Faulkner, R (on the application of) v Secretary of State for the Home Department

There is no automatic breach of Article 5(4) merely because more than one year separates reviews of a life prisoner’s detention. The required interval depends on all the circumstances, including the prisoner’s progress, outstanding assessment or treatment work, and the time reasonably needed for fair preparation of the review. Strasbourg guidance does not amend domestic legislation prescribing a longer period. Procedural fairness does not generally require disclosure of an internal psychological assessment where it introduces no new evidence, but analyses material already available to the decision-maker. Disclosure may be required where genuinely fresh material or a new issue is introduced.

The claimant was serving an automatic life sentence for grievous bodily harm with intent. After the Parole Board recommended transfer to open conditions, the Secretary of State declined that recommendation and fixed the next review for September 2006, approximately 16 months after the previous review. The Secretary of State relied in part on a psychological report recommending further assessment and offending-behaviour work.

The claimant sought judicial review, alleging breach of Article 5(4) and procedural unfairness because the report had not been disclosed before the final decision. A third ground concerning category C conditions was abandoned. The issues were whether the review interval was sufficiently speedy and whether fairness required disclosure of the report.

1. The application was dismissed. The Secretary of State’s decision to schedule the next Parole Board review for September 2006 did not infringe Article 5(4).

2. The question whether a review is speedy depends on all the circumstances. There is no presumption that an interval exceeding one year necessarily breaches Article 5(4), although such an interval requires particular justification more readily than an interval of less than one year. Section 28(7) of the Crime (Sentences) Act 1997 was not amended by substituting a one-year period for the statutory two-year period.

3. The claimant’s substantial progress, young age, short tariff and potential need for frequent review meant that the Secretary of State had to explain the 16-month interval. That explanation was sufficient. Further assessments, evaluation of progress, preparation of reports and the periods allowed by Rules 6 and 7 of the Parole Board Rules provided adequate justification. The fact that CSCP was continuing did not prevent progress up to April 2006 being assessed at the next review.

4. Procedural fairness did not require disclosure of the psychologist’s report. Applying the distinction recognised in R (Burgess) v Secretary of State for the Home Department and the Carltona principle, the report contained no new evidence. It analysed and interpreted material already before the Parole Board, on which the claimant had had an opportunity to make representations.

5. Fresh material or a new issue might require disclosure or an opportunity for further representations, as recognised in R v Secretary of State for the Home Department ex parte Draper. That situation did not arise. Costs were to be assessed.