Dunn v Parole Board
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Thomas |
| Judgment Date | 16 April 2008 |
| Neutral Citation | [2008] EWCA Civ 374 |
| Docket Number | Case No: B2/2007/1564 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2008 |
[2008] EWCA Civ 374
Lady Justice Smith
Lord Justice Thomas and
Lord Justice Lloyd
Case No: B2/2007/1564
6NR00380
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
HH JUDGE DARROCH
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey (instructed by Hatch Brenner) for the Appellant
Steven Kovats (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 29 January 2008
The claimant appeals from the decision of the Norwich County Court striking out his claims under the Human Rights Act 1998 ( HRA) and for false imprisonment arising out of his detention after recall to prison from that part of his sentence he was serving on licence in the community. The appeal raises issues on the scope of CPR Part 11, whether a claim lies for false imprisonment as a result of delay by the Parole Board and whether an extension of the period for bringing the HRA claim should be granted under s.7(5) of the HRA.
The factual background
On 17 March 1994 the claimant was sentenced at the Crown Court at Canterbury to a total of 12 years imprisonment for wounding with intent contrary to s.18 of the Offences against the Person Act 1861, possession of a firearm with intent to endanger life and aggravated burglary.
On 1 December 2000 the claimant was released on licence from HM Prison Maidstone to serve the balance of his sentence in the community under the provisions of s. 33 (2) the Criminal Justice Act 1991 ( CJA 1991) as he had served two thirds of his sentence in prison. On the preceding day he signed the terms of his licence conditions which specified he must reside at a named hostel.
He did not go to that hostel and on that same day, 1 December 2000, the Probation Service requested the revocation of his licence because he had failed to attend the named hostel. The provisions relating to the recall of the claimant as a long term prisoner were set out in s.39 of the CJA 1991 (as amended):
“s 39 Recall of long-term and life prisoners while on licence.
(1) If recommended to do so by the Board in the case of a short-term or long-term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
(3) A person recalled to prison under subsection ( 1) or (2) above—
(a) may make representations in writing with respect to his recall; and
(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.
(4) The Secretary of State shall refer to the Board—
(a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and
(b) the case of a person recalled under subsection (2) above.
(5) Where on a reference under subsection (4) above the Board—
…..
(b) recommends in the case of any person, his immediate release on licence under this section, the Secretary of State shall give effect to the recommendation.
….
(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.”
The Secretary of State, acting under s 39(2), revoked his licence and recalled him to prison. The claimant was arrested and taken to HMP Elmley. The Secretary of State referred the recall to the Parole Board under s. 39 (4); the claimant was entitled to make representations to the Parole Board with respect to his recall under s.39(5) and did so; it was then for the Parole Board to decide whether to recommend his release and, when it did so, it was the Secretary of State's duty to release him under s.39(5).
As the claim against the Parole Board was based on delay by the Parole Board in reviewing his recall, it is necessary briefly to identify the principal steps taken:
i) On 12 December 2000 the claimant received his recall dossier; this gave as the reason for his recall his failure to report to the named hostel.
ii) On 20 March 2001 the claimant's then solicitors made written representations against his recall; in them it was claimed that at the time he signed the conditions of his licence he lacked reading glasses and did not appreciate he had to report to the hostel.
iii) On 4 April 2001 the Parole Board declined to recommend his release on the basis of the written materials before it.
iv) On 29 May 2001 the claimant's then solicitors requested an oral hearing; they claimed that the decision had been made on the basis of documents not disclosed to the claimant. The claimant's then solicitors argued that it was clear “that Article 5(4) [of the Convention] can apply to decisions to revoke a prisoner's licence and recall him to prison”; a detailed argument was put forward in support of this contention.
v) A detailed argument was put forward as to why the actions of the Parole Board violated the claimant's rights under Article 5(4) of the Convention. This provides:
“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.”
vi) On 4 July 2001 HM Prison Service disclosed additional probation reports. The Parole Board told the claimant that he might request an oral hearing.
vii) On 6 July 2001 the claimant's then solicitors made representations about the report and repeated the request for an oral hearing. The Parole Board decided at the end of July 2001 to hold an oral hearing and on 15 August 2001 notified the claimant's then solicitors of the date for the hearing.
viii) On 28 September 2001 the oral hearing took place.
The Parole Board recommended his release on 1 October 2001; it accepted the evidence of the claimant that he had not been aware that he should report to the named hostel by a given time. The Secretary of State ordered his release on 2 October 2001.
The claim under the HRA that the Parole Board acted unlawfully because of the delay in the review of the recall was not commenced until 21 January 2006. The events that explain that long delay were:
i) The evidence of the claimant (as set out initially in a statement provided by his present solicitor in October 2006) was that on his release he asked his then solicitors if they could advise him on any claims he might have in respect of his recall; he was told some time thereafter that those solicitors did not any longer conduct civil litigation. He then contacted three or four solicitors in the Croydon area and was told in initial interviews by those solicitors that there was little chance of success.
ii) Wholly separately from these events (and, on the evidence before the judge and this court, unknown to the claimant) another prisoner, West, had commenced judicial review proceedings in 2001 against the Parole Board in relation to its decision in October 2001 not to release him after his recall under s.39 of the CJA 1991 in August 2001. He contended that his Convention rights under Articles 5 and 6 had been breached. On 26 April 2002, Turner J decided in R (West) v Parole Board [2002] EWHC 769 (Admin) that the recall of a prisoner did not amount to the imposition of a fresh criminal sanction and there was no scope for importing into the recall provisions the formal requirements of Articles 5 and 6. Article 5 was not engaged. The Parole Board did not have to give him an oral hearing.
iii) On 27 January 2005, the House of Lords decided on appeal [2005] UKHL 1 ([2005] 1 WLR 350) that the Parole Board had a public law duty at common law to act in a manner that fairly reflected the interests at stake. Although this did not require the Parole Board to hold an oral hearing in each case, such a hearing must be held where circumstances made it fair to hold such a hearing, such as where facts were in issue. The House also held that, although the provisions of Article 5(1) of the Convention were not relevant as the possibility of recall was an integral part of the sentence passed after conviction, the provisions of Article 5(4) were engaged in relation to a recall. The Parole Board's review of that decision in accordance with the common law requirements of procedural fairness would satisfy Article 5(4). However the procedures followed by the Parole Board had not, in the circumstances of the recall of West and the other appellants, satisfied those requirements, as the Parole Board had failed to hold an oral hearing.
iv) In the autumn of 2005 the claimant contacted the solicitors who subsequently agreed to act for him in this claim to seek advice as to whether he had a claim against the police in connection with his arrest prior to his recall. After advice was obtained from Counsel, the claimant issued proceedings on 24 January 2006 in the Norwich County Court against the Parole Board claiming a declaration that his human rights had been breached and damages under s.6 of the Human Rights Act 1998 on the basis that the Parole Board had not acted speedily as required under Article 5(4); its decision in October 2001 showed that the claimant was probably eligible for release shortly after his recall.
The procedural background
Prior to the commencement of proceedings, the claimant's counsel and...
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