Ashman, R (on the application of) v Parole Board & Anor

A person detained beyond expiry of the minimum term is entitled under Article 5(4) of the European Convention on Human Rights to have reasonable steps taken to assess whether continued detention remains justified. A breach may be remedied by declaratory relief. A mandatory order requiring an immediate or accelerated Parole Board hearing is discretionary and must reflect the overall interests of justice, including the likely disruption and prejudice to other prisoners. The claimant’s interest in an earlier possibility of release may be outweighed by those wider considerations.

The claimant challenged his continued detention after expiry of the minimum term. He sought a declaration that his Article 5(4) rights had been breached and a mandatory order requiring a Parole Board hearing within seven days, or earlier than the hearing already fixed for 23 November 2007. The court considered whether reasonable steps had been taken to assess the justification for continued detention and what relief was appropriate.

1. The court declared that the claimant had suffered a breach of his rights under Article 5(4) of the European Convention on Human Rights. He had continued in detention beyond expiry of the minimum term without reasonable steps having been taken to assess whether continued detention was justified.
2. The court refused a mandatory order requiring a Parole Board hearing within seven days or before 23 November 2007. The evidence showed that such an order would probably cause significant disruption and prejudice other prisoners.
3. Although the claimant might have gained the chance, though not the certainty, of release on licence at an earlier date, that interest was outweighed by the prejudice to others. Relief had to reflect the overall interests of justice and the interests of affected parties.
4. A declaration was not regarded as a mere formality. It was a real form of relief and was sufficient in the circumstances.
5. The claimant had only partially succeeded because the mandatory order was refused, but he had obtained the declaration sought. The defendants were therefore ordered to pay his costs, to be assessed on the standard basis.