Boswell v The Parole Board & Anor

After an indeterminate sentence tariff expires, the prisoner is entitled to a speedy hearing to determine whether continued detention remains lawful. Article 5(4) is breached without requiring proof that the parole system has broken down so completely that detention has become arbitrary. The permissible delay depends on the individual circumstances, including the length of the tariff and the period of delay.

Although a breach may be established, relief remains discretionary. The Administrative Court should not ordinarily make an order which moves one prisoner ahead of others and risks creating further breaches. Substantial damages generally require proof that the prisoner would have been released, or had a real chance of release, at a timely hearing.

The claimant was serving an imprisonment for public protection sentence. His tariff expired in May 2008. The Parole Board first considered his case before expiry, but the Secretary of State’s dossier was not supplied until March 2009, and no oral hearing had been listed by the date of judgment.

He sought judicial review, alleging breaches of article 5(4) of the European Convention on Human Rights. He sought a mandatory listing order, declarations and damages. The central issues were whether the delay breached article 5(4), and what relief, if any, should follow.

1. Article 5(4). Once the tariff period expired, there was an obligation to hold a speedy hearing to determine whether continued detention was lawful. The court rejected the submission that breach required a complete collapse of the review system or detention which had become arbitrary. Arbitrary detention was one form of unlawful detention, but not the only form. The reasoning in SSJ v James [2009] UKHL 22, as analysed in Betteridge v The Parole Board [2009] EWHC Admin 1638, supported that conclusion.
2. The permissible period depended on the circumstances. A delay equal to, or exceeding, the tariff period was not speedy where the case remained without a hearing for 14 to 16 months after expiry. The late transmission of the dossier contributed to the overall delay. The defendants had therefore breached article 5(4).
3. Mandatory relief. A mandatory order, including an order fixing a latest hearing date, was discretionary. It would be inappropriate to allow judicial review proceedings to move one prisoner ahead of others, particularly where listing one case could defer several other hearings and create further breaches. The approach in Betteridge and R (Pennington) v Parole Board and the Secretary of State for Justice [2009] EWHC 297 supported refusal of such relief.
4. Damages and declarations. The claimant could not establish that he would have been released, or had a real chance of release, at a timely hearing. It was therefore inappropriate to speculate about the Parole Board’s eventual decision. Although Oldham v The United Kingdom [2000] ECHR 36273/97 and R (Hirst) v SSHD and the Parole Board [2005] EWHC 1480 Admin showed that damages for anxiety and uncertainty had sometimes been awarded, no damages or declaration were granted here.
5. The claim for judicial review failed. The court agreed that similar claims should not ordinarily be brought without special circumstances, and considered the judgment itself sufficient vindication on these facts.

This was a first-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision in the same proceedings.