Bowen & Anor, R (On the Application Of) v Secretary of State for Justice

Where the Parole Board directs release subject to residence at specified Approved Premises, the Secretary of State’s duty to release does not arise until that condition can be fulfilled. The Secretary of State must nevertheless take reasonable steps to implement the direction within a reasonable time. Continued detention remains lawful unless domestic public law standards are breached or the Article 5 causal connection with the conviction is lost through an extreme failure of the review or release system. The statutory duty to make sufficient provision for probation purposes, including Approved Premises, is a high-level duty which does not confer an individual right to particular accommodation. Resources and policy choices are relevant to compliance. On the evidence, there was no systemic insufficiency of Approved Premises and the delays were reasonable.

The claimants were serving indeterminate sentences and had each completed the relevant tariff period. The Parole Board directed their release because detention was no longer necessary for public protection, subject to licence conditions requiring residence at Mandeville House Approved Premises. Mr Bowen waited 69 days and Mr Stanton waited 118 days before a place became available.

They challenged the intervening detention under section 28 of the Crime (Sentences) Act 1997, Article 5 of the European Convention on Human Rights, and an alleged public law duty to provide sufficient Approved Premises. The central issues were whether release was required immediately after the Parole Board’s direction, whether the delay made detention unlawful, and whether the statutory provision of Approved Premises was inadequate.

1. Section 28. Section 28(5) required the Secretary of State to implement the Parole Board’s release direction, but section 28 operated together with section 31(3). A direction to release included the licence conditions attached to it. Where residence at specified Approved Premises was a condition, the duty to release arose when that condition was capable of fulfilment, not immediately upon the direction: [35]-[40].
2. The Secretary of State nevertheless had to take reasonable steps to secure compliance with the specified conditions within a reasonable time. That obligation arose from ordinary domestic public law duties to operate a proper system, act reasonably and apply established policy, as explained in R (Kaiyam) v Justice Secretary [2015] AC 1344. Neither delay was unreasonable on the evidence: [41]-[47].
3. There was no breach of Article 5(1). Detention pending availability of the specified Approved Premises retained a sufficient causal connection with the conviction and was not arbitrary. The exceptional qualification identified in R (Kaiyam) v Justice Secretary and R (James, Lee and Wells) v Justice Secretary [2010] 1 AC 553 required a complete or extreme breakdown of the relevant system, which was not shown: [49]-[54].
4. The proposed ancillary Article 5 duty to provide Approved Premises was rejected. The duty recognised in R (Kaiyam) v Justice Secretary concerned facilities enabling prisoners to demonstrate reduced risk before release. It could not simply be extended to require the State to provide post-release accommodation for every prisoner whose risk could be managed in the community: [55]-[60].
5. No implied James public law duty arose in relation to Approved Premises. Parliament had expressly addressed the subject in sections 1, 2 and 13 of the Offender Management Act 2007. Section 2 imposed a general duty to make sufficient provision throughout England and Wales; it did not confer an individual right to a particular placement, and resources were relevant to its assessment: [63]-[71].
6. The evidence did not establish systemic insufficiency or breach of section 2. Although there were local pressures and individual delays, the national provision was sufficient. The claims for judicial review were dismissed: [72]-[81].