sequence, before the Parole Board had made any direction for release, and indeed James concerned the inability of those prisoners to demonstrate that they could be considered safe for release. Mr Rule's argument therefore extends the James public law duty considerably, and far beyond the factual context in which it has been recognised.
  101. The second distinguishing feature is that the James public law duty as it was identified in James and the other cases, was an implied duty, necessarily so because the Criminal Justice Act 2003 was silent on the means by which IPPs were to be able to demonstrate to the Parole Board that their continued detention was no longer necessary. The House of Lords recorded the position in the following way (per Lord Hope, Walker, [3]) that
  102. "There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection ("IPPs") by section 225 of the Criminal Justice Act 2003 . He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. The Divisional Court (Laws LJ and Mitting J) granted a declaration to that effect on 31 July 2007: R (Wells) v Parole Board; R (Walker) v Secretary of State for the Home Department [2008] 1 All ER 138 . Its decision was affirmed on 1 February 2008 by the Court of Appeal (Lord Phillips of Worth Matravers CJ, Dyson, Toulson LJJ): R (Walker) v Secretary of State for Justice (Parole Board intervening); R (James) v Secretary of State for Justice (Parole Board intervening) [2008] 1 WLR 1977 . The Secretary of State has not appealed against that declaration. Very properly, he accepts that it was implicit in the statutory scheme of sections 224 and 225 of the 2003 Act that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail to do so.
  103. When it comes to the provision of APs, by contrast, a solid statutory foundation does exist. Section 1 of the 2007 Act provides that APs are one means of meeting the purposes of probation (which purposes include the rehabilitation of offenders: see s 1(1)(c) and s 1(2)(d)). The Secretary of State has power to approve premises as APs under s 13. Section 2 of the 2007 Act provides that it is the "function" of the Secretary of State to ensure that sufficient provision is made for probation purposes, which expressly includes the provision of APs.
  104. I am not persuaded that there is any space for the implication of a James public law duty, in circumstances where the duty to provide the particular resource is expressed in the statute. There is no need to imply anything: Parliament has spoken. The proper approach is, surely, to construe the statute to understand the nature and scope of that duty.
  105. At this point, I am again assisted by Leggatt J in Taylor. He rejected an argument that the Secretary of State was obliged to fund extra support for a life prisoner to enable his release to a hostel as directed by the Parole Board. He said:
  106. [25] …section 2 does not create a duty to provide any particular assistance to any individual. The section is framed in general terms. It refers to the "function" of the Secretary of State, which is a word that connotes a general responsibility rather than any specific duty. It is, moreover, clear from its wording that the section is dealing with the overall sufficiency of the provision made for the probation purposes in England and Wales and not with whether or what specific provision should be made in any particular case for the benefit of any particular individual.
    [27] …under the 2007 Act the question whether "sufficient" provision has been made throughout England and Wales for the probation purposes is a matter for the Secretary of State to determine, subject only to ordinary principles of judicial review. Under the 2007 Act it is for the Secretary of State to decide what provision ought to be made for any of the probation purposes (as expressly reflected in the definition of "probation provision" in section 2(1) and in the wording of section 3(1) of the Act). It must by the same token be for the Secretary of State to decide what provision is sufficient. That question necessarily involves judgments about how the various probation purposes can most effectively be furthered using the resources available. It is neither within the expertise nor part of the constitutional function of courts to make judgments of that nature. They are for the executive branch of government to make."
  107. I agree. Specifically, Leggatt J is correct to say that resources must be taken into account, given the nature of the duty identified, namely a high level duty on the executive to make sufficient provision, which duty does not confer rights on any individual. That is why the analysis is different from cases like Fletcher, where the Court was considering a James public law duty which by its nature confers individual rights and in relation to which resources cannot be a valid excuse for non-compliance.
  108. In summary, I am not persuaded that the James public law duty on which Mr Rule relies even exists in this case. I accept that there is a duty on the executive to make "sufficient provision". That duty is contained within s 2 of the 2007 Act. But that duty does not confer any individual rights, and resources are a relevant consideration when assessing the Secretary of State's compliance with it.
  109. (2) Breach of Duty

  110. I turn to consider whether, on the evidence, the Secretary of State is in breach of duty, as alleged. Here the Claimants rely on a variety of materials to support their case that that the provision of APs is wholly inadequate, and that in consequence, life prisoners including the Claimants have experienced and continue to experience long delays in being released from detention even after the Parole Board has directed release, while they wait for places at APs to become available.
  111. The Claimants rely on the following evidence (in outline):
  112. i) Witness evidence from solicitors with experience of acting for prisoners seeking Parole Board review, to the effect that delays of many weeks or months in achieving places at APs are very common.

    ii) Publications by NOMS (the National Offender Management Service) dated December 2007 and March 2008, both of which suggested that there was, at the time of writing, a shortfall in provision of APs.

    iii) Annex B to the NOMS publication on APs, headed "Approved Premises Manual: Instructions and Guidance for the Management and Operation of Approved Premises" which records at [6] that "usage is generally high and in many parts of the country there is great pressure on beds, and in some cases a waiting list".

    iv) Statistics which are said to demonstrate that the prison population is increasing, that the number of IPPs now reaching the end of their tariff period and seeking release is increasing, and that the availability of beds at APs has not increased materially since 2005. (These statistics are drawn from a variety of sources: the published offender management statistics for the first quarter of 2015, updated to 30 June 2015, Quarterly Bulletins, statistics quoted in other cases such as Haney, and answers to requests for information under the Freedom of Information Act served in advance of this case.)

    v) Further statistical evidence to show that the number of prisoners who are seeking placements at APs is increasing. AP users within the prison population include determinate sentence prisoners including those on extended sentences, for whom an AP may be used for ROTL or as a condition of release on licence; and indeterminate sentence prisoners, including those on life sentences with a minimum tariff to serve and IPPs, for whom APs may also be used for ROTL or as a condition of release on licence.

    vi) Witness evidence provided by the Secretary of State specific to this case, most notably the witness statement of Sean Langley, Head of Approved Premises for NOMS, dated 15 June 2016, in which he confirms that there are "some local shortages".

  113. This evidence was answered in large part by Mr Langley in his statement. Mr Langley notes that APs are designed for the accommodation of offenders who present a high or very high risk of harm. He says that because indeterminate prisoners are not released until their risk can be safely managed in the community, life prisoners are not the main users of APs; rather, those on determinate sentences, with an entitlement to release at a given point in their custodial sentence, whether or not a risk remains, tend to be the majority users. In answer to the Claimants' allegation that there has been a decrease in the availability of APs relative to the alleged increase in users, Mr Langley answers: "This is not correct". He notes:
  114. i) There has been a modest increase in AP places from 2,198 in 2008 to 2,203 now (and within that, an increase from 2,041 to 2,091 for men).

    ii) The number of IPPs is falling, since that form of sentence was abolished.

    iii) The number of IPPs released from 2013-15 has increased by 3%, suggesting that there is no difficulty with release of IPPs.

    iv) Meanwhile, in response to the 2007 and 2008 reviews, different strategies have been employed to ensure efficient use of the APs, including tighter controls over admission and shorter stays. Specifically, the strategy has been to focus the use of APs on high risk offenders, and reduce the length of stay (now an average of 78 days in place of 90 days in 2011/12).

  115. Mr Langley says that there has to date been sufficient provision of APs. He says that now "APs are beginning to approach the limit of what they can achieve" and so a national planning exercise is currently underway. To assist with ensuring sufficiency of provision, the referral system has been reformed and centralised so that vacancies can be reduced to a minimum.
  116. I accept Mr Langley's evidence that the provision of APs is sufficient. That is not simply to accept an assertion, but to accept the detailed explanation which underpins that assertion.
  117. In light of his evidence, I reject the submission that there is any systemic insufficiency or consequential breach of duty. There may be strains on the system, and in some cases there may be delays in finding a suitable placement (as suggested by the witness evidence by the various solicitors), but I am not persuaded that those problems represent any form of systemic failure.
  118. That is the answer however the duty is put. Certainly, there is no demonstrated breach of the high level s 2 duty. But even if a wider James public law duty to make such provision did exist, there is still no compelling evidence of breach: the evidence relating to the availability of APs is a world away from the evidence about the deficiencies in the provision of courses and other services examined in James and related cases.
  119. Conclusion on Ground 3

  120. There is no insufficiency in the provision of APs such as to amount to a breach of duty, however that duty is framed. I am willing to accept that there are shortcomings at an individual level within the system. That much is plain: Mandeville House was self-evidently oversubscribed in 2014/5, so that prisoners released on condition of residence there did have to wait for a period of months before getting placed. But that does not reveal any breach of duty under s 2 of the 2007 or even on the assumption that a James duty does apply. Ground 3 must fail.

  122. In the end, the central issues in this judicial review depend on the construction of s 28(5) of the 1997 Act. I reject the Claimants' case that pursuant to that section release is mandated once the Parole Board has directed it, to occur forthwith or within a very short time thereafter, even in those cases where the Parole Board's direction is conditional on residence at an AP. In such cases, the obligation to release arises only once an AP (or the specified AP) is available. The delay in a place becoming available at Mandeville House was not unreasonable in either case before me, and the continued detention in each case was therefore lawful, in domestic law and by reference to Article 5. There is no James public law duty, and in any event, there is no evidence of a systemic inadequacy of provision, such as to amount to a breach of statutory, or any other, duty.
  123. I dismiss these claims for judicial review.

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