Guntrip v Parole Board of England and Wales & Anor

Post-tariff detention must be reviewed at regular intervals and with appropriate expedition. A decision cancelling a pending Parole Board referral must be exercised fairly, compatibly with Article 5(4), and with regard to the effect on the Board’s jurisdiction. Fairness does not require an oral hearing merely because a prisoner requests one. The question is fact-specific. Prospects of release, disputed evidence, the need to investigate issues, and the material before the Board are relevant, although no single factor is determinative. Where the evidence of continuing risk is consistent, progress is insufficient, and no concrete challenge to the evidence is advanced, a paper review may be fair. Delay does not make IPP detention arbitrary where the Parole Board remains able to assess dangerousness and the prisoner’s continued detention remains causally connected with the protective purpose of the sentence.

The claimant was serving an imprisonment for public protection sentence imposed in 2005. His punitive minimum term expired in July 2007, but the Parole Board continued to regard him as presenting a significant risk of serious harm.

Following earlier judicial review proceedings, a further review was delayed. A scheduled hearing was cancelled after the claimant was transferred to hospital under the Mental Health Act 1983. A paper review in August 2012 led to a provisional decision that he was unsuitable for release, and the Board refused his request for an oral hearing in September 2012.

The claimant challenged the refusal of an oral hearing, delays in reviewing his detention, the alleged arbitrariness of continued detention, and alleged discrimination following changes to the sentencing regime and arrangements for foreign national prisoners.

1. Delay and cancellation. Article 5(4) required regular and speedy review of the claimant’s post-tariff detention. The cancellation of the August 2011 hearing was unlawful and unfair. It was taken without consultation, deprived the Board of continuing jurisdiction if the claimant returned to prison, was made before the medical assessment was complete, and required the review process to begin again. The cancellation caused substantial avoidable delay.
2. The Board was entitled to allow a reasonable opportunity for representations, but its further adjournments in 2012 were excessive in the circumstances. The later administrative failure to list the next hearing before the expiry of the two-year review period caused a further breach of Article 5(4).
3. Oral hearing. Applying R (Osborn) v Parole Board, fairness is fact-specific. Prospects of release or progression, disputed issues of fact or opinion, and the need to test evidence may point towards an oral hearing. However, a prisoner’s request alone is insufficient. The evidence showed continuing high risk, little progress, no effective challenge to the reports, and no alternative evidence or management plan. The refusal of an oral hearing in 2012 was therefore lawful.
4. Arbitrariness and discrimination. The claimant’s detention remained lawful under Article 5(1). The Board remained able to assess dangerousness, and the claimant’s failure to progress resulted principally from his unwillingness to engage with recommended assessment and treatment, rather than the absence of courses. The changed sentencing regime did not require the Board to anticipate or apply a different regime. The discrimination grounds failed because the proposed comparators were not in analogous positions.
5. The claim therefore succeeded only in establishing Article 5(4) delay. The court awarded £2,500 damages, apportioned 30 per cent against the Parole Board and 70 per cent against the Secretary of State. Costs were reserved for written submissions.

Not an appeal. The judgment records earlier judicial review proceedings in which R (Guntrip) v Parole Board resulted in a declaration and damages: [2010] EWHC 3188 (Admin).