Cooper, R (on the application of) v Parole Board

Article 5(4) requires a Parole Board hearing to determine the lawfulness of detention as soon as reasonably practicable. A standard listing target may assist administration, but it cannot operate as an inflexible maximum period. The Board must consider the circumstances of each case, including supported requests for expedition based on mental or physical health. A delay that is prima facie excessive requires justification by the State. Administrative convenience, insufficient resources and predictable increases in workload do not provide that justification. Listing is a judicial function in this context, requiring a system capable of referring urgent applications to an appropriately authorised decision-maker.

The claimant was serving a life sentence and had been recalled to prison after breaching an alcohol-related licence condition. The Parole Board fixed an oral hearing more than three months after recall. The claimant relied on medical evidence that his mental health was deteriorating and sought an earlier hearing. The Board refused, relying on its listing timescale and the absence of available panel members.

Permission to bring judicial review proceedings was granted after an initial refusal. The central issue was whether the delay breached Article 5(4) and whether the Board was required to operate a flexible system capable of considering individual reasons for expedition.

1. The claim succeeded. The hearing fixed for 24 May 2007 was not speedily arranged for the purposes of Article 5(4). The Board was directed to ensure that it took place on that date unless an unforeseeable circumstance intervened.
2. There is no universally applicable period for an Article 5(4) hearing. The Board must allow sufficient time for proper information and preparation, but must assess the requirements of the individual case. A target of 55 working days or 11 weeks was prima facie too long and required justification.
3. The Board’s system was unlawful because it could not properly consider a supported request for expedition. Listing was a judicial function in this context. Applications supported by medical or other cogent material had to be capable of being considered by an appropriately qualified decision-maker, rather than being left entirely to untrained administrative staff.
4. The increased workload and shortage of panel members did not excuse the delay. The increase arising from the Criminal Justice Act 2003 and imprisonment for public protection sentences was foreseeable. The Government had to provide resources enabling the Board to comply with Article 5(4).
5. The suggested possibility of transfer to hospital under sections 3 or 47 of the Mental Health Act 1983 did not answer the complaint. Requiring deterioration to reach the threshold for hospital detention could itself prejudice the claimant and did not remove the need for a speedy review.
6. The claim for damages was retained for later determination. Costs were awarded to the claimant, subject to detailed assessment if not agreed.

1. High Court (Administrative Court): Calvert-Smith J refused permission on 4 April 2007. Toulson LJ granted permission at an oral hearing on 19 April 2007.
2. High Court (Administrative Court): the claim was allowed by Collins J, who held that the delay breached Article 5(4) and ordered that the hearing proceed on 24 May 2007 unless an unforeseeable circumstance intervened.