The Administrative Court today hands down its reserved judgment in the case of R (on the application of Hussain) v The Parole Board of England and Wales, a claim for judicial review concerning the widespread delays to provision of oral hearings by the Parole Board at the time they are due. This follows a hearing on 3 and 4 February 2016.

The Court has found that:

(1)  the parole system is in breach of the state’s public law duty to provide systems and resources necessary to afford to indeterminate sentence prisoners a reasonable opportunity to demonstrate that they are no longer dangerous;

(2)  there has been in Mr Hussain’s case a violation of the ancillary obligation within Article 5 of the European Convention on Human Rights that requires, in the protection of liberty, that a prisoner be given a reasonable opportunity to demonstrate that he no longer presents an unacceptable danger to the public.

In the specific case such a hearing enabled consideration as to whether Mr Hussain, an indeterminate sentence prisoner, should be transferred from a closed to an open prison in readiness for potential subsequent release. For that reason the case does not merely consider the established principles and state duty of Article 5(4) ECHR (that applies to post-tariff prisoners and delays to parole hearings due in the period after completion of the punitive, or tariff term).

This decision importantly establishes (1) the application of the public law duty to operate a system that enables parole hearings to be held on time (which complements the Article 5(4) duty of the state), and (2) that the ancillary duty implicit within Article 5 ECHR applies to the delayed provision of pre-tariff hearings where that denies the individual prisoner a reasonable opportunity to demonstrate reduced risk and continue rehabilitation through the opportunity to secure a recommendation for a transfer to open conditions.

Background and contentions

The Claimant is serving an indeterminate sentence: his tariff will expire in August 2017. In April 2014, the Secretary of State for Justice referred his case to the Board for a review of whether he should be moved to open conditions. Open conditions afford ISPs a vital opportunity to demonstrate their reduced risk to the public. In line with the Board’s own policy and the Parole Board Rules, the Claimant’s hearing should have taken place in November 2014.

On account of the Board’s, now well-known, extensive backlog of cases awaiting oral hearings, arising from a lack of panel hearing capacity, the Claimant’s case was not heard until May 2015. This 6-month delay meant that his eventual transfer to open conditions, which was eventually recommended at the hearing, was delayed by that period.

The Claimant brought judicial review proceedings against the Board, arguing there was an ongoing systemic breach of the public law duty to provide timely hearings and operate a system compliant with the state’s obligation in Article 5(4) ECHR, and a breach of the Article 5 ancillary duty in the Claimant’s case.

The Parole Board denied the claim and despite the continuing backlog denied there was any breach of duty either at common law or under the Convention.

Findings and commentary

Hickinbottom J, hearing the claim, considered the state’s duty: (i) to provide and operate a system that gives indeterminate sentence prisoners a reasonable opportunity to demonstrate at tariff expiry that they are no longer dangerous (the “James duty” deriving from R (James, Lee and Wells) v Secretary of State or Justice [2010] 1 AC 553); and (ii) to provide a reasonable opportunity for the indeterminate sentence prisoner to rehabilitate himself and demonstrate that he no longer presents a danger to the public (the Article 5 “ancillary duty”).

The judge found that the Parole Board Rules and the applicable policy defined the “reasonable opportunity” the Claimant was to be afforded: these recognised, and sought to enable, that an indeterminate sentence prisoners where appropriate should be transferred to open conditions about three years before tariff expiry. On account of the systemic failure, the Claimant’s own hearing to consider transfer to open conditions had been delayed, thus depriving him of a reasonable opportunity to rehabilitate himself and demonstrate his reduced risk with a view to potential later release. The Article 5 ancillary duty was therefore also breached, and the Court grants a declaration of unlawfulness, and damages for the legitimate frustration and anxiety occasioned.

Hickinbottom J found that the Board’s system was in breach of the James public law duty through the general delays to convening parole reviews. It was no defence for the Board to say, as they did, that they had taken reasonable steps to cope with the backlog. As such, the Claimant was entitled to declaratory relief.

The longstanding failure of the system to meet the need for oral hearings is recorded in the judgment: it began with the requirement to convene oral hearings more frequently than had previously been the case that followed the Supreme Court’s identification of the previous unfairness and unlawfulness to the limits placed upon when oral hearings would be permitted (in October 2013 in R (Osborn, Booth and Reilly) v Parole Board [2014] AC 1115). The judgment records that in the month of September 2014 the number of cases ready for a hearing was 1188 but the same month the number which the Board failed to list was 1101; and by October 2014 the statistics worsened, at 1587 and 1322 respectively. Additionally the Board’s evidence also showed a consistent and persistent problem thereafter: by June 2015, the figures were 1799 cases ready to list, but 1228 cases left unlisted; by the end of November 2015 the number of cases that were ready but remained unlisted for hearing stood at 1475 prisoners’ cases. Two years since Osborn the problem plainly continues.

This case demonstrates the application of the state’s duties to a pre-tariff indeterminate sentence prisoner to enable him to demonstrate a reduced risk with a view to tariff expiry. It makes plain (applying Supreme Court guidance) that the question is not what outcome follows from the reasonable opportunity either afforded or denied to the individual, and that defining a reasonable opportunity does not involve speculation of future outcomes that will follow, nor any proof that there will be a loss of liberty that follows from the breach.

The judgment is relevant also to indeterminate sentence prisoners who are experiencing delays in the listing of their pre-tariff, on-tariff or post-tariff reviews. The Parole Board, the week before the hearing, presented its present plan or aim that the inability to list hearings on time should be remedied by April 2017 (sic). In fact for various reasons explored before the judge on the evidence from the Board, it clearly remains to be seen whether the Board will be able to reduce its backlog and eliminate the systemic breach as it hopes. However this judgment recording publicly the continuing failure of the state system should at least demonstrate to the Ministry of Justice that it cannot be denied that the system is presently inadequate to the task it must by law perform.

Philip Rule and Varsha Jagadesham acted for the Claimant, instructed by Lorna Elliott of EBR Attridge LLP solicitors.