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

A delay caused by the Parole Board’s lack of resources, or by its errors or omissions, can breach European Convention on Human Rights article 5(4). The Board’s inability to obtain reports does not ordinarily constitute a breach where it can still decide the case, unless the delay makes continued detention arbitrary. Delay caused by reasonable case-management decisions, such as obtaining necessary further information, is not itself a breach. The assessment is global, but the margin of latitude is limited because liberty is at stake.

The claimant was detained under an IPP sentence after expiry of his tariff. His case was referred late to the Parole Board. The Board delayed issuing case-management directions, arranging the hearing and communicating its decision. It eventually directed his release on licence.

The claimant sought judicial review and damages under articles 5(4) and 5(5) of the European Convention on Human Rights. The issues included whether the delay was attributable to the Board, whether Secretary of State for Justice v James altered the law on so-called pure delay, and whether the delay caused compensable detention.

1. The claim succeeded in establishing a breach of article 5(4). The Board’s delay in processing and sending its directions, followed by unexplained delay after the hearing, was attributable to lack of resources or error and omission. It was not reasonable case management.

2. Following R (Noorkoiv) v SSHD, and agreeing with R (Betteridge) v The Parole Board, delay caused by lack of resources or by the Board’s own errors or omissions can constitute a failure to provide a speedy determination. Such delay is not excused merely because the Board ultimately makes a decision.

3. Secretary of State for Justice v James concerned the different problem of inadequate information or reports needed to assess dangerousness. It did not govern pure delay caused by the Board. The Board could reasonably defer listing until required addendum reports were available, but only for the period reasonably needed for that purpose.

4. On the facts, the decision should have been communicated by mid-January 2009. The actual communication on 21 April 2009 created a period of delay of about three months. That period was plainly more than de minimis and breached article 5(4). The submission that the Board had to accelerate the case once release appeared likely was rejected.

5. The court deferred the assessment of damages under article 5(5). The parties were directed to identify the relevant Strasbourg authorities concerning damages for breach of article 5, particularly article 5(4), and the court was provisionally minded to stay the matter for 14 days to permit agreement on quantum.