R (NY and Another) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE DOBBS |
| Judgment Date | 12 August 2010 |
| Neutral Citation | [2010] EWHC 2485 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 August 2010 |
| Docket Number | CO/6685/2010 |
[2010] EWHC 2485 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mrs Justice Dobbs Dbe
CO/6685/2010
Mr Hugh Southey QC (instructed by Messrs Bhatt Murphy Solicitors) appeared on behalf of the Claimant
Mr Vikram Sachdeva (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
INTRODUCTION
The Claimants are a female prisoner NW and her seven and a half month old daughter YW (born on 23rd December 2009). Both are currently in the mother and care unit of Holloway prison but can only stay there until September as the prison has no capacity to house babies above the age of nine months. However, there are other female prisons which can accommodate children up to the age of 18 months.
The First Claimant is a post-tariff automatic life sentence prisoner awaiting a Parole Board review of her detention, the last review having taken place in October 2009.
The defendant's decisions challenged at the time of the filing of the claim form were the decisions of 4th February 2010, as confirmed on 12th May 2010, to set a 15 month period before the next Parole Board hearing and the decision to refuse to expedite or shorten the six month generic parole process (GPP). The grounds also challenged an ongoing failure to have in place arrangements to ensure that the interests of the child were properly protected and taken into account when reaching decisions on the timetabling of the Parole Board review. The grounds sought relief such as would ensure that the First Claimant's parole review could be heard in September 2010.
On 19th July 2010, at an oral hearing, Nicol J made the following order. He granted permission for the claimants to challenge the Secretary of State's decision stated orally to maintain his earlier decision that the First Claimant's next parole review should taken place in January 2011, notwithstanding what was contained in the minutes of the Mother and Baby Unit (MBU) separation board of 14th June 2010. This was to include the argument that the decision to maintain a 15 month period between reviews breaches Article 5(4) of the European Convention on Human Rights. Permission to challenge the other matters raised in the grounds was refused. Nicol J ordered that the defendant was to ensure that there was no separation of the claimants before the date for hearing.
The Secretary of State by way of written decision dated 29th July 2010 has issued a fresh decision maintaining the Parole Board review date as January 2011, having taken into account the minutes of the MBU separation board. The amended grounds challenge that decision.
The issues raised by the Claimant are:
i) Whether the date set for the First Claimant's next Parole Board is a breach of Article 5(4) of the European Convention on Human Rights because there is insufficient justification for that period.
ii) Whether the date set for the First Claimant's next Parole Board is a breach of Article 5(4) when read with Article 8 of the European Convention on Human Rights because it will result in a failure to consider whether the potential separation of the Claimants can be avoided by releasing the First Claimant.
In brief, the defendant's response is that i) there is ample justification for the 15 month period in the decision letter of 29th July and ii) there is no final decision to separate, a decision which is for the defendant rather than the separation board to make. The potential separation of the mother and baby has been taken into account as one factor, albeit not a determinative one, in assessing the appropriate review period.
THE BACKGROUND.
NW received an automatic life sentence on 30th August 2000 when, aged 19, she was convicted, on her plea, of causing grievous bodily harm (gbh) with intent. She had a previous conviction for gbh dating from 24th August 1998 when she was 17.
At that time, Section 2 of the Crime (Sentences) Act 1997 made provision for an automatic life sentence for anyone aged over 18 convicted for the second time of certain specified offences, including gbh. Whilst the sentencing judge noted the draconian effect of the legislation, he found no exceptional circumstances in the case to justify not imposing the life sentence. The tariff was set at three years.
NW was released on life licence on 29th August 2003 at the expiry of her tariff. On 8th June 2004 her licence was revoked and she was returned to custody. This recall was confirmed by the Parole Board in September 2004. On 1st May 2008, her release was directed by the Parole Board. However, on 12th January 2009, the probation service requested NW's recall to prison, and on 13th January, the defendant revoked her life licence. She remained unlawfully at large until she was arrested for drink-driving and was returned to prison on 14th April 2009. She was pregnant at the time.
A Parole Board hearing took place on 29th October 2009 and the written decision was issued on 10th November. The board considered that the recall was justified in all the circumstances and did not direct the First Claimant's release.
Following the decision, the Claimant's solicitors wrote to the defendant regarding the setting of the timetable for the next review. The decision was communicated on 5th February 2010. The letter of 5th February stated that the next review would take place in 15 months from the date of the previous parole hearing, namely in January 2011, and that the interests of mother and baby had been taken into account in formulating the review period. The letter set out ten risk factors said to be outstanding and detailed work which was recommended to be carried out. There was correspondence which ensued between the parties before proceedings were issued.
THE LAW
Section 28 of the Crime (Sentences) Act 1997 requires the Secretary of State for Justice to release a life sentence prisoner on licence if the Parole Board so directs and if the prisoner has served the tariff —i.e. the minimum term. The board may only give such a direction if the Secretary of State for Justice has referred the case to the board and the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The relevant parts read:
“(5) As soon as, in the case of a life prisoner to whom this section applies-
(a) he has served the part of his sentence specified in the order or direction; and
(b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless-
(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time—…
(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference …”
Article 5(4) of the ECHR provides:
“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.”
THE SUBMISSIONS
In support of the submission that the 15 month period is unlawful, the Claimants make the following points:
i) The starting point derived from the authorities is that the default period between reviews is one year and thus the Secretary of State must identify some particular ground to justify an excess of that period;
ii) A relevant factor to consider is what work has been identified to be completed. In the First Claimant's case, the sentence planning targets have almost been completed —she has done alcohol abuse and anger management courses as highlighted by the sentencing judge and there is little further work to do. She has had a period of stability with her baby in a controlled environment as envisaged by the Parole Board, which, it is submitted is the important starting point for identifying the needs. The Parole Board did not identify any offending behaviour work to be done.
iii) The First Claimant has made significant progress in addressing her risks despite the original setbacks. The recent reports do show progress and change —the capacity to change being important. Particular reference is made to pages 285, 292 and 296 of the bundle which show that she has done valuable work, has behaved well and is a caring mother.
iv) The First Claimant was very young when first sentenced which is significant. She has matured and avoided any further criminal convictions.
v) To the extent that the Generic Parole Process (GPP) is relied on by the defendant, this can afford no adequate justification for arranging a review in 15 months, as the state is obliged to organise relevant systems to avoid delay. Six months delay by virtue of the GPP in conducting Parole Board reviews is far in excess of periods held to violate Article 5(4).
vi) The justification that the review cannot be listed before November 2010 without any other prisoner losing their hearing cannot stand. The defendant must justify a period of longer than 12 months.
vii) The Defendant's...
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