The Queen (on the application of Francis Dixon) (Claimant/Appellant) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henderson,The Senior President of Tribunals,Lady Justice Rafferty |
| Judgment Date | 14 July 2017 |
| Neutral Citation | [2017] EWCA Civ 961 |
| Docket Number | Case No: C1/2015/3588 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2017 |
[2017] EWCA Civ 961
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge Stephen Davies
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
The Senior President of Tribunals
and
Lord Justice Henderson
Case No: C1/2015/3588
Mr Adam Wagner (instructed by Duncan Lewis Solicitors) for the Claimant
Mr Colin Thomann (instructed by The Government Legal Department) for the Defendant
Hearing date: 3 May 2017
Approved Judgment
Introduction
This is an appeal by Francis Dixon, a former prisoner serving a life sentence at HMP Manchester who was eventually released from custody on licence on 30 March 2015. He had previously been released on licence in February 2011, but was recalled to prison in October 2012 following his arrest on charges of involvement in offences of murder, attempted murder and causing an explosion. After a five month trial he was acquitted of those charges, but remained in custody pending further consideration of his case by the parole board.
At an oral hearing on 16 September 2013, a panel of the parole board considered whether it was appropriate to direct the release of the appellant from custody or, if not, whether a recommendation should be made for his transfer to open conditions. The panel determined both these questions adversely to the appellant, having concluded that his level of risk of re-offending and of serious harm to the public was high. The panel did, however, recommend that the appellant:
"… should now undergo the psychological assessment which was proposed prior to your release on life licence, with a view to determining what further work should be completed in closed conditions to reduce your levels of risk re-offending and serious harm before you can be considered for release or progressive transfer to open conditions."
The appellant's case is that there was then an unacceptable delay by the prison service in the provision of this recommended psychological assessment, as a result of which his ultimate release from prison on licence took place about five and a half months (or alternatively four months) later than it should have done. By an application for judicial review filed on 11 July 2014, he sought a declaration that the Secretary of State for Justice (as the minister responsible for the prison service) had acted in breach of duty under public law and/or under Article 5 of the European Convention on Human Rights ("the ECHR") in failing to provide a timely psychological report, together with damages for the alleged breach of Article 5.
Permission to apply for judicial review was initially refused on the papers by His Honour Judge Pelling QC, but at a renewal hearing on 13 November 2014 permission was granted, on the basis which I have indicated, by His Honour Judge Raynor QC. The substantive hearing of the application took place in Manchester on 3 September 2015 before His Honour Judge Stephen Davies, sitting as a judge of the High Court. In his reserved judgment handed down on 30 September 2015, the neutral citation number of which is [2015] EWHC 2712 (Admin), the judge dismissed the claim, although he accepted that there had been a period of culpable delay of three to three and a half months in obtaining the relevant psychological report, and that a direct causative correlation had been established between that delay and the delay in the appellant's eventual release on licence.
The appellant now appeals to this court, on two grounds. The first ground, for which permission was granted by Vos LJ on 10 March 2016, is that on the basis of the findings of fact which the judge made he erred in law in not concluding that the appellant's rights under Article 5(4) were breached. The second ground is that the judge further erred by imposing a requirement that the respondent's failure had to be "long term, systemic, endemic and egregious" in order to amount to a breach of Article 5(4). Permission to appeal on this ground was refused (on paper) by Vos LJ, who observed that it had no real prospect of success because the judge had imposed no such requirement in his judgment. Vos LJ directed, however, that the appellant might argue for permission on ground 2 at the substantive hearing, with the appeal to follow if permission were granted. That is what happened, although by the time he came to make his oral submissions to us Mr Wagner (appearing, as he did below, for the appellant) was content for the court to consider ground 2 as part of his argument on ground 1.
The Secretary of State was represented before us, again as below, by Mr Thomann. In the event, having heard Mr Wagner's arguments in support of the appeal, we did not find it necessary to call on Mr Thomann. In this judgment, I explain why it was in my opinion clear that the appeal had to be dismissed.
Facts
A full account of the relevant facts may be found in the judge's judgment at [7] to [26]. The summary which follows is largely based on those paragraphs.
In 2000 the appellant, then aged 25, was sentenced to life imprisonment for an offence of conspiracy to commit robbery and to 15 years' imprisonment for offences of possession of firearms with intent to commit robbery. Because he was not centrally involved in the relevant criminal conduct, the minimum tariff period which he was required to serve under the sentence of life imprisonment was reduced on appeal to five years.
While in prison, he successfully engaged in a number of offending behaviour programmes and in July 2009 was transferred to open conditions. In February 2011, he was released on licence, having persuaded the parole board of his genuine intention to sever all contact with his previous criminal associates. He was unable to keep that promise, however, and in October 2012 he was recalled to prison following his arrest on the serious charges which I have already mentioned. These arose from his involvement with a notorious Manchester criminal. At the subsequent parole board hearing on 16 September 2013, after the appellant's acquittal on the charges for which he had been arrested, the panel assessed the level of risk which he currently posed as follows:
"The panel's view is that there are clear parallels to be drawn between the behaviour which led to your recall and your behaviour at the time of the index offences. Instead of sticking to your professed Risk Management Plan at the time of your release, you reverted to your old habitat in Manchester, your old job as a driver of fast cars and your old habit of mixing with pro-criminal associates. The panel therefore agrees with the Offender Manager that your level of risk of re-offending and of serious harm to the public is high."
I have already quoted the panel's recommendation that the appellant should now undergo the psychological assessment which had been proposed before his prior release on life licence. As the judge observed, it is not clear what proposals for assessment had in fact been made before his previous release. The judge thought it clear, however, that the panel was proposing "a sequential process" involving:
(a) the appellant undergoing a psychological assessment, resulting in the production of a report which would identify what further intervention work was needed in closed conditions to reduce his risk;
(b) consideration of that report by the Secretary of State, with a view to deciding what (if any) further intervention work the appellant should undertake;
(c) the appellant then undertaking the appropriate further intervention work, to be followed by a report on its completion in order to demonstrate that it had been positive;
(d) the production of an addendum psychological report, perhaps after a period of consolidation if recommended, to confirm that his risk levels had reduced to a level which would justify the psychologist recommending his release or transfer to open conditions; and
(e) the convening of a further parole board review at which the question of release or transfer could be considered in the light of the updated dossier, including the above report and the usual updated reports from the probation and prison services.
Although the panel did not state in terms that further intervention work would be required before a psychological assessment report could recommend the appellant's release or transfer to open conditions, the judge was satisfied on the material before him "that there was no realistic prospect either of that being recommended or of any further parole board panel accepting such recommendation, if made": see the judgment at [12].
At the oral hearing on 16 September 2013, the panel was informed by a probation officer that it normally took "6 to 8 weeks plus 3 to 4 weeks" for a psychological assessment and report to be obtained. The judge found that, at this stage, the expectation was that in normal circumstances this would mean "a likely timescale of between 9 to 12 weeks" to schedule and undertake the assessment and then produce the necessary report.
On 1 October 2013, the probation officer duly requested the Manchester prison service to arrange for a psychological assessment to be made, but was told that the psychology department would be unable to complete the report for approximately 12 months and had therefore requested that the appellant's next parole review should take place in 18 months' time. The judge found that in October 2013 there were expected to be "significant delays in producing such reports over the next few months". The main problem was that two of the four full-time psychologists in the department were on maternity leave and not...
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