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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 >> Johnson, R (on the application of) v Secretary of State for Justice [2009] EWHC 3336 (Admin) (18 December 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3336.html Cite as: [2009] EWHC 3336 (Admin)

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IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		LEEDS COMBINED COURT 1 OXFORD ROW LEEDS HAND DOWN IN LEEDS.
		18/12/2009

MR JUSTICE LANGSTAFF :

1. The claimant is a prisoner. He seeks Judicial Review of a decision of the Secretary of State that the next Parole Board review in his case should take place in July 2010. The claimant asserts that this decision of the Secretary of State, notified on the 9^th June 2009, had the effect that this review would occur between 14 and 15 months after his last review (on 21^st April 2009), and that this period is inconsistent with the requirements of Article 5(4) of the European Convention on Human Rights and Fundamental Freedoms ("Article 5(4)").

Factual Background.

2. On the 11^th April 2003 the claimant was sentenced to a term of life imprisonment. This was an automatic sentence, since he had been convicted of a second offence of wounding with intent, using a knife. A minimum term, representing a nominal determinate sentence of 8 years imprisonment, was set after allowing for time served on remand at 3 years and 139 days. The minimum term expired on the 28^th August 2006. Indeed, the time served to date is very nearly double the minimum term ordered to be served. The proportionality of any continued detention in custody has to be viewed in the light of this fact: it makes delay for any given period more disproportionate than would be the case if the sentence initially imposed had been longer.
3. On 21^st April 2009 the Parole Board considered the claimant's case. There were powerful voices that suggested that in the light of recent improvements in the claimant's approach, and consequent reduction in the risk which he posed to the public, he was suitable for immediate release. Thus in a report dated 25^th July 2008 (9 months before the review) the claimant's Offender Manager whilst alive to the risk of serious harm to the public at a high level nonetheless supported his release on parole. He was concerned that a further period in custody could serve to de-motivate, with an associated danger of institutionalisation. A chartered forensic psychologist, Mr Boag, noted the impulsive nature of the claimant's acts, and his need to learn to stop, think and listen, so that he could plan before acting. One to one counselling was needed. However, such counselling work could be done either in the prison, or in the community. I am told by Mr Southey on his behalf, without Mr Gerard Clarke who appears for the Secretary of State disputing it, that this is more conveniently organised in the community and that there are unlikely to be any practical means of delivering it to the claimant in prison at present. The psychologist nonetheless recommended a progressive move to category D status (rather than immediate release). The Head of Custody assessed that the claimant had not only completed his offending behaviour courses but had fully understood them, and was using the new skills taught to the extent that if no concerns were raised by the psychologist or the external Probation Officer, and provided that the latter could provide the one to one work identified (Mr Southey tells me he can) he would support release to an hostel. The key worker Prisoner Custody Officer also commented favourably upon the effect of the self improvement courses upon which the claimant had been engaged, with a positive effect on his ability to think situations through and react appropriately, and did not regard there as being any need for further sentence planning given the successful completion of various courses including the Calm and ETS courses. He had successfully been on four escorted absences from prison.
4. The Parole Board concluded that there was support from all report writers for release to an Hostel for a comparatively short period, after which the claimant could live with his sister. However, it was not satisfied that the reduction in the level of risk was such that that course could be followed without first testing the claimant in open conditions where his impulsivity and anger management could be monitored. It therefore recommended a transfer to open conditions.
5. Some six weeks later the National Offender Management Service wrote on behalf of the Secretary of State to the claimant. He agreed the transfer to open conditions. He also said:-

"It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in July 2010 for the following reasons:

To allow you to be tested in less secure conditions so that you can demonstrate the skills you have gained through the offending behaviour work undertaken in closed conditions

To enable you to complete further work on domestic abuse and your impulsivity

To allow you to formulate a robust, and fully tested release and resettlement plan."

6. It is that letter, with those reasons given for it, which is subject to this application for Judicial Review. In essence, the challenge is on the basis that to fix the target date for the next review hearing as far away as July 2010 and thereby between 14 and 15 months after the date of the previous review, was to fix a date arbitrarily. The reasons given did not justify that date (said Mr Southey) as opposed to any earlier date. He extracted a principle from the authorities to the effect that, whereas every case must turn upon its own specific facts, no exception could normally be taken by a prisoner to a date for next review set up to a year after the previous review had been heard, but that periods in excess of 12 months needed more particularly to be justified. There was nothing in the Secretary of State's determination which did that.

Submissions

7. Mr Southey relied strongly on the decision of Stadlen J. in R (George Loch) v. Secretary of State for Justice (2^nd October 2008) [2008] EWHC 2278(Admin). The Judge considered a primary submission made, as in this case, by Mr Southey that the rights conferred by Article 5(4) upon Mr Loch would be violated if the next Parole Board review took place more than 1 year after his last review was completed. He granted the declarations sought.
8. The value of the case, however, lies for me in its careful review of the several authorities, to which I now turn though in lesser detail than he did, since it is sufficient to indicate that except where indicated I am content to adopt his approach to the cases. The starting point for each is Article 5(4) of the European Convention on Human Rights and Fundamental Freedoms. It provides

"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"

9. In the context of a life prisoner the determinate part of whose sentence has expired, this Article has been held to require periodic and speedy review judicially to determine whether his continued detention remains necessary for the protection of the public. Once the minimum part of a sentence has expired, the purpose of continued detention can no longer be punishment, nor deterrence, since it is to those aspects that the determinate element of such a sentence ("the tariff") is addressed, and it must be supposed that that period has been regarded by judicial authority as sufficient for those purposes. It is thus to reduction in the incidence of crime by specific regard to the risk of further crime which an offender poses with which the continued detention is concerned. It may thus only be justified so long as necessary for the protection of the public. Hence there is a need for speedy review at reasonable intervals: and the reasonableness of the interval must necessarily be related to the likelihood of the risk being at the end of the period at a sufficiently low level for it to be reasonable then to release the prisoner from custody.
10. In Oldham v UK (2001) 31 EHRR 34 The European Court of Human Rights noted that in previous cases the Convention Organs (i.e. Commission, then Court, ruling on admissibility) had accepted periods of less than a year between reviews, and rejected periods of more than one year as unacceptably long (paragraph 32), but it concluded that the question whether periods between reviews complied with the requirements of Article 5(4) must be determined in the light of the circumstances of each case, and was not a simple matter of arithmetically standard times. On the facts, that was a case which it was unclear what the authorities expected of the prisoner with a view to his demonstrating a reduction in the risk he posed to the public.
11. In Hirst .v. UK (application 40787/98, Judgment 24^th July 2001) the fact that a prisoner had developed significantly during the course of his sentence, and further changes of circumstance might be envisaged, meant that periods of 21 months and 2 years between reviews could not be said to be justified by general considerations of rehabilitation and monitoring. Weight was placed upon evidence showing the prisoner was making progress towards the risk he posed.
12. In Blackstock v. UK [2006] 42 EHRR 2 The Parole Board itself recommended early review after 12 months if the Secretary of State did not accept its recommendation of a move from category B to category D conditions. The Secretary of State did not accept this, but the review took place only after 22 months. The court concluded that that delay violated Article 5(4). It is plain, however, that delays of 24 months may also be entirely acceptable in other circumstances (see Dancey v. UK). What appeared to be determinative in Blackstock was that there was, firstly, no material to show whether it was necessary (in that case) to insist upon him serving a full 12 months in category C conditions before proceeding to another review and secondly no indication that in that case there was any specific programme of work for him to engage with as opposed to a general testing of his capability and reaction to a less restrictive regime.
13. In Murray v Parole Board and Secretary of State for the Home Department [2003] EWCA (Civ) 1561, at paragraph 14 of the judgment of the court (Mummery, Sedley L.JJ., Mumby J.) delivered by Sedley L.J., it was noted that the approach of the European Court was that the reasonableness of the period between reviews was fact dependent, but that ordinarily an interval up to one year had to be shown to be in breach of Article 5(4) on some particular ground in order to be justiciable, whereas an interval of more than a year had generally to be shown not to be in breach of it. The delay which fell for consideration in Murray was one of 15 months. The first instance Judge had not determined whether that would have been a too long a period but for the novelty of the situation which had been created for the Prison Service and Parole Board by the case of Stafford, the finite resources available to the Parole Board to cope with the aftermath of that case, and the needs of other life sentence prisoners. The court in Murray thought that logistical difficulties would be no answer to a complaint of excessive delay, but nonetheless concluded:-

"We cannot be satisfied, in the particular circumstances in which this case comes before the court, that the correct approach would necessarily have resulted in a finding of principle in Mr Murray's favour, and we accordingly dismiss the appeal."

14. Accordingly, that authority itself establishes at a high level that there can be no presumption that an interval of more than one year between reviews necessarily infringes Article 5(4). Moreover, in R (Day) v Secretary of State for the Home Department [2004] EWHC Admin 1742 Gibbs J. said (in my view, correctly, given the reasoning in Murray):-

"I do not accept that there is a presumption that an interval of more than a year between reviews infringes Article 5. I think that the question of whether the Secretary of State's decision provides for a speedy review depends on the circumstances of each individual case. However I do think that the decisions of ECHR provide a useful guide to what the law should or should not regard as speedy. It is plainly on the basis of case law easier to establish that a decision which sets interval of more than a year falls foul of Article 5, than a decision setting one of less than a year. It is, however, a matter of fact and degree… in every case. "

15. In Loch, Stadlen J., whilst accepting the proposition that there can be no presumption that an interval of more than a year between reviews infringes Article 5, nonetheless appeared to think (see paragraphs 46, 47) that there was perhaps a "greater evidential burden on the decision maker than necessarily follows from Gibbs J's statement". For my part, I think it unnecessary to go so far.
16. The most recent of these several authorities is that of R (Anthony Harrison) v. Secretary of State for Justice [2009] EWHC 1769 Admin. The claimant was a serial rapist. For all but 14 months of the 29 years that he had lived since the age of 16 he had been in prison. It became evident that he was making progress. A review date which was just less than 18 months from his previous review was set, but after considering representations from his Solicitors, brought forward by 6 weeks. A challenge was nonetheless made to this earlier date. Calvert-Smith J. endorsed the clear principle that each case must turn on its own facts; that the court should review the reasonableness of the decision, giving due deference to the expertise of the decision maker unrestrained by Wednesbury type considerations, and that any need for monitoring the progress of a prisoner should come with a time-table (paragraph 26). In that case, on its facts, there were however clear reasons derived from the papers why the process from one review to the next should take as long as had been provided (see judgment, paragraphs 54 to 56).
17. Mr Gerard Clarke did not take issue with this background orally, though observed in paragraph 8 of his skeleton argument that both Lords Hope and Brown had with the agreement of Lords Carswell and Mance in the case of Secretary of State for Justice v. James [2009] UKHL 22 (at paragraphs 19, 57, 60) stated that a prisoner might have to wait two years between reviews, and inferred this could be consistent with Article 5. (2 years is, I note, the statutory maximum between parole reviews in any event).
18. If by this written submission, Mr Clarke intended to argue that any period up to 2 years did not require justification, I could not accept it. The court must look to establish a period which is no more than reasonable. In that process of assessment, due weight and regard must be had to the decision maker (though the assessment is free of Wednesbury constraints). But it remains open to the Court to conclude in the particular circumstances of a given case that a period less than 2 years (and indeed, possibly even one less than 1 year in duration) would be too long, or had not been adequately justified.
19. Mr Clarke, correctly in my view, submitted that the court should not "totemise" a one year period. He demonstrated the range of periods which had been held to be on the one hand in breach, but on the other reasonable, ranging from 12 months to 24. He accepted that in principle a period of 15 months could be in breach. Here, he drew attention to the circumstances of the offence for which the claimant had been imprisoned. It was the second of two violent attacks which the claimant had stabbed an available victim a number of times. His original career in prison was blemished. From the date of making the decision, the claimant would be spending a year in open conditions. Nine months might not be long enough.

Discussion.

20. The context in which my decision must be made is that of preventing unjustified detention. Although every case must necessarily depend on its own facts, as a general proposition the greater the period between reviews is beyond 12 months, and towards 24 months, the more cogent the reasons will have to be if the court is not to be persuaded that it is unreasonably long in this context.
21. In the present case the period of the minimum term which was set by a court for the claimant to serve is one which by comparison with many is relatively short. The life sentence was one which was automatic because it was a second knife attack. The claimant has been removed for just over 6 years from normal life. This is approaching double the period of time thought appropriate for punishment and deterrence. That argues for a shorter, rather than longer review period. So too does the fact that the claimant has been forcefully removed from ordinary life for a relatively short period, so that it is likely that he may adjust to modern living more easily, and be less institutionalised on release. There is clear evidence of progress. Many of the reports to the last Parole Board recommended his release. It is not clear that there is any course that must be given to him in custody for which time there is required. One to one counselling (the only recommended course) is more readily available after release. The Parole Board were warned of the dangers that delay might be counter productive in securing the final rehabilitation and release of the prisoner. All these factors seem to me to argue for a shorter, rather than longer period.
22. What, however, finally determined me that this application should be allowed was my attempt to understand the reasons which had led to the Secretary of State to decide in June 2009 that there should be a Parole Board hearing in July 2010, rather than some earlier (for that matter later) date. A period of time for which there is no clear reason may justify the epithet "arbitrary". With this in mind, I looked for any explanation within the correspondence from the defendant, in answer to the challenges raised on behalf of the claimant, as to why precisely a period between 14 and 15 months after previous review had been selected. There was no more than I had already quoted at paragraph 5 above. No evidence has been filed the Secretary of State to tell me why the decision maker reached the decision he did. When I asked Mr Clarke about it, he gave me the impression that he would have preferred to be in a position to place this before me. I offered him the prospect of an adjournment overnight so that the Secretary of State could file some evidence as to why that particular date had been chosen in these circumstances, when so much might seem to argue in favour of the shortest reasonable period between reviews. He told me from experience that he thought that no such evidence would be forthcoming. When telling me this, he did not seek any longer adjournment for that purpose.
23. The court is therefore in the position that it simply does not know why the particular period between reviews was selected as appropriate by the Secretary of State. There is no reason from the case papers which makes it obvious. No reason is likely to be available to assist. In the absence of evidence, I treat the period as simply unsupported by any particular reason. That being the factual position, then in the particular circumstances of this particular case, in the general context of the law which I have set out, I have come to the conclusion that the decision intimated by the letter of 9^th June 2009 to set the next review for July 2010 should be quashed as unlawful.
24. Mr Southey has asked that in the event that the court quashed the decision, as he argued it should, I should take the same approach as that taken by Stadlen J. in Loch. Rather than impose a date of my own (lacking the material to do so properly) I should simply say that it is for the Secretary of State in the light of this judgment and the most up to date information available to him to set a date for the next Parole Board hearing which complies with the requirement in Article 5(4) for there to be a speedy decision. I adopt this approach, and so determine.
25. I invite the parties to agree the consequential orders for costs which will follow: in the event they cannot do so, there should be submissions made sequentially by claimant and defendant before 12 January in writing, for my determination in writing unless either party wishes to argue the matter orally.