In a reserved judgment handed down on 26 October 2018 the Divisional Court (Lord Justice Holroyde and Mr Justice Green, as he then was) allowed the claim for judicial review brought in the case of R (Bate) v Parole Board of England and Wales [2018] EWHC 2820 (Admin).

The Court held that the claimant was unlawfully denied prioritisation of his case for hearing, on the facts of his individual case which had compelling reasons for expedition, and observed for future consideration that “if the Parole Board operates a listing policy which in all circumstances ignores the strengths (as opposed to the weaknesses) of an individual application, it is in my view likely that the Art 5(4) rights of individual prisoners may be breached” [96]. Their Lordships noted that the Board is not prohibited from taking any account of the strength of a particular application for release:

 “I accept of course that it is necessary to bear in mind the need for overall fairness as between the many prisoners whose parole applications are current at a particular time.  A decision to prioritise one case is, inevitably, a decision to delay another.  But provided that overall fairness can be achieved, I can see no reason of principle why a post-tariff prisoner whose application is supported, and in respect of whom release is likely to be directed when a panel hears his case, should not have that positive feature of his case recognised and given some weight in the listing exercise” [95].

The claimant’s case had been deferred with the express expectation of a hearing to occur after a 3-month deferral, and he suffered from some poor mental health and increased anxiety.

In relation to the violation of Article 5(4) of the European Convention on Human Rights 1950, contrary to the Human Rights Act 1998, occasioned by two periods of delay in convening the review of the lawfulness of his continuing detention, the Court upheld the claim and awarded damages [77], [88]-[89]. That included compensation for frustration, anxiety and distress caused by the delay during the first period (greater than it would have been for many other prisoners, for reasons the Court accepted); and damages for delayed liberty during the second period.

Philip Rule is Head of the Public Law Group at No5, and has extensive expertise in judicial review matters across a range of practice areas.

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