Smith v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Slade |
| Judgment Date | 05 December 2008 |
| Neutral Citation | [2008] EWHC 2998 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2008 |
| Docket Number | Case No: CO/9565/2008 |
[2008] EWHC 2998 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Slade Dbe
Case No: CO/9565/2008
Matthew Stanbury (instructed by Grayson Willis Bennett) for the Claimant
Christiaan Zwart (instructed by Treasury Solicitors) for the First Defendant
Victoria Wakefield (instructed by Treasury Solicitors) for the Second Defendant
Hearing date: 30 th October 2008
The Claimant Craig Smith, who is serving an indeterminate sentence of imprisonment for public protection ('IPP') applies for permission to bring a claim for Judicial Review. His Honour Judge David Pearl, sitting as a Deputy High Court Judge, on 15 th October 2008 was satisfied that Mr Smith's claim for judicial review was suitable for urgent consideration. He directed that the court consider by 1 st November 2008 the issue of permission and/or expedited rolled-up permission and substantive hearing. By consent of all parties the hearing before me on 30 th October 2008 was an expedited rolled-up hearing.
By ground one Mr Smith whose fifteen month fixed tariff expired over a year ago challenges the continuing failure of the First Defendant, the Secretary of State for Justice, and the Second Defendant, the Parole Board, to provide him with a prompt end of tariff review. By grounds two and three, Mr Smith challenges the failure of the Secretary of State to prioritise him for and provide him with relevant courses and coursework needed to support his case before the Parole Board on an end of tariff review.
Mr Smith relies on Article 5(4) of the European Convention on Human Rights. It is said on his behalf that the failures of which he complains represent contraventions of that provision. In the event that the Court rules in the Claimant's favour in relation to Article 5(4) he does not invite the Court to consider whether the continuing refusal of the Ministry of Justice to prioritise him for relevant course work was irrational.
The Relevant Facts
On 3 rd November 2006 at Sheffield Crown Court Mr Smith was sentenced to imprisonment for public protection for manslaughter. The judge imposed a 15 month tariff. On 7 th September 2007 Mr Smith's fixed tariff expired. On 22 nd November 2007 the Parole Board deferred Mr Smith's post-tariff review and gave the following directions:
i) That the Claimant was to be subject to a full prison psychologist risk-assessment to be arranged by HMP Doncaster.
ii) That the Claimant was to receive a full sentence plan.
iii) That the Claimant be considered for re-categorisation following his sentence plan.
iv) The Claimant was to receive any appropriate course assessment following his sentence plan.
v) Reporting officers were to provide addendum reports to take account of the documents referred to in the deferral decision letter.
vi) Copies of all further documents referred to in the decision letter were to be provided to the Parole Board by 28 th February 2008.
vii) The Lifer Manager, prison psychologist and seconded Probation Officer were to attend the deferred hearing. The Parole Board was to hold a deferred hearing in March 2008 in the establishment in which the claimant was located. The Parole Board was to notify the parties of the hearing date by 28 th February 2008 and the case was to be referred to the ICM system.
The deferral letter containing these directions was to be sent to the prison, the Ministry of Justice and the claimant's legal representative.
Although the decision of the Parole Board to defer the post-tariff review and the directions given on the deferral were made on 22 nd November 2007 it was not until the 3 rd January 2008 that a letter recording the decision and directions was drawn up and sent to the designated recipients.
It was only on 30 th January 2008 that Doncaster Prison drew up a sentence plan for Mr Smith. This was well after the expiry of the custodial tariff. It was agreed and recognised by those who were concerned with the assessment of Mr Smith, that in the light of the circumstances in which his index offence had been committed, alcohol and violence were the problems which he needed to address. A Controlling Anger and Learning to Manage ('CALM') course was recognised to be suitable treatment of an offender who had those particular needs. This course was not available at the local Doncaster prison where Mr Smith was initially held.
In February 2008 the Court of Appeal in R (Walker and James) v Secretary of State for Justice [2008] EWCA Civ 30 held that the Secretary of State had failed in its duties by not transferring Mr Walker to a prison where facilities to meet his needs for treatment to enable him to present a case to the Parole Board were available. As in the case of Mr James, the provision of such measures would have allowed and encouraged Mr Smith to demonstrate to the Parole Board that it was no longer necessary for the protection of the public that he continue to be detained. On 21 st February 2008 after judgment in Walker Mr Smith was transferred as a Category C prisoner to Ranby, where CALM courses could be provided.
It was not until 8 th April 2008 that Ranby prison received the directions given by the Parole Board on 22 nd November 2007 and drawn up on 3 rd January 200Enquiries had been made by those acting on behalf of Mr Smith as to when the reconvened Parole Board hearing would take place. No action having been taken, these proceeding for Judicial Review were issued on 8 th October 200The very next day Mr Smith was assessed as suitable for the CALM course. However, contrary to the Secretary of State's own self-directions, he was given low priority for a place on such a course, notwithstanding that he was a short term IPP prisoner. A place will be provided for him on a CALM course in January 2009, almost a year after his transfer to Ranby.
The Parole Board had on 22 nd November 2007 given a direction that Mr Smith be subject to a full prison psychologist's risk assessment to be arranged by HMP Doncaster. Mr Smith left HMP Doncaster in February 2008 and was only seen by a prison psychologist on 23 rd October 2008. The prison psychologist's report was not available at the time of the hearing before me.
The position when the case came before me on 30 th October 2008 was therefore that the outstanding and important matter to be done by the Secretary of State was to provide Mr Smith with a CALM course. Although Mr Smith had attended various courses during the course of his custody, these were short and not comparable in intensity and length to the three month CALM course. The information available at the date of the hearing before me was that Mr Smith had been assessed as low priority for the course for which he would have to wait until January 2009.
As in Walker completion of the CALM course was necessary for the Parole Board's post-tariff review if its outcome was not to be a foregone conclusion. Without a report on completion of the course the Parole Board would not have sufficient information to consider whether the release of the claimant into the community would constitute a risk to the public. As can be readily seen given the current timetable, the earliest Mr Smith will complete the CALM course is the end of March 2009.
The position therefore is that Mr Smith has remained in prison without a review by the Parole Board of his suitability for release for a period of nearly one year since directions were given on 22 nd November 2007 for the deferred post-tariff review. The period of delay of which complaint is made is almost equal in length to the period of his custodial tariff.
The Relevant Provisions of the European Convention on Human Rights
Article 5(1):
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;”
Article 5(4):
“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.”
It is not in issue between the parties that Article 5(4) applies to the Parole Board as it does to the Secretary of State. In this case Mr Smith asserts a breach of Article 5(4) but not of Article 5(1).
The Contentions of the Parties
Contentions of the Claimant
Mr Stanbury on behalf of Mr Smith contends that both Defendants are in breach of the requirement of Article 5(4) that proceedings by which the lawfulness of his continued detention is to be decided should take place speedily.
Complaint under ground 1 against each Defendant
No complaint is made of delay before 22 nd November 2007. However, after that date it is said that there were substantial delays by the Secretary of State in taking steps which were necessary for a proper consideration of Mr Smith's continued detention. It is said that these delays led the Secretary of State to be in breach of his obligations under Article 5(4). The Secretary of State has now taken all but one of such steps. It is contended on behalf of Mr Smith that Secretary of State continues to be in breach of Article 5(4) and is acting irrationally in delaying the provision of CALM course until January 2009.
It is said that the Parole Board failed in its duties under Article...
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