The Queen (on the Application of Anwar Hussain) v The Parole Board for England and Wales The Secretary of State for Justice (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Beatson,Lady Justice Gloster |
| Judgment Date | 20 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1074 |
| Docket Number | Case No: C1/2016/1487 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2017 |
[2017] EWCA Civ 1074
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE HICKINBOTTOM
CO/1022/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lord Justice Davis
and
Lord Justice Beatson
Case No: C1/2016/1487
and
Ben Collins QC and Richard Moules (instructed by the Government Legal Department) for the Appellant
Tim Owen QC and Philip Rule (instructed by Bhatt Murphy Solicitors) for the Respondent
Tom Weisselberg QC and David Lowe (instructed by the Government Legal Department) for the Intervener
Hearing date: 4 July 2017
Introduction
The claim in this case ultimately is based on a failure on the part of the Parole Board (occasioned by the huge pressures which it is under) to convene a required hearing within the timetable set by the Parole Board Rules. The particular issue arising on the present appeal, put compendiously, comes to this. Is the claimant, an indeterminate sentence prisoner, entitled to a remedy from the courts on the basis that a failure promptly to provide him, in accordance with the Rules, with a Parole Board hearing during the currency of his tariff term has deprived him of a reasonable opportunity to demonstrate, on the expiry of such tariff term, that he could safely be released?
By a reserved judgment handed down on 24 February 2016 Hickinbottom J, sitting in the Administrative Court, upheld the claim. He granted the claimant declaratory relief and made an award of damages accordingly: [2016] EWHC 288 (Admin).
The Parole Board appeals, with permission granted by Hallett LJ. Before us the Parole Board was represented by Mr Ben Collins QC and Mr Richard Moules. The respondent claimant was represented by Mr Tim Owen QC and Mr Philip Rule. In addition, the Secretary of State for Justice was subsequently granted permission to intervene; and written and oral submissions were advanced on behalf of the Secretary of State by Mr Tom Weisselberg QC and Mr David Lowe. I wish to acknowledge the thoroughness and care with which the respective arguments were advanced on behalf of all parties.
Background Facts
The background facts, and procedural chronology, are these.
The claimant, who was born on 11 April 1989, was involved in a violent incident on 1 August 2005, at a time when he was aged 16. In the course of that incident a man was stabbed to death. There was evidence that the claimant, in the company of others, had come to the scene armed with a knife and had played the main role in the attack, which was said to be unprovoked. The victim was stabbed thirteen times, including a wound to his heart.
On 18 December 2006 the claimant, after a trial at the Central Criminal Court, was convicted of murder. He was sentenced on that date to detention during Her Majesty's pleasure – the sentence appropriate for one of his age but in reality corresponding to a life sentence for an adult – with a minimum term specified as 12 years. In sentencing him, the trial judge indicated his view that remorse was not a word in the claimant's vocabulary. The Pre-Sentence Report had itself indicated that there was scant insight with regard to his offending.
It is common ground that, giving credit for time spent on remand, the tariff expiry date is 19 August 2017.
The indications are that the claimant had made considerable progress while in custody: coupled also, no doubt, with the fact that he was maturing. He also undertook and completed a number of courses. At all events, following what is called a sift assessment, a Sentence Planning and Review Report dated 22 January 2014 was prepared. In the light of that the Secretary of State referred the claimant's case to the Parole Board for a pre-tariff review, requesting advice as to the suitability of the claimant for a transfer to an open prison. Such a request is by no means invariably or routinely made in every case: on the contrary, it is only made where it is considered that there is a realistic prospect of such a transfer being recommended by the Parole Board (hence, indeed, the prior sift assessment).
The reference of the Secretary of State to the Parole Board was dated 16 April 2014: that is to say, some 3 years and 4 months before the expiry of the tariff period on 19 August 2017. The reference itself noted that the next review of the case "will normally be set to take place shortly before the expiry of the tariff". The claimant was at that time detained in closed conditions – at HMP Parc, on the enhanced regime – and the Parole Board was asked "to consider whether the prisoner is ready to be moved to open conditions. If … the Board decides to make such a recommendation, it should comment on the degree of risk involved." The Parole Board was also asked to identify any areas of concern to be tackled and to give full reasons for any recommendation it made. The Parole Board was further asked to note that, if it did not recommend a move to open conditions, then there were various matters upon which it was not being asked to comment.
Thereafter a number of reports were obtained recommending a transfer of the claimant to open conditions. A dossier was supplied to the Parole Board on 19 June 2014. Legal representation was obtained for the claimant on 28 July 2014.
On 5 August 2014 directions were given for an oral hearing. Further reports were obtained and the availability of relevant witnesses sought. The case was ready for listing by September 2014. On 23 September 2014 a listing exercise for hearings in December 2014 was undertaken. But because of the pressures on the Parole Board and consequent lack of panel capacity the claimant's hearing did not take place either then or in the immediately following months. In fact it was only on 8 March 2015 that his case was listed for hearing: the scheduled hearing date being 22 May 2015.
In the meantime, by reason of the delay, a pre-claim letter was sent on 23 February 2015; and a claim for judicial review was issued on 3 March 2015.
Thereafter the hearing before a panel of the Parole Board did go ahead on 22 May 2015, at HMP Parc. A full set of papers was presented and evidence taken. By a detailed decision letter sent out on 27 May 2015 the panel stated that it considered that the test for a move to an open prison had been met and recommended to the Secretary of State that the claimant be moved to Category D (open) conditions. The panel recorded that it was impressed by the open way in which the claimant gave his evidence and considered that he had made significant progress since he was sentenced. It also, however, among other things recorded: "Over 2 years remain before your tariff expiry and the risk management plan has yet to be fleshed out….".
That recommendation was accepted by the Secretary of State on 24 June 2015 and the claimant so notified. In due course, at around the end of August 2015 the claimant was transferred to open conditions (HMP Leyhill). This was, therefore, just about 2 years before his tariff expiry. Unfortunately, there were then incidents of disruptive behaviour and a failure to comply with open prison routines. At all events the claimant was returned to closed conditions on 30 October 2015.
In the meantime the judicial review proceedings continued: the hearing before Hickinbottom J taking place on 3 and 4 February 2016. It may be noted that the claimant had in fact been seeking significantly more extensive relief than the judge was prepared to grant. But nothing now turns on that. It also may be noted that, then as now, the claimant did not in the events which had happened seek to say that his release date had in fact been adversely affected by the asserted breach of duty in failing to arrange a timeous hearing before the Parole Board. Thus the damages were limited to the frustration and anxiety occasioned by the delay. We were told that they were subsequently agreed in the amount of £300.
The legal context
There is a most detailed and helpful exposition of the legal background contained in the judgment of the judge: to which reference can be made. However, for present purposes I think that I can be selective in summarising the legislative scheme.
It is, of course, elementary that a minimum term set by way of tariff for an indeterminate sentence such as this does not connote an entitlement to be released on the expiry of such minimum term. On the contrary, the offender will not be released unless and until it is assessed that it is safe and proper for the offender to be released on licence into the community. The minimum term thus is geared towards the punitive element of the sentence: whereas the indeterminate aspect of the sentence is geared towards the protection of the public from unacceptable risk. It is precisely that latter aspect with which the Parole Board is concerned in a case of this kind.
By s. 239 (2) of the Criminal Justice Act 2003 the Parole Board has a general duty to advise, among other things, on the early release of prisoners. In the context of mandatory life sentences (of which the present is deemed to be one) it is provided by s. 28 of the Crime (Sentencing) Act 1997 that the Secretary of State is required to release a prisoner if he has served the minimum term and if the Parole Board has directed release. It is further there provided that the Parole Board is not to direct release unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be detained.
Overall, as explained by the judge, an...
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Children Who Murder: Indeterminate Sentencing in Law and Practice
...delay in considering his case for transfer when he was within 3 years of expiry of his minimum term, see R (Hussain) v Parole Board [2017] 1 WLR 3748).16. For example, the review of Anderson-Burrowes [2014] EWHC; EWHC 2489 (Admin) noted that he had been the first prisoner to be trusted with......