Hussain, R (on the application of) v The Parole Board of England and Wales

The state must provide and operate systems giving indeterminate sentence prisoners a reasonable opportunity to demonstrate, at tariff expiry or reasonably soon afterwards, that they no longer pose an unacceptable danger to the public. That duty concerns both adequate resources and the administration of the system. It may be breached by systemic delay in Parole Board hearings, even before tariff expiry, where the delay deprives a prisoner of the opportunity which the Secretary of State has identified as necessary for progression towards release.

The ancillary duty under article 5 of the ECHR protects the individual prisoner’s reasonable opportunity. It is distinct from the common-law systems duty and focuses on opportunity rather than proof of an earlier release date. Resource constraints and reasonable remedial steps do not answer an established breach.

The claimant was serving detention during Her Majesty’s pleasure following a murder conviction, with a 12-year tariff. About three years before tariff expiry, the Secretary of State referred his case to the Parole Board for advice on transfer from closed to open conditions.

The case was ready for an oral hearing in September 2014, but lack of panel capacity caused a delay of about six months. The hearing eventually took place in May 2015, after which the Board recommended transfer and the Secretary of State accepted the recommendation. The claimant challenged the delay under article 5 of the ECHR and at common law.

The central issue was whether systemic delay in listing the pre-tariff hearing deprived him of a reasonable opportunity to rehabilitate in open conditions and demonstrate reduced risk by tariff expiry.

1. Claim allowed. The Board’s practice of routinely delaying oral hearings because of insufficient panel capacity was unlawful. The delay caused the claimant’s transfer to open conditions to be postponed by about six months.

2. The common-law duty identified in James and developed in Kaiyam required the state to provide and operate systems and resources giving indeterminate sentence prisoners a reasonable opportunity to demonstrate to the Board, at tariff expiry or reasonably soon afterwards, that they no longer presented an unacceptable danger to the public. The duty extended to systemic failures in the administration of the parole process, not merely to funding.

3. The Secretary of State had defined what constituted a reasonable opportunity in this context through the Parole Board Rules 2011 and related policy. Where an appropriate pre-tariff case was referred, the timetable was designed to secure a hearing within 26 weeks and transfer to open conditions at or reasonably shortly after the point three years before tariff expiry. The Board could vary an individual timetable where fairness or the prisoner’s interests required it, but could not operate a practice involving wholesale delay from general lack of capacity.

4. The ancillary article 5 duty, identified in Kaiyam (SC), was an individual right to a reasonable opportunity to rehabilitate and demonstrate reduced risk. It existed throughout detention and was fact-sensitive. It was concerned with opportunity, not proof that the prisoner would in fact have been released earlier. The claimant had been left with about 30 months in open conditions rather than the approximately three years regarded by the Secretary of State as necessary. The breach had not been corrected.

5. Resource constraints, reasonable steps to address the backlog, and the absence of proof that release would have occurred earlier did not provide a defence. The same systemic failure breached both the common-law duty and the claimant’s ancillary article 5 right. The rationality and policy grounds added no material substance.

6. The claimant was entitled to declaratory relief. Any damages were to be assessed by reference to legitimate frustration and anxiety, applying the principles in Faulkner and Sturnham. The wider declaration and mandatory order requiring proposals for a new parole system were refused because such relief was exceptional and the court was not equipped to supervise the lawful design or management of the system.

First-instance judicial review. The judgment does not state any prior decision in the same proceedings.