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

Article 5(4) requires a detention-review system to provide a speedy and meaningful determination in the circumstances of each case. The system must be responsive and flexible, provide regular reviews at reasonable intervals, and distinguish exceptional cases from ordinary cases. A court must first assess whether the system is reasonably capable of producing those results. It must then review individual decisions and omissions on ordinary public law grounds. Article 5(1) is engaged only exceptionally where later detention decisions lose their connection with the statutory or judicial objectives, or are unreasonable in relation to them. Administrative delay and inadequate recognition of an individual’s special status may be legally significant, even where the system and decisions are not unlawful on the evidence.

The claimant was serving a discretionary life sentence after the Court of Appeal quashed his murder conviction, substituted manslaughter, and directed or urged that his case be considered by the Parole Board as soon as possible. His tariff had expired in 2003. A Parole Board review in July 2007 declined release or transfer to open conditions and identified further offending-behaviour courses. The claimant sought judicial review, alleging that delay, the course arrangements and the timing of the next review breached Articles 5(1) and 5(4) of the European Convention on Human Rights and public law principles.

The central issues were whether the review machinery was sufficiently speedy and meaningful, whether the defendants had unlawfully failed to provide appropriate courses or expedite review, and what significance should be given to the claimant’s unusual procedural history and expired tariff.

1. Article 5(1). The claimant’s detention remained lawful. A detention initially lawful might become arbitrary if later decisions to continue detention ceased to be connected with the objectives of the legislature or sentencing court, or were unreasonable in relation to those objectives. This was an exceptional possibility, and the claimant’s risk assessments did not bring the case within it.
2. Article 5(4) system requirements. A speedy determination must be assessed in the light of the circumstances of the particular case. The review system must:
   • respond to the individual circumstances of each prisoner;
   • be capable of flexible application and expedition where required;
   • provide regular reviews at reasonable intervals; and
   • treat like cases alike while permitting different treatment of genuinely exceptional cases.
3. The court should first assess whether the system is reasonably capable of producing those results, giving appropriate weight to the views of the Ministry of Justice and the Parole Board. It should then examine individual decisions and omissions under public law principles, including relevant considerations, irrationality and evidential foundation.
4. There was no systemic failure. The claimant had received two reviews within 12 months. The July 2007 hearing had been expedited, was capable of resulting in release or transfer to open conditions, and was rationally based on serious risk concerns and professional recommendations. The January 2009 review date was reasonable, particularly because it could be advanced if circumstances changed.
5. The PASRO and CALM courses were available at the claimant’s prison. Their sequencing was justified by the intensive nature of the courses, the need for assessment and the claimant’s history of failing to complete challenging programmes. No unlawful failure to provide adequate courses was established.
6. Nevertheless, the claimant had a special status because his tariff had expired in 2003 and the Court of Appeal had specifically urged expedition. Decision-makers were required to keep that status at the forefront. Future failure to consider earlier completion of the courses or advancement of the review might be legally reviewable.

The judicial review claim was dismissed, although the court identified administrative lapses in handling the claimant’s case.

• Court of Appeal (Criminal Division): in [2006] EWCA Crim 2749, quashed the murder conviction, substituted manslaughter, imposed a discretionary life sentence and directed or urged early Parole Board consideration.
• High Court (Administrative Court): dismissed the judicial review claim.