Faulkner, R (on the application of) v Secretary of State for Justice & Anor

Article 5(4) requires a system permitting review of the lawfulness of indeterminate detention at reasonable intervals. The Parole Board controls the information and timetable required for its review. A failure to provide additional material, or delay in supplying it, does not itself establish an Article 5(4) breach. A breach arises only where the system breaks down so completely, and for so long, that continued detention becomes arbitrary. Whether an interval is reasonable is fact-sensitive and must be assessed on the circumstances as a whole. A damages claim also requires proof of causation, including a real prospect that an earlier review would have resulted in release.

The claimant, a life prisoner, sought judicial review and damages under Article 5(4) of the ECHR. His tariff expired in April 2004. The Parole Board made recommendations for transfer to open conditions, which the Secretary of State rejected. The Rule 6 dossier was supplied in May 2008, further reports were supplied in October 2008, and the Board directed release after a hearing in January 2009.

The claimant alleged that the delay in providing the dossier and further reports, and the delay before the hearing, breached Article 5(4). He had subsequently absconded, raising a separate issue about whether the claim should be dismissed and whether damages would amount to just satisfaction.

1. The claim was dismissed. The issue whether the claimant’s fugitive status alone justified dismissal was left open. The claim was determined on its merits.
2. Following James, Article 5(4) requires a system for reviewing detention at reasonable intervals. The Parole Board is entitled to decide what information it needs and to set its own timetable. Failure to provide material requested by the Board does not itself breach Article 5(4). A breach arises only where the system breaks down entirely because necessary information is withheld for so long that continued detention becomes arbitrary.
3. The apparent distinction between the basic Rule 6 dossier and later reports did not assist the claimant. The relevant question was the operation of the system as a whole. The court accepted the analysis in Kehmel Mehmet that failures may engage public law obligations, but those obligations were not the basis of this claim.
4. Whether reviews occurred at reasonable intervals was fact-sensitive. The court considered the whole period and subsequent events. The claimant had made sustained progress, and the January 2009 review occurred within a reasonable interval. The court also found no sufficient evidence that an earlier review would probably, or realistically, have resulted in release.
5. Any damages under section 8 of the Human Rights Act 1998 would be discretionary and payable only where necessary to afford just satisfaction. Had a breach been established, the claimant’s absconding and its effect on public confidence would have weighed against a substantial award. The claim was dismissed, with costs subject to the statutory protection applicable to the legally aided claimant.

First-instance judicial review proceedings. Permission was granted on 13 October 2008 by Mr David Elvin QC, sitting as a Deputy High Court Judge. No earlier judgment in the same proceedings is stated.