R (Mark Wells) v Parole Board [Administrative Court]
| Jurisdiction | England & Wales |
| Judge | Frances Patterson |
| Judgment Date | 22 September 2009 |
| Docket Number | CO/5111/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 September 2009 |
Neutral Citation: [2009] EWHC 2458 (Admin)
Administrative Court
Judge: Frances Patterson Qc (sitting as a Deputy High Court Judge)
CO/5111/2009
Appearances: H Southey and A Straw (for Judgment) (instructed By Cunninghams) For Mw; H Stout (instructed by the Treasury Solicitor) for the Board.
Issues: Whether the delay in listing a hearing before the Parole Board for a post-tariff lifer breached Art 5(4) ECHR; whether a hearing should be ordered; whether damages were appropriate.
Facts: In September 2005, MW was sentenced to imprisonment for public protection with a minimum term of 2 years. In a decision of September 2007, the Parole Board, which controls the release of those serving indeterminate sentences, did not direct release or recommend a transfer to open conditions on the basis that work needed to be done to address risks; the date set for the next review was February 2009. In May 2008, MW was moved from a category B conditions to a category C prison, the lowest security type of closed prison. In August 2008, the Secretary of State referred the case to the Board, which asked that the required dossier of reports be completed by November 2008. It was not received until January 2009, as a result of which the target date for a hearing was changed to May 2009 when directions were given in January 2009. However, because of a backlog of cases and a lack of priority given to MW's case under the approach to listing adopted by the Board, his case had not been heard.
In judicial review proceedings, MW sought a mandatory order that his case be given priority, a declaration that Art 5(4) ECHR had been breached and damages. He argued that his case should be given priority in light of his short tariff (which meant that time in open conditions was less crucial), the fact that he had addressed the areas that had been identified and was a clear candidate for release; it was also argued that the failure to have a judicial member of the Board consider the application for priority was illegal, given that listing was a judicial decision. The Board submitted that, whilst the system was unacceptable, as had been identified in R (Betteridge) v Parole Board[2010] 2 Prison LR 75, there was no breach of Art 5(4); that it was inappropriate to make an order that would give priority over other cases since the court did not have details of them; and that the listing system was lawful. It noted that it would be unusual to be released from closed conditions.
1. This is an application for judicial review by the claimant, Mark Wells, of a decision by the defendant (the Parole Board) to fail to prioritise the claimant's post-tariff Parole Board hearing. The claimant seeks first, a mandatory order that the defendant consider whether the claimant's case is a priority; second, a declaration that the defendant's action or, more accurately, inaction is a breach of Art 5(4) of the European Convention of Human Rights; and third, damages.
2. The matter came before HHJ Anthony Thornton QC, sitting as a Deputy High Court Judge, on 2 June 2009, who gave directions that the hearing be expedited and take place as a rolled up hearing. The hearing took place on 23 July 2009.
3. On 18 July 2005, the claimant pleaded guilty to robbery and to a breach of an ASBO to which he was then subject. He had some 28 previous convictions including robbery, wounding and affray, assault occasioning actual bodily harm and possession of a bladed article. He was sentenced to IPP on 27 September 2005. HHJ Martineau set a minimum term of 2 years and remarked:
‘If they do not release you, then it is an indefinite sentence; there is no guarantee you have release, but I would be very surprised—since there are many cases far worse than yours of extreme gravity where somebody would be kept in custody for a very long period. I very much doubt if you are in that bracket. Whether you are released after 2 years, I do not know. It is a matter for the Parole Board and not for the court.”
4. The claimant's case was considered by the Parole Board on 17 August 2007 under s28 of the Crime Sentences Act 1997. At that time the claimant was a category B prisoner. By a decision in writing, dated 11 September 2007, the Parole Board informed the claimant that it was not satisfied that the detention of the claimant was no longer necessary for the protection of the public. As a consequence, the defendant did not direct that the claimant be released, nor that he be transferred to open conditions.
5. The decision letter recorded that the Offender Assessment System carried out in June 2006 indicated that the claimant had a high risk of reconviction and a medium risk of harm to the public. It also recorded that to the claimant's credit his behaviour in prison was very good, that he was on an enhanced regime, and that he was co-operative and well motivated to address his offending behaviour.
6. The decision letter concluded:
‘Whilst all report writers acknowledge your motivation and progress none support release or transfer to open conditions. In their view much work remains for you to do before you can be considered suitable for release or transfer to open conditions. With this assessment too the panel agreed. At present the risk you present to the public remains too high to justify release or transfer to open conditions, but the panel notes that your re-categorisation from B to C is being considered. You need to continue to address the following areas of risk: instrumental violence, violence to the person, alcohol and drug abuse. A victim awareness course may also be helpful. You should continue to develop relapse prevention strategies and continue to provide negative VDT's.”
7. The letter was attached to a letter of 24 September 2007 headed ‘Outcome of Parole Board Review”. That informed the claimant of the outcome of the Parole Board review and continued:
‘Your case will next be referred to the Parole Board for a provisional hearing to conclude in 18 months, February 2009 for the reasons attached.”
8. On 27 September 2007, the claimant's minimum prison term expired. On 29 May 2008, the claimant was transferred to HMP Coldingley where he remains in detention as a category C prisoner. He has not yet experienced category D, or open conditions.
9. In about August 2008 the Secretary of State referred the claimant's case to the defendant. On 19 August 2008, the defendant requested HMP Coldingley to complete the claimant's parole dossier by 2 November of that year. In fact, the defendant received the parole dossier on 7 January 2009. As a result, the target hearing date was revised from February 2009 to May 2009 by the Intensive Case Management (ICM) member when directions were given on 23 January 2009. The claimant's case was referred to an oral hearing because the ICM member thought there was a chance that he may be suitable for a move to open conditions or release. The claimant's case was put forward for the May, June, July, August and September rounds, but was not regarded as being of sufficient priority to be listed.
10. As an indication of the scale of the problem facing the Parole Board in a listing exercise which was concluded in June 2009, 1,072 cases were put forward for listing, of which the defendant was able to list only 204 for August, the comparable figures for September are 1,077 and 301. The Parole Board has been...
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