Youngsam, R (On the Application Of) v The Parole Board

A person lawfully sentenced to a determinate term of imprisonment generally cannot rely on Article 5(4) to challenge detention during that term. A broader principle stated obiter by the Supreme Court may nevertheless be binding on inferior courts where the Supreme Court clearly intended it to govern future cases.

The Parole Board owes a common-law duty to decide matters affecting liberty within a reasonable time. The assessment is fact-sensitive. Modest delays in a reasonably managed process will not necessarily constitute unlawfulness. A policy timetable is relevant but does not automatically create a presumption of irrationality. The Board’s substantive assessment of risk is challengeable only on ordinary public-law grounds.

The claimant had been sentenced to 18 years’ imprisonment and released on licence. Following a second recall for breach of a licence condition, he challenged delays before an oral hearing and the Board’s refusal to direct his release.

He argued that the delay engaged Article 5(4), breached the common law, and that the Board’s risk assessment was inadequately reasoned. The central issues were whether the broader principle stated in R (Whiston) v Secretary of State for Justice was binding despite being obiter, whether the delay was unlawful, and whether the Board’s substantive decision was susceptible to judicial review.

1. The claim failed in its entirety. The broader principle stated by the majority in R (Whiston) v Secretary of State for Justice was strictly obiter because the Supreme Court only needed to decide the position under the home detention curfew scheme. Nevertheless, the Supreme Court had clearly and emphatically intended the principle to govern cases involving determinate sentences. Inferior courts were therefore required to follow it.

2. Accordingly, a person lawfully sentenced to a determinate term by a competent court cannot ordinarily challenge detention during that term under Article 5(4). The court rejected the attempt to revive the contrary approach in R (West) v Parole Board and R (Black) v Justice Secretary. West had been treated in Whiston as per incuriam on this issue, while the relevant observation in Black was obiter and wrong.

3. The common law independently protects human rights and imposes a duty on the Parole Board to act within a reasonable time when deciding matters affecting liberty. The standard is more stringent where liberty is at stake, but not every administrative error or departure from an ideal timetable is unlawful. Allowance must be made for modest delays in reasonably managed processes.

4. The timetable in Prison Service Instruction 30/2014 was relevant, but it was a NOMS policy and did not bind the Parole Board. It did not have quasi-regulatory status, and breach did not automatically establish irrationality. Although the Board could have progressed the matter more proactively, the delay was not sufficiently serious to breach the common-law duty.

5. The Board was entitled to rely on the claimant’s inconsistent and implausible explanations for being in Brent and to infer a continuing risk of violence or reprisal. Its reasons were intelligible, sufficient and supported by the evidence. The substantive challenge therefore disclosed no arguable public-law error.

First-instance judicial review proceedings in the Administrative Court. No earlier decision in the same litigation is stated.