Dunn v Parole Board

A limitation defence under the Human Rights Act 1998 concerns the merits of a claim, not the court’s jurisdiction for the purposes of CPR Part 11.

Delay by the Parole Board in reviewing a prisoner’s recall may breach article 5(4), but it does not by itself make detention authorised by statute unlawful or support a claim in false imprisonment against the Board.

When considering an extension under section 7(5)(b), the court has a broad discretion to decide what is equitable in all the circumstances. That discretion should not be fettered by prescribed factors or general rules about weight.

The claimant was released on licence while serving a determinate sentence and was recalled after failing to report to his designated hostel. The Parole Board initially declined to recommend release. Following an oral hearing, it recommended release approximately ten months after the recall.

More than four years later, the claimant brought proceedings alleging that the delay breached article 5(4) of the European Convention on Human Rights. He later added a claim for false imprisonment. Norwich County Court struck out both claims and refused to extend the statutory period for the human-rights claim.

The appeal concerned CPR Part 11, the availability of false imprisonment against the Parole Board, and whether an extension under section 7(5)(b) of the Human Rights Act 1998 was equitable.

1. Appeal dismissed. CPR Part 11 did not prevent the Parole Board from relying on the limitation defence. Part 11 concerns the court’s power or authority to try a claim, including objections arising from defective or late service. The one-year period under section 7(5) of the Human Rights Act 1998 instead supplies a procedural defence on the merits. An acknowledgement of service therefore did not waive that defence.

2. The false-imprisonment claim was correctly struck out. A failure to review a recall speedily or fairly may be unlawful and may breach article 5(4), but that does not itself make the underlying detention unlawful. Section 39(6) of the Criminal Justice Act 1991 expressly authorised detention after recall in pursuance of the original sentence. The statutory authority did not depend upon the completion of a Parole Board review.

   A very lengthy failure to conduct a meaningful review might eventually permit an argument that detention had become arbitrary for article 5(1) purposes. The delay in this case was not of that magnitude. Moreover, even if detention became unlawful, the person detaining the prisoner was the prison governor acting under the Secretary of State’s authority. A claim in false imprisonment would not lie against the Parole Board.

3. Section 7(5)(b) confers a broad discretion to extend time where that is equitable having regard to all the circumstances. Courts should neither prescribe a closed list of factors nor assign predetermined weight to particular considerations. Objective and subjective matters, prejudice and proportionality may all be relevant, with their weight depending upon the individual case.

4. The court declined to extend time by more than three years. The claim had a real prospect of success, but the delay was substantial and the Parole Board faced real evidential prejudice through unavailable documents and diminished recollection. Smith LJ considered the earlier adverse decision in West probably explained and excused much of the delay, while Thomas LJ did not. Lloyd LJ considered that it might have contributed. All three judges nevertheless agreed that the length of delay and prejudice made an extension inequitable.

1. Court of Appeal (Civil Division): The appeal was dismissed on every ground. The striking out of the human-rights and false-imprisonment claims, and the refusal to extend time, were upheld: [2008] EWCA Civ 374.
2. Norwich County Court: His Honour Judge Darroch permitted the proposed false-imprisonment amendment but struck out the entire claim. He refused an extension under section 7(5)(b) of the Human Rights Act 1998 and granted permission to appeal.