Boswell (R) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Simon,MR JUSTICE SIMON |
| Judgment Date | 28 July 2009 |
| Neutral Citation | [2009] EWHC 2049 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2009 |
| Docket Number | Case No: C0/5068/2009 |
[2009] EWHC 2049 (Admin)
IN THE HIGH COURT OF JUSTICE
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
Mr Justice Simon
Case No: C0/5068/2009
Mr V Jagadesham appeared on behalf of the Claimant.
Mr S Karim appeared on behalf of the First Defendant.
Mr I Ponter appeared on behalf of the Second Defendant.
(As Approved)
1. Brian Boswell, the claimant in these proceedings, is a serving prisoner. On 15 March 2007 he was sentenced to imprisonment for public protection for one count of issuing threats to kill. The tariff was set at a period of one year and 51 days. This period expired on 5 May 2008. He was also sentenced to a concurrent term of twelve months’ imprisonment with an extended license for an offence of Section 47 assault. That latter sentence has no bearing on the issues I have to decide.
2. The pre-sentence report assessed him as posing a very high risk, in particular to women with whom he was in a relationship. There was also an assessment of a high risk of re-offending.
3. The basis of the claim is that the two defendants have failed in their respective obligations to arrange for the listing of the claimant's case for an oral hearing, and that in doing so they are acting in breach of Article 5(4) of the European Convention on Human Rights. The claimant appeals with permission from HHJ Waxman QC, sitting as a deputy High Court judge.
The facts as outlined
4. The claimant's case was first considered by the Parole Board, the first defendant, on 11 February 2008 before the expiry of the tariff, when no recommendation was made, although it was noted that the claimant was keen to undertake courses which would address the main risk areas relating to offending, domestic violence and substance misuse. In a letter of 22 April 2008 the Secretary of State for Justice, the second defendant, through the National Offender Management Service, agreed with the first defendant's recommendation and set a twelve-month period for the next review date: in February 2009.
5. The second defendant also recommended the completion of two programmes relating to the main risk areas. The Healthy Relationship Programme (“HRP”) and the Prison's Addressing Substance Related Offending programme (“PASRO”). Since April 2008 the claimant has successfully completed a number of programmes, and the prison reports on his conduct and his attitude have been favourable. It was for this reason, no doubt, that the claimant's Offender Manager's report of 19 December 2008 supported his release from custody. The report also noted the courses he had completed; and that it was not the claimant's fault that he had not completed the HRP and was missing out on a Community Domestic Violence Programme.
6. In March 2009 the second defendant referred the claimant's case to the first defendant to consider whether it would be appropriate to direct his release. This was a reference under section 28(6)(a) of the Crime (Sentences) Act 1997, which is a pre-condition to the Parole Board considering a prisoner's case, with a view to directing his release if satisfied that it is no longer necessary for the protection of the public that he should be so confined (see section 28(6)(b). It is common ground that the completed parole dossier should have been prepared by the second defendant for the purposes of a review hearing in February 2009 by November 2008, and it is also common ground that the parole dossier was not in fact seen by the first defendant until March 2009. The dossier contained a number of reports, including that of the claimant's Offender Manager, to which I have already referred.
7. The matter came before the Intensive Case Management (“ICM”) member of the panel on 22 March 2009; and directions were issued on 8 April 2009. The ICM system is explained in a witness statement of Ms Sally James, an Executive Officer Post Panel case-worker, at the first defendant at paragraphs 23 and 24:
“23. Intensive case management (ICM) is a process which was developed and introduced by the Parole Board in January 2008 to improve the quality of information about prisoners that come before the Board. It is aimed at minimising the risk of referrals both pre-hearing and on the day of hearing.
24. The ICM process ensures that, as far as possible, all of the relevant information on which the decision whether or not to release the prisoner into the community, should be made available at an early stage and that it is accurate and up to date.”
8. A target month for hearing was set at June 2009. The four-month period between April and June was needed as a lead time before the hearing in order to allow proper preparation of the hearing, including time for the prisoner to make representations and to commission reports he may want to rely on. In the event, no hearing was listed for that month. Nor indeed has a hearing been listed up to this time. The problem has been explained by Ms James. She says that it is due in large part to the number of IPP sentences which have had to be reviewed since 2006/2007; and the limited judicial resources available to the first defendant to chair the panels for these hearings.
9. On 7 April the claimant, by his solicitors, wrote to complain that no date had been set for the second hearing. On 9 April the first defendant stated that its hearing dates were completely full (up to and including the end of June), that further reports were required to bring the dossier up to date, but noted that the case had been “cleared for listing”. At the time the claim was issued no date had been offered for a hearing, and the same is true as at the date of this judgment.
The relief sought
10. In the detailed grounds submitted on 14 May the claimant sought (1) a mandatory order requiring the first defendant to list an oral hearing to take place forthwith; (2) declarations that the first and second defendant are in breach of article 5(4) of the ECHR; and (3) damages for such breach under section 8 of the HRA and/or article 5(5) of the ECHR. In his skeleton argument and in his submission Mr Jagadesham has elaborated on these claims.
The legal principles to be applied
11. Article 5(1) of the ECHR provides:
“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;”
12. Article 5(4) provides:
“Everyone who is deprived of his liberty by his 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.”
13. In paragraph 30 of Oldham v The United Kingdom [2000] ECHR 36273/97 the ECtHR explained that article 5(4) requires:
“not only that the competent courts must reach their decisions speedily but also, where an automatic review of the lawfulness of detention has been instituted, then decisions must follow at ‘reasonable intervals’.”
The claimant's case
14. For the claimant, Mr Jagadesham submits that the underlying object of an indeterminate sentence is that, once the penal tariff has been served, the prisoner should remain in custody only for so long as it is necessary for public protection. In these circumstances there is an obligation to hold a periodic review in order to comply with article 5(4). The object of the review being to decide whether the detention remains justified, see SSJ v James [2009] UKHL 22 at [12]. The first defendant is required under the provisions of Section 28 of the 1997 Act to consider whether the prisoner's continued detention is necessary for public protection following reference by the second defendant. Inadequate resources or insufficient manpower cannot excuse delays which are otherwise breaches of article 5(4), see the Court of Appeal decision in R (Noorkoir) v SSHD [2002] EWCA Civ 770. Speedy periodic reviews eliminate the possibility of a prisoner remaining in detention when the legal justification for it, by reason of his continuing dangerousness, no longer exists, see Loch v SSJ [2008] EWHC 2278 (Admin), Stadlen J at [89].
15. There is a subsidiary obligation on both the first defendant and the second defendant actively to case manage parole referrals so as to ensure that systems are in place which enable referrals to be arranged “speedily” in accordance with article 5.4, and the first defendant must actively case manage cases and proceed with reasonable dispatch, see Smith v SSJ and the Parole Board [2008] EWHC (Admin) 2998, Slade J, at [7].
16. The history of the claimant's case, the failure of the second defendant to send a dossier promptly and the failure of the first defendant to ensure hearings, demonstrates the clear breach of their obligations and entitles the claimant to the relief claimed. So far as this relief is concerned, Mr Jagadesham submits, first, in these circumstances the court should make declaration that the first and second defendant have acted in breach of Article 5(4). Secondly, although he does not press for a mandatory order directing a prompt panel hearing, the Court should order that there is a latest date by which the case should be heard: what he called a “back-stop”. He draws my attention to a similar order made by Irwin J in a decision made in a case called Sullivan decided on 6 July 2009. Thirdly, in any event, he submits that the court should make an award of damages to reflect either...
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