Mehmet, R (on the application of) v Secretary of State for Justice

A prisoner serving an indeterminate sentence is entitled to a review of detention at reasonable intervals under article 5(4), assessed in the circumstances of the individual case. The obligation is distinct from the Secretary of State’s domestic public law duties. A failure to provide treatment opportunities may not itself make detention unlawful under article 5(4), but prolonged failure to provide the Parole Board with a mandatory, current risk report may breach those duties and be amenable to judicial review. Resource constraints may justify prioritisation, but the Secretary of State must act rationally and explain systemic delay. A review without the information necessary to assess dangerousness may be an empty exercise.

The claimant was a post-tariff life prisoner whose Parole Board review had been deferred so that he could complete an additional sex-offender treatment programme. Although the programme ended in August 2008, the post-treatment SARN report assessing its effect on his risk was not expected until June 2009. The claimant sought judicial review of the delay, relying on article 5(4), the Parole Board Rules and the Secretary of State’s public law obligations.

The central issues were whether the delay made continued detention unlawful under article 5(4), whether it breached domestic public law duties, and what relief should be granted.

Claim allowed in part and declaration granted. The claimant was entitled to a declaration that the Secretary of State’s failure, without good cause, to provide the Parole Board for nearly a year with a report addressing the effect of the treatment programme on his risk was unlawful. A mandatory order was refused, but the claimant had liberty to apply if the report was not produced by 26 June 2009.

1. Article 5(4). A life prisoner is entitled to a Parole Board hearing when the tariff expires and thereafter at reasonable intervals. Whether an interval is reasonable is fact-sensitive. The more than three-year period since the last review was not, by itself, decisive because the claimant had properly chosen to defer an earlier review while awaiting the treatment outcome.
2. Domestic public law duties. Following James v Secretary of State for Justice [2009] UKHL 22, failure to provide opportunities enabling an indeterminate-sentence prisoner to demonstrate reduced risk does not necessarily make continued detention unlawful under article 5(4), but may breach the Secretary of State’s public law obligations and be challenged by judicial review.
3. Reports and information. The directions under section 32(6) of the Criminal Justice Act 1991 and rule 6(1) with Schedule 1 of the Parole Board Rules required a current report on risk. References elsewhere to information being supplied where relevant and available could not qualify that unqualified obligation. The absence of a fresh SARN report would not formally prevent a review, but the Board could not meaningfully assess dangerousness without it.
4. Resources. The Secretary of State was required to act rationally within available resources. The evidence showed a systemic backlog, with inadequate explanation of its concentration at the relevant prison, attempts to obtain assistance elsewhere, changes in the backlog, or consideration of the claimant’s particular circumstances. The delay therefore breached the Secretary of State’s public law obligations.

First-instance judicial review in the Administrative Court. The judgment records no appeal or earlier decision in the claimant’s proceedings.