Dixon, R (On the Application Of) v The Secretary of State for Justice

The article 5.4-analogous duty owed to an indeterminate-sentence prisoner is assessed by examining the overall period and process leading to the next parole review, rather than isolating one delayed step. The assessment is fact-sensitive and must allow for the prisoner’s history and prognosis, risk, competing demands, available resources and opportunities already provided. The court should not demand perfection from a prison system, but must scrutinise specific and continuing resource shortages and whether reasonable preventive steps could have been taken. Short-term staffing difficulties may therefore be relevant, although systemic or egregious under-resourcing will not necessarily be excused. A culpable delay of approximately three to three-and-a-half months did not, viewed in the round, breach the duty in this case.

The claimant, a former prisoner at HMP Manchester, sought judicial review and damages for delay in obtaining a psychological assessment and report recommended by the Parole Board in September 2013. He alleged breach of public law duties and the analogous duty under article 5.4 of the European Convention on Human Rights, claiming that the delay postponed his release on licence.

Permission had initially been refused on the papers. On oral renewal, His Honour Judge Raynor QC granted permission on the first ground. The central issue was whether the overall time taken to complete the assessment, intervention work and preparation for a further parole review was unreasonable and unjustified.

1. Claim dismissed. The article 5.4-analogous duty was considered first because, on the claimant’s concession, the public law claim could not succeed if that claim failed.
2. Under R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, the duty is an individual, fact-sensitive duty to provide a reasonable opportunity for rehabilitation and demonstration of reduced risk. It does not require proof of systemic failure, Wednesbury unreasonableness or failure to follow an established policy. The court must consider the matter overall, including the prisoner’s history and prognosis, risks, competing needs, resources and use of opportunities already provided. Standards of perfection are inappropriate.
3. The court accepted that the relevant comparison was between what ought reasonably to have happened and what actually happened. The inquiry therefore concerned the complete sequence leading to a parole review, not simply the delay in producing the psychological report. The originally anticipated 12-month period was unreasonable, and the defendant had a continuing duty to reconsider the timetable as circumstances changed.
4. Resource constraints were relevant in assessing the individual duty. However, a specific or continuing shortage required careful examination, including whether reasonable preventive measures could have been taken. The defendant had not shown that it took prompt, proactive steps to address the staffing problem. Nevertheless, the difficulties were short to medium term rather than systemic, endemic or egregious. Some allowance was permissible for those difficulties and for the need to prioritise other prisoners.
5. The defendant was entitled, in the circumstances, to require its own psychologist to assess the claimant, while taking account of an independent report. There was no clear assurance that the external report would be accepted in substitution, and no permission had been granted to pursue legitimate expectation.
6. Although there was culpable delay of approximately three to three-and-a-half months, the overall period was not unreasonable or unjustified. The analogous article 5.4 duty was therefore not breached. There was likewise no systemic failure, irrationality, Wednesbury unreasonableness or failure to apply established policy.

The judge stated obiter that, had the claim succeeded, a declaration and damages would have been appropriate, including damages reflecting the established causal connection with delayed release.

Permission was refused on the papers. High Court (Administrative Court): on oral renewal, permission was granted on the first ground by His Honour Judge Raynor QC. The substantive claim was then dismissed.