Betteridge, R (on the application of) v The Parole Board

Article 5(4) of the European Convention on Human Rights imposes a free-standing requirement for a speedy hearing to determine whether post-tariff detention remains lawful. A pre-tariff assessment that release is unlikely does not remove that requirement. The question whether a hearing was speedy is fact-sensitive and requires attention to the cause of delay. Delay caused by inadequate Parole Board manpower may breach Article 5(4), even where an earlier hearing would inevitably have confirmed lawful detention. However, the breach does not itself establish entitlement to damages where release would not have followed an earlier hearing.

The claimant was serving an indeterminate sentence for public protection. His tariff expired on 18 December 2008, but the Parole Board could not provide an oral hearing until September 2009 because of workload pressures and the absence of a suitable panel. A pre-tariff advisory opinion indicated that he was not then suitable for release.

The Parole Board accepted that the delay breached Article 5(4). The Secretary of State argued that there was no breach because an earlier hearing could not have resulted in release. The claimant sought declarations, damages and mandatory relief requiring an earlier hearing. The central issue was whether the advisory opinion or the likely outcome of an earlier hearing displaced the independent requirement for a speedy post-tariff determination of lawfulness.

1. Article 5(4) breach. Article 5(4) contains an independent and free-standing requirement for a speedy hearing to determine whether continued detention is lawful. The requirement is distinct from Article 5(1), and its application is fact-sensitive. The court must examine the cause of delay in the individual case. Here, the delay resulted from the Parole Board’s inability, through insufficient manpower and workload pressures, to provide the necessary judicial panel. That amounted to a breach.
2. Effect of the pre-tariff advice. The advisory opinion could not determine the lawfulness of detention before the tariff expired and could not provide the relief that an Article 5(4) hearing must provide. It therefore did not dispense with the requirement for a speedy hearing. It did, however, mean that the claimant could not establish a damages claim, because an earlier hearing would inevitably have resulted in continued lawful detention rather than release.
3. Remedies. No formal declaration was necessary because the judgment recorded the breach. No mandatory order was made requiring a hearing on a particular date. Judicial review should not ordinarily be used to move one prisoner ahead of others in the queue, absent special circumstances.
4. Orders. No order was made on the claim. The claimant received two-thirds of his costs against the Secretary of State, with no order for costs against the Parole Board.

This was a first-instance judicial review in the Administrative Court. No prior decision in the same proceedings is stated.