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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bernard, R (on the application of) v Secretary of State for the Home Department & Anor [2005] EWHC 452 (Admin) (08 March 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/452.html Cite as: [2005] EWHC 452 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		8th March 2005

1. MR JUSTICE SULLIVAN: In this application for judicial review the claimant, in his amended grounds dated 4th October 2004, seeks a declaration that the delay in arranging a hearing of his case before the Parole Board was unlawful and in breach of Article 5(4) of the European Convention on Human Rights. He also seeks damages pursuant to Article 5(5).
2. On 16th October 1973 the claimant, then aged 20, pleaded guilty to the manslaughter by reason of diminished responsibility of two 11-year old girls and was sentenced to life imprisonment. The claimant had picked the girls up in his car, driven them for a considerable distance and then asphyxiated them. After their deaths he battered both girls with a blunt object and sexually interfered with them, probably by digital penetration. Although his tariff expired as long ago as July 1988, he is still in prison.
3. For present purposes the relevant history begins in January 1999 when the claimant underwent a penile plethysmograph ("PPG") at HM Prison Albany, shortly before a Parole Board hearing on 2nd February 1999.
4. In a letter dated 3rd February 1999 the Parole Board told the claimant that it had decided not to direct his release and not to recommend his transfer to open conditions at that stage. The Parole Board said, inter alia:

"3. In reaching their conclusion that you are not suitable for release or transfer to open conditions the panel carefully considered the explanations you gave for:

(i) abducting the two eleven year old girls;

(ii) killing both girls; and

(iii) sexually interfering with them.

These explanations were, in summary:

(i) to frighten the girls because they had frightened you;

(ii) panic; and

(iii) your frustration and anger with your lifestyle.

4. The panel found each of these explanations unconvincing. On all the evidence placed before them, including the result of the PPG, the panel were satisfied that there was a clear sexual element in the index offences. Your non-acceptance of this leads the panel to conclude that you remain an unacceptably high risk to the public.

5. The panel accepted the Secretary of State's view that further work should be done in closed conditions. The panel noted that the Secretary of State's representative suggested that an extended Sex Offender Treatment Programme would be appropriate in your case. In the panel's view the work required cannot reasonably be completed in less than 2 years and accordingly do not recommend an early review."

5. There was then a hearing on 1st February 2001. No complaint is made about the date arranged for that hearing. Indeed no complaint could sensibly be made, since the panel had taken the view that the work required could not reasonably be completed in less than two years.
6. The only information about what occurred on 1st February 2001 is that which is contained in the summary of previous Parole Board reports contained in the dossier. The summary says that the claimant's next hearing, listed for 1st February 2001:

"... was deferred at the request of his legal representatives in order to obtain an independent psychiatric/psychological report. The Panel Chairman then deferred the case re-listed for 10 July 2001 and gave directions that Rhys Matthews [the prison psychologist] and Dr Somekh [the independent psychiatrist] attend the hearing, but the SOTP, PPG reports be made available and for certain correspondence also to be made available. The case was re-listed for 16 August, following which the Panel adjourned the hearing in order for Professor Perkins to commission an assessment of the PPG data, for the PPG assessment to be available to the Parole Board and for a number of witnesses to attend."

There is no further information as to what happened on 10th July 2001.

7. So far as 16th August 2001 is concerned, there is a letter dated 17th August 2001 from the Parole Board. That states that the panel adjourned the hearing with the agreement of the claimant's legal representatives. The letter continues:

"2. You are contending release on life licence, however, the panel felt that it could not consider this request without a full assessment report of the PPG, which you had in HMP Albany in 1999, to be carried out by an independent expert Professor Perkins. This would enable [the] panel to assess your current risk.

3. The following directions were made:

i) Professor Perkins should be commissioned to make an assessment of the PPG data. If Professor Perkins feels it necessary, another PPG should be done.

ii) the PPG assessment report be made available to the Board."

There were directions that certain witnesses should attend.

8. Paragraph 10 of the letter stated that the panel would reconvene when all of those requests had been complied with.
9. Professor Perkins was, as the Parole Board stated, an independent expert, and he was jointly instructed by the claimant's solicitors and the prison service.
10. Unfortunately, Professor Perkins did not report until 15th April 2002. There is no evidence before the court as to why it took so long for Professor Perkins to prepare and deliver his report. But whatever the reason may have been, the fact remains that he was jointly instructed on behalf of both the claimant and the first defendant.
11. Professor Perkins did not consider that the PPG results were sufficiently conclusive. In paragraph 32 of his report he said:

"My view is that it would be justifiable to consider putting to Mr Bernard the possibility of a further PPG assessment, given (a) the central role that this assessment has understandably come to occupy in this case, (b) the fact that repeat assessments can help address (add to or detract from) confidence in a single result, (c) the above-mentioned hypotheses as to the role of deviant sexual interests in Mr Bernard's offence may help to construct the next PPG assessment. It is appreciated that this suggestion may be interpreted by some as a delaying tactic. It may, however, help clarify matters and actually speed up Mr Bernard's progress."

Clearly this suggestion had to be put to the claimant.

12. On 3rd May 2002 the claimant's solicitors wrote to the defendant's lifer management unit requesting that a PPG be given to the claimant immediately and that the matter be progressed without any further delay. The letter said:

"We are aware, that through other cases, there is currently no PPG available in the prison system and therefore, could you inform us whether you would arrange, immediately, for Mr Bernard to be seen by Professor Perkins at his place of work [Broadmoor] for the purpose of administering PPG, or if not, inform us so that we may request a hearing date to be set immediately."

13. Pausing there in the chronology, although Miss Krause on behalf of the claimant submitted that the delay began in February 2001 and persisted until 9th September 2004, when the Parole Board conducted a hearing after which it concluded that the claimant should not be released, in my judgment it is unduly simplistic simply to refer to that 3½-year period. I would not accept that there were any delays which could fairly be attributed to either of the defendants up to and until 3rd May 2002.
14. Although the claimant was entitled by virtue of Article 5(4) to have the lawfulness of his detention "decided speedily by a court and his release ordered if the detention is not lawful", that did not mean that the court (in this case the Parole Board) was not entitled to accede to reasonable requests for adjournments, particularly if those adjournments were sought so that further evidence, which could only be of benefit to the claimant in the circumstances of this case where the experts were at odds as to his motivation for the offence, could be produced. If in such circumstances a claimant requests or agrees to an adjournment and it takes time to obtain the further evidence, it hardly lies in the claimant's mouth then to complain of the delay involved in obtaining the further evidence, provided that no unnecessary delays are incurred in actually instructing the witness and obtaining evidence from him or her. There can be no possible criticism of the decision of the Parole Board to adjourn the hearings on 1st February and 17th August 2001.
15. Unfortunately, following the letter of 3rd May 2002 there was (and indeed it is acknowledged by the first defendant that there was) a degree of muddle on the part of the prison service. A letter dated 29th July 2002 explains that the writer had failed to appreciate that the Parole Board had ordered that another PPG should be done if Professor Perkins felt that that was necessary. Although Professor Perkins had not stated that a further report was necessary in terms, he clearly favoured a further PPG assessment if the claimant was prepared to undergo one. The letter dated 29th July 2002 stated that Albany was the only prison where the PPG could realistically be undertaken. The letter continues:

"I am currently waiting for Albany to confirm to me in writing when they would be able to administer a PPG on your client, however, it is anticipated that it could be some time near October 2002. Once this information is known the Parole Board will be able to re-list the date of the deferred hearing. I have spoken to Jean Ward from the Parole Board who is aware of our intentions with this case."

16. The Parole Board wrote to the claimant's solicitors on 7th August 2002 saying that a date for a hearing had been set for 8th October 2002. It is arguable, given that a date of 8th October 2002 had been set, that steps should have been taken to seek to persuade Albany to carry out the PPG at an earlier time. But there is simply no evidence as to what steps, if any, were taken on behalf of either the claimant or the first defendant to speed matters up at this stage.
17. By 20th August 2002 the Lifer Unit was writing to the claimant's solicitors informing them that:

"... Albany have confirmed that they are able to undertake a PPG assessment of your client by the end of October ... The assessment and report would, therefore, possibly not be available for the [Parole Board] date provisionally set."

18. Against that background, the claimant's solicitors wrote to the Parole Board on 1st October 2002 requesting an adjournment and seeking certain directions, including a direction that the PPG assessment be administered as soon as possible with either Professor Perkins or Dr Pratt supervising the whole process. Other directions were sought, including who should be available at the adjourned hearing to give evidence.
19. There is then a frustrating gap in the correspondence before the court, but the chronology is picked up again in a letter dated 7th April 2003 from the Lifer Liaison Officer to the claimant's solicitors. That confirms that it had been intended that the claimant should return to HMP Albany for a further PPG to be undertaken, and that confirmation had been received in August 2002 that this would be done. The letter continues:

"A place was offered by Albany for Mr Bernard to attend a PPG assessment in late October but Mr Bernard declined this place as he did not wish to remain at Albany over the Christmas and New Year period.

On Mr Bernard's agreement I contacted Albany and requested that Mr Bernard attend Albany in January 2003. I was informed by Eric Giden that he was not available until February 2003 to complete the PPG assessment."

20. The Lifer Liaison Officer had then contacted Albany in late January to ask for a place for the claimant's assessment and he had followed that up with an e-mail, but he had not had any reply to those enquiries from Albany.
21. Miss Krause told me upon instructions that the claimant had been told that if he took the October date he would have to stay in Albany for three or four months, whereas if he took the January date he would have to stay there for only a month. Therefore he opted for the January date.
22. As late as 26th February 2003 the Lifer Unit still anticipated that the claimant would be transferred to Albany to undertake PPG testing and that this would happen before the end of March 2003. In a letter of 26th February 2003 to the claimant's solicitors, they informed them of this and said that the results of the PPG would be compiled into a report as soon as possible after March 2003.
23. The claimant's solicitors tired of waiting and letters before action were sent to the defendants on 25th April 2003. At that stage it was said that declaratory relief would be sought that the delay was unlawful, but the primary focus was on obtaining a mandatory order requiring the reconvened Parole Board hearing to be held forthwith.
24. In responding to the claimant's letter before action, the first defendant said in a letter dated 2nd May 2003 that all PPG testing had been suspended pending the receipt of new equipment and that realistically it was unlikely that there would be any PPG testing before June 2003.
25. In a letter dated 29th May 2003 the first defendant acknowledged that there had been delay. The Lifer Unit said that:

"... having studied our files, it appears that the prime reason for the delay in administering the PPG test has been as a result of establishments failing to carry out this work, notwithstanding them earlier having given an undertaking to do so. It is clear from Mr Bernard's file that [Lifer Unit] received correspondence from Albany confirming that Mr Bernard had been accepted for transfer there to undertake the PPG and giving expected completion dates. Unfortunately, staff in Lifer Unit wrongly assumed that the test had been carried out and failed to follow up the prison to check that this has happened. Regrettably, this has led to a delay in Mr Bernard moving through his life sentence, for which we can only apologise. Unfortunately, to make matters worse, we now understand that the PPG equipment has had to be withdrawn for necessary upgrading and replacement."

26. Having apologised for the delay and explained how it occurred, the letter then went on to make a number of practical suggestions as to how the case might be taken forward. The writer had had a discussion with Mr Carter, the Lifer Unit's Principal Psychologist, and he had suggested a possible way forward:

"This proposes that a suitably trained psychologist could, using Professor Perkins hypotheses as a basis, work with Mr Bernard to explore his offence motivation in detail. It would be necessary for Mr Bernard to build a rapport with the psychologist concerned. One of the aims of meeting would be to translate the different motivations for the offence into examples of behaviour that one might expect to observe if risk had abated. ..."

27. Pausing there, the first defendant accepts that there was unacceptable muddle and delay, at least after Christmas 2002, in that, to put the matter shortly, Albany failed to come up with the goods and the Lifer Unit failed to appreciate that Albany had failed to come up with the goods. There was a delay in the no doubt unwelcome realisation that it was simply not going to be possible to arrange a PPG at Albany. The first defendant, however, submits that whilst it was entirely a matter for the claimant to choose not to go to Albany in late October 2002, that option had been open to him and any delay, at least as between then and a notional date in January 2003, should not be laid at the first defendant's door. I accept that submission. That said, it is plain that there was muddle and delay from the beginning of 2003 which was not finally resolved until 29th May 2003. It cannot be said that in the absence of the PPG being possible, Mr Carter's suggestion was an unreasonable one. The claimant's solicitors, however, made it perfectly clear in a letter dated 18th June 2003 that if a further PPG was not possible then the matter should proceed to a further hearing.
28. Permission to apply for judicial review was granted in October 2003.
29. Following the claimant's solicitors' letter of 18th June, the Lifer Unit responded on 17th July pointing out that the claimant's solicitors' view of the risk assessment in the claimant's case was not as straightforward as they appeared to believe. The letter said in part:

"Professor Perkins' report clearly outlines the complex nature of the risk assessment of Mr Bernard. For this reason, and the ones identified above, I would suggest that I have not sought to determine that there is now a risk presented by Mr Bernard; it has always been present. I would also suggest that the completion of another PPG would not necessarily address risk but, in the words of Professor Perkins, it would help to add, or detract, from a single result and possibly support one of the hypotheses put forward in his report.

With regards to your request for a further hearing, I believe that this is an appropriate way for this case to proceed, so that the Parole Board can explore the complex issue around motivation and risk assessment in Mr Bernard's case.

I will be inviting Lifer Unit's Principal Forensic Psychologist to prepare a report to be available for the panel, as well as inviting Professor Perkins to submit further observations on this case, or possibly to attend the hearing."

30. On 23rd July the Parole Board wrote to the claimant's solicitors, saying that they had not been party to the correspondence between the Lifer Unit and the claimant's solicitors:

"... but I'd be grateful if you could confirm whether the stalemate over assessment for PPG still exists, or whether pending the outcome of your application for judicial review, we can now move the case forward to a full hearing."

31. Unfortunately, rather than responding to that letter by making it plain to the Parole Board that they did wish to proceed immediately to a full hearing regardless whether or not there was still a stalemate over the PPG issue, the claimant's solicitors replied in these terms:

"Unfortunately the stale mate over the assessment of the PPG still does exist and our application for judicial review would be firstly in relation to damages for the delay it has taken for this matter to try and be resolved."

32. In September 2003 the Residential and Lifer Governor at HMP The Verne, the claimant's prison, wrote a report. That suggested a way forward as:

"a. A time bound psychologist SOTP assessment of needs at a centre like Channings Wood.

b. Further PPG testing, again time bound, and,

c. One to one psychotherapy at a centre like Grendon."

33. Although there is no letter in the court bundle, it would appear that a hearing was arranged by the Parole Board on 13th November 2003, but that was adjourned. A letter from the Treasury Solicitor dated 18th November 2003 states that the hearing had to be adjourned because "important witnesses could not be present." There is no further information before the court as to what caused the hearing to be arranged for 13th November 2003, or which "important witnesses" were not available, thus causing the Parole Board to decide that an adjournment was appropriate.
34. The case was next listed for 23rd January 2004. A letter dated 26th January 2004 from the Parole Board states:

"The panel considering your case were asked to consider an agreement reached between the representatives of the Secretary of State, Mr Watson and Ms Krause, your counsel, to the effect that:

a. the present hearing is formally deferred.

b. you will fully co-operate with a SARN assessment in the terms set out in the agreed order which was signed by Mr Watson and Ms Krause and which agreement is attached hereto marked Appendix A."

35. In Appendix A the claimant makes it clear that the application for release "is hereby formally withdrawn" upon certain matters being dealt with. They include the first defendant agreeing to transfer the claimant to an appropriate prison as soon as is possible; agreeing to carry out the SARN assessment in the shortest possible time, and in any event not later than three months after the claimant's transfer; an undertaking to refer the claimant's case to the Parole Board upon the SARN assessment being completed with a view to the Parole Board hearing the claimant's case not sooner than six weeks thereafter and not later than ten weeks thereafter.
36. The claimant was transferred to Shepton Mallet Prison on 5th April 2004, and the SARN assessment was carried out either on 19th or 20th May. The lengthy report is dated 1st July 2004 and it was served on the claimant's representatives on 2nd July 2004.
37. Unfortunately, and it would appear contrary to the terms of the last undertaking in Appendix A, the adjourned hearing before the Parole Board had been arranged for 9th July 2004, rather than for a date not sooner than six weeks and not later than ten weeks after the completion of the SARN report. There is no explanation in the papers before the court as to why this might have occurred.
38. In a letter dated 9th July, the Parole Board made it plain that it found it "wholly unacceptable" that the assessment was not served on the claimant's representatives until Friday 2nd July. But, having heard from both sides, the panel took the view, in order to maintain fairness and to ensure that the matter was finally disposed of as soon as possible, that it would adjourn to 9th and 10th September. It then gave a list of witnesses who should attend and made certain other directions.
39. At long last, the hearing did take place on 9th and 10th September 2004. Following the hearing, in a letter dated 16th September 2004, the Parole Board explained why it had not directed release and why it had not been satisfied that it was no longer necessary for the protection of the public that the claimant be confined. The letter sets out the history of the matter and says this in paragraph 10:

"Because of uncertainty and conflict between experts as well as unavailability of equipment, you have been effectively in a state of limbo since 1995 when the SOTP was completed."

The panel then referred to the witnesses that they had heard and said this in paragraph 12:

"At the hearing wide divergences of opinion remained. At one end of the scale Rhys Matthews and Sandra Pullan, who conducted the recent SARN assessment, were of the view that you have over 31 years deliberately suppressed the real motivation for this attack; that you were then and therefore remain a sadistic sexual offender and that therefore risk remains high. At the other end of the scale were Drs Pratt and Somekh who did not consider that you were a sex offender; that you had, in line with your own account of the offence, committed it in panic and that whilst some risk remained it was sufficiently low for you to be released under close supervision to St Johns Hostel or at the very least that any risk remaining was manageable in open conditions. In the middle was Prof Perkins, supported in the panel's view by the evidence of Francis Zedda. Having reviewed the PPG data Prof Perkins felt that the PPG had been properly carried out but what it had indicated, consistent as it was with four possible hypotheses, could not provide a clear indication of risk or establish the likelihood of your reoffending; rather it revealed a likelihood of risk which could potentially be high but which remained unknown whilst you and others remained uncertain about why you had committed the offence. Prof Perkins and Ms Zedda felt that the circumstances of the offence could be unlocked by 1:1 therapy which would allow for programmes to be completed which could then provide a full risk assessment leading in turn to a transfer to open conditions and ultimate release.

13. The panel was far from persuaded that this was a sadistic offence carried out primarily for sexual motives. Indeed the panel took the view that concentration on the motive without first establishing the emotional context of the offence and the source of your evident anger was unlikely to lead anywhere. The panel also took the view that your suppression of events was unlikely to be deliberate.

14. In short, the panel were persuaded by the views of Prof Perkins and Francis Zedda that

(1) Risk remains, presaged as it is by the gravity of the index offence;

(2) That it is currently unquantified and unquantifiable.

(3) That it would therefore be unsafe at this stage to conclude that it was manageable in open conditions and that such conditions would be of benefit to you since, without unlocking the circumstances of the offence first, both you and the authorities would remain uncertain of the precise nature of the risk factors in your case and would therefore be unable to construct appropriate release programmes and devise adequate relapse prevention strategies. ..."

Pausing there, it is certainly most unfortunate that it took until September 2004 for the Parole Board to be able to reach that conclusion, following the realisation in the letter dated 29th May 2003 that a further PPG would not be possible and that an alternative way forward was required.

40. The difficulty is simply that there is no adequate evidential basis upon which it can be concluded that the delay was due to any default on the part of the first defendant. I say at once that there is nothing to indicate that any sensible criticism can be made of the conduct of the second defendant. There is nothing to indicate that on those occasions when the second defendant adjourned the hearing, it was not necessary to do so in the interests of fairness to the parties and in particular fairness to the claimant. The terms of Appendix A would appear to be perfectly clear, and it is not possible, on the limited information available to the court, to decide why they were not carried into effect. There is nothing to suggest that the claimant was not transferred to an appropriate prison at Shepton Mallet as soon as was possible, or that the SARN assessment might have been done in a shorter time. There is a complete absence of evidence dealing with those matters. Nor is there any explanation as to why the hearing was arranged for 9th July, bearing in mind the terms of Appendix A. Plainly, any adjournment from July to 9th and 10th September was justified, bearing in mind the need to secure the availability of a number of highly expert witnesses and bearing in mind the holiday period.
41. I also bear in mind that on the occasion when the Parole Board did write to the claimant's solicitors asking whether the apparent impasse still existed or whether the matter could proceed to a hearing, the claimant's solicitors did not respond by insisting upon a hearing as soon as possible. One is left with the clear impression that if not content with the lapse of time, they were at least hoping that obtaining further information might advantage the claimant. It is plain (admittedly with the benefit of hindsight, bearing in mind the terms of the Parole Board's letter dated 16th September 2004), that without any further information the substantial remaining area of doubt as to the claimant's motivation in committing the offence would inevitably have resulted in him not being released in the absence of any further reports.
42. For these reasons, I am satisfied that the assertion that there has been 3½ years' delay and therefore a breach of Article 5(4) is far too simplistic. There were undoubtedly periods of delay of a few months or so, between 3rd May and 29th July 2002, and between January and May 2003. But whilst there has undoubtedly been a substantial passage of time, it is not possible on the evidence to say that any of the other delays were due to any default on the part of the first defendant.
43. In her skeleton argument on behalf of the first defendant, Miss Gallafent accepted that there had been some delay on the part of the first defendant. For the purposes of these proceedings, and for those purposes only, the first defendant was prepared to accept that any delay on his part in the preparation of evidence for a Parole Board hearing may be capable of giving rise to a breach of Article 5.
44. I have already indicated that I do not consider that any sensible criticism can be made of the conduct of the second defendant. Therefore there can be no question of it being appropriate to grant any relief, whether declaratory or otherwise, against the second defendant. The question remains as to whether it would be appropriate to grant declaratory relief against the first defendant.
45. I have already indicated that I do not accept the proposition that one can simply look at the dates of the Parole Board hearings in February 2001 and September 2004 and assert that there has been 3½ years' delay in breach of Article 5(4). The obligation to list cases for hearing speedily does not override the obligation to act fairly. In fairness to the claimant, it is plain that a number of adjournments were required in the very difficult circumstances of this particular case.
46. Moreover, the defendant has accepted that there were certain delays. It is plain that those delays were the result of muddle and misunderstanding, rather than the consequence of systemic failings which might be remedied if declaratory relief was to be granted. The letter of the 29th May 2003, for example, expressly acknowledged that there had been errors.
47. In these circumstances, I am not persuaded that granting declaratory relief would serve any useful purpose in respect of the two relatively short periods of delay in 2002 and 2003. The mere fact that a hearing has now been held would not necessarily render those delays academic. What renders them academic is the fact that they are not the result of any systemic failing. They are simply the result of individual muddles and errors in a particular case which have been acknowledged. Therefore, it seems to me, that no useful purpose would be served in giving declaratory relief in March 2005.
48. But upon the assumption that declaratory relief would have been appropriate, would it also have been appropriate to award the claimant damages? Section 8(3) of the Human Rights Act 1998 provides that:

"No award of damages is to be made unless, taking account of all the circumstances of the case, including--

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made."

49. Miss Krause cited a number of decisions of the European Court of Human Rights in which that court had awarded damages for the applicant's feelings of frustration, uncertainty and anxiety following delays in reviews: Oldham v United Kingdom, application 36273/97, judgment of 26th September 2000; Hirst v United Kingdom, application 40787/98, judgment of 24th July 2001; and Hill v United Kingdom, application 19365/02, judgment dated 27th April 2004.
50. The first two of those authorities were considered, together with a great number of other authorities, by Stanley Burnton J in R (KB and others) v South London and South and West Region Mental Health Review Tribunal and another [2003] EWHC 193 (Admin), [2004] QB 936. Having reviewed the authorities, Stanley Burnton J concluded in paragraph 41 of his judgment:

"I conclude that there is no 'clear and constant jurisprudence' of the European Court on the recoverability of damages for distress under article 5(5) in the absence of a deprivation of liberty. There are two principles applied by the court: that damages are not recoverable in the absence of a deprivation of liberty, and that damages are recoverable for distress which may be inferred from the facts of the case."

51. In paragraph 42 he said that, so far as damages for distress were concerned:

"... the basic principle is that set out in para 73 below."

52. Before turning to damages for distress, it is convenient to consider paragraph 64 of Stanley Burnton J's judgment, in which he concluded:

"... that it would be contrary to the principles applied by the European Court to award damages for loss of a chance of a favourable tribunal decision or for loss of opportunity as such. On the other hand, a claimant must be able to establish a meritorious case that he would have had an earlier favourable decision by evidence. The award of damages in such cases cannot rationally or fairly be restricted to those cases (such as Perks's case) where the state concedes the relevant facts. It follows, in my judgment, that a claimant who seeks damages on the basis of an allegation that he would have had a favourable decision at an earlier date if his Convention right had been respected must prove his allegation on the balance of probabilities. The court will, however, bear in mind that in practice a relatively low proportion of applications to tribunals succeed, and that a finding that a tribunal would have directed the discharge of a patient involves a finding that the responsible medical officer (and often other medical staff and the approved social worker) were wrong in their opinion that he or she should not be discharged. Convincing evidence is required to justify such findings."

53. There is simply no evidence whatsoever, let alone any convincing evidence, that the claimant would have been released earlier, alternatively that he might not have been kept in prison for so long, had it not been for the delays in arranging the Parole Board hearing in his case. The claimant is therefore restricted to claiming damages under the head of damages for general distress and frustration.
54. Turning to the principle governing the award of such damages, Stanley Burnton J said this in paragraphs 71 and 73:

"71. I do not think that every disappointment and all feelings of distress constitute compensatable damage for present purposes. In Silver v United Kingdom (1991) 13 EHRR 582, 583, para 10, a case on unlawful interference with correspondence by prison authorities, the court stated:

'It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage.' (Emphasis added.)

A similar approach may be seen in Wassink v The Netherlands (Application No 12535/86) (unreported) 27 September 1990, para 41. Under English law, disappointment, distress and feelings of frustration are not normally free-standing heads of damages: the law applies an overtly restrictive approach, even to the extent of excluding many claims for nervous shock or distress caused by a lack of care: ... Distress and disappointment are part of everyday life, and do not necessarily lead to claims for damages. Convention rights are important basic rights, and it is doubtless arguable that damages for their breach may be awarded for injuries that would not be recognised as deserving of compensation in other areas. It is none the less significant that Lord Woolf CJ's opinion was that damages for their breach should be lower than damages for tort, rather than higher. There is a risk of creating anomalies between damages recoverable for breach of Convention rights and those for other civil wrongs. The court should be reluctant to do so.

...

73. Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: 'of such intensity that it would in itself justify an award of compensation for non-pecuniary damage'. In my judgment, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes."

55. That approach to the award of damages for frustration and distress was endorsed by the Court of Appeal in Anufrijeva and another v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124 (see paragraphs 63 to 70).
56. Until comparatively recently, there was simply no evidence whatsoever as to whether or not the claimant had suffered any frustration and/or distress, and if so to what extent. The absence of such evidence was pointed out in the first defendant's detailed grounds and in the skeleton arguments of Miss Gallafent and Mr Patel on behalf of the first and second defendants respectively.
57. On 3rd March 2005 the claimant provided a witness statement. That statement says, inter alia:

"This matter has been going on since 2001 and has caused me great stress. Before each hearing I have become very nervous and anxious. I would be approached by each report writer who would discuss the same issues and I would have to go through them with each member of staff. This was a frustrating task as they all had their own agendas and would not be willing to listen to my views. The process was very stressful for me, as everyone would ask me to discuss the index offence which I find difficult. I have carried out extensive offending behaviour work in relation to the index offence which is well documented. However, the same questions about my attitudes to the offence would be asked."

58. Pausing there, I do not doubt that the claimant finds it stressful to have to respond to enquiries made by those who have to write reports about him. But it is not suggested that any of those reports was unnecessary. Indeed, it is plain from the Parole Board's decision dated 16th September 2004 that it is the particular complexity of this case that has resulted in wide divergences of professional opinion. In those circumstances, it is not surprising that the claimant has had to experience a number of report writers asking him substantially the same questions. Whilst that is unfortunate, in the absence of convincing evidence that any of the reports was unnecessary, it could not possibly be the subject of any claim in damages.
59. The witness statement continues:

"When the hearing day would finally come I would feel very nervous and expectant, hoping that I would be able to give my views to the panel and not the views that the report writers had written as my own. However there were so many of these hearings that did not take place resulting in a feeling of disappointment and further stress, knowing that I would once again have to go through the process of further interviews with staff. Every time the hearing was deferred I was left feeling completely despondent and would become depressed, as I had no idea whether I would ever have a full hearing. I felt like nobody wanted to listen to my views and that effect was that I was being given a sentence of natural life. I had to turn to the Officers Support Group and the Chaplain for emotional support. This is something that I had not felt I needed to do throughout my sentence and I am usually a private person who can handle emotional issues. However with this issue I felt I could not cope alone. At one point the doctor suggested I take antidepressants which I refused as I did not want to rely on medication. I continued to talk to the Officers Support Group and Chaplain for support which did help a little. As a result of the stress caused by the delays, I have been prescribed hypertension medication for the past 18 months, as I have developed high blood pressure. I do not like to take medication, but I will have to take this medication for some time in the future. In addition to this I have also lost a considerable amount of weight. As a result of all the delays in this case, I feel that my mental and physical state has deteriorated substantially and left me anxious about the parole system and my next review."

60. There are a number of difficulties in relation to this evidence which considerably diminish the weight that can be attributed to it. Firstly, although there is reference to the claimant seeking help from the Officers Support Group and the chaplain and to being prescribed medication by the prison doctor, no dates are given, no further particulars are given, and the evidence has come in so late that it has not been possible to cross-check these allegations with the relevant records and with the responsible officers to obtain further particulars. I do not doubt that the claimant genuinely considers that his symptoms have been caused as a result of the delays. But his belief as to the medical causes of his symptoms can be given relatively little weight in the absence of any corroborative medical evidence which could easily have been obtained if this evidence had been adduced in time. No contemporaneous medical records have been produced. No information has been sought from those bodies (the Officers Support Group, the Chaplain and the doctor) who are said to have provided support and help to the claimant.
61. Moreover, the claimant complains of the matter having gone on since 2001. I have already made it plain that within the period of 3½ years from February 2001 to September 2004, there are only relatively short periods of delay that can fairly be attributed on the evidence to any fault on the part of the first defendant. I appreciate that Stanley Burnton J when he was speaking of the importance of a mention in clinical notes was referring to claims by mentally ill claimants. But the principle still applies to those who are not mentally ill. If they contend that as a result of some breach of the Convention they have suffered, for example, depression, then it may well be important to see the extent to which that is or is not reflected in the medical notes of the GP or doctor who was treating them at the relevant time. There is no such evidence in the present case. One is therefore left with very generalised assertions of feelings of frustration and distress which, in my judgment, do not approach the threshold endorsed by the Court of Appeal; that is to say, significant frustration and distress of such intensity that it would in itself justify an award of compensation for non-pecuniary damages.
62. In these circumstances, I am satisfied that even if it had been appropriate to award declaratory relief, it would not have been necessary to afford just satisfaction to the claimant to give him an award of damages for the feelings of distress and frustration that he says he has suffered.
63. For these reasons, this application for judicial review must be dismissed.
64. MISS KRAUSE: My Lord, just a couple of matters. Firstly, I would like to apologise both to your Lordship and to my learned friends for the poor state of the materials before the court. This has arisen as a number of difficulties which were not spotted until this case was listed on 15th February, and that gave us very little time to put things right. But the solicitor who had charge of the case had not progressed it at all and she has now left the firm, and we had not spotted it until the case was actually listed. So I do apologise because I realise that it made matters difficult for everybody.
65. MR JUSTICE SULLIVAN: For my part, I accept that as a very gracious apology. Thank you very much.
66. MISS KRAUSE: It needs to be said really.
67. But the other matter is that some of the evidential gaps could only be made good by the defendants of course, because they were the only ones with knowledge, and certainly the claimant could not provide all of the evidence to answer all of your Lordship's questions.
68. MR JUSTICE SULLIVAN: No, indeed. So if one cannot, one asks the other side to, and if you do not you chip about it and ask for disclosure.
69. MISS KRAUSE: Ideally that would have been done.
70. Finally, I wonder if I could have a detailed assessment of the claimant's costs? He is legally aided.
71. Lastly, I have to ask for leave to appeal.
72. MR JUSTICE SULLIVAN: Yes, of course, I understand.
73. I am sure you can have your detailed assessment of the claimant's costs. But, for the reasons set out in the judgment, I do not think there is a reasonable prospect of success in this appeal.
74. MISS KRAUSE: I am obliged.
75. MR JUSTICE SULLIVAN: In any event, I think it is certainly by now academic. Yes.
76. Anything else?
77. MISS GALLAFENT: No, my Lord. Simply to note that to an extent the second of Miss Krause's submissions was in effect a pre-emptive submission in respect of any applications for costs. Can I confirm that on behalf of the Secretary of State, whilst we regret that this matter has had to come to a full hearing -- and your Lordship will have seen from the various correspondence, but it did not require a full substantive hearing -- we do not in the particular circumstances of this case apply for our costs.
78. MR JUSTICE SULLIVAN: Yes. One can imagine there might be one or two little difficulties in enforcement.
79. MR PATEL: My Lord, I have two matters.
80. MR JUSTICE SULLIVAN: Yes, Mr Patel.
81. MR PATEL: There is one correction in your judgment which is that at one point you say that the hearing was arranged for 18th November 2003. More accurately that should be 13th November.
82. MR JUSTICE SULLIVAN: Oh should it be? It was terribly difficult to get the dates because everything is all over the place. 13th, you are absolutely right. Yes, it is the letter of the 18th that says it is on the 13th.
83. MR PATEL: My Lord that is right.
84. MR JUSTICE SULLIVAN: Thank you.
85. MR PATEL: My Lord, the second matter. I am instructed to ask for an order for wasted costs against the claimant's solicitors for the Parole Board's costs. On 17th November of last year -- this letter is in the bundle, my Lord, at page 266. (Pause)
86. MR JUSTICE SULLIVAN: Yes.
87. MR PATEL: A lengthy letter was written on receipt of the claimant's amended grounds. At that stage the amended grounds had not actually been served on the Parole Board, they had only been served on the Secretary of State, but we had received a copy from the solicitor instructed by the Secretary of State. Following that, Gordon McDowall sent a 3-page lengthy letter to the claimant's solicitors saying and contending as to why the claim against the Parole Board rather than the Secretary of State was conceived and ought to be discontinued. You will see that -- my Lord, I will ask you to read it because it is important.
88. MR JUSTICE SULLIVAN: This is 17th November?
89. MR PATEL: That is right. (Pause)
90. MR JUSTICE SULLIVAN: Yes. Right.
91. MR PATEL: It was made clear to the claimant's solicitors at that time that there was no case to answer by the Board and that the Board would seek, if this went on further, a wasted costs order against the client or the firm personally.
92. My Lord, on the 13th -- sorry, on page 269, I beg your pardon, we had a response to that letter from the claimant's solicitors.
93. MR JUSTICE SULLIVAN: Yes.
94. MR PATEL: I think it is sometime in December, but I am not entirely sure. My copy does not really tell. But it says, the third paragraph down:

"We refer you to paragraph 13 ... in this matter where it states 'although the Parole Board are an independent and impartial body for the purpose of the review, it is submitted that the relationship between the Parole Board and the Secretary of State for the purpose of considering life sentence prisoners' cases is so close as to preclude the Secretary of State from avoiding liability in this case... the Secretary of State refers a lifer's case to the Parole Board when he thinks fit. Such referral contains express direction to the Parole Board as to the remit they have such remit being dictated by the Secretary of State."

95. That was no kind of response to the points that were made in the letter of 17th November. Secondly, the point that is put in that:

"We therefore submit that the relationship between the Secretary of State ... and the Parole Board is so intertwined that in order to bring our case forward, both parties have to be the subject of these proceedings."

96. Again, my Lord, there are independent cases as against the Board and/or against the Secretary of State in this particular case, and on a proper analysis, which your Lordship's judgment revealed, there was a case for the Secretary of State to answer and the Secretary of State has answered it for the majority of those points, but in parts has accepted it. There was no case for the Parole Board to answer, and that is what your Lordship's judgment has said. In fact your Lordship has gone further to say that there are no sensible criticisms to be made of the Parole Board's handling of this particular case. So that particular point is nonsense, I would submit.
97. MR JUSTICE SULLIVAN: On the evidence that we have.
98. MR PATEL: On the evidence that we have.
99. Now the third point that is made is that:

"Given the fact that the Parole Board is the body that enables the parole board process to take place, it is therefore incumbent upon the parole board that a speedy review take place and the delay in this case is a reflection upon the relationship between the Secretary of State ... and the Parole Board."

100. Again, that does not deal with the points that are made in the letter of 17th November as to why in this particular case there can be no claim for a declaration or damages as against the Board.
101. Lastly, it is said:

"It is our submission that because of the relationship between the Secretary of State ... and the Parole Board there is a cause of action against the board and there is a case to answer. We therefore do not accept your invitation to withdraw our claim ..."

102. My Lord, my submission is that that is a wholly unsatisfactory response and a wholly unsatisfactory way in which to respond to a detailed critique of the claim against the Board. But the Board's submissions were reinforced, my Lord, by the detailed grounds for opposing the claim which was filed on behalf of the Board on 13th January 2005.
103. MR JUSTICE SULLIVAN: 13th January?
104. MR PATEL: My Lord, yes. Again this document, which is some six pages drafted by myself, set out in detail, my Lord, the factual background to Mr Bernard's claim. Paragraphs 4 up to 21 set out the legal framework, and in the submissions dealt with the claim as the Board saw it in the amended detailed statement of claim, paragraph 27, and then, for the reasons set out in paragraph 28, said that the claim had no prospects of success and did not disclose any reasonable cause of action and ought to be struck out.
105. My Lord, again the reasons given there are essentially the same reasons that are contained in the letter of 17th November.
106. MR JUSTICE SULLIVAN: Yes.
107. MR PATEL: My Lord, in response to that my learned friend's skeleton argument wholly fails to deal with any of the points that are made by the Parole Board in those detailed grounds. In her skeleton argument she makes no reference at all to the detailed grounds, no reference to the application for a strike out and no reference to the fact that the claim as against the Parole Board, as distinct to the Secretary of State, is wholly unarguable. There is simply no evaluation of it at all.
108. MR JUSTICE SULLIVAN: Yes.
109. MR PATEL: My Lord, last week my instructing solicitor wrote on 2nd March to the claimant's solicitors. My Lord, that letter you will find I think in the tab of correspondence which my learned friend Miss Gallafent passed up to you.
110. MR JUSTICE SULLIVAN: Starting with 29th May 2004?
111. MR PATEL: That is right, my Lord.
112. MR JUSTICE SULLIVAN: A great big wodge of correspondence.
113. MR PATEL: I am afraid it is not paginated, but it is in chronological order and there is a letter dated 2nd March.
114. MR JUSTICE SULLIVAN: Yes.
115. MR PATEL: My Lord, again the solicitor acting for the Parole Board makes it clear what our position was in respect of the claims that were in the amended statement of grounds, which is that they did not have permission to proceed with those claims and they had not sought leave of the court, and then he sets out the Parole Board's position and over the page:

"2. With regard to the declaration sought regarding alleged delay in breach of Article 5(4), our client's core case is that, on the facts, there are no grounds on which such a declaration could be made against it. Subject to that proviso, our client will not oppose this amendment to your client's claim."

So again it was reiterated that there were no grounds at all for the declaration to be made.

116. Finally, my Lord, in my skeleton argument I say there were three issues. We are looking at the second issue in reality, which is that at paragraphs 6 and 7. My Lord, again, we say that for the reasons in the detailed grounds, it should be struck out. But in addition to that in paragraph 7 we said:

"Any delay in providing the Claimant with a lawful review of his detention cannot either as a fact or in law be attributed to the Board. The Claimant has still not provided any particulars of the bare allegation, which is denied, that the Board has failed 'to keep an eye on the progress of his case'. Nor has the Claimant explained how a failure by the Board to keep an eye on the progress of his case, if established, could make the delays complained of attributable to the Board or support a claim in damages against it, particularly in light of the Claimant's admissions set out at paragraph 5(2)(c)(i) and (ii) above."

And that was essentially that we said that the claim was misconceived in relation to the second declaration, which is a declaration to get the Board to compel the Secretary of State to act.

117. MR JUSTICE SULLIVAN: Which was not pursued.
118. MR PATEL: Which was not eventually pursued.
119. MR JUSTICE SULLIVAN: Yes.
120. MR PATEL: My Lord, in view of the way in which the claimant has progressed this matter and progressed this claim, despite the fact that the Board has indicated on several occasions that the claim had no prospect of success and would result in an unnecessary waste of costs, public costs, we seek wasted costs of the Parole Board's costs, at least from the letter of 17th November 2004, which is when the claimant's solicitors were put on notice that we would seek such costs if we had to come to a final hearing and argue that the claim against the Board was misconceived.
121. MR JUSTICE SULLIVAN: Yes.
122. MR PATEL: My Lord, unless I can assist you further, those are the submissions I make.
123. MR JUSTICE SULLIVAN: What do you want to say about that, Miss Krause?
124. MISS KRAUSE: My Lord, whatever the criticisms it was open to the Parole Board to apply for the matter to be struck out and they failed to do that. If they felt there were no prospects of success whatsoever they could easily have put that argument to a court. But also the conduct of the litigation falls short of what is necessary for a wasted costs order to be made. My Lord, my learned friend Miss Gallafent has kindly lent me her White Book so I could have a look at this. It says at page 1214, fourth paragraph down:

"In order for a wasted costs to made any impropriety should be a very serious one and there had to be something more than negligence. There had to something akin to abuse of process. It is a necessary requirement of any wasted costs order that there should be a breach of the lawyer's duty to the court, there must be something more than mere negligence for the wasted costs jurisdiction to arise: ..."

125. My Lord, notwithstanding your Lordship's conclusions on the involvement of the Parole Board, the non-involvement of the Parole Board in this complaint, the claim was brought in good faith and was brought for the reasons which are set out in both the original grounds and the amended grounds, and also in the skeleton argument. This is because it is not a straightforward relationship and it is not a straightforward case either in terms of the factual intricacies. We did not have all of the information we needed either in order to formulate the claim properly. I have also already explained to the court the difficulties we had at our end. In light of this, there really is not sufficient conduct to enable the court to make a wasted costs order in the circumstances. However, if your Lordship is minded to do this, I wonder if I can seek some time to respond properly to the allegations made.
126. MR JUSTICE SULLIVAN: Yes. The trouble is the second declaration sought was as it were dumped, at least as I understand it, the day before, but I do not know whether you apologised to Mr Patel. I do not know whether Mr Patel had found out the day before.
127. MISS KRAUSE: He found out today.
128. MR JUSTICE SULLIVAN: He found out today.
129. MISS KRAUSE: Yes. His solicitors were told yesterday. He found out today. The problem was that the amended grounds were lodged without any authority to do so. I had been misinformed that I had to amend the grounds and lodge them, and part of the directions from Master Venne were that I should draft amended grounds which I did, that is my fault, I did not seek to see a copy of the order. So I did as I was instructed and that is where it came from. Until 15th or 16th February 2005 I had no further correspondence on this case.
130. MR JUSTICE SULLIVAN: Yes.
131. MISS KRAUSE: Then I realised that there were difficulties, and my skeleton argument did not at all deal with that aspect of the amended grounds and made it fairly plain that the only issue which was pursued was that of damages and a declaration. This is something that was picked up by the solicitors for the Parole Board because they do say in their letter of 3rd March -- oh no, 2nd March:

"However as this claim is not even addressed in Miss Krause's skeleton can you please confirm by return whether or not your client is pursuing it."

By which time I was in prison on visits and hearings and I did not get to see the letter until I got back on the Monday. So yesterday was the first time I could inform the defendant's solicitors -- or confirm that that was the case.

132. I cannot put forward any good excuses, my Lord, that is just what happened. It has been an unfortunate case from possibly the outset, and I can only apologise. But, nevertheless, it falls far short of the threshold required for a wasted costs order to be made.
133. MR JUSTICE SULLIVAN: Yes, thank you very much.
134. MISS KRAUSE: Thank you my Lord.
135. MR JUSTICE SULLIVAN: I am conscious that this may well be thought to be somewhat charitable towards the claimant. But whilst it seems to me that it can fairly be said that there was negligence on the part of those instructing Miss Krause -- I do not criticise her personally at all -- I cannot say that it is so far over the line between mere negligent conduct of an action and something verging on an abuse of process that a wasted costs order would be justifiable against these solicitors.
136. I bear in mind the overall background, in that it is unfortunate, to say the least, that for whatever reason it has taken until September 2004 for this claimant to know where he stands. That is the overall background to the matter. It does seem to me that perhaps imposing a wasted costs order would be to add insult to injury, even if the second defendant is not responsible for that injury and even if the first defendant is responsible for only two very brief period of delay.
137. I can appreciate that criticisms can be made and I appreciate that warning lights were being flashed at an early stage. But I am not persuaded that the conduct of the claimant's solicitors, bearing in mind the difficulties that they inevitably face acting on behalf of someone in custody and being presented with the need to bring on a case at relatively short notice, it being brought into the list at relatively short notice, I am not persuaded that it would be fair in all the circumstances to make a wasted costs order against them.
138. So that is my ruling on that.
139. MISS KRAUSE: My Lord, I am obliged. There is one more matter which arises out of --
140. MR JUSTICE SULLIVAN: I would just add I think your solicitors have escaped by the skin of their teeth. If this case had not been bounced in at relatively short notice and you had had more time to think about it, then there might well have been a different result.
141. MISS KRAUSE: Indeed, I can see that, my Lord.
142. There is just one small correction. Mr Matthews is a prison psychologist, he is not a psychiatrist.
143. MR JUSTICE SULLIVAN: Thank you very much for the correction. Thank you.
144. I am sorry to have kept you. Thank you very much to the court staff. I am sorry to keep everyone so late, but I have the pleasure of going off on a JSB course tomorrow, so I would not have been available to go into tomorrow in any event.
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