Gray v Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Burnett J |
| Judgment Date | 11 January 2010 |
| Neutral Citation | [2010] EWHC 2 (Admin) |
| Date | 11 January 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7665/2009,CO/7665/2009 |
[2010] EWHC 2 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon Mr. Justice Burnett
Case No: CO/7665/2009
Philip Rule (instructed by Mark Williams Associates) for the Claimant.
Simon Murray (instructed by The Treasury Solicitor) for the First Defendant.
Matthew Slater (instructed by The Treasury Solicitor) for the Second Defendant
Hearing dates: 10 th November 2009
Mr. Justice Burnett:
Introduction
This is a rolled-up application for permission to apply for judicial review in connection with the process of review of the claimant's continued detention following a sentence of Detention for Public Protection [“DPP”] imposed on 12 February 2007 by the Recorder of Winchester pursuant to section 226 of the Criminal Justice Act 2003 [“the 2003 Act”]. The claimant was born on 28 May 1990. He was 16 years old when sentenced in respect of two sexual offences committed in 2006. Had he been an adult the sentence would have been one of Imprisonment for Public Protection. The minimum term specified by the Judge was two years. The impact of that specification was that the claimant was to serve at least two years, his release thereafter being conditional upon an assessment by the Parole Board [“the Board”] that it is safe to release him. The claimant had spent 133 days in custody before he was sentenced which were directed to count towards the minimum term. In the result, the claimant's earliest release date was 2 October 2008. For reasons to which I shall return, the Board did not consider the claimant's case at a hearing until 13 February 2009 and thereafter issued its decision on 24 February 2009. The Board did not order his release or recommend that he be transferred to an open establishment. The claimant was informed on 6 March 2009 by the Secretary of State that his next Board hearing will take place in August 2010.
The claimant now seeks judicial review of the actions and decisions of the two defendants on the following grounds:
(i) The delay in convening the claimant's Board hearing gives rise to a violation of Article 5(4) of the European Convention on Human Rights [“ECHR”]. The claimant recognises that such delay would not render his detention unlawful or that his release should be ordered. Rather he seeks a declaration and such other just satisfaction pursuant to section 8 of the Human Rights Act 1998 as is appropriate;
(ii) The period of time between the Board's decision on 24 February 2009 and 1 August 2010, the date set for the claimant's next hearing, represents further unlawful delay in breach of Article 5(4);
(iii) The Secretary of State's directions to the Parole Board were unlawful and irrational because they required the Board to apply the same test to the release of a prisoner or detainee serving a sentence of imprisonment for public protection as for a life sentence, when the tests are different, and the test set out in the directions was wrong; and,
(iv) There was an unlawful approach to transfer to open conditions in that there was a failure to take account of the Claimant's status as a short tariff DPP prisoner. That was because the reports before the Board dealing with the possibility of transfer to open conditions dealt with the question in the same way as happens with life sentence prisoners and took no account of the short minimum term in this and similar cases. The Secretary of State has acted unlawfully in failing to produce guidance concerned explicitly with short tariff prisoners as has the Board in failing to generate its own guidance.
The defendants resist each of these grounds on their merits. Additionally, the Secretary of State (but not the Board) submits that permission to apply for judicial review should be refused because of delay in bringing the claim. The proceedings were issued on 14 July 2009 and thus were not brought within three months of the various decisions the subject of challenge. In so far as there is a challenge to the basis upon which the Board considered the claimant's case the relevant information about its approach was known at the latest in the summer of 2008. The claim form provides little information about the reasons for delay. However, the position was explained by Mr Rule, who appeared for the claimant. The claimant made an application to the Legal Services Commission for funding in January 2009. Funding was only forthcoming on 23 June 2009. Furthermore, in the intervening period the House of Lords heard a series of cases concerning indeterminate sentences and their review by the Board in the context of a lack of provision of courses by the Secretary of State. The decision of the Committee was given on 6 May 2009 (see James v Secretary of State for Justice [2009] UKHL 22; [2009] 2 WLR 1149). Whilst there has been delay in this case, it has had no practical impact upon the defendants. In the circumstances, I do not consider that delay should act as a bar to the grant of permission (if otherwise appropriate) in this case.
The Chronology
The chronology and basic facts relevant to the Board's consideration of the claimant's case may be summarised as follows:
Ground 1: Delay and Article 5(4) ECHR
| 12 February 2007 | The claimant was sentenced to DPP with a minimum term of two years' detention. |
| 14 January 2008 | The claimant's case was referred to the Board by the Secretary of State with a target review date of September 2008. That was designed to achieve a review before the earliest release date. |
| 4 March 2008 | The Board wrote to the Offender Management Unit at Warren Hill (where the claimant was located) indicating a provisional hearing date of September 2008 and sought the complete dossier by 6 May 2008. A list of documents was enclosed with the letter. |
| 5 May 2008 | The claimant's dossier of documents [“the dossier”] was sent by the Prison Service on behalf of the Secretary of State to the Board. It was incomplete. Whilst it is unclear precisely what was missing, later communications suggested that an undated report from Kaye Garwood (Seconded Probation Officer) and a report dated 11 April 2008 from Cliff Regan (External Probation Officer) were omitted. A report from a social worker from the Lucy Faithfull Foundation is dated 16 June 2008 and so cannot have been with the dossier when it was sent to the Board. Directions relating to an oral hearing should have been, but were not, issued by Intensive Case Management [“ICM”] following receipt of the dossier by the Board. |
| 23 June 2008 | Directions given in connection with an oral hearing should have been complied with. The parties and witnesses should have provided dates to avoid in respect of the indicated hearing date in September. |
| 25 July 2008 | The claimant's solicitors receive the dossier for comment from Warren Hill. |
| 10 September 2008 | The claimant's solicitors were informed by Edward Eaton of the Board that the dossier the Board had received on 5 May 2008 was incomplete. It lacked the Probation Officers' reports with the result that the case could not go to ICM for directions in anticipation of a hearing. The absence of these reports from the material provided in May to the Board does not appear to have been noticed earlier. The claimant's solicitors informed Mr Eaton that they had received both the Internal (Seconded) and External Probation Officers' reports on 25 July 2008 direct from the prison. Mr Eaton agreed to seek those reports from the Secretary of State to complete the dossier. He did not suggest that anything else was missing. The natural inference is that the report from the Lucy Faithfull Foundation had found its way to the Board and that nothing else was missing. |
| 18 September 2008 | The claimant's case had by this date been passed from Mr Eaton, who had left the Board, to Ms Scannapieco. Ms Scannapieco was asked by the claimant's solicitors if the missing probation reports had been obtained by the Board to complete the dossier. They had not. Ms Scannapieco immediately requested the missing probation reports from the Prison Service. They were obtained the same day. Ms Scannapieco confirmed to the claimant's solicitors that the dossier was complete and that directions were being sought within seven days from ICM. |
| 2 October 2008 | Expiry of the Minimum Term. |
| 6 October 2008 | ICM directions were issued in the claimant's case, No further reports were considered necessary. Kaye Garwood, the Seconded Probation Officer, was directed to attend at the oral hearing to update the Board on various matters. Cliff Regan, the External Probation Officer, was not directed to attend. That was because none of the reports prepared for the Board, of which there were many, recommended transfer to open conditions. Such transfer was not a realistic option at the time. He was, however, invited to attend 'if there is significant information to add to his report dated 11 April 2008'. The ICM directions were produced on a standard form that records the 'target date' for the hearing in an unchangeable form. Therefore, although the request for directions was submitted to ICM on 18 September and the directions issued on 6 October, the form continued to identify the 'target month for hearing' as September 2008. Furthermore, the form noted that in order to meet that target the directions contained in the document should be complied with by 23 June 2008. There were, as it happens, no further directions that needed to be complied with before the... |
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