Morales, R (on the application of) v The Parole Board & Ors

Article 5(4) requires a fact-sensitive assessment of whether the relevant decision-maker acted with proper expedition and avoided undue delay. Internal targets do not themselves determine compliance. A Parole Board may constitute a court for Article 5(4) purposes even though it lacks power to compel disclosure or witnesses, provided it can decide the lawfulness of detention and order release, and adequate procedural machinery exists elsewhere. Delay caused by the Secretary of State’s failure to refer a recall promptly, and by the Board’s failure to list and process the review, may breach Article 5(4). Delay in obtaining disputed evidence does not necessarily do so where the case requires wider investigation and the evidence would not have led to earlier release.

The claimant was recalled to prison after alleged breaches of his licence conditions and behaviour during a sex-offender programme session. The Parole Board ultimately ordered his release, but the claimant sought declarations that his detention had not been reviewed speedily as required by Article 5(4) of the ECHR.

He alleged delay by the Secretary of State, the Parole Board and the Staffordshire Probation Service. He also argued that the Board was not an independent court because it lacked direct powers to compel disclosure of a DVD recording and the attendance of witnesses. The issues were whether the various periods of delay breached Article 5(4), and whether the Board’s procedural powers were structurally inadequate.

1. Delay. Article 5(4) required the defendants to act with proper expedition. The assessment was fact-sensitive. The Secretary of State breached the claimant’s rights by failing to refer the recall dossier to the Board within seven days of recall, resulting in culpable delay from 2 March to 10 April 2007.
2. The Board breached Article 5(4) by failing to arrange the paper review with proper expedition. In light of the earlier delay and the presumption in favour of re-release recognised in R (Sim) v Parole Board [2004] QB 1288, the review should have occurred by 24 April 2007. The Board was responsible for the further delay from 12 May to 2 July 2007 after the case was mislaid.
3. The remaining delays did not breach Article 5(4). The case required evidence about matters beyond the recorded programme session, including the claimant’s wider conduct, risk and alleged licence breaches. The DVD was not the sole or decisive issue, and earlier production would not have resulted in earlier release.
4. Board’s status. The Parole Board was a court for Article 5(4) purposes. It had power to decide the lawfulness of detention and order release. Article 5(4) did not require every procedural power to be vested in the same body. The requirements of independence and procedural fairness were context-sensitive.
5. There was adequate machinery under CPR Part 34 for obtaining witness summonses and documents, including a DVD. The Board therefore satisfied the structural requirements of Article 5(4), notwithstanding its lack of direct enforcement sanctions. The powers issue was dismissed. Remedies for the established breaches were reserved.