Dixon, R (on the application of) v The Secretary of State for Justice

Delay in providing a psychological assessment needed before a Parole Board review engages the ancillary duty under the overall scheme of European Convention on Human Rights Article 5. It does not ordinarily engage the express Article 5(4) duty of speedy access to the Board. Compliance requires a reasonable opportunity assessed individually and realistically, including consideration of risks, competing prisoners, available resources and rehabilitative opportunities. A culpable delay may still fall short of breach. Long-term, systemic or egregious failure is not a legal threshold, although the circumstances may be relevant to culpability.

The appellant was a life prisoner who was recalled to custody after a previous release on licence. Following his acquittal on further criminal charges, the Parole Board recommended a psychological assessment before reconsidering release or transfer to open conditions.

The appellant alleged that delay in obtaining the assessment delayed his release and breached the European Convention on Human Rights and public-law duties. The High Court accepted that there had been culpable delay of about three to three and a half months and a causal connection with the later release, but dismissed the claim: [2015] EWHC 2712 (Admin). The appeal concerned whether the delay breached Article 5(4), and whether the judge had imposed an impermissible requirement of long-term, systemic or egregious failure.

In the judgment of Henderson LJ, with which the Senior President of Tribunals and Rafferty LJ agreed:

1. Disposition. The appeal was dismissed on the first ground. Permission to appeal on the second ground was refused.
2. Characterisation of the duty. Article 5(4) concerns speedy access to the Parole Board for review of the lawfulness of detention. It does not govern the prior provision of courses, facilities or a psychological assessment needed to generate information for that review. Delay at that prior stage engages the ancillary duty to facilitate progress towards release, as explained in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] AC 1344.
3. Applicable assessment. The ancillary duty requires an individual prisoner to receive a reasonable opportunity, reasonable in all the circumstances, to rehabilitate and demonstrate that he no longer presents an unacceptable danger. The assessment is individual and realistic. Relevant matters include the prisoner’s history and prognosis, the risks presented, competing needs of other prisoners, available resources and the use made of rehabilitative opportunities. The duty does not require maximum provision or standards of perfection. Resource difficulties may be considered, but a specific shortage, particularly if ongoing, requires careful examination of whether reasonable preventive steps could have remedied it.
4. Application. The High Court was entitled to treat the three to three and a half month delay as culpable without finding a breach. It could take account of short-to-medium-term staffing difficulties, competing priorities, the appellant’s own efforts through the Thinking Skills Programme and an external assessment, and the legitimate need for an internal assessment given his history and previous return to custody. Its conclusion disclosed no error of approach.
5. Public law and ground 2. Reliance on the general public-law duty added nothing to the Article 5 ancillary duty; it was unnecessary to establish systemic failure, Wednesbury unreasonableness or failure to apply an established policy. Those matters were not legal hurdles under the ancillary duty. They were merely part of the evaluative context in assessing culpability.

• Court of Appeal (Civil Division): Appeal dismissed on ground 1 and permission to appeal on ground 2 refused: [2017] EWCA Civ 961.
• High Court of Justice, Administrative Court: Claim dismissed. The court found culpable delay of approximately three to three and a half months and a causal connection with the delayed release: [2015] EWHC 2712 (Admin).