R Parratt v Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Lord Justice McCombe,Lady Justice Arden |
| Judgment Date | 21 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1478 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/0879 |
| Date | 21 November 2014 |
[2014] EWCA Civ 1478
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Mr Justice Males
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice McCombe
and
Lord Justice Burnett
Case No: C1/2013/0879
and
Philip Rule (instructed by Mark Williams Associates) for the Appellant
Galina Ward (instructed by Treasury Solicitors) for the First Respondent
Ben Hooper (instructed by Treasury Solicitors) for the Second Respondent
Hearing date: 15 October 2014
The appellant, who was born on 8 September 1984, was involved in a vicious attack upon a stranger on 22 April 2006. He was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, having also pleaded guilty to other offences. His victim suffered a serious head injury which has resulted in permanent life-changing consequences. The judge concluded that the appellant was 'dangerous' for the purposes of sentencing, pursuant to the provisions of the Criminal Justice Act 2003. On 14 September 2007 the appellant was sentenced to imprisonment for public protection ["IPP"] pursuant to section 225 of that Act, with a minimum term of 3 1/2 years, less time spend in custody on remand. His minimum term expired on 21 January 2010.
The appellant became eligible for release from that date. The question of the release of IPP prisoners is a matter for the Parole Board. It directs release only if satisfied that it is safe to do so. The Secretary of State for Justice must comply with a direction for release. If the Parole Board is not satisfied that the prisoner is ready for release, it may recommend to the Secretary of State that he be moved from closed to open conditions. The Secretary of State is not obliged to accept such a recommendation but in almost all cases does so. A move to open conditions is usually a pre-requisite to release for a prisoner serving an IPP because it is in open conditions, with progressive external visits and overnight stays out of prison, coupled with work, that the prisoner's fitness for release can be judged.
By his claim, the appellant alleged that there were two periods of delay in arranging Parole Board hearings which gave rise to violations of article 5.4 of the European Convention of Human Rights. That 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 first Parole Board hearing was held on 20 May 2010. There was a delay of four months between the date of eligibility for release and that hearing. The aim of the Parole Board is to conduct a hearing close to that date. Following that hearing the Parole Board recommended that the appellant should move to open conditions. The Secretary of State accepted the recommendation. At the same time he set the date for the next Parole Board hearing for August 2011, by which time all the steps necessary to support release could be completed. The appellant's case was that the period between the two hearings should have been no more than 12 months.
The second hearing took place on 23 August 2011. In its written decision dated 30 August the Parole Board directed the release of the appellant from prison.
The claimant had issued Judicial Review proceedings on 5 August 2010. At that time he sought a declaration that the delay in arranging his first Parole Board hearing gave rise to a violation of Article 5.4. He sought to quash the decision of the Secretary of State setting his next Parole Board review for August 2011, together with a mandatory order for its advance. He claimed damages pursuant to Section 8 of the Human Rights Act 1998 ["the 1998 Act"] for the alleged violation of Article 5.4 which had already occurred. There was a separate challenge to another decision of the Secretary of State which has fallen away.
Permission was refused on paper. It was not until 30 June 2011 that permission to apply for Judicial Review was granted. On 12 August 2011 solicitors acting on behalf of the Parole Board conceded a breach of article 5.4 in these terms:
"Due to a lack of member resources, the claimant's Parole Board hearing could not be listed until 20 May 2010. In these circumstances, the Parole Board accepts that the delay experienced by the claimant between the date of his tariff expiry on 21 January 2010 and this listed hearing on 20 May 2010 gave rise to a breach of the Claimant's rights under Art. 5(4) of the European Convention on Human Rights."
The letter went on to indicate that the Parole Board took the view that declaratory relief to reflect that concession was sufficient just satisfaction for the purposes of the 1998 Act. It did not accept that damages should be awarded. That position was maintained albeit that the Parole Board throughout recognised that if the claimant was entitled to damages in respect of that delay it would pay them.
The declaration eventually made was:
"It is declared that the Claimant's rights under Article 5(4) of the European Convention on Human Rights were infringed by the delay of the Parole Board in holding his post-tariff review from 21 January 2010 to 20 May 2010."
It was the appellant's contention that the Parole Board and the Secretary of State were jointly responsible for that first period of delay. Even though the problem identified in the evidence was a lack of "member resources" (rather than financial resources) the appellant's case was that because the Secretary of State is the Minister from whose departmental budget the Parole Board is funded, he bore responsibility for the problems which the Parole Board had encountered in keeping up with its case load.
In a judgment handed down on 16 January 2013, [2013] EWHC 17 (Admin) Males J concluded:-
a) In the light of the concession made by the Parole Board relating to the first period, there was no purpose in determining whether its admitted failure was also the responsibility of the Secretary of State, and so dismissed that part of the claim against him.
b) That on the authorities as they then stood, no damages were payable to the appellant simply on account of the delay, unless he could show on the balance of probabilities that the delay in 2010 had resulted in knock-on delay in his eventual release from custody.
c) That the claimant had not shown on balance of probabilities that the Parole Board's failure in 2010 had resulted in a delay in his eventual release.
d) That the 15 month period set by the Secretary of State between the two Parole Board hearings did not violate Article 5.4 and in any event the additional delay of three months for which the appellant contended under this head had not resulted in his delayed release.
The claimant challenges all of these conclusions in this appeal. It became apparent in the course of argument that the Parole Board wished to challenge the judge's conclusion that damages would, as a matter of principle, be payable if the appellant were able to demonstrate that there had been a knock-on delay in his release from prison as a consequence of the admitted breach of article 5.4. A respondent's notice and skeleton argument were lodged by Mr Hooper after the hearing of this appeal in support of that argument to which Mr Rule, for the appellant, was able to respond.
At the time of the hearing before the judge, argument had concluded in the Supreme Court in R (Faulkner) v Secretary of State for Justice & Another; R v (Sturnham) v Parole Board & Another (Nos. 1 and 2) [2014] 2 A.C. 254; [2013] UKSC 23 and 47, but judgment was awaited. Amongst the issues before the Supreme Court was the question whether a breach of article 5.4 should ordinarily give rise to an award of damages as an element of just satisfaction. Lord Reed JSC helpfully summarised his conclusions in paragraph [13] of his judgment. Included within them were:
"6. Where it is established on a balance of probabilities that a violation of article 5.4 has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention.
10. Damages should not be awarded merely for the loss of a chance of earlier release.
11. Nor should damages be adjusted according to the degree of probability of release if the violation of article 5.4 had not occurred.
12. Where it is not established that an earlier hearing would have resulted in earlier release, there is nevertheless a strong, but not a rebuttable, presumption that delay in violation of Article 5.4 has caused the prisoner to suffer feelings of frustration and anxiety.
13. Where such feelings can be assumed or shown to have been suffered, the finding of a violation will not ordinarily constitute sufficient just satisfaction. An award of damages should also be made.
14. Such damages should be on a modest scale.
15. No award should however be made where the delay is such that any resultant frustration and anxiety were insufficiently severe to warrant such an award. That is unlikely to be the position where the delay was of the order of 3 months or more."
The Parole Board has accepted that as a result of the conclusions reached by the Supreme Court the appellant is entitled to a modest award of damages for...
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