(1) Raymond Bowen v Secretary of State for Justice

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice McCombe,Sir Ernest Ryder,Sir Terence Etherton
Judgment Date20 December 2017
Neutral Citation[2017] EWCA Civ 2181
Date20 December 2017
Docket NumberCase No: C1/2016/4444

[2017] EWCA Civ 2181

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE,

QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT

Mrs Justice Whipple DBE

CO/5850/2014 & CO/3179/2015

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Terence Etherton, MASTER OF THE ROLLS

Lord Justice McCombe

and

Sir Ernest Ryder (SENIOR PRESIDENT OF TRIBUNALS)

Case No: C1/2016/4444

Between:
(1) Raymond Bowen
(2) Christopher Stanton
Appellants
and
Secretary of State For Justice
Respondent

Philip Rule (instructed by Kesar & Co.) for the Appellants

Hugh Flanagan (instructed by the Government Legal Department) for the Respondent

Hearing date: 28 and 29 November 2017

Lord Justice McCombe

(A) Introduction

1

This is an appeal from the order of Whipple J of 5 August 2016 dismissing the appellants' claims for judicial review of the lawfulness of their detention and for alleged breaches by the respondent of public law duty and violation of Article 5 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”).

2

Both appellants were convicted of serious criminal offences and were sentenced in the case of the First Appellant (“Mr Bowen”) to life imprisonment (with a minimum custodial term of 14 years) (for an offence of murder) and in the case of the Second Appellant (“Mr Stanton”) to imprisonment for public protection (“IPP”) (with a minimum custodial term of 3 years) (for offences of wounding with intent to cause grievous bodily harm and unlawful wounding), in each case less time spent in custody on remand.

3

In Mr Bowen's case the minimum custodial term expired on 22 August 2011; in Mr Stanton's case, the term expired on 24 May 2013.

4

The appellants' cases came for review by the Parole Board on 30 October 2014 and 26 March 2015 respectively. Mr Bowen had been in custody for nearly 17 years at the date of his Board hearing; Mr Stanton had been in custody for some 4 years and 5 months. Following the hearings, in each case the Board directed the relevant appellant's release from custody on the basis that a number of conditions would be imposed by the respondent in the appellant's release licence, including a period of residence at specified “Approved Premises”, namely Mandeville House (“MH”) in Cardiff. “Approved Premises” is the modern term for what used to be called “probation hostels” or “bail hostels”.

5

Each appellant had to wait for some time, after the date of the Parole Board decision, for a place at MH to come available, although the approximate date of availability was known to the Board at the time of each of their decisions. In Mr Bowen's case, the wait was 69 days; in the case of Mr Stanton, it was 118 days. Mr Bowen was released on 21 January 2015, with the requirement of residence at MH; he did so reside for 8 weeks before more general release into the community. Mr Stanton similarly resided at MH for a period upon release, in his case for almost 11 weeks.

6

Each appellant claimed that the periods spent by them in custody after the Parole Board decisions and before release, because of the delay in placement at MH, constituted a breach of s. 28 of the Crime (Sentences) Act 1997 (“ CSA 1997”), a breach of Article 5 of the ECHR and a breach of the duty described in the decision of the European Court of Human Rights (“ECtHR”) in James v United Kingdom (2013) 56 EHRR 12.

7

The judge dismissed each Appellant's judicial review claim. In an application for permission to appeal presented to the judge, Mr Rule (for the appellants) formulated four points which he submitted warranted appellate attention. They were these:

“(1) whether the proper construction of section 28 of the Crime (Sentences) Act 1997 permits conditional release and obliges the Defendant to release only as soon as he or she is able to do so, and not unless and until a place became available?

(2) whether the detention after the direction for release was incompatible with Article 5(1) of the European Convention on Human Rights as the causal connection to the original sentence had been broken?

(3) whether detention that is ended by the executive making available a place for release when practicable is compatible with the judicial control over detention required by Article 5(4) of the European Convention on Human Rights?

(4) does the public law duty to protect liberty by ensuring a sufficient system of rehabilitation and progression to release (the James/ Walker duty) apply to the provision of Approved Premises?”

Mr Rule also asked for a certificate pursuant to s. 12(1) of the Administration of Justice Act 1969 to enable the appellants to apply directly to the Supreme Court for permission to appeal directly to that court, alternatively, he asked for permission to appeal to this court. The judge refused the certificate under the 1969 Act. She granted permission to appeal on ground (1) only, but refused permission to appeal on the other proposed grounds.

8

By Appellant's Notice filed on 30 August 2016, but with grounds dated 29 November 2016, the appellants appealed on the one ground upon which the judge had granted permission and applied to this court for permission to appeal on the three remaining grounds. It was directed subsequently that the application for permission to appeal on the additional grounds should be heard together with the substantive appeal on ground (1), with the appeal to follow if permission were granted. We heard the appeal and the application for permission to appeal over 1 1/2 days on the dates mentioned above.

9

The four points made in the original grounds of appeal were re-formulated by Mr Rule, in his skeleton argument, in five grounds as follows:

“(1) (a) the proper construction of section 28 of the Crime (Sentences) Act 1997 (“C(S)A 1997”) is that the direction by the Parole Board (pursuant to section 28(6)) is a direction for release that obliges the Respondent to release “as soon as” the direction is made (as required by section 28(5)). It is not a duty to only release if or when a place became available ( cf. judgment [35]–[36]);

(b) or in any event, even if the obligation to release were not “as soon as” the direction is made, but were conditional on the licence conditions being provided, the delay in each Appellants' case prior to his release was plainly excessive or unreasonable ( cf. [43], [46]);

(c) on either preceding basis, the detention was or became unlawful.

(2) the continued detention after the direction for release is incompatible with Article 5(1) of the European Convention on Human Rights (“ECHR”). The causal connection to the original sentence is broken by the judicial direction for release;

(3) detention that is ended by the executive authority making available a place for release only when said to be practicable is incompatible with the judicial control over detention required by Article 5(4) ECHR. The only proper course is for the judicial body to adjourn and retain oversight, or for the executive to implement the direction and give effect to it as soon as it is made;

(4) the public law duty to protect liberty by ensuring a sufficient system of rehabilitation and progression to release (the James/ Walker duty) does apply to the provision of Approved Premises (“APs”). The provision of Approved Premises to indeterminate sentence prisoners for release is not a system where resources limitations are properly to be taken into account as that is inconsistent with the duty to protect liberty and afford a fair opportunity of release ( cf. [65]–[66], [68], [70]–[71]). Recognition of this duty is consistent with positive systemic obligations in Article 5 ECHR; and

(5) with respect, the learned Judge misappreciated or failed to have regard to the evidence, and erred in failing to find that the evidence demonstrates a significant under-provision of Approved Premises places such as are required within the system to enable timely release of indeterminate-sentenced prisoners.”

10

At the conclusion of the hearing on 29 November 2017, we informed the parties that permission to appeal on the additional grounds would be refused and that our judgments on the appeal and on the permission application would be reserved and handed down together. This is my judgment on the appeal on ground (1) and I give my own reasons for refusing permission to appeal on the other grounds.

(B) Detention History and Parole Board Decisions

11

I need now to say a little more about the history of the appellants' detention, their parole hearings and the Board's decision in each case.

12

I begin with Mr Bowen. He was born on 2 June 1952 (and so is now 65 years old). Following expiry of his minimum custodial term on 22 August 2011, on 12 September 2012 the Board recommended his transfer to open conditions. That occurred on 31 October 2012. On a paper review by the Board in January 2014, an oral hearing of his case was set for 1 March 2014. The offender manager explored, in advance of the hearing, the possibility of a place for Mr Bowen at MH and was told that no place would be available until 21 January 2015. The date for the oral hearing before the Board was changed to 30 October 2014, for reasons unconnected with the placement date at MH. However, we were told by Mr Rule that the Board has accepted that the delay to the final hearing date had been accepted by the Board to have been excessive and unlawful. (Following the hearing, at my request, he produced to us a letter of 8 December 2014 from the Parole Board to his instructing solicitors to that effect.) The probation service recommended, however, that release, when it occurred, should initially be on terms as to residence at MH, because the risk of harm to the public that Mr Bowen presented on release was assessed at that stage as “high”.

13

The Board's decision (dated 13 November 2014) gave extensive details of the evidence considered by the panel, an...

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