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

An indeterminate sentence prisoner is entitled to a reasonable opportunity, assessed fact-sensitively and by reference to the totality of the custodial term, to demonstrate by tariff expiry or reasonably soon afterwards that detention is no longer necessary. Failure to meet a Parole Board timetable does not itself establish breach. Guidance making a prisoner eligible for referral up to three years before tariff expiry does not prescribe three years in open conditions or fix the date of transfer. The court must assess the prospective overall position and ask whether any earlier failure remained uncorrected so as to deprive the prisoner of the requisite opportunity. A prisoner who had about two years in open conditions, without evidence that this was insufficient, was not deprived of that opportunity.

The claimant was serving an indeterminate sentence with a tariff expiring on 19 August 2017. The Secretary of State referred his case to the Parole Board for advice on transfer to open conditions, but the oral hearing took place about six months outside the timetable in the Parole Board Rules 2011. The claimant was transferred to open conditions about two years before tariff expiry but was later returned to closed conditions.

The Administrative Court upheld the claim, granted declaratory relief and awarded damages: [2016] EWHC 288 (Admin). The Parole Board appealed. The central issue was whether the delay deprived the claimant of a reasonable opportunity to demonstrate that continued detention was no longer necessary.

The appeal was allowed. The order of Hickinbottom J was set aside. The claimant was not entitled to declaratory relief or damages.

1. The court accepted the framework derived from R (James and Ors) v Secretary of State for Justice [2009] UKHL 22 and R (Kaiyam and Haney & Others [2014] UKSC 66. The ancillary duty to provide a reasonable opportunity to rehabilitate and demonstrate reduced risk is highly fact-sensitive. The assessment must consider the entire custodial term and the prospective position at tariff expiry, or reasonably soon afterwards. An isolated delay does not necessarily establish breach. The relevant question is whether the failure remained uncorrected so as to deprive the prisoner of the requisite opportunity.
2. The judge had misconstrued PSI 36/2012. Its reference to eligibility for referral to the Parole Board up to three years before tariff expiry concerned referral eligibility, not transfer to open conditions. Neither that guidance nor the Parole Board Rules 2011 required a minimum three-year period in open conditions. PSI 40/2011 stated that two years was generally the maximum period in open conditions, without creating a fixed two-year rule.
3. The Secretary of State’s referral letter did not identify the requisite period in open conditions or require immediate transfer. The Secretary of State could prioritise prisoners and available places, provided that any accepted recommendation was implemented without unreasonable delay and without depriving the prisoner of a reasonable opportunity.
4. The cases of Haney and Massey in Kaiyam and Haney were materially distinguishable. Robinson illustrated that a failure at one stage does not compel a finding of overall deprivation. The approach in R (Dunn) v Governor of HMP Frankland Prison [2015] EWHC 858 (Admin) supported a totality assessment rather than a snapshot approach.
5. The claimant had been transferred to open conditions about two years before tariff expiry and produced no evidence that this period was inadequate. The failure to comply with the timetable had therefore not deprived him of a reasonable opportunity, and the ancillary duty was not breached. The court expressed no concluded view on the separate Strasbourg argument.

• Court of Appeal (Civil Division): allowed the Parole Board’s appeal and set aside the order granting declaratory relief and damages.
• High Court of Justice, Queen’s Bench Division, Administrative Court: upheld the claim and granted declaratory relief with damages: [2016] EWHC 288 (Admin).