Smith v Secretary of State for Justice Parole Board

Article 5(4) requires a speedy and properly informed review of the continuing detention of an IPP prisoner at or shortly after tariff expiry. The Secretary of State must provide measures enabling the prisoner to demonstrate that continued detention remains necessary for public protection. The Parole Board must actively case-manage the review, ensure that its directions are pursued and proceed with reasonable despatch. Whether the requirement of speed has been met depends on the facts, including the nature and complexity of the case and all material circumstances. Serious delay in providing essential offending-behaviour coursework and reports, together with failure by the Parole Board to monitor compliance with its directions, breached Article 5(4). Declarations were the appropriate remedy.

The claimant was serving an IPP sentence for manslaughter with a 15-month tariff. His tariff expired in September 2007. In November 2007 the Parole Board deferred his post-tariff review and directed that a sentence plan, risk assessment, relevant course assessment and reports be prepared, with a further hearing in March 2008.

The necessary CALM course was unavailable at the claimant’s initial prison. After transfer, the directions were not acted upon promptly. By the expedited rolled-up hearing, the course was not due to begin until January 2009, with the review consequently delayed until after its completion. The claimant sought judicial review for breach of Article 5(4) by the Secretary of State and the Parole Board. The central issues were whether each defendant had proceeded speedily and what remedy should follow.

1. Outcome. The claimant succeeded. The court declared that both defendants had failed to comply with their Article 5(4) obligations. No mandatory order was sought. Damages were not sought at that stage.
2. Applicable obligation. Article 5(4) required a speedy review of whether continued detention remained necessary for public protection. The obligation applied to both the Secretary of State and the Parole Board. The Secretary of State had to provide measures allowing and encouraging an IPP prisoner to demonstrate, by tariff expiry or reasonably soon afterwards, that continued detention was no longer necessary, following R (Walker and James) v Secretary of State for Justice [2008] EWCA Civ 30.
3. Meaning of speedy. Whether proceedings were conducted speedily and with reasonable despatch depended on the facts of each case. Relevant circumstances included the nature of the case and whether it was simple or complicated. The obligation required a proper and informed decision, not merely a formal hearing.
4. Secretary of State. There had been severe and continuing delay in obtaining the assessments, reports and essential CALM course needed for the Parole Board to assess dangerousness. The delay postponed the review until after completion of the course and breached Article 5(4).
5. Parole Board. The Board had to actively manage the case and proceed with reasonable despatch. It failed to monitor compliance with its directions, ensure that necessary information was supplied, or secure the listing of the deferred hearing. Its failure caused further delay and breached Article 5(4).
6. Remedy. A declaration was appropriate for the past delay. The parties were directed to draw up an agreed order, with costs payable by the defendants equally subject to detailed assessment.

First-instance judicial review in the Administrative Court. The judgment records an earlier direction by His Honour Judge David Pearl, sitting as a Deputy High Court Judge, that the claim receive urgent consideration, followed by the expedited rolled-up hearing before Mrs Justice Slade.