R (Hoole) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 09 February 2010 |
| Neutral Citation | [2010] EWHC 186 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 February 2010 |
| Docket Number | CO/12916/2009,Case No: CO/12916/2009 |
[2010] EWHC 186 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M3 3FX
Before: Mr Justice Foskett
Case No: CO/12916/2009
Miss Melanie Plimmer (instructed by Messrs Jackson and Canter) for the Claimant
Mr Rory Dunlop (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 1 st February 2010
Mr Justice Foskett:
The background
On 10 July 1996, when he was aged 52, the Claimant, who had no previous convictions and no history of violence, was sentenced to life imprisonment for the murder of his sister's former husband. His sister was also convicted of murder. He was made the subject of a 12-year tariff which expired on 24 April 2008. He is now aged 65 and will be 66 shortly.
About a month before the tariff expired, on 17 March 2008, in accordance with its usual policy, the Parole Board undertook a first pre-tariff review of his case. The Claimant, who had not yet had a period in open conditions, but who had good prison reports, sought a transfer to open conditions and the Board did indeed recommend that he be transferred to open conditions, a recommendation accepted by the Secretary of State for Justice on 15 May 2008. On that date the Secretary of State for Justice advised him that his case would be referred to the Parole Board for a provisional hearing to take place in March 2009. Miss Melanie Plimmer, who represents him in this application, draws attention to the fact that the contemplated period between the first and second reviews was approximately 12 months whereas in many cases it is 2 years or thereabouts.
The transfer to HMP Sudbury, an open prison, took place in June 2008. The Parole Board had said in its decision letter of 17 March 2008 that “the only outstanding offending behaviour work is a Cognitive Skills Booster course” which could be completed in either open or closed conditions. The view of Mr Rhys Matthews, a Consultant Forensic Psychologist, that he was suitable for open conditions and that he represented a low risk of the commission of further violent offences was accepted by the Board.
Once transferred to HMP Sudbury sentence targets were set and completed. The Cognitive Skills Booster course was completed on 12 November 2008. It is suggested on the Claimant's behalf (and not contested by the Parole Board) that his case was ready and suitable for a hearing in March 2009 as planned.
On 13 November 2008 the Secretary of State for Justice referred the Claimant's case to the Parole Board for hearing and on 24 November 2008 the Parole Board notified him that, due to a late receipt of the referral, they were targeting his pre-tariff review hearing for April 2009, a month later than originally planned.
Whilst that hearing was pending, and in about January or February 2009, the Claimant learned that his wife of some 30 years, who had stood by him and to whom he intended to return on his eventual release, had been diagnosed with breast cancer.
The Parole Board had received the dossier from the Secretary of State for Justice on 21 January 2009 and on 23 January 2009 the Intensive Case Management ('ICM') Parole Board member issued directions indicating that the case was ready to be listed for a hearing. However, by then all the cases had been put forward for the April 2009 listing.
On 9 February 2009 the Claimant's wife underwent a lumpectomy and his solicitors made representations to the Home Office asking for a March date or earlier if possible. Nothing was heard in response and various further communications were sent over the next few months also with no response.
Eventually, on 18 August 2009, the Claimant received a letter from the Parole Board in the following terms:
“We refer to your parole review which was due to be conducted during April 2009.
The dossier for your review has been assessed and considered ready to be scheduled for an oral hearing. Your case has therefore been put forward for a listing date but so far we have been unable to secure a panel.
The parole board is currently experiencing a severe shortage of required members to chair hearings of indeterminate prisoners. A considerable number of cases therefore do not immediately receive a hearing date and yours was unfortunately one of these. We know these delays are frustrating and disappointing and we apologise.
The problem has been building up over recent months and we are urgently looking at ways to resolve the problem. We now have a listing priority framework to ensure that each application is dealt with in an order which reflects this urgency. A description of the listing priority framework is available on our website as is a description of the amendments to the Parole Board Rules which we hope will help us to reduce these delays.”
As will be apparent from that letter—and indeed as will be common knowledge amongst those concerned in these matters—a considerable backlog of reviews had been building up, largely because of insufficient numbers or availability of legally qualified Chairs of review panels. The Claimant was and is not the only person affected: very many were and indeed still are. However, his solicitors were suggesting in an e-mail to the Home Office of 1 October that his case was worthy of prioritisation, particularly having regard to his wife's position. She had undergone a 3-week course of chemotherapy in April 2009 and, albeit in remission, was on medication and undergoing regular scans. Understandably, this was (and remains) a matter of anxiety both for the Claimant and for his wife.
In their e-mail they referred to a case called R v the Parole Board ex p Betteridge [2009] EWHC 1638 (Admin), a case that had come before Collins J on 23 June 2009. It was a case (as is this case) where reliance was placed on Article 5(4) of the European Convention on Human Rights and Fundamental Freedoms which provides as follows:
“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.”
There is no dispute that Article 5(4) requires there to be reviews at reasonable intervals of the lawfulness of the detention of post-tariff life prisoners.
There is no need to extend this judgment by extensive citations from Betteridge, but it is clear that Collins J had the overall position concerning the backlog of cases as at that time put before him. Reference was made to new systems being put in place to try to deal with the problem. Collins J was referred to various figures and statistics and said this:
“Again, all I think I need say is that they do not, unfortunately, show that, despite the efforts that are being made, there has yet been a reduction of the backlog that has grown in the hearing of cases which the Parole Board is required to deal with. But it is early days yet, and no doubt the new system has not had time to produce the necessary effects.”
In that case (as in this) there was recognition that Article 5(4) had been breached. However, Collins J concluded in these terms:
30. It is obvious that the measures put in place to alleviate the problem will not have immediate effect. The evidence before me, from a number of solicitors who have experience in dealing with these cases, makes it clear that the delays continue and the backlog has not improved, and indeed that latter point is made clear by evidence produced by the Secretary of State and by the Parole Board. But, as I say, one has to recognise that the changes cannot be expected to take place overnight. I do not doubt that the authorities will now appreciate the need to get on top of this problem and to ensure that the hearings that are required are provided, and that the requirements of Article 5(4) are met. While, as I say, in the circumstances of this case, it does not particularly avail the claimant because he will not have achieved release, there may well be cases where that is not the case, and I am glad to see that one of the measures put in place is a more flexible approach by the Board to consideration of cases which do need priority. Obviously, if it has been made clear, perhaps in a pre-tariff hearing, that a particular prisoner, once he has served his tariff, is a real candidate for immediate release, then the sooner that particular individual has a hearing the better.
31. In the light of what is being done, it is not now appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5(4) unless there are very special circumstances, something has gone badly wrong despite the new arrangements in that prisoner's particular case. It will not be helpful, either to the prisoner or to the court, if claims are brought which in reality, because of the existing situation, are not likely to achieve any sensible redress and merely add to costs. Of course, one has sympathy with those who may stay in prison longer than they perhaps, on one view, ought to. That is a thoroughly unsatisfactory state of affairs. But, equally, the court cannot do the impossible. We cannot make orders which are only going to create difficulties for others and are not in any way desirable, because, as I have already said, it is not helpful that prisoner A gets relief which may advance him in the queue but which inevitably means that prisoner B has a longer wait. As I repeat, absent special circumstances,...
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