Gray v Secretary of State for Justice & Anor

A review of detention under Article 5(4) must be conducted with reasonable despatch, but whether it is sufficiently speedy is fact-specific. Unexplained administrative inaction by the Parole Board, causing an avoidable delay of four and a half months after expiry of the minimum term, may breach that requirement. The court must scrutinise the reasons for the interval between later reviews, while giving appropriate weight to the Secretary of State’s experience and expertise. A longer interval may be reasonable where it allows risk-reduction work and a meaningful review. The Secretary of State is not required to issue directions on every category of case, and the Parole Board has no general duty to produce guidance merely because a case involves a young offender or a short tariff.

The claimant, sentenced to detention for public protection under section 226 of the Criminal Justice Act 2003, challenged the handling of his parole reviews. His minimum term expired on 2 October 2008, but the Parole Board did not hear his case until 13 February 2009. It declined to direct release or recommend transfer to open conditions, and a further review was fixed for August 2010.

He alleged breaches of Article 5(4) of the European Convention on Human Rights arising from both periods of delay. He also challenged the Secretary of State’s directions concerning the release test and the absence of specific guidance for young, short-tariff prisoners on transfer to open conditions. The central issues were whether the first review was sufficiently speedy, whether the interval to the next review was reasonable, and whether the directions or absence of guidance were unlawful.

The rolled-up application was granted permission and the claim succeeded only on the first ground.

1. First review. Article 5(4) requires a speedy and meaningful review of the legality of detention. The Secretary of State referred the case in time, but the Board failed to manage the dossier actively after receiving it in May 2008. The missing reports were not promptly identified and the case was not progressed towards the planned September hearing. The resulting four-and-a-half-month delay after expiry of the minimum term was avoidable and arose from unexplained administrative inaction. The Board therefore failed to proceed with reasonable despatch and breached Article 5(4).
2. Relief. The later hearing and the fact that release was never realistically available did not make the procedural complaint academic. A declaration was appropriate. Damages were not justified on the evidence, particularly as there was no evidence that the claimant would have been released, or had a real chance of release, at an earlier hearing.
3. Further review. Article 5(4) requires reviews at reasonable intervals. The court had to determine whether 18 months was reasonable, but was entitled to consider the Secretary of State’s experience concerning the time required for risk-reduction work, testing and preparation of reports. Close scrutiny remained necessary. On the facts, the interval was carefully reasoned and directed towards further offending-behaviour work, psychiatric assessment and a meaningful review. It did not breach Article 5(4).
4. Release test and directions. The statutory release test under section 28(6)(b) of the Crime (Sentences) Act 1997 should be read in the context of the dangerousness provisions in the Criminal Justice Act 2003. The issue was academic because release was not in prospect. Directions issued under section 32(6) of the Criminal Justice Act 1991 were guidance only and could not bind the independent Board. Any use of an incorrect test could be challenged only if it arguably affected the result.
5. Open conditions and guidance. The challenge to the absence of specific directions or Board guidance for young, short-tariff prisoners was academic and unarguable. Section 32(6) imposed no duty on the Secretary of State to issue directions of the kind proposed. Article 8 did not, in the abstract, create a general duty requiring the Board to produce such guidance.

The court declared that the Parole Board violated the claimant’s Article 5(4) right to a speedy hearing by failing to hear his case until 13 February 2009.

First-instance judicial review proceedings. The judgment records no appeal or earlier decision in the same claim.