Gary Cooper v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 13 June 2017 |
| Neutral Citation | [2017] EWHC 2668 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/854/2017 |
| Date | 13 June 2017 |
[2017] EWHC 2668 (Admin)
IN THE LEEDS ADMINISTRATIVE COURT
Mr Justice Soole
Case No: CO/854/2017
Mr Philip Rule appeared on behalf of the Applicant
Ms Sarah Wilkinson appeared on behalf of the Respondent
This is a renewed application by Mr Cooper for permission to apply for judicial review. The application was refused on paper by HHJ Saffman on 18 April 2017, sent to the parties on 3 May 2017. I should begin by thanking counsel and in particular Mr Rule (I did not find it necessary to call on the defendants' counsel) for his very high quality submissions in this matter.
Mr Cooper, now aged 60, was sentenced on 2 September 2008 to a determinate total sentence of 14 years following his conviction of historic sexual offences. The sentence is described as "discretionary conditional release" (DCR). The effect is that he was subject to discretionary release by the second defendant Parole Board between a halfway and two thirds point in his sentence. At the two thirds point (called the non-parole date) he was entitled to release subject to licence. That two thirds point would have been on 10 April 2017. The halfway parole eligibility date began on 10 December 2014. By a decision dated 29 December 2016, the Parole Board directed his release. His actual release on licence took place on 20 March 2017, i.e. about three weeks before the non-parole date.
The claim form was issued on 16 February 2017, i.e. before his release. It identified the decision as "violation of Article 5 ECHR; unlawful, ongoing failings delaying release and parole review; policy not to compensate prisoners of this class; negligent detention; continuing public law failing to operate lawful system" (the date of decision was identified as 29 December 2016) and associated failings. The matters of complaint precede 29 December and also I understand go beyond it as well, but it is common ground that in a parole case including allegations of systemic failure, no issue as to the claim being out of time arises. There is one respect in which a time issue arises, to which I will refer under ground 6 of the appeal. The "detailed statement of facts and grounds of claim" characterise the claim as "arising from the failure to provide him with a parole review hearing when the law required it".
The background to the case is this. On 31 October 2014 the Parole Board concluded a paper review of his case and directed an oral hearing together with some reports for that purpose. On 7 April 2015 the parole hearing took place. No report writers had recommended release at that date. His release was not directed. On 3 September 2015 the Secretary of State referred the case to the Parole Board for a further review with a due or target date for review of February 2016. The particular complaint of the claimant starts from that date. On 18 November 2015, following a review of a substantial dossier of documents and legal submissions, the Parole Board directed that the case proceed to an oral hearing with a two-hour estimate. No further reports were required. Having regard to his continued stance that he was innocent of the offences, the direction noted that "The panel wish to consider whether you have completed any other work which indicates a reduction in risk and whether risk could be managed in the community through robust external controls".
On 9 June 2016 the hearing was listed for 10 August 2016. However, on 4 July 2016 the Parole Board was told by the prison that it could not facilitate a hearing on 10 August because there was a "family day", i.e. an extended visitation event at the prison. On 7 July 2016 the Parole Board sought and received on that day comments from the claimant's solicitors. They asked why this family day had not been known when the hearing was listed and submitted that the priority should be given to a hearing concerning the prisoner's liberty rather than the family day. On 5 August 2016 Mr Cooper's solicitors sent the Parole Board a letter before action alleging breaches of Article 5 of the European Convention on Human Rights, procedural unfairness and irrationality, and sought amongst other things an oral hearing before the Parole Board within six weeks. On 8 August 2016 the Parole Board panel chair directed an expedited hearing "as the circumstances of the deferral were beyond the control of the Parole Board and Mr Cooper". On 22 August the Parole Board responded placing reliance on a decision of R (Hussain) v Parole Board [2016] EWHC 288 (Admin), which I will be considering later.
On 24 August 2016 Mr Cooper's solicitors wrote again to the Parole Board contending that there had been a breach before 10 August 2016, namely from 1 March, and seeking compensation for that period of delay. On 30 September 2016 the Parole Board wrote again asking for their response for 22 August to be ignored and submitting that Article 5(4) of the ECHR had no application in DCR cases. On 27 October 2016 Mr Cooper's solicitors sent a further letter before action to the Parole Board elaborating their case under Article 5 and in public and private law. On 21 December 2016 the parole hearing convened. On 29 December 2016 the Board made a direction for release. The panel referred to the delays which had occurred, noting "There have been delays to considering your review on this occasion through no fault of your own".
There was a further delay to his actual release on 20 March 2017, but the focus of the claim is on the period between 1 March 2016 and the hearing on 21 December. Thus Ms Jill Darrington, Mr Cooper's solicitor, in her witness statement in support of the claim dated 14 February 2017, stated at paragraph 5:
"The case is being issued within time given the cause of action arising on 23 December 2016 when the claimant's release was directed by the Parole Board. It now evidenced that on balance of the probabilities he suffered a loss of liberty in the delay to convening his parole hearing prior to December 2016. The claimant also suffered anxiety, frustration and distress caused by the delays to his hearing."
The reference to 23 December evidently should be to 21 December.
The claim is brought on six grounds against the defendants. For the purposes of this judgment I do not need to differentiate between the defendants, although different considerations do apply to their particular roles.
Ground 1: The delay is a violation of Article 5(4) of the ECHR.
In its material terms, Article 5 provides that:
"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."
Mr Rule acknowledges that the Supreme Court in Whiston v Secretary of State for Justice [2014] UKSC 39 stated that Article 5(4) does not apply to a determinate sentence prisoner but submits that these statements were obiter dicta. He also draws attention to paragraphs in the judgments of Lord Neuberger and Baroness Hale indicating the potential for further review in the future in the light of developments in European law jurisprudence. He submits that the general importance of the issue of speedy access to a parole hearing should justify the grant of permission. In Whiston Lord Neuberger (in whose judgment Lords Kerr, Carnwath and Hughes concurred) accepted the Secretary of State's contention that Mr Whiston...
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