Legal challenge

The Parole Board has faced an unprecedented year in respect of sheer numbers of judicial reviews and payments of compensation to prisoners whose release was delayed.

In total, the Board received 182 new applications for judicial review in 2009/10. Of these, 78 fell into what we call the delay category, 43% of the total. But the recent trend is downwards. Numbers of active judicial reviews peaked in May 2009 at 138 of which 78 were about delay. At the end of the year, the respective figures were 94 active cases and 36 about delay.

Legal costs have risen accordingly of course. The Parole Board instructs the Treasury Solicitor where appropriate and a private firm, Bircham Dyson Bell, where there may be a conflict of interest with another client of the Treasury Solicitor. We have received excellent value for money, but the overall cost to the taxpayer remains significant. In total for the year, the Board paid £46,200 in compensation and £970,397 in legal costs.

Trends

There have been have been a number of related themes to this years legal actions, all concerning the application of article 5(4) of the ECHR, which safeguards the right to a timely review of detention by a court in respect of most prisoners coming before the Parole Board. Reviews for all life and indeterminate sentence prisoners on and after expiry of their minimum term, and all prisoners following recall, engage 5(4).

It was established long ago that the Board fulfils the role of a court when making decisions regarding release; accordingly the judicial requirement of 5(4) is satisfied. However, it is the timeliness of reviews which has caused so many problems. The advent of the IPP in the Criminal Justice Act 2003 has been discussed in many forums by the agencies involved. Lack of foresight meant that no thought was given to allocating resources to the various bodies that would have to deal with the huge increase in the long term prison population. For the Board, those absent resources were not so much financial as human. As cases piled up, many needing oral hearings, it became obvious that there were not enough Parole Board members, particularly judges, to sit on panels.  

Consequently, the Board has found itself as the Defendant in numerous applications for judicial review, charged with breaching the right to a timely hearing under 5(4). These became known as delay cases in the Boards offices. It may seem a simple defence to a lay observer, for the Board to say that it could not physically deliver the necessary hearings because those who allocate our resources did not allocate enough. However, it is established in law that lack of resources cannot be a defence to a breach of 5(4). The aim of this type of challenge from the prisoners point of view has been twofold. Firstly, to obtain a declaration from the courts that a breach has taken place, and secondly, to obtain an order that the prisoners case be brought forward to an earlier date.

CASE - Betteridge

In this test case, the Board set out its listing issues in great detail for scrutiny by the Administrative Court. Our approach has been to admit that the delay in finalising the review did amount to a breach of 5(4), but that it was inappropriate for one prisoners case to be heard ahead of another and thereby jump the queue unless there was a specific reason. Mr Justice Collins gave judgement. He said it was not necessary to declare the breach since that alone gave the prisoner no practical benefit. Moreover, a mandatory order to bring the hearing forward was not justified in the absence of any very special circumstances. And he went further, saying that it is not now appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5(4) where such special circumstances were not present.

The exact meaning of very special circumstances was the next issue to be tested in court. Anticipating questions about our system for listing and priorities, an overhaul was undertaken even before the judgement in Betteridge to ensure that the way prisoners cases were prioritised was fair. The focus in subsequent challenges shifted to the system itself, and whether special circumstances could include prisoners whose case for release was particularly strong.

CASE Alcock

At the core of the application was a crucial issue for the way the Board lists its hearings. If special circumstances included the anticipated prospects of being released, then listings would be a never ending round of assessments depending on what reports became available, unexpected events in prison etc. In his judgement, Timothy Brennan QC emphasised that a listings process had it limits. There should not have to be continuous or repeated assessment on paper as to whether prisoners, and which of them, should have their cases prioritised. The Board had submitted a lengthy witness statement describing its framework for listing and the court not only felt it could not be criticised, but added that it is not for the courts to tell the Board how to allocate its limited resources.

This judgement was subsequently reinforced in the case of Wells.

It has been a feature in many of these delay proceedings that the question has been not merely whether 5(4) has been breached, but by how long. The scale of the breach in any given case has enormous relevance for the Board and the public, because a breach of 5(4) entitles an individual to claim compensation. That compensation may not necessarily be financial but a prisoner released on licence at the end of a review where 5(4) has been breached, who can demonstrate that they would still have been released had the review been completed on time, may have a strong case for an award of damages in cash. The Board has this year, faced an increase in private claims for damages in this respect and we know that paying money as compensation to those convicted of the most serious crimes, is both controversial and sensitive. The Board is a public body and regards itself as bound to minimise the cost to the public purse if possible.

Most cases where compensation is sought are brought against the Board as private actions in the County Court. The Board defends these where there is a legal argument to do so; and if not, will seek to settle suitable cases without instructing solicitors to save legal costs. It became apparent quite early on that case law as to the appropriate amounts in the domestic courts was thin. Often claims were being made based on awards where someone had been falsely imprisoned. The Board maintained that the prisoners in our cases where lawfully imprisoned and that breaches of 5(4) were not a serious as cases where the individual should not have been in custody at all. Eventually a judicial review came before the Board that gave us the opportunity to have the matter tested in the Administrative Court

CASE - Pennington

The nature of the uncertainty surrounding levels of damages was such that the Claimant in this case where 5(4) had been breached submitted that an appropriate figure might be £10,000, whereas the Board argued that £500 was nearer the correct figure. In giving judgement, His Hon Judge Pelling QC said that it was appropriate to look to Strasbourg law rather than domestic law for comparisons, and that such precedent led him to the conclusion that general damages should be modest by domestic law standards. He assessed the correct figure to be £1,750, but rejected any notion that this figure should be used as a tariff or basis for mechanical assessment of damages. Awards would always turn on the facts and the circumstances applying in each individual case.

Other important cases

Saleh in 2008 amendments to the recall arrangements for determinate sentence prisoners came into force. In this case, the courts accepted our interpretation that the Board had no power to act as an appeal body to rule on the appropriateness of the Secretary of State's decision to recall someone to prison, and that we were tasked solely with assessing the prisoners suitability for release. 

Fossitt the Board has recently published guidance to its panels on applications by victims to attend its oral hearings. This has proved controversial in some areas and although this application was withdrawn at the appeal stage, the Board expects it to re-emerge in some suitable case in the future.

Naomi Bryant this is a private action brought by the family of a murder victim, where the perpetrator had been released on life licence by the Board. A coroners inquest began this year but was adjourned to 2011 to take account of relevant new facts which emerged during evidence. The verdict will be a narrative one and a representative of the Board has been called as one of many witnesses who will give evidence.

The way ahead

Forecasting future trends is difficult, and is made no less difficult in an election year where new legislation in our area of work often follows and creates new opportunities for legal challenge. The Board does, however, anticipate the recent reduction in delay challenges to continue, not only because of the helpful judgements in Betteridge, Alcock and Wells but also because of the increase in number of Parole Board judicial members.

The Parole Board for England and Wales

Grenadier House, 99-105 Horseferry Road, London, SW1P 2DX

Telephone 0845 251 2220