R (Wells) v Parole Board for England & Wales
| Jurisdiction | England & Wales |
| Judgment Date | 22 September 2009 |
| Neutral Citation | [2009] EWHC 2458 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 September 2009 |
| Docket Number | CO/5111/2009 |
[2009] EWHC 2458 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Frances Patterson QC
(Sitting as a Deputy High Court Judge)
CO/5111/2009
Mr H Southey and Mr A Straw (for judgment) (instructed by the Cunninghams Solicitors) appeared on behalf of the Claimant
Miss H Stout ( instructed by the Treasury Solicitor) appeared on behalf of the Defendant
(As Approved)
THE DEPUTY JUDGE: 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 Article 5(4) of the European Convention of Human Rights; and third, damages.
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.
The background
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 two 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.”
The claimant's case was considered by the Parole Board on 17 August 2007 under section 28 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.
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.
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.”
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.”
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.
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.
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 taking steps to address the backlog of cases awaiting a hearing. Amongst those steps are the Parole Board (Amendment) Rules 2009, which provide the Board with greater flexibility in listing IPP cases, such as that of the claimant.
The amendments enable the IPP panels to be chaired by accredited panel members in addition to judicial members. The Parole Board has recently trained a number of members as IPP panel chairs, who will shortly be accredited with more to follow later in the year. In addition, the Parole Board has implemented, since the listing in June 2009, a prioritisation framework to aid listing of cases with the objective of ensuring that the most urgent cases are listed each month. The framework stipulates that the policy is flexible and, in particular, where special circumstances are put forward by the prisoner for prioritisation the case must be put before the duty ICM member for assessment.
The prioritisation framework has been an integral part of the monthly listing exercise since its introduction. If a claim of special circumstances is made by a prisoner, then the case manager will put that request forward to the duty ICM member. If the request is granted, then the listing manager is informed and will take steps to expedite the case. If the case manager does not consider that the reasons put forward by the prisoner amount to special circumstances, then the request will not be put forward to the duty ICM member and the prisoner will be informed that insufficient reasons have been submitted.
The claimant has suggested that his case should be prioritised. First, the suggestion was made in a letter before claim on 22 April 2009. At that stage the Parole Board had indicated that they were looking to list the claimant's case in July. The claimant's solicitors made the point that there had been a delay of five months since February 2009, which was highly significant when one considered that the claimant's minimum sentence was two years. Second, a further letter was sent by the claimant's solicitors on 30 April to the Parole Board which drew attention to the unlawful delay in listing an oral hearing, and the potential violation of Article 5(4) of the European Convention of Human Rights, and repeated the request for prioritisation.
Third, a letter was sent on 24 June 2009 to the Parole Board repeating the request for prioritisation in the light of, firstly, the significant support for Mr Wells' release and so a strong prospect of success at the Parole Board hearing and, secondly, the remarks of Collins J in the case of Betteridge, on 23 June 2009, that where there are special circumstances this should be taken into account and so such cases should be prioritised. Fourth, further letters were sent to the Treasury Solicitor on 1 and 7 July 2009 repeating the earlier request.
At the date of the witness statement from the claimant's solicitors of 8 July 2009, they had received no response appertaining to listing and the requisite exceptional circumstances, and the reasons why the Parole Board did, or did not, consider the claimant's case to be a priority.
On 21 July 2009, Nathalia O'Prey, Deputy Head of Case Work with the defendant, filed a witness statement to update matters from the earlier filed witness statement by Mr McCarthy on behalf of the defendant. She elaborated upon the sheer volume of work facing the Parole Board and the backlog of cases as a consequence. In relation to the claimant's claim of special circumstances, Miss O'Prey exhibited letters sent by the Treasury Solicitor, dated 29 June and 9 July respectively, which set out that there was nothing especially unusual in various report writers offering a degree of support for release which did not, as a result, constitute special circumstances so as to warrant prioritisation. In fact, it was said, the claimant's case was like many others who were also awaiting hearings.
The relevant legal framework
“Section 28(5) of the 1997 provides:
'As soon as-
(a) a life prisoner to whom this section applies has served the relevant part of his sentence,
(b) the Parole Board has directed his release...
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