Pennington v The Parole Board
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Pelling QC,Sitting as a Judge of the High Court |
| Judgment Date | 22 January 2010 |
| Neutral Citation | [2010] EWHC 78 (Admin),[2009] EWHC 2296 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2010 |
| Docket Number | Case No: CO/12455/2008 |
[2009] EWHC 2296 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Civil Justice Centre
1 Bridge street West
Manchester M60 9DJ
His Honour Judge Pelling QC
Sitting as a Judge of the High Court
Case No: CO/12455/2008
Ms Melanie Plimmer ( instructed by Swain & Co) for the Claimant
Mr Tim Buley (instructed by Treasury Solicitor) for the Defendant
Hearing date: 14 th September 2009
HH Judge Pelling QC:
Introduction
This is the hearing of a substantive application for Judicial Review against the Parole Board as Defendant, permission having been given to bring these proceedings by Saunders J on 14 th January 2009. Originally, the Secretary of State for Justice was the Second Defendant to these proceedings. However, by a consent order dated on or about the 5 th August 2009, the claim made against the Secretary of State was withdrawn.
The Claimant was sentenced to an IPP sentence for an offence of arson, the tariff element of which was 1 year and 92 days. The tariff element of the Claimant's sentence expired on 11 th August 2008. Thereafter, the Claimant was to be detained only for so long as was necessary for the protection of the public. The body charged with deciding whether a tariff expired IPP prisoner's continued detention is necessary is the Parole Board. On 19 th March 2009, the Parole Board heard the Claimant's case and by a decision in writing sent to the Claimant's solicitors on 21 st April 2009, it decided that the Claimant should be released on licence. The Claimant alleges that the Parole Board acted in breach of its duty under Article 5(4) of the European Convention on Human Rights (“ECHR”) by failing to reach and communicate that decision earlier than it did, that the alleged breach caused the Claimant to be detained beyond the date when he would have been released had the Parole Board acted in accordance with the duty imposed upon it by Article 5(4) and in consequence the court ought to award him damages pursuant to Article 5(5) of the ECHR to be assessed by close analogy with the principles to be derived from the cases decided under English law in relation to unlawful detention.
The Defendant maintains that it did not breach Article 5(4) in relation to its treatment of the Claimant; that any breach found established did not cause him to be detained for longer than would otherwise have been the case; that damages are discretionary and ought not to be awarded in the circumstances of this case and in any event damages fall to be assessed in accordance with the jurisprudence of the European Court of Human Rights (“ECtHR”).
The Administrative Court is not the natural forum for a claim for damages. Section 8(2) of the Human Rights Act 1998 confers jurisdiction on any court with a power to award damages in civil proceedings. However, at this stage at least no useful purpose will be served in directing a transfer of these proceedings to another court, not least because the Claimant is publicly funded in relation to this litigation.
The Factual Background
The need for the continued detention of persons in the position of the Claimant has to be reviewed periodically in order that it can be ascertained whether there is a continuing need to detain the person concerned for the protection of the public and in order to comply with Article 5(4) of the ECHR. That review is carried out by the Parole Board but the capacity of the Parole Board to carry out the review process is triggered only once the case of the person concerned is referred to it by the Secretary of State. For persons whose tariff is less than 3 years, the Secretary of State's policy is that such persons are entitled to a first review shortly before the tariff expires in order to consider suitability for release on the tariff expiry date and for that purpose such persons cases are to be referred to the Parole Board at least 8 months prior to the tariff expiry date.
Notwithstanding that it is common ground that the policy of the Secretary of State is as I have set out above, the Claimant's case was referred to the Parole Board on 6 th June 2008 – 9 weeks before the expiry of the tariff element of his sentence. Where there is as here a late referral by the Secretary of State, a prisoner's case was at the time material to these proceedings supposed to be managed by the Parole Board in accordance with the guidance published by and contained in Intensive Case Management Oral hearings General guidance” dated July 2008 (“the ICM Policy”). The Parole Board's target date for a hearing is 26 weeks after referral. The ICM Policy assumes that the referral is received at least 16 weeks prior to the hearing taking place. The ICM Policy assumes that the dossier for the prisoner will be sent to a Panel member for directions, will be returned by the member and any directions issued within a maximum period of at most 2 weeks not later than 10 weeks before the hearing. The ICM Policy requires a hearing date to be fixed not less than 8 weeks before the hearing date allocated. However this element of the ICM Policy takes no account of a direction that requires the filing of further reports. It is no doubt for this reason that the ICM Directions Form (Bundle, P285) makes clear that the addendum reports have to be provided before a case can be scheduled with an exact hearing date.
On 8 th August 2008, a senior psychologist at HMP Durham (where the Claimant was imprisoned) provided an addendum report which concluded that the Claimant was now suitable for release. There were no further recommendations for offending behaviour work. However, between March and May 2008, a number of other reports had been filed which had been prepared before the addendum report of the psychologist and were not supportive of release. The first report to recommend release was the psychologist's addendum report. Whilst it was suggested on behalf of the Claimant that it was this report that would lead almost inevitably to the release of the Claimant, I do not accept that to be so. Whilst the report no doubt provided a platform from which a realistic application could be made, the reality is that further addendum reports would have to be obtained from at least some of those who had previously filed negative reports before such an application could proceed. It is no doubt precisely for that reason that the ICM directions made on 6 th September 2008 included a direction that updated reports be obtained from the seconded probation officer (“SBO”) and the external probation officer (“EPO”). If such a direction had not been made at that stage I regard it as almost inevitable that any hearing would have been stood over in order to permit such reports to be prepared.
There was undoubtedly a delay in dealing with the ICM directions. Once the dossier had been received, the Parole Board wrote to the Claimant on 12 th June 2008 stating that a hearing was to take place in November 2008 on a date that would be communicated 8 weeks prior to the hearing date. The Claimant's dossier was placed before a member on 29 th August 200Directions were made on 6 th September 2008 (broadly within the 1 week period contemplated by the ICM Policy referred to above) but, for reasons that have not been explained, they were not processed by the Parole Board and sent out until 2 nd October 200The directions required additional reports to be provided by the SPO and the EPO by 2nd November 2008.
The ICM Directions Form clearly contemplated a hearing in November 2008 when it was sent out at the end of August 2008. However, by the time the directions were in fact sent out to the parties (2 nd October 2008), it is clear from the covering e mail that a hearing in either January or February 2009 was contemplated because the dates to avoid that were sought were for those months. The Parole Board accepts that “… it caused some delay in being unable to assess the dossier under its Intensive case management system until 29th August 2008 and further delay in failing to distribute those directions until 2 October 2008”—see Paragraph 11 of the witness statement of Ms O'Prey dated 4 th February 200No attempt has been made to quantify the resulting delay. On the face of it however, the e mail of 2 nd October 2008 contains an implicit recognition that the delay resulting from the failure to send out the directions timeously was even then likely to be between six weeks and three months – that is from a hearing date that was contemplated as being in November when the Directions form was sent to the ICM Member in late August 2008 to a contemplated hearing date in either January or February 2009 by the time the e mail of 2 nd October 2008 came to be sent out.
The two additional reports were prepared. That of the SPO is dated 28 th October 2008 and that of the EPO is dated 25 th November 2008. Both supported release. The ICM directions required that they be filed by no later than 3 rd November 2008. It is wholly unclear when the reports were received by the Parole Board. Paragraph 14 of Ms O'Prey's witness statement says only that they had been received “by” 18 th December 2008. When before the 18 th December they had been received is not explained. There then followed a further period of delay between 18 th December 2008 and 19 th March 2009 when the Parole Board heard the Claimant's case. The explanation given for this period of delay by Ms O'Prey is that listing for hearings in March 2009 took place between 22 nd December...
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