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

A substantial and unjustifiable delay in referring or processing an indeterminate sentence prisoner’s case may breach Article 5(4), even though the detention itself remains lawful. The question is whether the review occurred on, or as soon as reasonably practicable after, tariff expiry. Responsibility may be divided between the Secretary of State and the Parole Board according to the periods of delay each caused. A review need not be conducted prematurely where a short, properly justified delay is required to obtain material relevant to dangerousness. A declaration may ordinarily provide an effective remedy, but modest damages may be appropriate for prolonged uncertainty, distress and frustration, particularly where mental illness makes the delay harder to bear.

The claimant was serving an imprisonment for public protection sentence imposed under Criminal Justice Act 2003 section 225. His tariff expired on 21 May 2007, but the Secretary of State did not refer his case to the Parole Board until 22 January 2008. The first review hearing took place on 8 July 2009. The claimant alleged breaches of Article 5(4), challenged the next review date fixed for December 2010, and sought damages. The issues were the responsibility for the delay, whether the proposed next review date was lawful, and whether a declaration was sufficient relief.

1. Article 5(4). The claimant was entitled to a speedy review of whether continued detention remained necessary for public protection. Applying Noorkoiv v SSHD [2002] 1 WLR 3284, the review should have occurred on or as soon as reasonably practicable after tariff expiry. The right to a speedy review is freestanding: breach does not itself make detention unlawful.
2. The Secretary of State’s late referral caused a one-year delay and breached Article 5(4). The Parole Board’s failure to progress the referral caused a further one-year delay and also breached Article 5(4). The court rejected the submission that every administrative failure or departure from the Board’s own efficiency standards necessarily constitutes a breach.
3. The later adjournment was lawful. The Board was entitled to await further substance-misuse work and reports where those matters were materially connected with dangerousness and a comparatively short delay would produce a more reliable review. The absence of certain reports or a risk-management plan did not establish a further breach.
4. An eighteen-month interval between reviews does not necessarily breach Article 5(4). The legality of the interval depends on the circumstances and reasons for it. The longer the interval, particularly beyond one year, the clearer the justification must be. The proposed review date was reasonably based on further work, assessment and preparation required by the Board.
5. A declaration was sufficient in many cases, but not here. The two-year delay, the effective doubling of the tariff, the claimant’s mental illness and the prolonged uncertainty justified modest damages for distress and frustration. The claimant did not establish that an earlier review would have led to release or transfer to open conditions. Damages of £1,200 were awarded, divided equally between the defendants.
6. The challenge to the next review date was dismissed, although the review was not to be further delayed.